Criminal Justice in America

DOCUMENT RESUME

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AUTHOR Hayes, Bill, Ed. TITLE Criminal Justice in America. Third Edition. INSTITUTION Constitutional Rights Foundation, Los Angeles, CA. SPONS AGENCY Department of Justice, Washington, DC. Office of Juvenile Justice and Delinquency Prevention. ISBN ISBN-1-886253-12-9 PUB DATE 2000-00-00 NOTE 324p.; For the related Teacher's Guide, see SO 032 532. Developed by Marshall Croddy, Bill Hayes, and Todd Clark. CONTRACT 85-JS-CX-0007 AVAILABLE FROM Constitutional Rights Foundation, 601 South Kingsley Drive, Los Angeles, CA 90005; Tel: 213-487-5590; Web site: (www.crf-usa.org). PUB TYPE Collected Works General (020) EDRS PRICE MF01/PC13 Plus Postage. DESCRIPTORS *Civil Rights; *Correctional Institutions; *Crime; Crime Prevention; *Criminal Law; Equal Protection; *Juvenile Justice; *Law Enforcement; Law Related Education; Social Studies IDENTIFIERS *Criminal Justice; Criminal Prosecution

ABSTRACT This book, a comprehensive and interactive introductory text on criminal justice, consists of six units:(1) Crime: covers victims' rights, gangs, violent crime, white-collar crime, elements of crimes, legal defenses, methods for measuring crime, hate crime, computer crime, and a history of crime in the United States;(2) Police: explores local police, attitudes toward police, community policing, criminal investigation, search and seizure, "Miranda," the exclusionary rule, racial profiling, corruption, use of force, policing the police, and an history of law enforcement;(3) The Criminal Case: examines courts, judges, and lawyers and explores a hypothetical criminal case from arrest through trial;(4) Corrections: looks into sentencing, prisons, alternatives to prison, capital punishment, theories of punishment, history of corrections, and debates such as those over mandatory-minimums and the high number of imprisoned persons; (5) Juvenile Justice: explores the separate system for juveniles and examines delinquency, status offenses, steps in a juvenile case, rights of juveniles, juvenile corrections, waiver to adult court, the death penalty, how the system developed, and current controversies; and (6) Solutions: looks at debates over the causes of crime, racism in the justice system, crime in schools, vigilantism, policy options to reduce crime and to make the system more just, and options for individual citizens. Appendices contain excerpts from the U.S. Constitution, a glossary, and a table of cases cited. (BT)

Reproductions supplied by EDRS are the best that can be made from the original document. 0 0 71- A

Criminal Justice in America. Third Edition.

Hayes, Bill Croddy, Marshall Clark, Todd

Constitutional Rights Foundation, Los Angeles, Calif.

U.S. DEPARTMENT OF EDUCATION Office of Educational Research and Improvement EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC) This document has been 'reproduced as received from the person or organization originating it. 0 Minor changes have been made to improve reproduction quality.

Points of view or opinions stated in this document do not necessarily represent official OERI position or policy.

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A CRIMINAL JUSTICE INAMERICA

THIRD EDITION

Developed by

Marshall Croddy Bill Hayes Todd Clark Constitutional Rights Foundation 601 South Kingsley Drive Los Angeles, California 90005 (213) 487- 5590 www.crf-usa.org

MARJORIE S. STEINBERG President, Constitutional Rights Foundation

JEROME C. BYRNE Chairman, Publications Committee Constitutional Rights Foundation

TODD CLARK Executive Director

Developed by Subject Matter Consultants Marshall Croddy, Bill Hayes, Todd Clark Richard Chrystie, Former Deputy District Attorney, Los Angeles County Editor Star French, Deputy Probation Officer, Bill Hayes Los Angeles County John Hud, Criminal Defense Attorney, Bozeman, Contributing Writers Montana Bill Hayes, Marshall Croddy, Teri Engler, Sandy Daniel E. Lewis, Wasserman, Comden & Kanengiser, Carlton Martz, Betsy Salzman, Casselman, LLP Coral Suter, Charles Tremper, Eden Kusmiersky Robert Mascali, Director of Claims, New York State Crime Victims Board Principal Staff and Reviewers Julia Rider, Luce, Forward, Hill _Pifer & Mangels Todd Clark, Executive Director Richard Simonian, Superintendent, C.K Wakefield Carolyn Pereira, Executive Director, Chicago School, Fresno County Probation Department Constitutional Rights Foundation Captain Robert Taylor, Commanding Officer, Juvenile Division, Los Angeles Police Department Board Reviewers Jerome C. Byrne, Gerald Chaleff, Lee Edmond, Production Peggy Saferstein, Marvin Sears, Lois Thompson, Andrew Costly, Designer and Production Manager and Carlton Varner. Navigator Press, Printing

Library of Congress Cataloging-in-Publication Data Criminal Justice in America / developed by Marshall Croddy, Bill Hayes, Todd Clark ; [contributing writers, Bill Hayes... etal.). 3rd ed. p. cm. Includes index. ISBN 1-886253-12-9 (pbk. : alk. paper) 1. Criminal justice, Administration ofUnited States. I. Croddy, Marshall. II Hayes, Bill. III Clark, Todd, 1933-

HV9950.C745 2000 364.973dc21 00-060237

© 2000, 1998, 1993, 1991, 1983 by Constitutional Rights Foundation. Third Edition. All rights reserved. No part of this book may be reproduced, in any form or by any means, without written permission. Printed in the United States of America. The development of these materials was financially assisted through the United States Office of Juvenile Justice and Delinquency Prevention, Grant #85- JS-0C-0007. CRIMINAL JUSTICE IN AMERICA Table of Contents

INTRODUCTION 5 Chapter 7: The Limits of Police Authority Racial Profiling 98 UNIT 1: CRIME 7 Police Corruption 100 Chapter 1: Crime and its Victims Use of Force 103 Who Are the Victims? 8 Policing the Police 106 Victims of Violent Crimes 8 You and the Police 112 Victims of Property Crimes 11 Helping Victims of Crime 13 UNIT 3: THE CRIMINAL CASE. .113 The Push for Victims' Rights 16 History of Violent Crime in America 19 Chapter 8: Courts and the Case Process How Much Crime Is There? 24 The Two Systems of Criminal Courts .. 114 Judges and Judicial Independence 115 Chapter 2: Who Are the Criminals? Criminal Lawyers 117 Youth, Gangs, and Violence 27 The Criminal Case Process 120 Swindlers and Con Artists 33 Using This Unit 122

Chapter 3: Crime and Defenses Chapter 9: Investigation and Arrest 37 The Basics of Crime Arrest 124 Ingredients of a Crime 38 Police Crime Investigation Report 124 Murder Most Foul 40 State Criminal Code 126 No Honor Among Thieves 42 In the Defense of Thomas Carter 127 Hate Crimes 45 Cybercrime 49 Chapter 10: Pretrial Legal Defenses to Crime 51 First Appearance Before a Judge 129 The Question of Bail 129 UNIT 2: THE POLICE 57 Prosecutorial Review 130 Plea Bargaining 135 Chapter 4: Police and Society Probable Cause Hearing 137 A Question of Attitude 58 Carter's Probable Cause Hearing 137 From Citizen Volunteers to Professional Arraignment 138 Police 60 An Issue at the Arraignment 139 Chapter 5: Methods and Investigations Local Police 65 Chapter 11: Trial Community Policing 68 Trial Procedures 141 Criminal Investigations 71 Cast of Characters 142 Crime Labs 74 The Trial of Thomas Carter 144 Jury Selection 145 Chapter 6: Police and the Law Trial Strategy 149 Criminal Procedure 77 Opening Statements 151 The Law of Search and Seizure 78 Direct and Circumstantial Evidence . . 152 Has a Search or Seizure Taken Place? 78 Rules of Evidence 153 Is the Search or Seizure Reasonable? 81 Closing Statements 162 Motor Vehicle and Other Exceptions. .84 Instructing the Jury 163 Interrogation and Confessions 88 The Exclusionary Rule 94 UNIT 4: CORRECTIONS 167 Chapter 19: Children and the Constitution The Rights of Juveniles 239 Chapter 12: Corrections and Society School Searches 246 The Purpose of Punishment 168 A Brief History of Punishment Chapter 20: Juvenile Corrections in the United States 170 Options for Placing Juveniles Sentencing 172 Offenders 247 Problems With Locking Up Juveniles.. 250 Chapter 13: Current Debates At Home Plus 251 Are T o o Many People Behind Bars?....179 The Question of Waiver 252 Do Some Mandatory-Minimum Sentences Wayne Thompson and the Violate the Eighth Amendment? 183 Death Penalty 255 Are Federal Drug-Sentencing Laws Thompson v. Oklahoma (1988) 256 Unfair to Blacks? 184 International Challenges to the Death Penalty 258 Chapter 14: Alternatives to Prison Current Trends and Controversies 260 The Need for Alternatives 188 Fines 188 Probation 189 UNIT 6: SOLUTIONS 263 Revoking Probation 192 Chapter 21: The Causes of Crime Community Service 196 Theories and Approaches 264 Community Corrections 197 Social and Cultural Factors 264 Individual and Situational Factors 267 Chapter 15: Prisons Today Prison in America 201 Chapter 22: Crime and the Government Prison Revolts 205 The Role of Government 271 Parole 208 Crime and the Federal Government... 271 Staying Out of Prison 211 Federal Policy: Civil Forfeiture 273 Federal Policy: Gun Control 277 Chapter 16: Capital Punishment An Attack on Crime: The State Level.. 280 History of the Death Penalty The New Role of State Supreme in America 212 Courts 285 Public Opinion on the Death Penalty.. 218 The Color of Justice 285 Recent Developments in Capital Punishment 218 Chapter 23: Crime and the Citizen

Getting Involved in Fighting Crime... 291 Vigilantes in American History 291 UNIT 5: JUVENILE JUSTICE....223 Crime in the Schools 295 Chapter 17: From Criminal to Delinquent Burglary Prevention 299 History: Children and the Law 224 A Conclusion on Crime 308 From the Criminal to Delinquent 227 Different Worlds 230 APPENDIX Excerpts From the U.S. Constitution. .311 Chapter 18: The Problem of Delinquency Glossary 314 What Is Delinquency? 231 Table of Cases 317 A Tour of the System 232 Credits 318 Initial Detention of Juveniles 234 Index 319

7 Introduction

No matter who you are, crime affects your trial, verdict, and sentencing of a criminal life. As a student, your school might be defendant. It is the process by which we decide vandalized or your wallet stolen. Statistically, the what, when, where, how, and who ques- chances are very good that sometime in your tions of criminal justice. life you will be a victim of some crime. As a Criminal procedure is also designed to future taxpayer, you will be forced to con- protect a defendant from being falsely accused tribute money in the fight against crime or to or convicted of a crime. The U.S. Constitution repair the damage it does. As a voter, you will requires "due process of law," offers protection be asked to choose candidates based in part, at from "unreasonable searches and seizures," least, on their view about solutions to crime. and forbids "cruel and unusual punishment." Everyone agrees that crime is a serious prob- These, and many other constitutional provi- lem.Fewagreeaboutitscausesor sions, have done much to shape our criminal solutions.Although the debate over the causes procedure. and solutions to crime will probably never Criminal procedure has other functions end, society has evolved a criminal justice sys- also. Rules of court attempt to assure an order- tem for dealing with crime. Essential to an ly and consistent decision-making process. understanding of this system are two areas of Rules of evidence are designed to ensure that jurisprudence. These are called criminal law the facts of the case are relevant, accurate, and and criminal procedure. not overly prejudicial. There are also rules of conduct for judges, lawyers, and juries.Like Criminal Law criminal law, criminal procedure is ever-chang- Criminal law focuses on defining crime ing. Legislators enact new laws, judges and itself. That is, for what conduct or behavior courts adopt new rules, and the Supreme does our society punish people? After all, if Court interprets and applies the Constitution. society had no standards for human behavior, we would not have any crime, let alone a crime Criminal Justice problem.Today, our criminal law is contained This book will have a lot to do with crim- in a wide array of statutes and ordinances inal law and procedure. They are important enacted by federal, state, county, and city gov- parts of criminal justice. Yet there is much, ernment. Each law spells out the ingredients of much more to consider. Criminal justice also the crime in question and the punishment for involves people, institutions, and important those who break it.The process of defining and societal issues. Perhaps even more importantly, applying criminal law never stops. Legislatures it raises vital questions in each of us about fair- repeal out-of-date laws, modify existing laws, ness, security, and rights in a free society.As and enact new ones. Criminal trial courts you explore the selections in this book, you interpret the meaning of various laws and will meet the people who investigate crime and apply them to particularcases. Criminal enforce our laws. You will learn about judges appeal courts check the decisions of trial and courts and their struggle to protect indi- courts and set precedents for other trial courts vidual rights while determining guilt or inno- to follow. Thus the body of criminal law keeps cence. You will see the darker side of thecrim- changing. inal justice system and find out how society deals with people after they have been found Criminal Procedure guilty beyond a reasonable doubt. You will Criminal procedure comes into play when visit prisons and prisoners, guards, and parole the policestartinvestigating aparticular officers, and in doing so you will discover the crime. It focuses on the steps taken and deci- problems they face on a daily basis. sions made in the investigation, accusation, 0 Unit 1: Crime 5 The Problem of Crime Beyond criminal law and procedure and Criminal Justice in America on the system that investigates, apprehends, and the Internet punishes lawbreakers, you will study crime You can find additional informationout itself. Social scientists who take this role are every part of this book on the Internet. Go called criminologists. They try to find answers to Constitutional Rights Foundation's web:. to some very difficult questions. Why do peo- site (www.crf-usa.org), click on Links, and:- ple become criminals? How serious is our click on CriMinal Justice in America Links.. crime problem? How can crime be reduced? Although you won't be a professional criminologist after studying this book, you will have a much better understanding about some of the important issues of criminal justice.

6 CRIMINAL JUSTICE IN AMERICA Friday evening, 9:30 p.m... In an underground parking garage downtown, a young man staggers to a pay phone on the wall and leans:againSt it to hold himself up. Finally he getsthe strength to call 9-14. A few`seconds later, a voice comes on the line.

"Emergency services." "My name is Sam Peterion," The ,man stammers. "I've just beenrobbed." Meanwhile, in a middle-incorne residential area, a young husbandand wife arrive home from a movie. The wife is the first to notice thatthe glass in the back door has been smashed inAnside they find a horrible mess,with furniture tipped over and chinabroken on the floor. The television and stereo are gone. Theyboth start to tremble. A place that they believed was private and safe had been -torn' open and violated. A major crime happens somewhere in America everythree seconds. But this isn't just a statistic. Behind each crime are people: victimswho are hurt, criminals who often live violent and destructive lives, andthose who must deal with the aftermaththe police, social workers, attorneys,judges, and legislators. In this unit, we will examine crime in termsof victims, criminals, and society. What is it like to have yourlife changed in an instant by someone else's wrongdoing? Who are the criminals and why do theydo it? What acts does our society, throughits laws, define as crimes? What must be proved before a person is convictedof a crime? By considering these questions, you willlearn a lot about crimeand its consequences. And you will be able to take anintel- ligent part in a great debate going on in our society:What should we do about crime?

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Unit 1.. Crime 7 CHAPTER 1 Crime and its Victims

Who Are the Victims? studies show that the most common victim of violent crime is a black male teenager from a Suzanne Rossetti, 26, was driving home low-income family. And the most common from thetheaterat Arizona State victim of theft is a white male teenager from University in Phoenix. On the way, she a low-income family. Most studies show that stopped at the market, where she accidentally criminals tend to victimize members of their locked her keys inside her car. Two young own race. men got the door open for her with a coat Being a victim can be deeply disturbing. hanger and then asked her for a lift. She It can take years to recover, and some victims agreed, but once in the car, they turned never recover. This is not just true of violent vicious almost immediately. crime. Fraud can wipe out a victim's life sav- The young men forced Suzanne to drive ings. A bank swindle can take away a home them to her apartment. There they beat and that an elderly couple worked all their lives to raped her for several hours. Then they drove pay for. her into the desert and threw her off a cliff. Crimes against property like fraud, bur- When they heard her moans down below, glary, and theft are the most common crimes they climbed down after her. She pleaded in the United States. Violent crimes such as with them to leave her alone. murder, rape, and robbery are less common. "I'm dying anyway," she begged. But they probably cause more anxiety and "Damn right you are," one of them fear. Violent crime can leave a victim crip- growled. He picked up a rock and crushed her pled, physically or emotionally. It's hard to skull. imagine the effect if it hasn't happened to Shocking stories like these have fright- you. Some victims never want to leave the ened most of us. The streets just aren't safe at safety of their homes again. night. I've had my third car stereo stolen. I hate In the following sections, we will examine putting bars on my windows, but what choice do some victims of violent and property crimes. I have? Opinion polls consistently show that First we will find out what victimologythe Americans express great concern over the study of victimstells us about victims of crime rate and the effectiveness of the crimi- these crimes. Then we'll listen to some victims nal justice system. describe the effect crime had on their lives. Down through the years this concern has sparked many studies of the causes of crime Victims of Violent and many proposals for possible solutions. In recent years, attention has shifted to the vic- Crimes tims of crime. Who are they? How can we help Violent crimes, such as murder, rape, rob- them through the tangle of the legal system? bery, and assault, are also known as crimes What can be done to protect them? And what against the person. In these crimes, the crim- can be done to help them recover from the inal either uses force or threatens to use force effects of the crime? against the victim. Below, we will take a clos- First, who are the victims? They come er look at victims of two kinds of violent from all walks of life and all age groups. But crimerobbery and domestic violence.

8 CRIMINAL JUSTICE IN AMERICA 11 The Robbery Victim The Age of Victims In a robbery, the criminal takes property of Violent. Crime-. by force or by threat of force. In this scary Violent victimization rates for persons age.12 crime, victims can lose their property, suffer and over, by:age-of victims injuries, and even die.Statistically,the chances of being killed are small: Almost 99.8 percent of all robbery victimssurvive. About 91.1 82.4 one-third of all victims suffer injuries, mostly a. minor. Only two percent receive wounds seri- 0 67.3 ous enough to stayovernight in a hospital. Strangely, victims are most likely to be hurt by unarmed robbers, probably because these rob- 41.5 bers often attack their victims to establish control in the robbery. Victims are most likely to be killed, however, by robbers armed with guns. Victims who resist are more likely to be injured or killed thanthose who do not resist. Age 1-fl The most likely victim is a male between 4) 0 the ages of 12 and 24. As a person's age CNI

increases, the likelihood of being robbed Source: Criminal.Victimizationin United States, 1998, Statistical" declines. People over 65 make up the age Tables, Bureau of Justice Statistics (2000) group least likely to berobbed. him What is it like to be robbed? The follow- his wife. When he objected, a guy hit ing is excerpted from a robbery victim's with his gun. I lay there thinking, 'I hope the cops don't comeuntil these guys get outside.' statement. I was afraid of being taken hostage. Harry's Story "They took my wallet, refused my old "My dad and I were walking to meet my watch, and tried and failed to get my ringoff. brother at a cafe where we went to lunch a lot. It stuck on my finger. They didn't want to As we walked up, we saw the owner down the spend any more time in the cafe, so theyleft. street waving and jumping upand down. We We had come in near the end of therobbery. waved back. Later, we found out he was trying "The next day I had a large knot on my to warn us not to go in. Hehad been in the head. I don't understand why. The guyhad bathroom when the robbery started and had just pressed his gun against my head. Hedid- climbed out a window and run down the n't hit me. My dad had lost a ring hehad street. owned his whole life. My brother tothis day "When my dad opened the cafe's door, a has never gone back to the cafe. Therobbery guy grabbed him andpulled him in. I turned shook up the owner so much that hesold the and started to walk away, but a guy came out, cafe to someone else." pointed a sawed-off shotgun at me, and ordered me into the cafe. I did what he said. The Domestic Violence Victim Inside, he threw me on the ground and Typically, when people use the phrase pressed the shotgun against my head. All the "domestic violence," they are referring to customers in the cafeabout25 peoplewere spousal abuse (also known as intimate partner violence), which can be committed by spous- lying on the ground. There were seven rob- boyfriends, and girlfriends. bers, all with guns. They went around from es, ex-spouses, The term also has a broader definitionthat person to persongrabbing wallets and jewelry. includes family violence, child abuse,elder One man didn't like how they hadtalked to BEST COPYAVAILABLE 12 Unit 1: Crime 9 Murder by Intimates ately. He was divorced and hada 4-year-old daughter, who lived with his ex-wife. I didn't For persons murdered by intimates, the number of male victims has fallen steadily since 1976. The number of know that he had broken his previous wife's female victims has dropped dramatically since 1993. jaw and she had a restraining order against

Note: Intimates include spouses, ex-spouses;common -law him. spouses, same-sex partners, boyfriencs. and girlfriends. 'We went out fora year and then we got married. We had ason the next year and a 1,600 daughter the followingyear. Al was fine at first. But things graduallygrew worse. When Female Victims he'd get upset, he would tellme I was fat (I've 1,200 always been thin) or that Iwas disgusting or stupid. Sometimes when he didn't likethe 800 food I'd serve him, he'd throw itout the window or feed it to the dog. At his daughter's 7th birthday party, I had orderedtwo pizzas. 400 When Al saw them, he got mad. They weren't the right kind. In front of all the kids, he threw the pizzas on the ground and started swearing at me. "This was just the beginning. I became 1976 1980 1985 1990 1996 afraid whenever he got upset. He would often strike out. He'd grab the kids and spank them. Source: "Violence by Intimates," Bureau of Justice Statistics (1998) Sometimes he would twistmy arm behind my back. Other times he hitme. But after hurt- abuse, and abuse by residents of thesame household. ing me or the kids, he always apologized sometimes spending lots of Much violent crime takes place at home money on trips for the family or special gifts. and is committed by family membersor inti- I began to mates. Half of all 911 calls are related to believe his outbursts weremy fault and tried harder to be a better wife and mother. domestic violence. In mostcases, however, "In the time we were married, I hadmany nobody calls the police and the incidentgoes broken fingers, a brokenarm, and numerous unreported.Of thenearly 1 million stitches. I wore dark glasses and makeupto Americans suffering from intimatepartner cover black eyes. It got so bad that I started abuse each year, 85 percent of those victims missing work. Although I are women. If victims decide to leave their was trying to hide it, people knew what was going abusive partners, they remain at risk of suf- on. My boss told me, 'If you don't get help, you're fering serious or lethal violence. One study going to lose your job.' showed that 65 percent of all murdered female abuse victims were separated from their abusers at the time of death. Ask an. Expert Domestic violence is a terrifying crime, There are many rape and domestic-violence'cri- violating a person's most basiczone of safe- sis centers around the country today.And tythe home. The following isan excerpt many police departmentshavespecially' from a statement made bya survivor of trained officers to deal with victims of rape domestic violence. and domestic violence. Invite a representative from one to visit your class. Have the guest Denise's Story speaker explain how rape or domestic-violence "When I met Al, he was handsome, polite, victims are treated and what specialservices and totally charming. I fell for him immedi- arjvaitable in your community.

10 CRIMINAL JUSTICE IN AMERICA, "I started seeing a counselor. This helped. the victims, because the criminal has intrud- One day, after eight years of marriage, I bun- ed into the privacy of the home. The follow- dled up the kids, went to a shelter, and-got a ing story is excerpted from a statement given restraining order. We lived in the shelter for by a burglary victim. three months.- After that, I got a new job in Helen's Story another city. I haven't seen Al in five years." "I was coming home from work on a For Discussion Monday. My front door was unlocked.I 1. Why do you think many women do not walked in, and the first thing I noticed was report rapes or instances ofdomestic vio- the television and VCR were missing.I lence? Would you if you were a victim of thought, 'How dare she (my younger sister) these crimes? Why or why not? take them out of this apartment without ask- 2. What do you think would help victims of ing me!' Then I noticed clothes scattered in violent crimes recover from the crimes? the hallway and thought, 'She must be doing the laundry, but why does she have to dump Explain. it in the hallway?' It wasn't until I walked into 3.Victims of violent crimes sometimes the bedroom that it dawned on me that we report that witnesses do not call thepolice had been burglarized. The stuff in our night- or try to help them.Why do you think stands was scattered on the bedroom floor. I people might not respond when they hear ran into the living room tolook for my cam- screams or see crimes? era equipment. It was gone. I ranaround the apartmentanything and everything of value they took. I was in shock and felt so helpless. Victims of Property When I called the police, I had to repeat Crimes everything twice because I was crying and talking at the same time. Property crimes, such as theft, burglary, and fraud, involve stealing property. They differ from violent crimes because the criminal Crime Index Offenses 1998 neithr- uses force nor threatens to use force. If Percent Distribution the criminal uses force, the crime is a violent crimea crime against the personnot a prop- Murder (0.1%)Forcible Rape (0.7%) erty crime. Robbery (3.6%) According to FBI statistics, losses from 1 Motor Vehicle Theft., `property crime add up to more than $15 bil- Aggravated Assault (9,9%) , lion a year. Every family in the country suf- (78%) ferssome from direct loss, some from high insurance rates, and some just from fear and

insecurity. In the following sections, we will Burglary(18.7%) take a closer look at victims of two kinds of property crimeburglary andidentity theft. Larceny-theft (59.1%) The Burglary Victim Burglary is the unlawful entry into a building with the intent to commit a crime, Source: Uniform Crime Reports, Figure 2.3, FBI (1999) normally theft. More than $3 billion in losses are reported each year.Crime surveys reveal that victims report about half of all house- Property crimes make up the overwhelming hold burglaries to the police. Although not a majority of crimes committed. violent crime, burglaries often greatly upset

Unit 1: Crime 11 Property Crime Rates ty, and quickly spends as much money as pos- Adjusted victimization rate per 1, 000 households sible. The criminal may pay for goods, get loans, apply for new credit cards, rent houses, 600 get a job, and even declare bankruptcyall in the victim's name. This crimewas rare just a 500 few years ago. Now, hundreds of thousands fall victim to it each year. 400 Unlike most fraud, the victimnever 300 meets the criminal. The victim doesn't discover anything is wrong until it is too late. A 200 credit card company may call asking about unusual activity on the account. Or the vic- 100 tim may be denied credit because of all the bills the criminal has accumulated. 0 The victim is not responsible for most of 1973 1978 1983 1988 1993 1998 these debts. But payment will be demanded. Note: The property crimes induded are burglary, The victim must spend countless hourscon- theft, and motor vehicle theft. tacting and convincing merchants that the Source: Bureau of. Justice Statistics, National Crime Victimization Survey (NCVS) person who ran up the bills was not the victim. Identity theft leaves victims' credit in Compared to other countries, the United States has shambles. It may take years for them to restore a high rate of violent crime. Its rate of property it. This is one victim's story: crime, however, has fallen steadily since 1978 and is comparatively low. Maureen's Story "On a Sunday afternoon we receiveda "The burglars had picked the lock to phone call questioning an unusual pattern of enter the apartment. So I replaced my dead- activity on our credit card. Neither my hus- bolt lock with a new one, which, accordingto band nor I had authorized or made the the police, was 'practically unpickable.' charges to the account. I was told our credit replaced the TV VCR, stereo, andcamera card would be canceled. Two months laterwe equipment. A month later on another received a phone call from J.C. Penney's cred- Monday, I came home to findmy apartment it department advising us that an account had burglarized again. They had not pickedmy been opened using my husband's name and unpickable lock. They had broken down the Social Security number. We were advised by door with a crowbar. They took everything I J.C. Penney's to immediately contact the three had replaced and looked through places they major credit reporting bureaus [Trans Union, missed the first time. The police took finger- Experian, and Equifax] to place fraud alerts prints both times and came up with a suspect. on our credit reports. But they haven't caught him yet. "In speaking to the three credit bureaus, I "After the second burglary, I no longer discovered there had been 25 inquiries into felt safe. The thought of being invadeda third our credit report in the previous 60 days. I time was too much. So within a month,my requested that each credit reporting agency sister and I moved to a new apartment ina send me a copy of our credit reports, and I different neighborhood." spent the next three days frantically making phone calls to the merchants who had made The Identity Theft Victim inquiries. I also contacted the Federal Trade Identity theft is a new type of fraud. A Commission's Identity Theft Hotline, which criminal steals a person's credit cardor Social assigned a reference number to our case." Security number, assumes the victim's identi- [Subsequently, Maureen learnedthat

12 CRIMINAL JUSTICE IN AMERICA 15 several different suspects were fraudulently 4. States make receiving stolen property a using their personal information and had got- crime. Do you think it should be? Why or ten a cell phone account, threebank loans why not? totaling $45,000, and two new cars.] 5. What sorts of crimes do you think people "Our efforts to restore our good names are most likely to report to thepolice? Least and good credit have been extensive. I have likely? Why do you think some people made hundreds of phone calls.I'vesent don't report crimes to the police? dozens of notarized letters to the merchants. We have submitted numerous affidavits, notarized statements, and notarized handwriting Helping Victims of samples. We have filled out over 20 different Crime sets of forms and statements in order to comply with the merchants requests for further Some ancient legal codes called for com- information. It's like filling out your income pensatingcrimevictims.The Code of tax return 20 different times, using 20differ- Hammurabi (c. 1750 B.C.), for example, forced ent forms, and following 20 different setsof the criminal to pay as much as five times the instructions. value of the damage caused. If the criminal "I have logged over 400 hours of time try- couldn't be caught, the state would compen- ing to clear our names and restore our good sate the victim. credit. The impact of being a victim of Identity Early English and American law forced Theft is all encompassing. It affects you physi- criminals to make direct payments, called resti- cally, emotionally, psychologically, spiritually tution, to victims. Gradually, however, crimi- and financially. We now have adverse ratings nal law shifted away from helping victims and on our credit reports. We arealso receiving focused exclusively on punishing lawbreakers. phone calls from collection specialists wanting The only way for a victim to get restitution was to know why we are overdue on the payments to sue under civil law.Unfortunately, this was for our two new cars. I try to nicely explain to usually impossible. Either the criminal had these collection specialists that we are victims escaped or the criminal was poor and couldn't of Identity Theft and we did not purchase pay the victim. these vehicles. Once you become a victim of It was only in the 1960s that we again Identity Theft your life is forever changed. We began looking for ways society could help do not know how many more accounts may crime victims directly. In an influential 1964 still be outstanding, we do not know if a col- New York University Law Review article, former lection specialist is calling when our phone Supreme Court Justice Arthur J. Goldberg rings, we do not know if our good names and wrote that: financialreputationswilleverbetruly Government compensation of victims of

restored." crime...is long overdue here. The victim of a robbery or an assault has been denied For Discussion the "protection" of the laws in a very real 1. Many victims speak of not being the same person after being victimized.Why do you sense, and society should assume some think this is so? What has changed for responsibility for making him whole. In 1963, New Zealand passed the first vic- them? tim-compensation legislation. This pioneering 2. Many victims of burglary describe the act set up a board to pay cash awards tocrime crime as an invasion of their privacy. What victims. The idea spread quickly to England in do you think they mean by this? 1964 and then to California in 1965. Today, 3.Have you ever had anything stolen? If so, every state has avictim-compensation pro- how did it affect you? Do you worry that it gram. may happen again?

Unit 1: Crime 13 One State's Model The New York plan also requires the victim During a street mugging, a man is assault- to cooperate with the police and prosecution. ed and hit several times in the face. The And the board checks to make sure that the mugger takes the man's wallet with $35 in it victim did not contribute to the incident in and flees. Bruised, scared, and with broken some significant way. Thisisparticularly glasses, the man is taken to a nearbyemer- important in cases involving drugs or sub- gency room for treatment. The New York stance abuse. State Crime Victims Board wouldpay for These are the main standards that the New the replacement of the eyeglasses, the lost York Crime Victims Board checks before mak- cash, and the emergency room bill if the ing an award: man did not have insurance. (1) a violent crime occurred, resulting inan A young woman, age 16, sitting in the park injury; becomes the victim of a random shooting. Rushed to the hospital, she dies aftersever- (2) the victim cooperated with authorities; and al days. The New York State Crime Victims (3) the victim did not contribute to the crime. Board would pay for any unreimbursed medical expenses, funeral costsup to The main problem with the New York plan $6,000, and counseling for her parents and and other victim compensationprograms is brothers and sisters. money. Many state compensation boards are The state of New York offers monetary aid behind in the settlement of claims because of to families who have suffered financially from lack of funds and inadequate staffing. In fact, violent crime. This plan is run by the Crime many programs would be overwhelmed if Victims Board, a five-member panel. every eligible person applied for benefits. With Crime victims, their dependents, or imme- increased public awareness of theprograms, diate family members can apply forcompen- more funds will be needed in order for them sation. The board will pay for medical expens- to meet their goals. es, mental health counseling, job retraining, Other Victim Programs funeral or burial expenses, lost earnings, and Cash payments aren't the only way victims loss of support. It will also compensate for can be assisted. Government agencies and pri- losses of cash or essential personal property if vate organizations offer many other services: the victim has suffered a personal injury. The shelters for battered women, rape counseling, limits on the amounts of the awards areas fol- crisis intervention programs, child-abuse inter- lows: vention, and medical counseling. Medical expenses unlimited In many cities, the prosecutor's office or a Counseling unlimited private help organization has a unit to aid vic- Vocational rehabilitation unlimited tims when they first come into contact with Funeral or burial $6,000 the criminal justice system. This service is Lost earnings $30,000 ($600/week) aimed at comforting victims, notifying them Loss of support $30,000 ($600/week) of court dates, and even helping them find Crime-scene cleanup $2,500 transportation to court. Loss of cash or essential personal property $500 ($100 for cash) Many communities have programs that Attorney fees $1,000 offer crime victims free or low-cost legal Emergency $1,500 advice, psychological counseling, or employ- The New York plan only compensates for ment assistance. And some agencies offer help in replacing items stolen or destroyedin losses caused by crimes of violence, suchas assault, rape, murder, and hit-and-run. The crimes. It can be a great comfort to a crime victim to have someone's help in as simple a task board will not pay for losses that have already been covered by insurance. as replacing a stolen ID or a broken door lock.

14 CRIMINAL JUSTICE IN AMERICA The primary goal of most victim assistance pool cue and struck William in the mouth, programs is to help the victim get through the causing him to lose several teeth. crisis with dignity and get back to as normal a William claims that he did not try to life as possible. strike Ken and that they had no argument. The District Attorney's office refused to prosecute Ken because of insufficientevi- Class Activity: Crime dence. Victims Board William is claiming $1,500 in medical damages and $600 in lost wages. Imagine that you are a member of a Crime Victims Board similar to the New York model. Case No. 2 It is your responsibility to review applications Robert Samuelson, owner of the Valley for crime victim compensation and decide Drug Store, was shot during a robbery of the which, if any, should be approved. store. He died as a result of gunshot wounds to 1.Form small groups of four students each. his chest. His widow, Ruth, is claiming a wage loss of $50,000 per year for five years due to 2. Each group should: her husband's death. Funeral expenses totaled a. Review the standards used for mak- $7,000. ing awards in New York on page 14. Ruth will receive her husband's estate, b. Read each of the cases below and which is valued at $100,000. In addition, she decide, based on the standards, receives Social Security benefits of $600 per whether compensation should be month. awarded. Case No. 3 For each case, write down the fol- c. Rocky Pineda was playing with his two lowing: childrenat Allstone Park when he was (1)the case number approached by two young men. One of them (2)whether you approve or deny had a gun and demanded money. Rocky an award of compensation attempted to explain that he could not speak (3)reasons for your decision much English. He tried to take his children (4)the total amount of the award and run when one of the young men shot him in the back. He died a few moments later from the amount of award money (5) the gunshot wound. The suspects were never allocated to medical expenses, found. vocational rehabilitation, The funeral expenses were $7,000, to be funeral or burial, lost earnings, loss of support, and loss of paid by Maria Pineda, his widow. She is eight months pregnant and has no health insurance cash or essential personal prop- to cover her medical expenses. She is claiming erty a $30,000 wage loss due to her husband's d. Be prepared to discuss and support death. your recommendations. Case No. 4 Case No. 1 Susan Jones was sitting in the Whaling William Hall was at the Shady Oak Bar Ship Bar with two of her girlfriends. They were playing a game of pool with the suspect, Ken listening to music and having a drink. Three Ross. William had a $50 bet on the game. He men sat down at their table and began to talk. lost the pool game, and the two men began After a while, they all started dancing and con- arguing over the bet. According to witnesses tinued drinking. interviewed by the police, William threw a One of the men, Mike, offered Susan a punch at Ken and missed. Ken picked up the ride home. She accepted. When they arrived at

on 4.0 Unit 1: Crime 15 her apartment, she invited him in for coffee. He followed her into the kitchen, grabbeda knife, and then forcibly raped her andcut her several times with the knife. Her medical insurance covered her hospital bills. She stayed away from work for three weeks because of the psychologicaltrauma. She is claiming $3,000 for seeinga psychiatrist and $1,800 in lost wages. Debriefing Questions 1. Which claims did groups deny? Why? 2. Are the standards for awardingcompensa- tion fair? Why or why not? How wouldyou change the standards? ing to hearing at the convenience of attorneys 3.If you could write your state's law regarding or judges or the police. In the early 1980s, the compensating victims, what wouldyour President'sTaskForceon Crimesaid, laws provide? "Somewhere along the way, the system began 4. Although most states do not, a few require to serve lawyers and judges and defendants, serious financial hardship forcompensa- treating the victim with institutionalized dis- tion awards. Do you think the requirement interest." makes sense? Why or why not? Advocates of crime victims have pressed for reforms in the criminal justice 5. What is the difference between state victim system. They have been joined by many compensation and restitution for victims? groups, including women's groups interested in help- Which do you think is better? Why? ing victim.; of rape and domestic violence. 6. What are the benefits of victimcompensa- They have met with remarkablesuccess. tion laws? What are their drawbacks? Do you think states should have such laws? New Federal Programs Why or why not? The federal government has passed several acts designed to address the needs of crime victims. In 1982, Congress enacted the Victim and The Push for Victims' Witness Protection Act. In addition to protect- Rights ing crime victims and witnesses, the actwas meant to serve as a model for legislation for Since the 1960s, concern hasgrown about state and local governments and to ensure that how the criminal justice system treats crime the federal government helps victims and wit- victims. Citizens have banded together to form nesses without infringing on anyone's consti- groups to represent crime victims and their tutional rights. The following are some specif- families. ic features of the act: These groups have often complained that The crime's impact on the victim should be crime victims are injured twicefirst by the considered in deciding penalties. criminal and then by an insensitive criminal Anyone threatening or harming a witness justice system. They claim that too often vic- should be punished severely. tims have been ignored or even subtly blamed Court orders should be used to restrain for the crime. Many victims have found them- anyone from harassing a witness. selves caught up in police investigations and judicial proceedings that they don't really A victim is entitled to restitution from the criminal. understand. They have been moved from hear-

16 CRIMINAL JUSTICE IN AMERICA 19 In 1984, Congress passed the Victims of longer have to testify at preliminary hearings Crime Act of 1984. This act set up a Crime in California. This was approved by voters in Victims Fund, which provides grants to local 1990 as part of Proposition 115, California's victim compensation programs. Today it sup- Crime Victims Justice Reform Act. plies almost 40 percent of the funds in these Investigating police officers may read what the programs. The money comes from fines and victims said in the police report. This means forfeiturespaidbyfederalcriminals. defendants no longer have the opportunity to Government payments to individual crime vic- cross-examine their accusers at preliminary tims now range from $100 to $50,000 or more. hearings. (These hearings determine whether The majority of the grant money goes to vic- the prosecution has enough evidence to hold tims of rape and family violence. the defendant for trial.) Some critics argue that In 1990, Congress enacted the Victims' denying criminal suspects the right to see and Rights and Restitution Act. It set into law basic contradict their accusers may well result in rightsfor victims of federal crimes. The unjust prosecutions. They point out that more Victims Rights Clarification Act of 1997 made than 90 percent of all criminal cases end in clear that victims could attend trials and testi- plea bargains and never go to trial. The pre- fy at sentencing hearings. liminary hearing is the only formal presentation of evidence in most cases. They say that Responses from States the idea of using unchallenged accusers goes Many states have passed what are called against the grain of the entire Anglo-American victims' bills of rights into law. These laws judicial system. Supporters of the law point focus on procedures within the criminal jus- out that the police report is only read at the tice system. They attempt to make the victim preliminary hearingnot at trial where defen- an important part of the process. Michigan, dants can still cross-examine their accusers. for example, passed a constitutional amend- They believe that it's important to spare the ment in ,1988. It gave crime victims such rights victim from making any unnecessary court as: appearances. This law was upheld onappeal in to keep the accused'strial from being California courts (Whitman v. Superior Court, unnecessarily delayed. 1991). to be protected from retaliation. Another controversyinvolvesvictim- to be notified of court proceedings. impact statements made at sentencing hearings. After a defendant is convicted, courts to attend all court proceedings that the often conduct sentencing hearings. These are accused has the right to attend. required in death-penalty cases when the court to confer with the prosecution. must weigh mitigating and aggravating factors to make a statement to the court at sen- in the crime. Victim-impact statements allow tencing. victims (and their families) to tell the court how they suffered from the crime. Critics have to get restitution. argued that courts should not consider these to receive information about the sentence statements. They say that the victim is not on and release of the accused. trial and that the victim's character should not By the year 2000, 33 states had adopted vic- be either an aggravating or mitigating factor. tims' rights amendments to their state consti- The U.S. Supreme Court has grappled with tutions. this issue. In 1987 in Booth v. Maryland, the Although almost everyone favors helping court ruled that victim-impact statements in crime victims, some amendments have drawn death-penaltycasesviolatedtheEighth fire when they intrude on the rights of crimi- Amendment's ban on cruel and unusual pun- nal defendants. For example, crime victims no ishments. The court saidthe statements inflamed juries and led to erratic results. But

Unit 1: Crime 17 four years later in Payne v. Tennessee, the court rights for victims of crime. These will be rights reversed itself. The court stated that sentencing that no state may deny. They view the amend- hearings had always examined the harm done ment as restoring the balance between the by defendants. "Victim-impact evidence," said rights of criminal defendants and victims. the court, "is simply another method" for the Critics of the amendment think it provides court to get this information. nothing that most states don't alreadyguaran- Proposed Constitutional tee by law. Most troubling to the critics is the Amendment amendment's vagueness. Courts, theysay, will have to interpret exactly what each of these In recent years, support has grown foran rights means. Critics worry that the amend- amendment on victims' rights in the U.S. ment may erode some basic rights of criminal Constitution. This would require passage by defendants. two-thirds of both houses of Congress and ratification by three-fourths of the state legisla- For Discussion tures. The amendment, if passed, would give 1. Do you agree with California's policy of victims of violent crimes these rights: permitting police officers at preliminary To be given notice of and to attendany hearings to read what the victims said in public hearing. the police reports instead of having the vic- To be heard at the hearings and to submit tim testify? Explain. statements at any hearing determining 2. Some victims' rights groups propose that release from custody, a negotiated plea,a statements made by victims during post- sentence, or parole. crime counseling sessions should not be To notice of any release or escape fromcus- used in court or made available to the tody. defense. Do you agree with this policy? Why or why not? To not have unreasonable delays in the trial. To restitution from the convicted offender. I Ask an Expert To consideration for the safety of the victim in determining any release from cus- Does your state havea victims' bill of rights ? :A victims' compensation tody. 'board? What.doesyour state do, for crime vietiMs? .InVite .a-prosecutor1. Supporters of the amendment believe it to your 'classroom to,discussirieseduestions. will finally enshrine in the Constitution basic 21 BEST COPY AVAILABLE 18 CRIMINAL JUSTICE IN AMERICA 3. The Supreme Court has ruled that victim- History of Violent impact statements may be used at deathpenalty hearings. Can you see any dangers Crime in America: in doing this? Would you support stronger A Look Back... penalties for killing a nun as opposed to killing a prostitute? Why or why not? When I was young, I could play in the park at 4. Make a list of the problems that crime vic- night. Now it's all drug dealers. You could leave all tims face. How can society address these your doors unlocked. Now you can't walk down problems? your own street without getting robbed. 5. What isthe proposed victims'rights For 30 years beginning in the 1960s, crime amendment to the U.S. Constitution? rates rose in America. Many Americans may What are some arguments in favor of it? view the dropping crime rates of the 1990s as What are some arguments opposing it? the start of a return to a normal low rate of crime. Many older people look back on their pa-st as a time when streets were safe and crime Class Activity: Victims' happened somewhere far away. Indeed, statisti- Rights Amendment cal evidence shows that the decades from the 1930s through the 1950s were less crime-ridden In this activity, students role play state leg- than today. Yet those decades may be excep- islatures deciding on a proposed amendment tions in American history. If you take a care- to the U.S. Constitution. ful look back into our history, you will find 1.Ask students to imagine that Congress has that violent crime has played a large role in passed the victims' rights amendment to American life. the U.S. Constitution described in the arti- During the 1700s, robbery and other vio- cle. Three-fourths of the state legislatures lent crimes were already troubling the English must now ratify this amendment. colonies of America. Land was growing scarce. 2. Divide the class into pairs. Each pair will The English were fighting a series of wars and represent a state legislature considering the demanding high taxes from colonists to pay victims'rights amendment. Each pair for them. In turn, the colonies suffered high should: rates of unemployment and poverty. Crime flourished in this environment. a. Discuss the amendment's pros and Adding to the crime problem, criminals cons. from England's jails, both men and women, b. Decide how its state will vote (if the were deported to America as indentured ser- pair cannot agree, the vote is "no"). vants. Before the American Revolution, more c. Prepare to present its position to than 50,000 of these lawbreakers had arrived. other "state legislatures." Some ran away immediately and joined the Regroup the class and ask for different growing criminal population. pairs to present pro and con arguments on Philadelphia,one of America'sfirst the amendment. important cities, was known as the "crime cap- 4. Vote and conduct a discussion using the ital of the colonies" during the early 1700s. Debriefing Questions, below. Robbery, rape, murder, and arson occurred with frightening regularity. Debriefing Questions By the mid-1700s, New York City was chal- 1. What do you think were the strongest argu- lenging Philadelphia for the dubious title of ments in favor of the amendment? The "crime capital." Its population was exploding. strongest arguments against it? New immigrants were arriving by the boatload. 2. Do you think the amendment, as pro- Along with the increasing population, came a posed, is a good idea? Explain. f)4 Unit 1: Crime 19 rise in violent crime. A New Yorknewspaper The Whyos editorial complained, "It seems to havenow become dangerous for the good People of this The Whyos, an urban youth gang of the mid- City to be out late at night without being suf- 19th century, even advertised its services. A ficiently strong or well armed." handbill found on a gang member set the fol- In the countryside and on the frontier, lowing rates: gangs of thieves and robbers preyed on farm- Punching $2 ers. Gangs in the North Carolina backwoods Both eyes blacked $ 4 provoked citizens to take the law into their Nose and jaw broke own hands. In 1767, citizens formed the first $10 American vigilante group, which attacked and Jacked out (blacked jacked) $15 punished gang members. Ear chewed off $15 Leg or arm broke $19 Crime in the 1800s Shot in leg $25 During the 1800s, many American cities Stab $25 grew rapidly. Workshops and new industries Doing the big job (murder) $100 attracted immigrants from England and Northern Europe. By 1800, New York had during the mid-1800s, bands of robbers began passed Philadelphia and Boston to become the to prey on wealthy citizens, stripping them of biggest city in the country, with 60,000 people. their cash. Further waves of immigrants came toescape Out West, men often wore guns wherever famines and wars in Europe. With the rise of they went. Horse and cattle theft becamea heavy industry and mining in New England major problem. Los Angeles was only a sleepy and the industrial Midwest,many companies village of about 8,000, but in one 15-month actively recruited in Europe for laborers. Many of the new immigrants had to period in the 1850s, 40 murders occurred. In squeeze into crowded tenements in urban much larger San Francisco to the north, there were entire neighborhoods where no one dared areas. Cities like New York gained a reputation go after dark. for overcrowding and criminal violence. In the decade before the Civil War, more than 3,000 Ethnic Urban Gangs homeless children roamed the streets of New In many cities, jobless immigrants formed York. Many of them became pickpockets and violent gangs in ethnic slum neighborhoods. street robbers. One civic leader wrote in 1842: In Philadelphia, lower-class Irish and black "Thronged as our city is, men are robbed in groups formed gangs. With names like the the streets....The defenseless and the beau- Bleeders, Garroters, Rangers, Tormentors, and tiful are ravished in the daytime andno trace Killers, the gangs sometimes fought bloody of the criminals is found." battles on a spot known as the Battle Ground. Before the Civil War, few cities in America Gang members as young as 10 carried clubs, had anything like a police department to keep knives,brass knuckles, and pistols. They order. Boston had a night watch, but itwas attacked lone pedestrians, younger children, or mainly a fire lookout. Watchmenwere afraid members of other ethnic groups. to enter many neighborhoods at all. In some In New York, well-organized adult street places, vigilantes were the only organized gangs controlled the immigrant areas of Five resistance to criminals. Points and the Bowery. Made up mostly of More murders took place in New York young Irish immigrants, gangs called the Dead than London, a far bigger city. One English Rabbits, Plug Uglies, and Shirt Tails grew traveler wrote, "Probably in no city in the civi- famous for mugging people. In the nearby lized world is life so fearfully insecure." The Fourth Ward, the Daybreak Boys murdered 20 same fear plagued other cities. In Philadelphia people between 1850 and 1852. Political parties

20 CRIMINAL JUSTICE IN AMERICA 23 recruited squads of toughs from these gangs to Outlaws in the Countryside intimidate voters. After the Civil War, violence in the West Probably the most violent New York street took a new turn. The Reno brothers of Indiana gang at this time was called the "Whyos." The invented train robbery, and dozens of small Whyos came from Mulberry Bend, another gangs followedtheir example. The most slum neighborhood. They robbed people and famous robbers were the James brothersJesse burglarized homes and stores throughout the and Frank. They had been Confederate guer- city. At one time, the Whyos had more than rillas and after the war they turned to robbing 500 members, all of whom supposedly had trains and banks, terrorizing Union states killedatleast one person. Dandy Johnny from Missouri to Minnesota. They killed 16 Dolan, the gang's leader, invented a copper people. device for gouging an eye out and kept an eye In the 1870s, Billy the Kid, who was born as a trophy. in a New York slum tenement, roamed the In cities of the Northeast, urban rioting West, gambling, killing, and hiring out as a broke out often from the 1830s through the cattle rustler. Sheriff Pat Garret finally tracked 1850s. The pressures on the urban slums boiled him down and shot him. According to legend, over. There were ethnic riots, labor riots, elec- Billy the Kid had killed 21 men, one for each tion-day riots,anti-blackriots, and anti- year of his life. The actual number was proba- Catholic riots. In that period, Baltimore alone bly smaller. had 12 major riots, Philadelphia had 11, and John Wesley Hardin from Texas killed his New York had eight. This burst of lawlessness first victim at age 15. The victim was a black spurred the development of police forces in teen who had beaten him at wrestling. He went most cities. on to kill more than a dozen men, including one because he had badmouthed Texas. Post Civil War Violence Hardin was shot and killed in 1895 and became The Civil War killed more than 600,000 another outlaw legend, though today we would people, more than any other war in our histo- probably think of him as a psychotic serial ry. It also left behind enduring habits of hatred murderer. and violent revenge. The most vicious and Even more violent were the range wars. widespread postwar violence targeted blacks. Throughout the Western states, cattle and land During the period of Reconstruction, freed barons hired armies of gunmen to guard or slaves served in state legislatures in the South. expand their private empires. In some cases, Former slaves educated themselves, voted, and the cattlemen had the law squarely on their many started businesses or began farming side. But often their gunmen settled scores and their own small fields. In response to these fought battles. Texas had the Sutton-Taylor developments, some Southern whites created feud, the Horrell-Higgins feud, the Jaybird- the Ku Klux Klan and other groups to terror- Woodpecker feud, and several others. Montana ize blacks and help end the social changes of had the Johnson County War, which pitted Reconstruction.Ina reign of terrorin European immigrant homesteaders against a Louisiana in the 1870s, a group called the cattle baron. Arizona had the worst range war White League killed more than 3,500 blacks, of all. In the Pleasant Valley War, the cattle-rais- many by lynchinga form of mob violence ingGrahamsfoughtthesheep-raising that punishes an accused person without a Tewkesburys with hired armies. The conflict legal trial. Most lynchings are hangings. raged for six years and was fought literally "to The Klan executed lynchings against poor the last man." blacks and their supporters for decades. In incidents all over the country, almost 2,000 Racial Violence African Americans were lynched from 1882 to The end of the century marked the begin- 1903. ning of a long era of race riots. As early as 1871,

A4 Unit 1: Crime 21 a white mob in Los Angeles went on a rampage Floyd, and Bonnie and Clyde, violent crime and hanged 20 Chinese workers from street actually declined. The murder rate, for exam- lamps. Near the turn of the century, mobs in ple, dropped 50 percent between 1933 and the Easterncities began descending on black early 1940s. Other serious crimes fell by a neighborhoods to lynch any black man third. unlucky enough to be caught. Major race riots Why did crime decrease during a time of against blacks erupted in Atlanta in1906, great hardship for almostall Americans? Springfield, Illinois, in 1908, and in many According to some historians, the Depression other cities. brought Americans closer together, because almost everyone was in the same boat. In addi- Prohibition and Organized Crime tion, the birthrate had dropped in the 1920s, The 20th century saw the rise of organized which meant that the youth population-15 to crime. In 1920, the 18th Amendment to the 24 year oldsdeclined in size. Younger people Constitution made the manufacture, trans- commit the most crimes, especially violent port, or sale of alcoholic beverages illegal. The crimes. World War II unified Americans even era of Prohibition, one of this country's most more. violent crime periods, extended from 1920 until the 18th Amendment was repealed in The Postwar Years 1933. Prohibition created the conditions for Following World War II, many people thriving illegal businesses. started families. The "baby boom," which last- In Chicago, gangsters set up illegal beer- ed from 1946-1964, produced a huge increase brewing and distribution businesses, plus a in the birth rate. network of bribed police and politicians to The 1950s stayed relatively calm, but the protect them. The business proved so lucrative turbulent 1960s saw an increase in many kinds that rival gangs fought for control. Between of violence. A dozen civil-rights activists were 1923 and 1926, the Chicago beer wars killed murdered in the South, and many tens of more than 200 people. By 1927, the mobster Al thousands of anti-war activists took to the Capone had come out on top. His beer busi- streetsin demonstrations that sometimes ness took in over $60 million a year, which turned violent. In the mid-1960s, major urban would be well over $1 billion in today's dol- riots exploded in African-American communi- lars. ties in Los Angeles, Newark, Detroit, and other During the early1930s, various crime cities where urban problems had been fester- organizations sought to form alliances to con- ing. trol gambling, prostitution,narcotics, and Street crime also began to increase. The other illegal money-making activities. Gangster children of the baby boom were growing up. rivalry and greed, however, led to many under- The 15-24 age group grew rapidly. Many crime world murders. experts believe that this surge of young people in the population contributed significantly to Depression and World War II the increase of crime in the 1960s and 1970s. As the Great Depression began in the early In the early 1980s, the sudden appearance 1930s, violent crimes reached a peak. In 1933, of crack cocaine caused a tremendous rise in the murder rate was 9.7 murders for every drug addiction and associated crimes. Drug- 100,000 Americans. The murder rate would dealing gangs plagued many Latino and not be this high again until the late 1970s. African-American communities. With unem- A curiousthinghappenedasthe ployment and homelessness rising, reports of Depression worsened and unemployment sky- street crime skyrocketed. Crime so concerned rocketed: The crime rate went down. Despite ordinary citizens that it spawned whole com- widespread news coverage of Depression-era munities barricaded with walls, barred win- bank robbers like John Dillinger, "Pretty Boy" dows, and burglar alarms.

22 CRIMINAL JUSTICE IN AMERICA 25 0 cr. l0 co 0 Co 0 0 rn C71 01 o O 0 at 01 CA a) O 0 o O O 0 (N (-4

Many criminologists believe that the number of young people in the population influences the crimerate. When the number of 15-24 year olds rises, crime is likely to increase. When the number falls, crime is likely to decrease.

Then in the early 1990s, crime started crime has almost always existed at a high level plummeting. By the end of the decade, the throughout American history. crime rate had dropped to its lowest point in 30 years. This went against expectations, For Discussion because the number of 15-24 year olds in the 1. Why do you think that violent crime has population was growing. People have advanced existed' at such a high level throughout various reasons for the decline: More police on American history? the streets, more criminals behind bars, and 2. Why do you think American outlaws like better policing. These factors may account for Jesse James and Billy the Kid have so often some reduction in crime, but crime fell in been portrayed as heroes? Is there anyone parts of the country that didn't have more like them today who is portrayed as a hero? police, more prisoners, or better policing. 3. How do you account for so much mob vio- Some people believe the booming economy lence directed against African Americans caused the drop, but others point out that the throughout our history? economy and the crime rate both soared in the 4. Why did the crime rate go down in the 1960s. Some experts believe that the dwindling 1930s? Why did it go up again in the 1960s? use of crack cocaine produced the drop. Why do you think it fell in the 1990s? What Since the number of 15-24 year olds in the direction do you think it is heading today? population will continue to grow, some Why? Americans think crime is bound to shoot up. They note that in the first half of the year 5.List on the board as many causes of crime 2000, the number of murders in New York and in American history as possible. Discuss Los Angeles increased. They think these mur- the list and select the five most important. ders may be the beginning of an upward trend. Explain your reasons. Others predict the new century will bring even 6. Are there countries that you think have a greater declines in violent crime. No one more violent history, or a less violent his- knows for sure. But one fact remains: Violent tory? Why do you think this is true?

er) BEST COPY AVAILABLE U Unit 1: Crime 23 Class Activity: Now and How Much Crime Is Then There?

The problem of crime in America varies How do we know how many murders, from place to place and from generation to rapes, robberie, burglaries, and other crimes generation. In this activity, students interview there are each year? Where do crime statistics a parent or older person and compare this per- come from? There are two main sources: (1) son's experience with crime growing up to the Uniform Crime Reports (UCR) and (2) the their own. National Crime Victimization Survey (NCVS). 1.All students should: Since 1930, police departments from across a. Read and answer for themselves the the country have sent crime data to the Federal Interview Questions, below, on a Bureau of Investigation for inclusion in its sheet of paper. Uniform Crime Reports. The UCR lists eight so-called index crimesfour violent crimes and b. Find a parent or older person to four property crimes. They are homicide, interview. Ask and recordtheir answers to the same questions on forcible rape, robbery, aggravated assault, burglary, larceny-theft, motor vehicle theft, and another sheet of paper. arson. Almost every police department in the c. Write a two or three paragraph essay United States reports its crimes for inclusion comparing their responses to those in the UCR. of the person they interviewed. The UCR has at least two built-in weak- d. Staple all the pages together, to be nesses. First, it does not attempt to account for turned in.. all crimeonly for crime reported to the 2. Before students turn in their papers, ask police. If someone does not report a crime, it them to share their findings. cannot possibly get included in the UCR. Second, it relies on police departments to relay Interview Questions the information accurately. This may not 1. When were you born? always happen. 2. As a young person, where (did, do) you To getafuller picture of crime,the live? Department of Justicestarted an annual National Crime Victimization Survey in 1973. 3.(Did, do) you feel safe in your neighbor- (Until 1991, it was called the National Crime hood? Describe crimes, if any, that took Survey.) The survey polls 49,000 households, place in your neighborhood. representing about 100,000 persons over age 4. (Did, do) you feel safe at school? Describe 12. Following a detailed questionnaire, poll crimes or major incidents of misbehavior takers ask individuals if they have been victims that took place in your school. of rape, robbery, assault, larceny, burglary, or 5. What crime story from the media most car theft. Unlike the UCR, the NCVS reflects impressed you when you were growing up? both reported and unreported crimes. But the NCVS has problems also. First of 6. Do you think it was safer then or now? all,it doesn't track some crimes. It cannot Why? count homicides because murder victims cannot be interviewed. It doesn't include crimes against businesses, such as robberies and burglaries, because it only interviews households. It only interviews people over age 12, so it doesn't count crimes against young children. Of the crimes it does count, the interview could be flawed.

24 CRIMINAL JUSTICE IN AMERICA 2 7 11111111101111111111111111111111 to 0 Cs In 0in o Ln o Ln o Ln o LA crl 0 rq rrl zr to to to to r- co oo rn CY't rn 0) 0 01 c 0) 01 01 al 01 C a) 01 rn of C71 Year Source: National Center for Health Statistics, Vital Statistics

The Trend of Crime rate of violent crime was 47.7 per 1,000.It Since the UCR and NCVS measure differ- reached a peak of 52.3 per 1,000 in1981, ent data, they come up with different numbers declined to 42.0 in 1986, rose steadily to 51.2 in for most crimes. As would be expected, the 1994, and then plummeted to 36.0 in 1998. NCVS consistently reports far higher numbers The UCR paints a slightly different pic- than UCR, exceptfor autotheft. NCVS ture. It shows crime rising almost steadily from reports only slightly higher numbers of auto 1973 to 1992. From that point, the crime rate thefts Than the UCR. starts declining. What do the UCR and NCVSsay about Most experts tend to trust crime trends the trend of crime? Is it increasing, decreasing, from the NCVS over the UCR. But experts or staying the same? Is it worse than in previ- also believe the UCR statistics for homicide

ous.. years or better? If 10 years ago, fewer rob- are highly accurate. The NCVS does not cover beries took place than today, would itmean homicide. The UCR homicide statistics follow that crime got worse during this period? Not almost the same pattern as the NCVS statistics necessarily. The population today isgreater for other violent crimes. They rise toa peak of than it was 10 years ago. To make comparisons 10.2 homicides per 100,000 in 1980, drop to 7.9 between two different time periods,you need in 1985, rise to 9.5 in 1993, and then fall off to to know the crime ratesthe amount of crime 6.3 in 1998. Other homicide studies back up per person. The NCVS usually calculates these these figures. rates as the number of crimes for every 1,000 persons age 12 or older. The UCR calculates For Discussion them for every 100,000persons. 1. What are the differences between the According to the NCVS during the period Uniform Crime Reports and the National 1973 to 1990, the robbery rate peaked in 1981, Crime Victimization Survey? Which do you think more accurately paints a picture dropped rapidly until 1985,rose steadily until of crime in America? Why? 1992, and then dropped dramatically. In 1973, the rate was 6.7 forevery 1,000 persons age 12 2. Why do you think the UCR and NCVS or older. By 1998, it had fallen to 4.0. In fact, report similar numbers of car thefts each the NCVS shows that the rate of all violent year? Why do you think the other crimes crime followeda similar pattern. In 1973, the are not similar in number?

43 Unit 1: Crime 25 3. Why do you think experts believe UCR 5. Do you believe a crime problem exists at homicide statistics are so accurate? the local schools? 4. What do you think could account for the 6. Have the people in your family been forced difference in the UCR's and NCVS's trends to change any part of their lives because of in violent crime since 1973? Which do you crime? think is more accurate? Why? 7. Do you think the police in your community are doing an adequate job of protect- Class Activity: Crime ing you and other citizens from crime? 8. Compared to one year ago, do you think Victim Survey the crime problem in your community has gottenworse,stayedthesame,or How has crime affected the people who improved? live in your community? In this activity, students survey people to find what experiences Debriefing Questions members of the community have had with 1. Were there any surprises in the results? How crime. do you explain the surprises? 1.Break up into small teams. Each team 2. Make a list on the board of the kinds of should prepare several copies of a Crime crimes reported in the survey. Do you Victim Survey following the suggested think other areas in your town or other questions below. Leave room for brief towns would have a different list? Why or explanations to each answer. why not? 2. Within the team, each student should tar- 3.Discuss ways your family and neighbors get a person with a different occupation in attempt to protect themselves from crime. the community, e.g., a small storekeeper, For example, you might consider special homemaker,religiousleader,business locks, bars on the windows, watchdogs, supervisor, fast-food employee. Survey the guns in the home, neighborhood patrols, targeted person. etc. 3.Summarize and compare the responses 4. What crimes occur most frequently at within your team. Try to account for any school? What could be done to prevent differences, based on different occupa- them? tions. Then have the teams compare their surveys and list results on the board. Do 5. What are the police in your area doing to you find similarities among the answers prevent crime? What should they be doing? given by people with similar occupations? Why or why not? Do you find similarities based on other factors? Crime Victim Survey 1.Have you ever been a victim of a crime such as bike theft, burglary, assault, etc.? 2. Have any members of your family been victims of crime?

3.Have any nearby neighbors ever been victims of crime? 4. Do you feel unsafe alone at night in your own neighborhood?

29 26 CRIMINAL JUSTICE IN AMERICA CHAPTER 2 Who Are the Criminals?

Youth, Gangs, and covered a homeless man with lighter fluid and set him on fire. They told police that it was Violence just a prank. Some criminologists believe that many About 60 percent of all violent crimes are young violent criminals have been so brutal- committed by young males under the age ized by their own families and surroundings of 25. In fact, males commit most crimes. They that they cannot feel anything when they account for 84 percent of all arrests and 90 maim or kill. With no parental supervision, percent of violent crime arrests. no education, no skills, and no hope of a job, One of the most common violent crimi- they find that it is all too easy to lash out. nals is the street robber. In his book Criminal James Galipeau, a veteran probation officer in Violence,Criminal Justice, Charles Silberman Los Angeles said, "There are a million kids out described the typical street robber as a male there who have no skills other than fighting. minority teenager or young adult from a poor They are not afraid of the police or jail or of family. This type of robber takes money from dying." people impulsively if the opportunity arises. Rarely does he plan a holdup. Youth Gang Violence Sometimes streetrobberssteal because Youth gangs are not new to our cities. they want money for drugs, food, or goods. Throughout American history, gangs of young Sometimes they just need to impress someone. men have come together in immigrant and At other times, the street robber acts out of poverty areas of cities. In the late-19th and boredom. The victims of street robbers are early-20th century, Easterncities such as often weak or vulnerable. They could be an Boston, New York, and Philadelphia saw the old person walking alone or a drunk who has rise of numerous gangs. Their members usual- passed out on a park bench. ly came from newly arrived or first-generation Silberman interviewed many young street groupsIrish, Jewish, and Italian. In the early robbers and gained some insight into why they 1900s, the sociologist Frederick M. Thrasher apparently enjoyed stealing from people and studied the youth gangs of Chicago and found threatening them with violence. "I get a kick over 1,000 of them. These early gangs mainly out of it," said one. Another explained, "If I took part in street crime. Later some developed had a .38 right now, I can make you do just ties to political machines and formed the basis about anything I wanted to do." Others told of organized crime in America. Silberman that robbing people with a gun The Latino street gangs of Los Angeles makes them feel important, like a judge or a arose in the 1920s during a huge wave of king or a god. Mexican immigration from poor rural farms. Not all criminals who commit acts of vio- In the 1930s and 1940s, these early gangs solid- lence think this way, but those who do are ified into the pachuco lifestyle. They wore spe- especially dangerous. For a few dollars, some cial clothes called zoot suits, had nicknames, would maim or kill their victims with little and spoke their own slang called Cabo. Feeling hesitation or feeling. shut out of American society, they became A disturbing characteristic of many young heavilyterritorial,each defending asmall violent offenders is their apparent lack of feel- neighborhood or barrio. They acquired names ings. For example, three young Miami boys like Los 39s and Clarence Street Locos. Many 0 1 ,4,1 V Unit 1: Crime 27 of these groups have survived in the same area for more than 70 years. Puerto Rican youths in New York formed similar gangs, as portrayed by the Sharks in the popular 1961 film West Side Story. To some degree these gangs were social clubs, but they also took part in street crime, drugs, and long-running turf warfare. In fact, by the 1970s, this turf warfare had given rise to the characteristic gang crimethe drive-by shooting. Gang kids as young as 13 would lean out the windows of cars to avenge some wrong by shooting at an enemy gang member. Often s4' the shots hit the wrong targeta guest at a In 1986, two young people look at graffiti about wedding party or a tiny child playing on a crack near an area known as an open air drug market, in Roselle, New Jersey. lawn. Outlaw motorcycle gangs developed in some poor white communities in the 1950s. As off subgroups called"sets" in many areas shown in the 1950 film The Wild One, these bik- around Southern California. An archrival ers were less interested in defending turf than group called the Bloods also developed, spin- in appearing like a marauding band of pirates. ning off its own sets, until many Los Angeles Later, motorcycle gangs became associated neighborhoods became a patchwork of gang with drug trafficking and other crimes. territories. The two super-gangs sported offi- Outlaw motorcycle gangs were often cial colorsblue for the Crips, red for the marked by a vicious anti-black, anti-Latino Bloodsand each set had a hand sign, like a racism. In the 1970s and 1980s, some impover- letter of the deaf alphabet, to identify itself.. ished white communities saw the development Gang members, known as gangbangers, also of similar groups who called themselves skin- used pro football and basketball jackets to heads. They modeled themselves on British announce their identities. punk gangs who shaved their heads. Often The black gangs might have settled into identifying with punk music and avowing the pattern of earlier gangsstreet crime, turf overt racism, the skinhead groups produced an wars, and petty vendettas. But in the early embittered subculture of hatred and violence. 1980s, crack cocaine hit the streets. The normal African-American youth gangs had a dif- powdered form of cocaine cost about $100 a ferent history. They arose in the 1950s to program. Crack, however, could be bought as tect local turf, much like the Latino gangs. In cheaply as $5. This cheap and highly addictive the period of political protest of the 1960s, drug instantly transformed cocaine use into a some of these gangs turned to radical politics. widespread and deadly problem. With millions The Blackstone Rangers in Chicago became of dollars to be made overnight, many sets of Black P. Stone (the "P" stood for power). After the Bloods and Crips turned themselves into the Watts riots of 1965, the Slausons became drug-dealing networks to rake in the profits. thenucleusfortheLos Angeles Black This flood of cash plustiesto Latin Panthers. These politicized groups did not sur- American drug suppliers brought along a huge vive long into the 1970s. Black P. Stone, for increase in violence. Gang members now used example, changed again and eventually became automatic weapons like the Uzi or AK-47. a drug-dealing gang called El Rukn. Some sets of the Crips and Bloods started In the early 1970s, Los Angeles saw the sending out exploration parties to set up busi- beginning of a new federation of gangs called ness in cities across the country. The drug net- the Crips. Unlike other gangs, the Crips spun work spread.

28 CRIMINAL JUSTICE IN AMERICA BESTCOPYAVAILABLE On the Eastern seaboard, Jamaican immi- Gang Suppression grants formed similar crack-dealinggangs To stop gang violence,many communities called posses, and theytoo started to spread have taken steps tosuppress gangs. Four inno- outward fromBoston, New York,and vative techniques have been tried inrecent Washington, D.C. The Untouchables from years: Miami and El Rukn from Chicago did the same. By the late 1980s, gangs of second-gener- Directed police patrols. In the 1990s, New ation Vietnamese, Cambodian, and Chinese York City police adopteda tactic of flooding immigrant youth were also jumping into the areas known for gang activity with officers. crack trade. Police would stop suspectedgang members The number of drug- and gang-related who were committing minor offenses (suchas murders soared to over 400a year in Los drinking in public). If suspects had bulges in Angeles county. Even tiny Martinsburg, West their clothing, they would be searched for Virginia, which had been colonized bya guns. These stop and frisks became so com- Jamaican posse, went froman average of one mon that gang members stopped carrying murder a year to 20 drug killings in 18 months. guns. As a result, the murder rate fell dramati- Crack addiction createdmany social prob- cally. The police have drawnsome criticism, lems. With more addicts searching for small however, because the directed patrols took amounts of ready cash to buy crack, reports of place in poor and minority neighborhoods street crime and theft continued to rise. Crack and many people stopped and friskedwere not addiction also increased prostitutionrates and gang members. the use of injected drugs like heroin. These Anti-loitering ordinances. In 1992, the city of were major factors in the spread of AIDS. Chicagopasseda GangCongregation In recent years, the crack epidemic has Ordinance, which banned "criminalstreet slowed. The number of gang-related killings gang members" from loitering in public has dronped. But gangs remaina serious prob- places. The law defined loiteringas remaining lem. "in any one place with no apparent purpose." Young people join gangs for differentrea- Under this law, a police officer could order sons. For some inner-city youths, it may seem people loitering in public to disperse and leave safer to be in a gang (although statistics show the area if the officer reasonably believedone that gang members are at least 60 timesmore of them was a gang member. Anyonenot likely to be killed than those in the general promptly obeying the order violated the law. population). For others, thegang offers a way In three years, police dispersed about 90,000 to make money. For many, gangs providea people on Chicago streets and arrestedmore substitute for a functioning, supportive fami- than 40,000 who refused tomove on. The law, ly. however, was challenged in court. In 1999 in One researcher has classifiedgangs into Chicago v. Morales, the U.S. Supreme Court three types: corporate, territorial, andscav- ruled 6-3 that the law violated dueprocess and enger. Corporate gangs try to make money. was unconstitutional. A basic requirement of These gangs tend to be highly organized and due process is that a law must clearly describe almost everything they doconcerns making what is forbidden. The court found that the money. Territorial gangs are less organized and crime of loitering was too vague for peopleto focus on protecting their turf. They respond recognize when they were breaking the law. In with violence to anyone they viewas an intrud- January 2000, Chicago enacteda new ordi- er. Scavenger gangs are the least organized. The nance, which it hopes will pass constitutional members who band togetherare usually low tests. It bans "gang loitering" in certain parts achievers and violenceprone. Their outbursts of the city. "Gang loitering" is definedas of gang violence tend to be impulsiveand remaining in one place "under circumstances senseless. that would warrant a reasonableperson to j4 Unit 1: Crime 29 All these things were illegal. But the injunction Age of Gang Members also banned the gang members from doing things in the neighborhood that were legal. It ordered them not to gather in groups, wear clothes with certain symbols, or carry a beep- er. In the years following the injunction, crime in the neighborhood dropped dramatically. 18-24 year Several of the alleged gang members, however, 37% challenged the injunction in court. They argued it violated due process to penalize them without a criminal trial. They also said the injunction violated their First Amendment right to peaceably assemble and associate freely. In 1997 in Gallo v. Acuna, the California Source: 1996 National Youth Gang Survey, OJJDP (1999) Supreme Court upheld the injunction. The court stated: "To hold that the liberty of the believe that the purpose or effect of that peaceful, industrious residents of Rocksprings behavior is to": must be forfeited to preserve the illusion of (1) "establish control over identifiable freedom for those whose ill conduct is delete- areas, rious to the community as a whole is to ignore (2)"intimidate others from entering half the political promise of the Constitution those areas, or" and the whole of its sense." One of the justices (3) "conceal illegal activities." who disagreed with the opinion argued that the injunction should be limited to illegal acts Street-gang injunctions. Beginning in the only. He said in his dissent that the court late 1980s, several California cities got court "would permit our cities to close off entire orders, known as injunctions, against gangs. neighborhoods to Latino youths who have Under laws in most states, courts can grant done nothing more than dress in blue or black injunctions to shut down "public nuisances." clothing or associate with others who do

A nuisance suit is not a criminal action, but a so. . . . In my view, such a blunderbuss civil lawsuit. If a court grants an injunction, approach amounts to both bad law and bad however, anybody who violates it can be held policy." The U.S. Supreme Court refused to in contempt of court and fined or jailed. A hear an appeal from this decision. "nuisance" is something that interferes with people enjoying their property or personal Zero tolerance for gang violence. Operation interests. A "public nuisance" affects a whole Ceasefire was developed as a zero-tolerance community or neighborhood and endangers part of an anti-gang strategy in Boston. A public health or safety. Nuisances are long- research group led by Harvard professor David running abuses, not single incidents. Kennedy looked into the city's problem of In 1993, the city of San Jose got an injunc- gang violence. It found that fewer than 1 per- tion against more than 30 alleged gang mem- cent of all young people belonged to street bers. Every night for several years, they had gangs. Yet this small number accounted for at allegedly taken over Rocksprings, a neighbor- least three-fifths of all youth homicides. The hood they didn't live in. They allegedly sold researchers also found that 75 percent of all drugs, played loud music, fought with rival young murderers and victims had lengthy gangs, and made the residents virtual prisoners criminal records, an average of 10 crimes in their own homes. The injunction ordered apiece. Because gang members committed so the gang members not to use certain drugs, many crimes, most had warrants out for their carry weapons, destroy property, or trespass. arrest or were under some form of court 33 30 CRIMINAL JUSTICE IN AMERICA asked: "Who's next?" Law enforcement didnot have the personnel to crack downon every gang, but it didn't have to. Gangs didn't want to be next. Boston's anti-gang strategy hadtwo other parts. Operation Night Light sent police and probation officers into the homes ofyoung people on probation to checkon them each night. The third part was the Gun Project, which cracked down on illegal sales ofguns to juveniles. These strategies paid off. By 1995, the number of youth homicides had dropped 80 RESIBENTE percent from1990. In 1996, no young people in ;OLDseffillOREN...... ,. Boston died from gun violence. Sati?_,...... 8.plitv;Io. .--,..,, . SUPERIOR' No one doubts that police must actto 'TRIBUNAL PUB.WIDEN DEL suppress gangs. But many doubt that police 0:20525 action alone can have a long-term effect. They point out that gangs flourish in poor, neglected neighborhoods and schools. They believe the best long-term solution is investing in chil- This 1999 photo shows a curfew sign postedon dren. This can mean buildingup the neigh- Blythe Street in the Panorama Cityarea of Los borhoods and schools. It can alsomean pro- Angeles. The city obtained a controversial injunc- viding special programs for childrenat risk of tion against 100 members of a Blythe Streetgang, joining gangs. banning them from carrying pager. , blocking side- walks, and gathering in groups of more than two For Discussion people., 1.List some of the factors that might pusha young male toward violence. Do these factors also affect young females? As a group, supervisionprobation, parole, or pretrial why are young males more violent than release. This meant that the criminal justice young females? system could greatly impact each gang mem- 2. Does gang activity exist in your communi- ber. For example, thoseon probation could ty? How has it changed in the last 10 years? have their probation revoked and those with In the last 20 years? outstanding warrantscouldbearrested. 3. What do you think should be done tostop Personnel from many agencieslocal and fed- gangs? Explain. eral police and prosecutors, probation officers, youth corrections, gang outreach, neighborhood groupsstarted meeting withgangs and informing them thatany violence attributed to the gang would result ina crackdown on all members of that gang. Aside from the warning, gangs were told that the city could also offer servicesjob training, protection BEST COPY AVAILABLE from enemies, but they must stop the violence. The first episode of violence following these meetings led to a crackdown that brokeup a gang. At the next meetings with gangs, the crackdown was talked about and gangswere

34 Unit 1: Crime 31 No person who is a member of a criminal street Class Activity: Take Back gang may enter any city park. A criminal street the Park gang is any organization whose members have committed two or more of any the following crimes: In this role play, students take the role of murder, voluntary manslaughter, assault with a community members debating what to do deadly weapon, robbery, or selling narcotics. Any about gangs in a community park. person found guilty of this ordinance shall be subject 1.Read and discuss "Cowan Park," below. to a $350 fine. 2. Divide the class into triads. Assign each While this proposal has garnered support, student in the triads a role as a member of it has also drawn criticism from a citizens Keep It Constitutional (KIC), Take Back group called "Keep It Constitutional."KIC the Park (TBP), or the city council. believes that the ordinance violates the First Amendment to the U.S. Constitution. This 3.Regroup the class to consult with one amendment protects everyone's right to assem- another while preparing for the role play. ble in peace. KIC says this even includes gang KIC members should sit on one side of the members, because being in a gang is not room, TBP members on other side, and city council members in front. KIC and TBP against the law. If gang members break any arrested. members should think up their best argu- laws,says KIC, they should be Otherwise, KIC believes, they should enjoy ments and city council members should the same rights as everyone else. KIC also fears think of questions to ask each side. the police will use the law to pick up anyone 4. Reassemble as triads and begin the role who looks like a gang member. KIC believes play. TBP members will present their case the park problem can be solved by stationing first. Each side will have two minutes to police officers there. make itspresentation. The city council TBP does not believe the ordinance vio- member can interrupt to ask questions. lates the Constitution. According to TBP, gang After both sidespresent, each council members do not meet in the park to assemble' member should return to his or her seat at in peace. They commit acts that keep others the front of the room. from the park. As things stand, law-abiding 5. The city council should discuss and vote people are currently banned from the park. on the ordinance. Police will have no trouble telling who are and who are not gang members. Gang members 6. Conclude the activity using the Debriefing practically advertise who they arewith tattoos Questions on this page. and gang colors. They flaunt their member- Cowan Park ship to intimidate others. Once a haven for young children, Cowan Debriefing Questions Park has slowly changed into a hangout for 1. What were the strongest arguments for the rival gangs. Several gang-related shootings have ordinance? Against the ordinance? Why? taken place there in the last three months. Two weeks ago, a stray bullet killed four-year-old 2. Do you think the ordinance violates the Monica Hines, who had been playing on the Constitution? Why or why not? swings. Since that time, mothers have kept 3. Do you think it might sometimes be neces- their young children away from the park. sary to violate the Constitution to control Several community members have banded crime? Why or why not? together to form a group called "Take Back the 4. What do you think could be done to Park." Members of TBP want to rid the park of reduce gang violence in parks? Explain. gang members and make it safe againfor ordinary citizens. They have proposedthe city adopt the following ordinance: 3 5 32 CRIMINAL JUSTICE IN AMERICA Swindlers and Con Artists

The average loss from a street crin glary or mugging or theft from a c than $500. White-collar criminals, take far more from their victims. Wh crime refers to acts like bank fraud worthless stocks and bonds, and evei people's homes throughillegaln schemes. Swindlers don't rely on violence or breaking and enteringthey rely on the victims' trust. And in the process, they steal not only money and property, but often they destroy the victims' self-respect. They leave people fear- ful and less willing to trust others in the future. One notable swindle that cost people hundreds of millions of dollars took place in the Charles Keating Jr., right, leaves federal court in 1980s. It was part of the savings-and-loan col- Los Angeles with his attorney. Keating served 50 lapse, brought on by junk bonds, corporate months for fraud. wheeling and dealing, and shaky investments. Charles Keating including five U.S. senators to whom he had In..)84, an Arizona home builder named contributed large sums. He managed to stall Charles H. Keating Jr. bought Lincoln Savings the investigation another two years. and Loan in Irvine, California. Keating imme- The government finally seized Lincoln diately began funneling bank loans into gigan- Savings and Loan in 1989, but it was too late tichigh-risk ventures, land deals, luxury for thousands of small investors. Paying off resorts, and junk bonds. He also set up a plan the insured loans cost the taxpayers over $2 that moved profits and loans around from billion,and many thousandsof small Lincoln to his own American Continental investors got nothing. Corporation and to 55 subsidiaries, using land Many victims were elderly,trying to swaps and phony loans. stretch out their incomes during retirement. As the scheme got shaky, he needed more Some had to return to work. Others were and more cash to hold his empire together. forced on welfare. Several became so despon- Keating directed his high-pressure sales force dent from their financial loss that they com- to begin selling another $200 million in near- mitted suicide. ly worthless investments to small investors, Keating,age 69, wasconvictedin including many retired people. These people California on 17 counts of state securities often wanted safe, government-insured invest- fraud and received the maximum sentence of ments. The sales force was instructed to tell the 10 years in state prison as well as $250,000 in investors that the new junk bonds were "just as fines. In federal court, he was convicted on 73 good" as insured deposits. counts of racketeering, conspiracy, and fraud. This scheme, too, began to come apart, He was sentenced to 12 years and 7 months in and federal regulators started investigating. federal prison and ordered to pay restitution of Keating appealed to friends in Washington, $122.4 million.

n.121: Unit 1: Crime 33 But both convictions were overturned on con game is to remember: If it seems too good appeal after Keating served 50 months in to be true, it almost certainly is. Everyone prison. The California conviction was reversed should say no to schemes suggested by because the trial judge gave the jury improper strangers. instructions. The federalconviction was The following section describesseveral thrown out because one juror knew about classic swindles, and a few new ones developed Keating's state court conviction and had dis- for the telephone and computer age. To help cussed it with other jurors. you keep the bad guys straight, in each case we In April 1999, Keating made a plea bargain will call the swindler "Bunco" and the accom- with federal prosecutors. In return for pleading plice "Capper." guilty to four counts of fraud, he was sentenced to the 50 months he had already served. Pigeon Drop The judge did not order that he pay restitution Mr. Bunco approaches a well-dressed eld- because he faces $3 billion in judgments from erly woman named Ms. Green at a bus stop. lawsuits against him. While chatting in a friendly way, Mr. Bunco California prosecutors appealed to get spots an envelope on the sidewalk. He peeks Keating's California conviction restored, but into the envelope and says it contains $6,000. the appeals court ruled 2-1 in Keating's favor. Now Ms. Capper arrives and joins the conversation. Mr. Bunco asks both women what they Smaller Swindles and Con Games should do with the money. Soon they all agree Not all swindles involve banks and huge to share the money, but Ms. Capper recom- sums of money. Smaller swindlescalled con mends that Mr. Bunco go to a nearby lawyer games, scams, or buncoscost Americans bil- for advice. lions of dollars each year. Con games can vary Mr. Bunco returns and says the lawyer told from small schemes that take a few dollars him the three should share the $6,000. But Mr. from schoolchildren up to elaborate plots to Bunco reports that the law requires a neutral steal large sums from the rich. party to hold the money for six months. He P.T. Barnum, the great showman, said, says the lawyer has agreed to hold the $6,000 if "There's a sucker born every minute." In fact, they will each put up $1,000 to show good almost any of us could be suckered at one time faith. or another. Con artists tend to be bright, artic- The minute poor Ms. Green adds her ulate people. They are clever actors and patient $1,000 to the envelope, the swindlers find a at waiting for the right moment to strike. In way to go off with it. They may even leave her addition, they often work in groups to help with the original envelopefull of worthless bamboozle their victims. Often someone paper. called a "shill," who seems to be an innocent bystander, begins the process of drawing in the Ponzi Scheme victim. Complex con games can involve sever- Mrs. Bunco guarantees a huge return on al other people called "cappers" who also pre- an investment of $500. She attracts three tend to be innocent. In fact, they are all part investors. Two weeks later, she returns $200 to of the swindle team. each investor, saying that each has already In the end, most con games rely on the vic- earned this amount. The investors tell their tim's desire to get something for nothing. The friends about the easy money to be made. As swindler offers huge rewards at some later date in exchange for some of your money right Ask an Expert now. Dallas police W.E. investigator Invite apolice officer from the bunco squad to Orzechowski says, "Con men basically are discuss with your class different con gamesand using the same old schemes, time after time, swindles. and they still work." The best bet to avoid a

34 CRIMINAL JUSTICE IN AMERICA 3 7 more and more investors join, Mrs. Bunco uses some of the newer investors money to pay "dividends" to older investors. The number of big storean- elaborati.ebilficience game investors keeps growing until Mrs. Bunco involving a fake offiCe)ariiimany people: skips town with all the cash. (This swindle is The film The Sting shoWs-a goodexam- named after Charles Ponzi, who used this ple. method to defraud people in the 1920s.) blowoffthe last move in a congame. Bank Examiner Swindle capperan apparent bystander who is actu- Mr. Bunco visits Maria, a young house- ally an accomplice of the swindler. Also, wife, and identifies himself as a bank examin- asteerer. er. He picked her out as a victim by watching fishthe victim. Also themark,thepigeon; her fill out a deposit slip at the bank. Mr. thecustomer. Bunco tells Maria that he believes one of the greena naive victim. tellers at the bank is embezzling money. He asks Maria to help him trap the teller and hang paperto write a fraudulent check. offers her a reward of $500. After she agrees, hurrahthe point in a con game where the Mr. Bunco asks Maria to withdraw a large sum victim is totally committed. of money from her account. "Bring the money red inkingthe threat to eliminate the vic- home," he says. "One of our security people tim from some elaborate scheme justas will come by and pick up the bills to examine he or she gets greedy. the serial numbers." Maria withdraws the money, but of course it is picked up by Ms. salt a mineplacing a few real gems ina Capper, who disappears with it. worthless mine, or something similar. squeezea crooked wheel game such as The Luxury Tax Scam roulette. This is one of the most common telemarketing, or telephone, frauds. Mr. Bunco tele- stallthe point in a swindle where the victim phones Henry and tells him he has won a is momentarily delayed in-order to $2,500 cruise to the Bahamas and two dia- increase his or her greed: mond-studded Omega wristwatches, worth touchthe money taken from a victim. $500 each. Mr. Bunco promises to send the watches by express mail, but Henry has to pay the tax of $220. Henry mails off his check and Magazine subscriptions that are overpriced either receives two imitation watches worth a or never appear few dollars or nothing at all. The cruise tickets Pseudo charities never show up. Schemes to fix bad credit or get a credit ether Telemarketing Scams card for a fee Telemarketing swindles like the luxury tax Fake offers of loans for a fee paid in scam have become big business, stealing as advance much as $40 billion a year. Often a room full Work-at-home offers that promise huge of callers work these swindles. When authori- incomes ties begin to investigate, the whole operation can move on easily. Here are some common Phony travel and vacation offers telemarketing schemes that either steal money If you are approached by a caller like this, directly or offer a service at hugely inflated try to get an address or telephone number and prices: then call the police, the district attorney's Phony prize or sweepstakes offers, with a office, or a local consumer protection agency. fee charged to the "winner" BEST COPYAVAILABLE Unit 1: Crime 35 Internet Fraud For Discussion Itis estimated that retailsales on the 1. Do you think the penalty that Charles Internet will soon reach more than $100 bil- Keating received was appropriate? Explain. lion. With the growth of e-commerce, many 2. Should the criminal justice system treat telemarketing scams have moved tothe white-collar criminals like Charles Keating Internet. Scammers set up web sites and tele- less harshly than violent criminals? Why or phone banks and send bulk e-mail, knownas why not? spam, asking people to contact them. Just like telemarketing fraud, scammers offer phony 3. Why do victims fall for swindles? How can they avoid them? merchandise, prizes, magazine subscriptions, and investment opportunities. In addition, the Internet offers con artists new opportunities. Activity: More Cons Mrs. Bunco offers to sell a new television on an auction web site. She gives a mail drop There are many more con games and swin- as her address. When the money arrives, Mrs. dles than have been mentioned in this book. Bunco never sendsatelevision. (Auction In this activity, students find and report on frauds make up the overwhelming majority of different schemes. Each student should: Internet frauds reported to the National Fraud 1.Research and find a different con game or Information Center and the Internet Fraud swindle. To find one, talk to people, go to Watch.) the library, or research on the Internet. A Mr. Bunco sends spam to customers of a good place to start on the Internet is at the particular Internet service providertelling Criminal Justicein America Links on them their accounts need updating (particu- Constitutional Rights Foundation'ssite larly their credit card information). When cus- (www.crf- usa.org). tomers respond, Mr. Bunco goes on a spend- 2. Write a one-page paper describing the con ing spree with their credit card numbers. game, how it works, and who its victims Ms. Bunco buys shares of a cheap stock. are. She creates a phony web site with an article praising the value of the stock. Ms. Bunco then enters chat rooms and talks about what a great stock Stratosphere is and refers to the phony web site. When the stock price surges, Ms. Bunco sells her stock for a quick profit before the stock crashes. In more than 90 percent of all Internet fraud cases, payment is made offlineby check or money order. "Requesting cash is a clear sign of fraud," said Susan Grant, director of the Internet Fraud Watch. "Pay the safest way. If possible, pay by credit card because you can dispute the charges if there is a problem."

39 36 CRIMINAL JUSTICE IN AMERICA CHAPTER 3 Crime and Defenses

The Basics of Crime Over the years, a rather unwieldy body of law developed. Criminal cases differ from civil cases. In Common law has one serious problem. If most civil cases, individuals sue one it isn't written down in some simple way, how do people know if they are breaking the law? another seeking compensation forinjuries American states are divided on the issue of done to them. In criminal cases, the state pros- whether criminal courts can declare an act ecutes individuals for injuring society. Instead criminal if there is no specific statute against of seeking compensation from defendants, the state seeks to punish them. A criminal case that act. Some states still recognize the power focuses on whether a defendant has committed of the courts to create common law crimes, although this power is rarely exercised. Most a crime against society and what sentence is appropriate to punish the defendant for the states and the federal courts, however, have abolished common law crimes altogether. In crime. these jurisdictions, only conduct thatis But what conduct should society outlaw? In many instances, this question is easy to expressly forbidden by a criminal statute is a answer. Almost everyone would agree that crime. Thus the primary source of criminal law murder, rape, and arson should be prohibited. today is legislative enactment. By the second Debates arise, however, over other acts. Should half of the 19th century, legislatures had seen prostitution or the use of drugs be made crim- the problems of relying on common law and inal? What about gambling or private sexual activity? What conduct should society prohib- had begun to enact comprehensive criminal codes. Many of these codes embodied all of it? These debates raise questions about where the elements of the --old common law. criminal laws come from in the first place. The Sources of Criminal Law Classification of Offenses The common law divided crimes into two Our criminal laws spring from two major categoriesfelonies and misdemeanors. sources:lawspassed by legislatures and murder, common law. Common law is judge-made. Common law felonies were manslaughter, rape, sodomy, mayhem, rob- Instead of being created by a legislature, it is bery, arson, burglary, and larceny. All other based on legal precedentscourt decisionsset crimes were misdemeanors. by judges in earlier cases. English common law Under modern criminal law, the distinc- is an important root of our current legal sys- tion between felonies and misdemeanors is tem. Originally, the criminal laws in England spelled out by statute. Most states make any were mostly unwritten. If a judge heard a case crime punishable by death or by imprison- and believed that certain conduct was anti- social, he made it a crime and punished the ment in a state prison a felony. A crime punishable by time in a local jailis a misde- offender accordingly. meanor. Other states distinguish by length of Definitions of crimes and defenses devel- imprisonment, not place of imprisonment. oped in the decisions of the English courts. These later became part of the common law For example, a felony is often defined as a crime punishable by one year or more in adopted in early America. In turn, American courts began contributing to the common law. prison.

Unit 1: Crime 37 3 For Discussion d. Robert holds a toy pistol to Ashley's head 1. What characteristics distinguish criminal and demands all of her cash and jewelry. from civil cases? She believes it's a real gun and hands over 2. What are the two sources of criminal law? the goods. How are they different? e.Pedro calls a local pizza parlor and orders 3.Today, many states have done away with five pizzas to be delivered to a phony common law crimes. Only acts specifically address. defined as illegal can be punished. What f.Jane's country is at war. She shoots and would happen if some criminal managed kills an enemy soldier. to find a loophole? What if an individual g. John lets his dog run wild around the did something obviously harmful to others neighborhood, even though he knows that that was not specifically outlawed by the dog scares young children and con- statute? Should the courts be allowed to rec- stantly knocks over garbage cans looking ognize a new crime to fill the gap? Explain for food. your answer.

Class Activity: Felony or Ingredients of a Crime Misdemeanor? The criminal justice system carefully defines exactly what a crime is. The system also In this activity, students evaluate whether takes care in defining what must be proven to certain actions should be crimes, and if so, show who committed a crime. Almostevery whether they should be felonies or misde- crime has four basic ingredients: meanors. 1.A prohibited act. At common law, this was 1.Break into pairs. Each pair should: called the actus reus. The act is almost always a. Read and discuss "Criminal Acts?" defined by a statute. The law does not pun- below. ish people for having criminal thoughts alone. There must be an act. In murder, for b. Fill out a chart answering the fol- example, the act is killing someone. In a lowing questions: few rare cases, failing to act is a crime when Should the act described be a a person has a legal duty to act. For exam- crime? Why or why not? ple, if a parent lets a child die of a long ill- If so, should it be a felony or ness without seeking medical help, it can misdemeanor? Why? be a crime. 2. Then reconvene as a class and share group 2. Criminal intent. At common law, this was answers. called mens rea, or a guilty mind. This can be the most difficult ingredient to prove. It Criminal Acts? will be discussed in more detail below. a.Margaret tells the police that an officer who stopped her on the street was verbally 3. Concurrence of the act and the intent. abusive to her. She is lying. The person has to intend the act at the same time he or she commits it. For exam- b. Sam sees a young boy struggling in a pond ple, Sluggo wants to kill Nancy. Then he and calling for help. Sam does nothing and changes his mind and forgets all about it. the boy drowns. A month later he hits her by accident with c.Dick and Suzanne are living together. They a car and kills her. This is not legally mur- have no intention of getting married in the der because the intent to kill and the act near future. did not occur at the same time. 41 38 CRIMINAL JUSTICE IN AMERICA .

- A I . .

Conduct prohibited KINDS Act and intent must Result must be caused

by law 1 General occur at the same by the act 2 Specific time 3 Criminal Negligence 4 Strict Liability

4. Causation. The act has to cause the harm- John is drag racing down a city street when ful result. For example, Marge, intending Mary, a pedestrian, steps in front of his car. to kill Homer, puts poison in a doughnut. Mary is killed. As he reaches for the doughnut, Homer 4. Strict liability. This means no mental state slips, hits his head, and dies. Marge cannot is required at all. Anyone doing the act is be found guilty of murder because she did guilty regardless of intent. Almost all com- not cause Homer's death. mon law crimes required some mental Criminal Intent state. But bigamy is an example of a common law crime that required no intent. For Criminal laws generally punish only those example; if John mistakenly believes he has who have criminal intent, a guilty mind. But divorced his first wife and he marries Mary, what constitutes a guilty mind, the so called he can be convicted of bigamy. Other mens rea, depends on the crime. The criminal examples of strict liability crimes include intent required for most crimes usually falls most health, safety, and traffic offenses. into one of four categories: 1. Specific intent. This is the easiest type to define. It means the person intended just Class Activity: Did They the result that happened. The person did it on purpose. Certain crimes, such as theft, Commit Crimes? require specific intent. To convict John of theft, for example, the prosecution must In this activity, students analyze five cases prove not only that John took Mary's car, to determine whether criminal conduct has but also that he did not intend to return it. taken place. 1.Break into groups of four. Each group 2. General intent. This means that the per- should: son either knew the result would happen or consciously disregarded the extreme likeli- a. Read and discuss the five cases that hood that it would happen. For example, follow. John picks up a gun on New Year's Eve and b. Refer to the explanations above of shoots it toward a crowd of people. A bul- the four basic elements of a crime let hits Mary and kills her. He didn't kill (1) act, (2) intent, (3) concurrence of Mary on purpose, but he must have known act and intent, and (4) causation. he would kill, or was likely to kill, some- c. Assign one element of a crime to one. This would meet the general intent each person in the group. Have that requirement of second-degree murder. person say whether that element is 3. Criminal negligence. This means that a present in each case, then discuss person does some act unintentionally but whether or not itis. Refer to the with an extreme lack of care. For example, glossary if you need a crime defined.

Unit 1: Crime 39 d. When the discussion is completed, assign one case to each student for Murder Most Foul reporting back to the whole class. Be preparedto explain and discuss M u r d e r most foul... most foul, strange and them. unnatural. 2. Reconvene as a class and share theanswers. Shakespeare, Hamlet

Case 1: Tim No crime seems to fascinate peoplemore Marcos and his friends, Tim and Jill, were than murder. Religions teach the basic tenet, having a beer together at their local bar. When "Thou shalt not kill." Yet throughout theages, Tim went to the jukebox to play more music, storytellers have told and retold tales ofmur- Marcos asked Jill to dance. Tim became jealous derCain and Abel, the Greek tragedies, and punched Marcos in the face. Tim has been Shakespeare's Macbeth, thousands of mystery charged with battery. novels, crime TV shows. In our country, the most severe penalty our society can inflict Case 2: Karen deathis reserved for those who commitmur- Karen told everyone that she hated Emily der under certain conditions. for stealing her boyfriend. Karen said she Like all crimes, murder is made up ofpar- wanted to hurt Emily. Two months pass and ticular elements. These must be proved before Karen nudges a flowerpot off her second-floor a person can be convicted. Let's examine some patio as Emily stands below: The flowerpot of the specific elements of murder and those of hits Emily and gives her a concussion. Karen some other important crimes. swears that she forgot all about her threats and Murder at common law and under many didn't mean any harm. Karen is charged with modern statutes is the unlawful killing ofa battery. human being with malice aforethought. Malice Case 3: Ray aforethought is the intent, or mens rea, element Mr. Ray Anderson sat on his front porch of this crime. It doesn't mean whatyou might cleaning his rifle. Many children were playing expect it to. Malice aforethought is sometimes on the sidewalk in front of his home. When defined as an actual or implied intention to kill Mr. Anderson turned the gun over it went off, with no provocation by the victim. killing one of the children in the crowd. He Actual intent is found when the defendant has been charged with involuntary manslaugh- consciously meant to cause another's death. ter. Implied intention exists when the defendant either: Case 4: Gina (1)intended to cause great bodily harm Gina was shopping in her favorite depart- or ment store. She saw a sweater that she liked, (2)should have known that the act stuffed it into her book bag, and ran out of would result in death or great bodily the store. A security guard caught her. Gina harm. has been charged with shoplifting. Consider some examples: Case 5: Gayle If Barbara hates Michael, decides to kill Gayle shoots Mary in the big toe. Mary him, and picks up a knife and doesso, mal- goes to the hospital to have her toe examined ice aforethought is present. In this case, and treated. One week later, Mary dies of Barbara's malice aforethought was an actu- blood poisoning that she got froman unster- al intent to kill Michael, and she could be ilized medical instrument. Gayle is charged charged with murder. with murder. If Barbara decides to hurt Michael badly, stabs him in the chest, and kills him,

40 CRIMINAL JUSTICE IN AMERICA 43 malice aforethought is alsopres-- time the intent to kill is implied she did not specifically intend to only cause great bodily harm. If Barbara hates Michael, decides him, pushes him in front of or traffic at a street corner, and Mich as a result, malice aforethought established. In this case, though 1 didn't intend tokill or even se injure Michael, she should havekno\ actions would cause him to die of sliffer great bodily harm. Under the law, Barbara had implied intent to kill Michael. Police examine a body found at a murder scene. Degrees of Homicide Over the years, the law has developed several degrees of criminal homicide. The punish- act in the heat of the anger, and ment a convicted person may receive depends not have had an opportunity to cool on the degree of the homicide. The worst off. degrees of homicide are commonly called mur- The provoking act does not excuse the der and the lesser degrees, manslaughter. killing, but it makes the crime a lesser degree First-degree murder is a deliberate and than second-degree murder. premeditated killing done with malice afore- Involuntary manslaughter is an unin- thought. Thisisa cold-blooded murder. tended killing that takes place during a crime "Deliberate" means it was done with a cool that is not a felony. It can also be a killing mind, capable of reflection. "Premeditated" caused by criminal negligence. means the person actually reflected on the Vehicular homicide is a crime recognized murder before committing it. And "malice by many states. It covers killings from auto- aforethought," of course, means that the killer mobile accidents when the driver is criminally had the intent to kill. It takes all three ele- negligent. mentsdeliberation, premeditation, and malice aforethoughtto establish the specific intent For Discussion for first-degree murder. 1.The penalties for these forms of homicide Second-degree murder is a killing done in every stateareincreasingly harsh: with malice aforethought, but without deliber- Involuntary ManslaughterVoluntary Man- ation and premeditation. This covers all mur- slaughterSecond-Degree MurderFirst-Degree ders that are not in the first degree. Murder. Felony murder is any killing done while a If one person is killed in each of these person is committing a felony. If the killing is cases, why do you think the punishments done while committing certain felonies, such get harsher? Is this fair? Explain. as robbery, rape, arson, or burglary, it is classi- 2. Howard attempts a first-degree murder but fied as first-degree murder. Killings done while fails and harms no one. Fred is guilty of committing other felonies are considered sec- involuntary manslaughter when he acci- ond-degree murder. dentally killsa person. Which person Voluntary manslaughter is an intentional should be punished more harshlyHoward killing committed without maliceafore- or Fred? Why? thought. The killer must: be seriously provoked by the victim, 44 Unit 1: Crime 41 Class Activity: Death in No Honor Among the School Halls Thieves

In this activity, students examinea hypo- Stealing is one of the most commonly thetical killing and determine what crimewas committed crimes. The law recognizesmany committed. forms of stealing. The differences dependon 1.Break up into groups of four, and read the how the stealing is done. following case: Larceny is the usual legal word for theft. It One day in gym class, Adam made fun of means taking without permission someone the way Rick was shootinga basketball. else's property and intending not to give it Rick told Adam to shutup or else he back. For example, if someone walks byyour would take care of him. Adam couldn't desk and takes your wallet, thatperson has help making another commenton the way committed larceny. There are usuallytwo cate- Rick was shooting. Rick grabbed Adam and gories of larceny or theft: beat him up. 1. Grand theft means stealingproper- ty worth over a certain amount. The Adam ended up with a broken nose and a amount varies from state to state, black eye, and he decided to get even. He but it is usually around $500. Grand dug his father's pistol out of the attic, theft is a felony. If your walletcon- loaded it, and headed off to school to find tained $1,000, stealing it would be Rick. He waited at Rick's locker for almost grand theft. an hour, but Rick never showed up. Adam became impatient. Nervously, he checked 2. Petty theft means stealing property the gun again to make sure that all the worth lessthan the grand theft chambers were loaded. Just then the school amount. Petty theftisa misde- bell rang out, startling Adam into firing meanor. the gun by accident. The bullet ricocheted Burglary is the unlawful entry intoany off a locker and hit a student who was walk- building with the intent to commita crime, ing out of class. She was killed instantly. usually theft. At one time incommon law, bur- 2. In each group, assign one person to each of glary meant breaking into a home at nightto the following crimes: murder, felonymur- steal. That definition has been expandedto der, voluntary manslaughter, and involun- include illegally entering any buildingat any tary manslaughter. Each person should: time of day to steal or commitany crime. a. Decide whether the crime described Some states have expanded it to include break- above fits the crime assigned to him ing into cars. If a thief broke intoyour office or her. to steal your wallet, the crime would be bur- b. Be prepared to explain why or why glary. not. Robbery, unlike burglary,isa crime against the person. It is forcible stealingthe 3.Discuss the case in your group. Go through taking of a person's property by violence the crimes, one by one, and the or by person threatening violence. If someone grabs responsible for that crime should explain you, whether the case fits that crime or not. demands your wallet, and then takes it and runs away, that person has committed robbery. Discuss why or why not. Armed robbery means usinga dangerous 4. Reconvene the class and compare your weapon to take something from a person. findings. Even pretending to have a weapon is considered armed robbery. Ifsomeone pulls a knife on you and steals your wallet, that person has 45 42 CRIMINAL JUSTICE IN AMERICA committed armed robbery. Armed robbery is a An extortionist can threaten violence. For more serious offense than simple robbery, and example, if Elsa says she will kill you unless it carries a stiffer penalty. you give her $1,000 by Friday, she has committed extortion. But if the threat is of imme- Other Forms of Stealing diate harm, the crime is robbery. For example, Larceny, burglary, and robbery are the if she points a gun at you and demands three main categories of laws against stealing. money, she is committing robbery, not extor- But as the common law developed in England tion. and America, courts and legislatures added Receiving stolen property is against the additional categories. law in every state. The crime requires that the Embezzlement is when people take prop- person know or should know that the proper- erty they have been entrusted with. For exam- ty is stolen. For example, Sam goes over to his ple, you lend John your car and he decides to neighbor Ed's house, sees five brand-new color keepit.Hehasembezzledthecar. televisions in his garage, and Ed generously Embezzlement differs from larceny in that the gives Sam one of them. Sam is guilty of receiv- person takes possession of the propertylegally. ing stolen property even if Ed never told Sam Fraud is knowingly misrepresenting a fact the television was stolen. Sam should have to get property from another person. For known they were stolen. example, John tells you a worthless coin is gold Today, a number of states have classified (which he knows is false) and sells it to you for embezzlement, fraud, extortion, and receiving $100. John has defrauded you of $100. Fraud is stolen property under a general law against sometimes a crime in itself and more often an theft. Others retain them as separate laws element of other crimes, such as larceny by against stealing. trick, false pretenses, forgery, and writing bad checks. For Discussion Extortion is making a threat with the 1. The penalties for these forms of stealing in .ntent of getting property (usually money) every state are increasingly harsh: Theft from another person. One form of extortion BurglaryRobberyArmed Robbery. is blackmail. For example, Elsa threatens to tell If a wallet containing only $20 is stolen in your friends that you spent timein jail unless each of these cases, why do you think the you pay her $1,000. She isextorting money punishments get harsher? Is this fair? from you. 2. What is the difference between robbery and extortion? Between larceny and embezzle- Ask an Expert ment? 3. Why do you think states outlaw receiving Invite,a7criminal,lawyer to yourclass to explain stolen property? Do you think they should? the elements of differentcrimes. Explain.

E 46 Unit 1: Crime 43 Activity: What's the opportunity, crawls in, finds the bulging mat- Crime? tress, and steals her money. As Dave crawls out the window, Eden sees him. She writes Davea note, "I saw you. If you don't pay me $1,000, In this activity, students analyzea hypo- I'll tell the police." Dave thinks he betterpay thetical to determine what crimes have been Eden off. Late at night, he takes $1,000, puts it committed. in a bag, and walks toward Eden's house. But 1.Divide the class into pairs. Frank is lurking in the bushes. Frank sneaks 2. Each pair should: behind Dave and jabs his finger in Dave's a. Read "Thievesville, U.S.A.," below. back, saying, "I've got a gun. Just drop the bag on the ground and leave. Don't turn around." b. Imagine that thestatein which Thievesville, U.S.A., is located has Dave does as he's told. When he gets home, he laws against larceny, burglary, rob- realizes he has to raise some cash fast topay bery, armed robbery, embezzle- off Eden. He calls his neighbor Gina, who he's ment, fraud, extortion, and receiv- heard is an investment wizard. He tells her he ing stolen property. only has $200 and needs $1,000 soon. Shesays, "No problem. I've got an investment paying c. Determine which of these crimes, if 5-1, guaranteed. It's a sure thing." Dave gives any, each person broke. Review the Gina $200. She puts it with all the other articlefor information on each crime. "investments" she's received recently and flies to Rio to live where none of her "investors" d. Write down the offender'sname, can find her. which law the offender broke, and why. e. Prepare to report the answers to the whole class. 3. Have the pairs report and the class discuss the answers. Thievesville, U.S.A. Amy, Bob, Carol, Dave, Eden, Frank, and Gina all live in separate houses in thesame neighborhood. Determine which laws, ifany, each of these persons broke. Early every morning, Amygoes from house to house stealingnewspapers. She gets about 20 every day. She takes themto the corner newsstand run by Bob and sells them to him for a nickel apiece. She takes the dollar she earns and deposits it in the bank. She always goes to her favorite teller, Carol. Carol has a policy of taking 5 cents ofevery deposit for herself. She only makesa few dollars a day (all in nickels), but over theyears the money has added up to $1,200. She doesn't dareput it in the bank. She keeps it at home under her mattress. One day Dave is out searching for his newspaper when he sees that Carol has left one of her bedroom windowsopen. He seizes the 4 7 44 CRIMINAL JUSTICE IN AMERICA Hate Crimes

In 1999, a gunman sprayed bullets into a Los Angeles Jewish community center wounding three children and the center's receptionist. After he left, the gunman shot and killed a Filipino-America mailman. The attacker selected his victims because he hated Jews and other minorities. In 1998, three white men murdered James Byrd Jr., a black man, by dragging him for three miles behind a truck until his body was literally torn apart. The men, all sworn racists, targeted Byrd because he was black. percent of the reports. Making threats or intimidating people was the most common In1998,a young, gay college student, hate-crime report and accounted for about 40 Matthew Shepard, was brutally beaten and percent of all hate crimes. left to die entangled in a fence. His mur- From 1996-1998, hate-crimereports derers chose their victim because of his sex- decreased slightly, even with more jurisdictions ual orientation. reporting. Each of the previous six years had In 1994, a white man in Lubbock, Texas, shown an increase in hate crimes. Still, experts was murdered by two African-American disagree whether hate crimes are increasing or men. The father of three, the victim was decreasing in the United States. Part of the chosen because he was white. problem comes from the hate-crime statistics of these brutal crimes had one thing themselves. The federal government has only in common: They were motivated by hate. been collecting them since 1991. Some places These incidents and others around the country do not report hate crimes as a separate type of have drawn increased attention to the problem crime, but each year more agencies have start- of crimes motivated by prejudice, or so-called ed reporting them. This makes it difficult to hate crimes. accurately compare one year with another or Currently thefederal government and to study trends. almost every state have hate-crime laws. Some Compared to all other types of crime, the of these laws define a hate crime as any crime overall number of hate crimes is small. But committed against a person or a person's some experts claim that many hate crimes are property motivated because of the person's not reported. They also point out that most race, religion, nationality, or ethnicity. Others crimes in the United States target property, but also prosecute crimes motivated by bias most hate crimes are directed against people. against gender, sexual orientation, and disabil- According to a 1999 Gallup Poll, one out ity as hate crimes. of eight Americans is worried about being the In 1998, according to the U.S. Department victim of a hate crime. Among non-whites, of Justice, almost 8,000 hate crimes were however, one in four worry about being vic- reported around the United States. More than timized. half were motivated by racial bias. Prejudice R.A.V. v. City of St. Paul against religion, sexual orientation, and eth- Some critics of hate-crime legislation argue nicity or nationality accounted for about 1,000 that these laws violate the First Amendment's incidents apiece. protection of free speech. This gives every Crimes against persons, such as assault or American the right to express opinions or threats and intimidation, made up about 70 hold ideas even if they are racist or bigoted. e Unit 1: Crime 45 National Poll on Hate Crimes "Some states have special laws that provide harsher penalties for crimes motivated by hate ofcertain groups than the same penalties for the same crimes if they are not motivated by this kind of hate. Wouldyou favor or oppose this type of hate crime law inyour state?" Favor Oppose No Opinion 70% 25% 5% "If a hate law were enacted in your state, which of the following groups do you think shouldbe covered?" Yes, should be covered No, should not No opinion Racial minorities 85% 11.% 4% Women 83 4 Hornosex' uals 75 5 Religious and ethnic. minorities 84 12 4

Source: Gallup Poll (1999)7,`:.

On several occasions, the U.S. Supreme Court Wisconsin v. Mitchell has been asked to determine whether hate- Other hate-crime laws are different. crime laws violate the Constitution. Instead of creating special hate crimes, these In 1989, St. Paul, Minnesota, passed a city statutes add extra penalties for any crime com- ordinance making it a crime to placeon pub- mitted out of hate. For example, Wisconsin's lic or private land a hate symbol, suchas a hate-crime statuteincreases the maximum burning cross or Nazi swastika. Abouta year penalty for an offense whenever a criminal later, police arrested a group of white juveniles "intentionally selects the person against whom for a series of cross burnings. In one instance, the crime...is committed...because of the the youths taped chair legs together intoa race, religion, color, disability, sexual orienta- crude cross and set it ablaze inside the fenced tion, national origin or ancestry of thatper- yard of a black family. son. ..." In an appealthat reachedtheU.S. On October 7, 1989, Todd Mitchell, 19, and Supreme Court, attorneys for the juvenile a group of other young black men violated the defendants argued that the St. Paul law violat- law in Kenosha, Wisconsin. After seeing the ed the First Amendment. The city responded movie Mississippi Burning, which concerns Ku that by prohibiting such acts as cross burn- Klux Klan terrorism against blacks in the ings, the ordinance served "a compelling gov- South during the 1960s, they decided to attack ernmental interest" to protect the community a14-year-old white boy, Gregory Reddick. against hate-motivated threats. Mitchell asked his friends, "Do you feel hyped In June 1992, a unanimous Supreme Court up to move on some white people?" He then agreed with the juvenile defendants. Writing pointed to Reddick and said, "Theregoes a the opinion for the court, Justice Antonin white boy. Go get him!" About 10 members of Scalia stated that although governmentmay the group, but not Mitchell himself,ran across outlaw activities that present a danger to the the street, beat up Reddick, and stole his ten- community, it may not outlaw them simply nis shoes. Severely beaten, Reddick remained because they express ideas that most peopleor in a coma for four days and sufferedperma- the government find despicable. nent brain damage. Scalia also pointed out that other laws As the instigator of the attack, Mitchell existed to control and punish such actsas was tried and convicted of aggravated battery, cross burnings. In this case, the city could have which normally carries a penalty of twoyears prosecuted the juvenile offenders under laws in prison. But the jury found that Mitchell against trespassing, arson, vandalism, and ter- had selected his victim because of hisrace. rorism. (R.A.V v. City of St. Paul.) Consequently, the judge applied Wisconsin's

46 CRIMINAL JUSTICE IN AMERICA 49 hate-crime enhancement law and added two sion of hate a criminal matter, but it can pun- more years to Mitchell's sentence. ish criminal acts motivated by hate more Mitchell appealed his sentence, claiming harshly. that the state's enhancement law violated the Hate Crimes, Pro and Con Firstand14thamendments.Sincethe enhancement law is based on a criminal's Now that the Supreme Court has set motives, Mitchell argued that motives are guidelines for hate-crime legislation, states and based on thoughts and beliefs, which are pro- the federal government are considering adopting more such laws. A federal Hate Crimes tected by the First Amendment. Mitchell further argued that the law violates the 14th Prevention Act has been proposed. The U.S. Amendment because it treats criminals who Code already outlaws violence based on the are motivated by prejudice differently from victim's race, color, religion or national origin. criminals not so motivated, even though their The new act proposes expanding the law to include gender, sexual preference, and dis- crimes are identical. Attorneys for the state argued that the law ability. as extremely in this case differed from the one in R.A.V. v. Supporters see these laws important in our diverse society. They believe City of St. Paul. This law did not prohibit spe- hate crimes deeply hurt all levels of the com- cificspeech, symbols, or beliefs.Itonly applied to criminal acts (i.e., selecting a vic- munityindividuals, families, groups, and tim), which are not protected by the First society at large. Hate crimes intentionally send Amendment. They pointed out that during a message that minorities are unwelcome and unsafe. Supporters argue that hate-crime laws sentencing, judges commonly consider .many will help prevent much violence and will con- things,includingacriminal'smotives. Further, they claimed that the state had a vey our society's intolerance for these crimes. "compelling governmental interest" in elimi- Opponents view hate-crime legislation as well-meaning but unnecessary and even coun- nating prejudiced criminal behavior. In June 1993, the U.S. Supreme Court terproductive. They argue that anyone who upheld the Wisconsin hate-crime penalty- commits a serious crime is already punishable enhancement law. Writing for a unanimous under current state laws. These laws protect everyone equally. They see no reason to pass court, Chief Justice William Rehnquist ruled that a criminal's prejudiced motives may be laws that set up special classes of victims. used in sentencing, although "a defendant's Further, they contend that hate-crime laws will abstract beliefs, however obnoxious to most primarily affect those who commit lesser crimes by sending more of them to prison. people, may not be taken into consideration by They believe that sending someone into our a sentencing judge." The chief justice also stat- overburdened and racist-filled prison system is ed that "the statute in this case is aimed at con- likely to make them more racist. Thus, they duct unprotected by the First Amendment." say, the law may actually increase hate crimes. (State of Wisconsin v. Todd Mitchell.) As the Wisconsin and Minnesota cases In addition, opponents see no need for show, the line between punishing hate and federal intervention into an area of law that protecting speech and free thought can be dif- states have traditionally handled. In recent ficult to draw. On one side, our Constitution years, the federal government has enacted much crime legislation. Opposition has grown seeks to assure tolerance and equal protection thisfederalizationof criminallaw. for all citizens no matter what their race, eth- to takenheartbyrecent nicity, religion, or gender. On the other hand, Opponents have Supreme Court decisions striking down feder- our Constitution contains protectionsfor individual beliefs, no matter how distasteful al crime laws. The Constitution limits the powers of they might be. As the U.S. Supreme Court has Congress. Congress can only enact laws based determined, the state may not make the expres- 50 Unit 1: Crime 47 onthosepowersgiventoitinthe For Discussion Constitution. Federal crime laws are usually 1. What are hate crimes? Why is it difficult to based on Congress's power to regulate inter- determine if they are increasing or decreas- state commerce. For most of the 20th century, ing? the Supreme Court liberally interpreted what 2. Do you agree with the court's decision in constituted "interstate commerce," allowing Wisconsin v. Mitchell? Why or why not? laws to be passed regulating the environment, the work place, and civil rights. In recentyears, 3. How serious do you think the problem of however, five members of the court have hate crimesisin the United States? refused to go along with this liberal interpre- Explain. tation. They have started overturning federal 4. Do you think the federal government laws based on the commerce clause if they find should pass hate-crime legislation? Explain. the law is only remotely related to interstate commerce. In 1995 in U.S. v. Lopez, a 5-4 majority of Class Activity: the Supreme Court struck down the Gun-Free Hate-Crime Bill School Zones Act of 1990. The law made ita federal crime to have a gunnear a school. In In this activity, students role playa leg- his opinion for the court, Chief Justice islative session on a proposed hate-crime law. William Rehnquist found that possessinga 1. Ask students to imagine that the following gun near a school had nothing to do with law is being proposed in their state: interstate commerce. His opinion therefore Anyone who intentionally selected the vic- ruled that Congress had exceeded itspowers in tim of the crime because of the victim's enacting the law. race, religion, color, disability, sexual ori- In 2000 in U.S. 14 Morrison, the court by entation, national origin, or ancestry shall the same 5-4 majority struck down part of the have his or her sentence increased by 30 Violence Against Women Act of 1994. Created percent over the normal sentence. to stem "gender-motivated violence," this law 2. Divide theclassinto groups of three. permitted rape victims to sue their rapists in Assign every student in each triad one of federal court. Congress had based the lawon these three roles: state legislator, supporter thecommerce clauseand the 14th of the bill, opponent of the bill. Amendment, which prevents states from deny- 3. Have all the legislators, supporters, and ing people equal protection under the law. In opponents meet separately to prepare for an opinion by the chief justice, the court ruled the role play. The supporters andoppo- that Congress did not havepower to enact this nents should think up their best arguments law. The commerce clause, the court said, did and the legislators should think of ques- not permit Congress to "regulate noneconom- tions to ask each side. ic, violent criminal conduct." Under the 14th Amendment, Congress can onlypass laws 4. Regroup into triads and begin the role play. against actions by states or state officials,not The legislator shouldlet the supporter actions by private individuals. The court ruled speak first and then have the opponent that the law was therefore unconstitutional. speak. The legislator should ask questions These opinions by Rehnquist leave doubt of both. After both sides present, have the as to whether the court will find federal hate- legislators move to the front of the room, crime legislation constitutional. In Rehnquist's discuss the proposed law, and vote. Each legislator should individually state his words, the "Founders denied the Nationalgov- or her opinion on the bill. ernment and reposed in the States...the suppression of violent crime and vindication of 5.Debrief by asking what were the strongest its victims." arguments on each side.

48 CRIMINAL JUSTICE IN AMERICA 51 Cybercrime

During the 1990s, the Internet grew popular. More and more people from around the world went online every day. People sent e- mail, chatted, played games, and conducted business with people on the other side of the world. People also committed crimes. In many ways, the Internet provides a perfect place to commit a crime. Criminals can remain anonymous and prey on victims far away. Police have no crime scene tosearch for clues and they may have to track criminals halfway around the world. If police do manage to find the criminal, example, the "IloveYou" virus appeared on problems may arise. Although many tradition- people's computers as an e-mail attachment al crimes like fraud and theft occur on the from someone they knew. When a person Internet, new crimes, exclusive to the Internet, opened the attachment, the virus erased files also take place. The United States has devel- on the person's computerand sent the oped laws against these crimes, but many "IloveYou" attachment to everyone in the per- places haven't. No international treaty against son's e-mail address book. In this manner, the cybercrime yet exists. Thus a person could virus quickly spread to computers around the work at a computer in a faraway place, hurt world, causing millions of dollars in damage. many people around the world, and nothave Other hackers vandalize by breaking into web committed a crime if the country does not sites and leaving "graffiti." For example, hack- outlaw what the person did. ers changed the Departmentof Justice's web Hacking site to read "Department of Injustice" on a Hacking is electronically breaking into or background of swastikas. Still others try to disrupting computer systems. Once inside a shut down web sites. Using so-called "denial of system, hackers do different things. service" attacks, which overload a site's com- Some hackers steal. The thefts can involve puters, hackers have managed to shutdown almost anythingfrom money to credit card such popularsitesas Yahoo, e-Bay, and numbers to intellectual property like books, E*Trade. music, and art. Two hackers in Russia elec- Other hackers do nothing except enter the tronically entered an American bank and site and look around. Even this, however, is transferred $10.5 million to accounts in other illegal. The federal government's Computer banks. Another hacker stole thousands of cred- Fraud and Abuse Act outlaws entering without it card numbers from a music company. The authorization any computer system run by hacker posted the numbers on the Internet government, banks, or those involved in inter- when the business refused to pay $100,000 in state commerce, such as those on the Internet. ransom money for them. Whenbest-selling It also bans viruses and computer attacks. For author Stephen King offered a new e-book for a first offense, an unauthorized person enter- sale on the Internet, hackers broke into the ing a computer system without intending to publisher's site, stole the book, and posted it cause harm can get one year inprison. Those on the Internet for free. intentionally damaging computers or stealing Other hackers vandalize and destroy. Some information for commercial gain can get five spread computer viruses, worms, and Trojan years. Every state has similar laws. horses, which can erase files on computers. For Hackers fall into three categoriesoften r Unit 1: Crime 49 some few elected companies. The only fair way is getting the information outto everyone, ACTOALLY MUDDING A SERVICE IV POINTING OUT GOMM PLANN8ON because generally, everyoneon the Net can be mom Proat.emu: affected by security issues." He criticized those who used his program to shut down the sites, calling the attacks "stupid and pointless."But he also thought the attackswere "an inevitable price to pay to be able to developcountermea- sures and fixes." Many disagree that gray hatsare performing a public service by breaking intocomput- er systems or posting hacking programs, like Mixter's Tribal Flood, on the Internet. John C. Dvorak of PC Magazinecompares a web site to called "white hats," "black hats," and "gray a business and the Internet to "a road leading hats." The white hats do nothing illegal. They to that business. My business unlocks the are hired by companies to improve computer doors during the day and keeps them lockedat security. They try to infiltratea company's night. If people break in at night, theyare con- computer system and expose security lapses. sidered burglars andare prosecuted as such. "A white hat does it when asked, undercon- Breaking into computer systems is similar, and people are now prosecuted for breaking into tract, with a'get out of jailfree'card," them. In many states explained Charles Palmer,manager of network you can also be prose- security and cryptography at IBM Research. cuted for owning burglary tools" (like lock picks). Dvorak compares posting hacking "We'll do the job, evaluate it, and tell thecus- pro- tomer what we're doing." On the other grams to designing and giving away a new lock extreme are the black hats, who are clearly pick that can open most door locks.Few, he criminals. They steal, vandalize, and disrupt. says, would consider this a public service. In the middle are the gray hats. Theseare Fraud the hackers of computer folklore. They follow The FBI estimated that people lost almost a so-called "hacker ethic." This ethic bans steal- $400 million to computer fraud between1996 ing and vandalism. But it allows accessing and 1998. As the Internetgrows, so does the computers without permission, which is ille- variety of scams online. Two of themost com- gal. They also push the borders of illegality by mon involve stock trading and auctions. publishing on the Internet hackingprograms The Securities and Exchange Commission and security holes they find incomputer sys- gets more than 300 complaints per day about tems. In fact, the denial-of-service attacks that stock scams. Manyare "pump and dump" shut down Yahoo and other sites useda pro- schemes. Criminals either buy cheap stockor gram called Tribal Flood created by a gray-hat create a phony company. They send e-mailsto computer hacker in Germany nicknamed chat rooms talking up the stock. As people buy Mixter. the stock, the price rises and the criminals Mixter and other gray hats believe theyare dump their shares fora big profit. performing a public service by posting such The Federal Trade Commissionreports programs on the Internet. They say that they more fraud from auctions than anywhere else are exposing security flaws and giving every- on the Internet. Criminals either sell worthless one an equal chance to come up with counter- items or just take themoney and run without measures. Mixter argued: "It would be unfair even a pretense of selling something. Oneman to provide them to just a small circle of secu- offered rare stuffed animals for saleon auc- rity experts who would possibly only consult tion sites,never delivered a single piece of

50 CRIMINAL JUSTICE IN AMERICA' merchandise, and pocketed about $200,000. a. Discuss each of the "Six Examples of He did this by posing as satisfied customers to Material on the Internet." give himself high ratings on auction sites, b. Decide for each whether it should be using different postal drops as addresses, and protected as free speech. insisting on cash payments from auction c. Prepare to report its decisions and "winners." He even taunted his victims, post- the reasons for them to the class. ing a message on the web saying: "All you peo- 3. Regroup the class and have groups report ple are really quite ridiculous. You make a deal back. via e-mail, never see the person, never speak with the person and then get upset when you 4. Debrief the discussion using the questions get ripped off. You must be a bunch of below. morons." His bravado was short-lived. In 1999, Six Examples of Material on the he was arrested and charged with multiple Internet counts of fraud. 1.Instructions for making a bomb These are just a few examples of crime on 2.Racist remarks the Internet. Other current concerns about the Internet include hate crimes, child pornogra- 3.Sexually explicit photographs phy sites, and chat rooms in which men lure 4. A threat to kill a person underage children into sex. As the Internet 5. The code for a highly destructive computer grows, the list of crimes will also grow.The virus web may be a virtual world, but the crime on 6. Downloadable, illegally made copies of a it is real. new movie For Discussion Debriefing Questions 1.'What are the differences between white-, 1. Why is freedom of speech important? gray-, and black-hat hackers? Do youthink that what gray-hat hackers do should be 2. Do you think some speech should not be FirstAmendment? against the law? Explain. protectedbythe Explain. 2. What are some common frauds on the Internet? What do you think people can do to protect themselves from fraud? Legal Defenses to Crime

In our criminal justice system, persons Class Activity: Free accused of a crime are innocent until proven Speech? guilty. In our system, defendants do not have to prove they are innocent. The prosecution Some people think that the Internet must prove that defendants are guilty. should be a bastion of free speech and that During a trial, the criminal defendant and anything should be allowed. Others agree that the defense lawyer do everything they can to free speech is important, but say that it has prevent the prosecutor from proving guilt. limits. They point out that the U.S. Supreme They introduce their own evidence, they exam- Court has upheld some limits on freedom of ine and cross-examine witnesses, and they speech. In this activity, students look at some make arguments. If they keep the prosecution examples of material on the Internet and from establishing every element of the crime decide whether they think it is free speech that beyond a reasonable doubt, the defense wins. should be allowed on the Internet. Defendants in our society have even a 1.Divide the class into small groups. further protection. Our criminal law recog- 2. Each group should: nizes some special legal defenses, known as affirmativedefenses.Thethreemost

51 54 Unit 1: Crime common affirmative defenses involve issues of prove that the crime was committed because of insanity, self-defense, and entrapment. If the an insane impulse that controlled their will. defendant successfully establishesone of these This test of insanity often supplements the defenses, it does not matter whether theprose- M'Naghten approach. (Parsons v. State, 1887.) cution can prove the elements of the crimeor not. The defendant is not guilty. These affir- 3. The Durham Rule. To prove insanity under this rule, defendants must show that the crime mative defenses have raisedmany controversies. was "the product of mental disease or mental defect" of some sort. Because of thevagueness The Insanity Defense of this rule, it has a limited following today. Defendants will be acquitted if theycan (Durham v. U.S., 1954.) prove that at the time their crime was com- 4. Model Penal Code Test, also knownas the mitted, they were legally insane. This defense substantial capacity test. A much stricter rule has always been controversial. But public than Durham, this test is used in about half debate intensifiedafter President Ronald the states. Another third and the federalcourts Reagan was shot in 1981 and his attacker was use the M'Naghten rule. Under the Model Penal found not guilty by reason of insanity. The Code approach, defendants areinsaneif defendant in that case, John Hinckley Jr., pur- because of a mental disease or defect, they: chased a gun and stalked the president for lacked substantial capacity to appreciate some time. He wrote a letter to a famous the criminality of their conduct,or actress telling her what he planned to do. lackedsubstantial Millions of Americans watched in horroras capacity to conform videotapes of Hinckley shooting straightat the their conduct to the requirements of the president played over andover again on law. (Model Penal Code Sec. 4.01 [1].) Some national television. "How could thisperson be jurisdictions omit this part of the test. found not guilty?" they demanded. Under any of these tests, defendants who For criminal law, "insanity" hasa special prove their case will be found not guilty by meaning. Even in this context, legal scholars reason of insanity. Often this means the defen- and lawmakers have disagreed about whatcon- dants will be committed to mental hospitals. stitutes insanity for a defense toa criminal They will not be released in many jurisdictions charge. Over the years, several different legal until they can prove beyonda reasonable tests for determining insanity have been devel- doubt that they are sane or that theyno longer oped, but none has been universally accepted pose any threat to society. as valid. These different standards are current- Some jurisdictions have developeda new ly used at the federal and state levels: verdictguilty but mentally ill. The meaning 1. The M'Naghten Rule. Under this tradi- of this verdict varies from jurisdictionto juris- tional approach, defendants must show that diction. In some jurisdictions, it replaces the because of their mental illness, either they did verdict of not guilty by reason of insanity. In not know what they were doing or they did these jurisdictions, a jury must returnone of not know it was wrong. (M'Naghten Case, 1843.) three verdictsguilty, not guilty, or guilty but mentally ill. The latter verdict Critics of the M'Naghten rule pointout means that the defendant was legally insane when committing that it does not protect defendants whocannot the crime. control themselves. Thus defendantscan be convicted under the M'Naghten ruleeven if In other jurisdictions, "guilty but mental- they cannot avoid committing the crime ly ill" means the defendantwas not legally because of mental illness. insane, but was mentally ill when committing the crime.It means that the defendant's 2. The Irresistible Impulse Rule. Insome defense of insanity has fallen short, but the states, defendants will be acquitted if theycan jury recognizes that the defendant has mental Jr 52 CRIMINAL JUSTICE IN AMERICA Generally, you have a right to use whatever force is necessary to defend yourself if you feel you face a threat of immediate violence. For a proper claim of self-defense, you must sF establish that: you reasonably believed that the force was required for your own or someone else's protectioneven it that belief turns out to be mistaken; the threatened harm was about to happen and the attacker was willing and able to injure you; and the force used in self-defense was reason- ablethat is, no more than was necessary to prevent the victim from inflicting harm.

The law is much stricter about using deadly force in self-defense. Deadly force may only be used when you reasonably believe, based on John Hinckley Jr.is shown here in custody of the circumstances, that federal agents.Hinckley shot President Ronald the attacker was about to kill you or inflict Reagan in 1981, but a jury found him not guilty by great bodily harm; and reason of insanity. the deadly force was the only way of preventing the harm. problc -77s. Thesejurisdictionshavenot Entrapment replaced the insanity defense. They have added Several famous trials have featured the this new verdictguilty, but mentally illto the issue of entrapment. Entrapment occurs when other verdicts juries may returnguilty, not a police officer, or any agent of the govern- guilty, and not guilty by reason of insanity. ment, lures a defendant into committing a The effect of the verdict is the same in crime. Most people would agree thatitis most jurisdictions. The defendant will receive unfair to entice someone into committing an a standard prison sentence,but may serve it in act and then punish the person for it. a mental hospital. But the issue is not always that simple. Self-Defense Under the law, if the defendant would not You're alone in your apartment, asleep at 3 have committed the crime, except for the gov- a.m. You wake up all of a suddenwith your ernment's enticement, then the defendant is heart pounding. Then you realize your bed- not guilty. But if the defendant already had the room window is sliding openinch by inch. idea of the crime in mind and an officer only Your legs begin to tremble. A tall shadowy fig- made it possible to commit the crime, then an ure steps into the room. In terror, youpick up entrapment defense would fail. a lamp by your bed and hurl it.The lamp shat- The federal government's Abscam opera- ters against the man's head, and he slumps to tion in the early 1980s is an example of an failed. The FBI the floor. entrapment defense that Can you be charged with battery? Yes, it's invented a phony Arab sheik, Kambir Abdul possible, but it's not likely. Even if you were Rahmen, to try to bribe one U.S. senator and prosecuted for battery, you would have a seven representatives. The FBI filmedthe sting operation and used the films as evidence in the strong claim of self-defense. r Unit 1: Crime 53 Automobile entrepreneur John Deloreanposes with one of his sports cars at a San Francisco beach. In 1983, Delorean stood trial for trafficking in cocaine. He claimed policeentrapped him, and the jury acquitted him. trialsfor accepting bribes. The defendants DeLorean's lawyers argued that he hada argued that the FBI had entrapped them, but clean record, that the government's witnesses this defense failed. Why? were unreliable, and that the FBI had lured The FBI had received reliable information and entrapped him into the crime. Despite the that these particular congressmenwere cor- videotape, the jury found him not guilty. One rupt. "Sheik Rahmen" did not approach just juror said, "The way the government acted in any congressmen. He chose ones who were this case was not appropriate." After the result, reported to show criminal intent already. The many legal experts suggested that the govern- FBI, said the courts, had merely given theman ment would probably be much more wary of opportunity to do something they already had setting up elaborate sting operations. the intent to do. In a similar development in1992, the On the other hand, the John DeLorean Supreme Court threw out the conviction ofa case (occuring at about the same time) demon- man they felt had been entrapped. Postal strates an entrapment defense that succeeded. inspectors thought that a Nebraskaman DeLorean was an auto company executive who named Keith Jacobson was predisposedto left Ford in the late 1970s to setup his own buying child pornography. Theysent him an sports car company in Northern Ireland. His offer in the mail, and he turned it down. For new gull-wing DeLorean sports car, named the next 26 months, they repeatedlysent him after himself, came out in the midst ofa gaso- offers to buy child pornography. Finally, he line crisis and did not sell very well. Itwas well bought two magazines and they arrested him. known that his company was in deep trouble. He was convicted, but the Supreme Courton FBI agents claimed that an informant told a 5-4 vote overturned the conviction. The them DeLorean was searching for illegalways court said that the government had "over- to keep the company afloat. In an elaborate stepped the line between settinga trap for the sting operation similar to Abscam, undercover `unwary innocent' and the 'unwary criminal' operators approached him with a scheme to ...and...failed to establish that [Jacobson] import $24 million in cocaine. They video- was independently predisposed to commit the taped him accepting the deal and brought him crime." (Jacobsonv. U.S.) to trial in 1983.

54 CRIMINAL JUSTICE IN AMERICA r For Discussion Debriefing Questions 1. What special protection do affirmative 1. Which insanity tests fit Mark's case? Which defenses offer defendants? do not? 2. What are the differences among the various 2.If Mark's statement is true, do you think he insanity defenses? should be found not guilty by reason of 3. What must you prove for a claim of self- insanity? Why or why not? defense? 3. Which insanity test, if any, do you think is 4. In recent years, several victims of long-term best? Why? child and spousal abuse have claimed self- defense as a justification. for killing their Class Activity: What abusers. Do you believe this defense is valid if they kill their abusers when they are not Defense Is Valid? being threatened? Why or why not? in this activity, students apply the elements 5. Do you think the defense of entrapment of the defenses of insanity, self-defense, and makes sense? Why or why not? entrapment to hypotheticals to determine whether a defense could be raised. Class Activity: 1.Break up into groups of three. Each group The Insanity Defense should: a. Assign each person in the group one In this activity, students apply the four of the following legaldefenses: insanity tests to a hypothetical case. insanity, self-defense, entrapment. 1.Break up into groups of four. Each group b. Read each of the three hypotheticals should: below. Have each person apply his or her assigned legal defense to each a. Assign each person in the group one hypothetical to see if it fits. of the insanity tests described in the preceding section. c. Have the whole group discuss why that legal defense might or might b. Read "Mark's Statement," below. not work. c. Have each person apply his or her 2. Reconvene and compare the findings from assigned insanity test to Mark to see each group. if it fits. d. Have the whole groupdiscuss Peter Hope whether each test fits. Peter Hope is charged with assault with a 2. Reconvene and compare the findings from deadly weapon. He was walking down the each group. street. Without warning, a man began hitting him with a rolled-up newspaper. Peter Hope Mark's Statement pulled out a gun and shot him. During his trial for murdering a friend, defendant Mark Khasabian made the follow- Martha Heart ing statement: OfficerMartin,inplainclothes, "I knew that it was wrong, but I couldn't approached Martha Heart on the street and help myself. During the night of April 30, offered to sell her a "hot" radio for a cheap Beelzebub, grand duke of Hell, came to me price. Martha at first refused, but the officer with biddings from the master. He told me to persuaded her to buy it. He then arrested kill my friend. I resisted, but his will was too Martha for receiving stolen property. strong and finally I had to do what I wastold:" 5 Unit 1: Crime 55 Karen Sanchez Karen Sanchez had her home burglarized twice in the last month. One evening, she heard a noise on her front porch. She grabbed her son's baseball bat and flungopen the door to discover a man bending forward with his hand on the doorknob. He jumped upright and reached into his pocket. Afraid that he had a weapon, Karen struck himacross the face, partially blinding him. As it turnedout, the man had come to ask fora charitable donation and had been reaching for his identification card. Karen has been charged with assault with a deadly weapon. Class Activity: Debate on Insanity

Choose a pro or con position on the following statement: The insanity defense should be abolished. Research this issue. On the Internet,a good place to start is Constitutional Rights Foundation's Research Linksor Criminal Justice in America Links. (www.crf-usa.org and click on Links.) At your schoolor community library, check the computer index to periodi- cals or the Reader's Guide to Periodical Literature for magazine articles on the subject. Writea two-or three-page essay supporting your opinion. These can be used for a class discussionor debate.

56 CRIMINAL JUSTICE IN AMERICA Unit2: The Police

Police officers do not have an easy job. When enforcing the law, they deal with society's problemsquarreling spouses, drug and alcohol addiction, serious trafffc accidents, senseless violence. They must face danger and make lightningquick decisions. To be eff&tive, the- pOlkelieed community support. Many of their contacts with the public help` build this` supportthe police find a child, solve a crime, return .:stolen property to itsowner. But other contacts may erode public support. Some of us.liave received traffic tickets or had other minor unpleasant encounters with the police. We grumble and go on our way. Others of us report serious probkms with the police including harassment, beatings, and other abuses of authority. When abuses do occurwhether through error, indifference, or overzealous enforcementthe criminal justice system must act to correct them. In a democracy, part of enforcing the law is upholding the constitutional rights of all citizens. Police authority cannot go unchecked. What that authority should be and whether it is properly used in particular situations are issues that can make police work difficult and sometimes controversial. In this unit, you go behind the badge to explore law enforcement in our society. In doing so, you will encounter some interesting questions: What might it be like to be a police officer responding in the line of duty? What are people's attitudes about the police and how might that affect police work? How do our laws affect police investigations and arrests? What are the proper limits of police authority? This unit will give you a better picture of police in our society.

60 Unit 2: The Police 57 CHAPTER 4 Police and Society Question of Attitude

n 1829, when Sir Robert Peel organized the Ifirst police force in England, he said: "The police should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police." Has this ideal of ;`- police-community relations been borne out over time? Does the public believe that the police serve its interests? Do the police think of themselves as public servants? Studies have shown that people's attitude toward police is shaped by their contacts with police and how safe they feel in society. If a person has had positive contacts, the person usually has a positive attitude toward police. Negative contacts foster negative attitudes. In America, a great divide based on race existsinattitudes toward police. Many Studies have shown that people's attitudes toward minorities complain of police harassment. police are shaped by their contacts with police. They express fear of being pulled over by police for no apparent reason. They even refer to the reason they are pulled over as DWB (driving while black or brown). A November and enforcing laws. Research also indicates 1999 Gallup Poll asked Americans whether that the police's power, not their service to they had a favorable or unfavorable opinion the public, captures the imagination of young of their local police. Eighty-five percent of people. Similarly, adults often believe that whites responded "favorable" compared to 58 police officers perform their jobs not out of percent of blacks. Thirty-six percent of blacks any sense of dedication to the community, answered "unfavorable." but for the pleasure that comes from exercis- On the job, police develop their own atti- ing power over others. tudes. Police work can be risky and stressful. How accurate are these perceptions of the To survive, officers need to be able to take police? One study suggests that the police charge of dangerous situations. They are usu- themselves have a much different view of ally highly protective of one another and can theirmotivations. Five hundred officers, be distrustful of outsiders. from new recruits to veterans, were asked to Many people today, including police offi- respond to a form entitled, "I am a policeman cers, wonder about the role of the police. because . . ." Given a list of 40 possible According to research, young children think responses, they were asked to choose the 10 police give orders and punish people. They most important to them. The top five vote- don't envision the police as helping people getters were:

58 CRIMINAL JUSTICE IN AMERICA I want to improve the community. 3.After you have marked your responses, I want to improve police work. average the answers across the whole class. I am part of a team effort. (Add all the numbers for each statement I feel a civic responsibility. and then divide by the number of students My imagination is stimulated. providing answers.) On the other hand, at the bottom of the 4. Discuss the statements that show the strongest agreement and the strongest dis- list, only about 10 percent of the officers said: agreement. Why do you think the class I can find excitement regularly. responded most strongly to these state- I can wear a uniform. ments? I can order other people around. I can carry a gun. Questionnaire I can use force legally. In my community, police... For Discussion a. treat most teenagers fairly. 1. Would you ever consider becoming a law- b. are doing a good job. enforcement officer? Why or why not? c. would refuse bribes offeredto 2. Do you think it's important for the police them. to have good relations with the commu- d. avoid using too much physical nity? Explain your answer. force against people. 3. Why might people develop negative views e. generally treat wealthy people the of the police? Brainstorm and list reasons. same as poor people. How can the public develop more positive f. generally treat all racial groups in views? the same way. 4. Why might the police develop negative views of the public? Brainstorm and list Activity: Sampling reasons. How can they develop more positive views? Police Attitudes

To find out about police attitudes, con- Class Activity: Sampling duct your own survey of police in your com- Class Opinion munity. Use a form like the one from the study described on page 58. How do your In this activity, students survey and com- results compare with the officers' responses in pare their attitudes toward local police. that study? What might be some reasons for any differences? 1.Each member of the class should answer the questionnaire below on a sheet of notebook paper. Write theletters"a" Activity: Sampling through "j" down the left-hand column of the paper. Public Opinion 2. Next to each letter, write the number that To find out about your community's atti- indicates the degree of your agreement or tudes toward police, construct an attitude sur- disagreement with the statements below. vey for your community. You may wish to 5strongly agree conduct one survey for the general popula- 4agree tion or several surveys directed at specific 3uncertain groups (e.g., homeowners, college students, 2disagree women and men, racial groups, religious 1strongly disagree groups, business persons, etc.). Here are some

59 (32 Unit 2: The Police additional statements you might consider using in your surveys. The community would be better off with fewer police. Police in the United States are often criticized unfairly. Police in the community enforce drug laws too strongly. I would call the police if I saw someone break into a store. I would call the police if I saw a friend stealing a car. In the past four or five years, my attitude about the police has become more favorable. Police make an arrest in Philadelphia, about 1900. By this time, most major cities had full-time police From Citizen Volunteers departments. to Professional Police called the night watch, was eventually adopt- Nearly every civilization has had some ed in the American colonies. form of law enforcement. Anthropologists City Police Forces in the U.S. have discovered written records of laws and From colonial times until the late 1800s, law enforcement more than 5,000 years old. citizen volunteers enforced the law in most. Citizen Volunteers in England American cities.Often, volunteer night In early English history, it was considered watchmen carried rattles or noisemakers to each citizen's duty to defend king and coun- warn off criminals. According to jokes at the try from foreign invaders and local lawbreak- time, the rattling noise was caused by the ers. In some cases, citizens received rewards night watchmen themselves who shivered and for capturing criminals. Individuals or even shook with fear. entire villages could be fined for not assisting In 1829, Sir Robert Peel organized a force the king in enforcing the laws of the land. of paid law-enforcement officers,called As English towns grew in size, the need Peelers or bobbies, to patrol London. About arose for regular law-enforcement officers. 10 years later, Boston established the first Able-bodied men began to take turns looking round-the-clock police force in the United out for the safety of their neighbors. These States. In 1844, New York City formed a 24- volunteers, called constables, depended heavi- hour professional police department. By 1870, ly on other citizens to help them. most American cities had police forces pat- Over the years, towns were grouped into terned after those organized in Boston and counties, or shires. Each shire had a shire New York. reeve, or sheriff, responsible for getting the While U.S. cities organized police depart- citizens of the shire to enforce the law prop- ments, rural areas were also developing law- erly. enforcement agencies. Rural police forces fol- During the 1300s, large towns and cities lowed the form of the old English shire-reeve organized citizen-volunteer groups to protect system. In many parts of the country, they the streets at night. This form of policing, evolved into agencies headed by county sheriffs. 63 60 CRIMINAL JUSTICE IN AMERICA The need for law enforcement on the tions. For example, the FBI investigates kid- frontier led to the establishment of the first napings, bank robberies,civil-rights viola- state police force, the Texas Rangers. Later, tions, and crimes committed on federal terri- other states established their own statewide tory and property. Most criminal acts in the police forces. Today, state law enforcement United States, however, are handled by state agencies include highway patrols, bureaus of and local police. narcotics, fish and game departments, and civil defense bureaus. Each of these agencies Policing Today responds to different law-enforcement needs. Unlike most countries in the world today, The federal government has developed var- the United States does not have a national ious agencies to handle its law-enforcement police agency that enforces the laws through- responsibilities. The Secret Service, among its out the country. Rather, more than 40,000 other duties, investigates counterfeiting and independent law-enforcement agencies exist at protects the life of the president. The Internal the local, state, and federal levels of govern- Revenue Service investigates tax evasion. The ment. Each agency has its own special func- Bureau of Alcohol, Tobacco, and Firearms tion and enforces specific laws in a well- monitors these products. These agencies fall defined geographical area. For example, fire underthecontroloftheTreasury inspectors enforce local fire codes, and health Department. The Department of Justice, department inspectors enforce acity or headed by the attorney general of the United town's health and sanitation ordinances. States,directssuch agenciesas the Sheriff deputies patrol counties to enforce Immigration and Naturalization Service and county ordinances and state law. Local police the Federal Bureau of Investigation (FBI). enforce a state's and city's criminal laws. The FBI operates throughout the nation. Today, the public often views the police But it may only investigate federal law viola- primarilyascrimefighters.Inreality,

Federal Law-Enforcement Officers

Agency Number of full-time officers with authority to carry firearms and make arrests

Immigration and Naturalization Service 16,552 Federal Bureau of Prisons 12,587 Federal. Bureau of Investigation 11,285 ,U.S. Customs.Service 10,539 U.S. Secret Service 3,587 U.S. postal Inspection Service 3,490 Internal Revenue Service 3,361 Drug Enforcement Administration 3,305 U.S. Marshals-Service 2,705 Administrative Office of the U.S. Courts 2,490 National Park Service 2,197 Bureau of Alcohol, Tobacco and Firearms 1,723 U.S. Capitol PciliCe 1,055 GSA Federal' Protective Service 900 U.S.-Fish and Wildlife Service 831 U.S.'Forest Service 601

Note: Excludes federal agencies employing fewer than 500 full-time officers. Source: "Federal Law Enforcement Officers, 1998," Bureau of Justice Statistics (2000)

64 Unit 2: The Police 61 although the police do fight crime, they also Class Activity: spend substantial time on many other tasks within the community. They settle disputes, Police Call handle many forms of social work, monitor public protests, control traffic, and respond What isitlike to be a police officer to medical emergencies. responding to a call for assistance? What is To understand the police, it helps to con- police work like? In this activity, students role sider the pressures and fears officers work play interactions between police and citizens. under. Their duties have become more dan- 1. Preparation: In preparation for the activi- gerous and more complex in recent times. ty,contact your police department and Many factors have contributed to this: the arrange for an officer to visit your class on increase in the availability of dangerous the day of the activity. The officer's role will weapons, a more critical news media, a more be to observe and help debrief the role plays. critical general public, and budgetary prob- You may wish to conduct the activity over a lems, including a lack of funds to hire two-day period and have the officer only pres- enough officers. Police must cope with the ent on the second day. Also, you may want to realities of law enforcement in a democratic hold the activity in a large multipurpose society. Under law, they must protect the con- room or auditorium, if one is available. stitutional rights of the public. In enforcing 2. Form Groups: Divide the class into four the law, they must also obey the law. groups of equal size. For Discussion 3. Group Selection: In each small group, 1. How does the organization of police select two members to play police officers and forces in the United States differ from one or two members toactas group most other countries? Why do you think spokespersons. The remaining members role these differences exist? play citizens. Send the police officers to a cir- 2. Could our crime problem be better han- cle in the center of the room. dled if there were one large police agency 4. Police Group Assignment: The visiting to enforce all criminal laws throughout the United States? What would be the police officer should take part in the group's advantages of having such a force? What preparations. At the center circle, the students taking the role of police officers should: would be the disadvantages? Do you think the United States should have this kind of a. Select a patrol partner. police force? Why or why not? b. Readanddiscussthe"Police Officer's Oath" and "Departmental 3.Read the "Police Officer's Oath" on page Regulations" to determine how they 63. It describes the ideals of law enforce- will conduct themselves on a police ment. Do you agree with these ideals? If call. not, what would you change? Why? 5. Citizen Group Assignment: Assign one of the Police Calls below to each group. Each should then take about 10 minutes to decide how it will role play the situation. (Group members should try to act as realistically as possible. For example, how would youngsters caught shoplifting react to the store owner and police? Passively and quietly, or loudly and defensively?) Also, one member of the group should prepare to call the police for help by 'givinga minimum amount of

62 CRIMINAL JUSTICE IN AMERICA information about the assigned Police Call. 8. Follow-up: As a follow-up activity, you For example, "Come quick...there is a rob- might create additional "police calls" basedon bery in progress at Green's Drugstore." similar or typical incidents and havegroups 6. Role playing: When all the groups are ready, role play them for the class. conduct role plays one at a time in front of the Police Officer's Oath class. In turn, a member from each should call "As a law-enforcement officer, my funda- for help based on the assigned Police Call. A mental duty is to serve humanity; to safeguard team of police officers responds to each call. lives and property; to protect the innocent The role play may begin or be in progressas against deception, the weak against oppression the police arrive. The visiting police officer or intimidation, and the peaceful against vio- should comment after each role play. lence and disorder; and to respect everyone's 7. Debriefing: After the activity, conduct a constitutional rights to liberty, equality, and class discussion including the visiting police justice." officer. Use the following questions as a guide: Departmental Regulations a. What have you learned about the On patrol, the police must try to enforce kinds of jobs policeofficersare called upon to do? society's laws fairly, be polite and courteous to all citizens, follow procedures established by b. How did you feel when you played the courts and their superiors, solve many the police officer's role? The suspect's role? The role of a citizen in problems not connected with fighting crime, need of help? and respond to each call quickly and efficient- ly. c. What different kinds of incidents have you been involved in or heard Cautions: about that were not included in the Always be on guard to protect yourself, simulation? How many involved vio- your partner, and other citizens from lent crimes? attack and injury. d. What part do you believe fear plays Handcuff anyone you take into custody. in the interactions between police Be prepared for unusual public reactions and community members? When do you think police officers are most when you are present. afraid? What might cause police to Treat all people firmly and fairly. be afraid? What causes others to fear Treat all people equally: The law is blind to the police? What could be done to race, sex, religion, and status. reduce fear? e. What effect might police officers' Police Call: Group One fear have on their attitudes toward The police will be called to investigate a civilliberties?Politics? Suspects? shoplifting incident. Explain. Design an incident in which a shopkeeper f. Does fear of the police keep people has reported catching a youth shoplifting, and from breaking the law? Why or why the police are called to the scene. Keep in not? mind the following questions: g. Try to describe the ideal police offi- 1. How do you think a young person feels cer. Use examples from the game, when caught shoplifting? from your own experiences, or from 2. Should the police arrest the youth or do stories you have heard. something less drastic, such as taking the h. Do you believe society might expect youth home and talking to the parents, too much from the police? Why or etc.? Explain. why not?

Unit 2: The Police 63 3.Should people report all crimes that they Police Call: Group Four know about? Why or why not? The police will be called to a bar on a 4. What else could the shopkeeper have done drunk-and-disorderly call. instead of calling the police? Design an incident involving a drunk, disorderly man in a bar who has threatened Police Call: Group Two another person with violence. Keep in mind The police will stop a car with a broken the following questions: tail light. The car, full of young people, is 1.Does it make a difference to the police cruising suspiciously in a shopping district what neighborhood the bar is in? late at night. 2. Since much violent crime involves people Design an incident in which the police who have been drinking, what precautions stop a car cruising suspiciously. Keep in mind should police take? the following questions: 1. What would give the police the right to 3.If the drunk resists arrest, what should the stop the car? police do? 2. Should the police treat the peOple in the car 4.If the call had said that the drunk was differently depending on their age, gender, armed with a gun, how differently do you or ethnic group? think the police would have reacted to the situation? 3. How do you think innocent people will feel and act when they are stopped by the police? Police Call: Group Three The police will be called to calm a domestic quarrel between a husband and wife. Design an incident in which a husband and wife fight violently enough for the neighbors to call the police. Keep in mind the following questions: 1.Considering that most murders happen in the home between people who know each other well, what special precautions should the police take? 2. How should police draw the line between private family matters and legitimate law- enforcement concerns?

3.Since many homes have at least one gun, how might the police protect themselves?

64 CRIMINAL JUSTICE IN AMERICA CHAPTER 5 Methods and Investigations Local Police

In an emergency, most people call their local police department. Most communities have one. The departments range in size from one- person departments inruralareastothe almost 40,000 sworn officers that make up New York City'sforce,the largest in the nation. More than three-quarters of all law enforcement officers belong to local police departments. Unlike larger departments, those with only a few members cannot offer services around the clock seven days a week. Their members must do work that would be done by special units elsewhere. Although large cities account for only 1 percent of all police departments, they employ Traffic stops are normally routine, but on occasion almost a quarter of all officers. The budgets they can turn violent. for ti__se large departments reflect their size. New York City spends almost $2 billion annu- 1. Operations unit patrols the streets and ally on its department. investigates crimes. It is the largest unit in any Large police forces have many units and a department. set of regulations and policies, known as standard operating procedures, for all officers to 2. Services unit helps support the operations follow. Most departments are organized with a unit by training officers, keeping records, military-type structure. The chain of com- maintaining equipment, and (in the largest mand starts with the police commissioner or departments) running a crime laboratory. police chief and runs down through inspec- 3. Administration unit manages payroll, per- tors, captains, lieutenants, and sergeants to the sonnel, and finances. patrol officers on the street. This chain of command can be quite effective in setting 4. Internal Affairs unit polices the police. It policies and operations. But in day-to-day investigates any reports of wrongdoing by offi- encounters on the street, police do not usually cers. wait for commands from above. They must act 5. Community Outreach unit works on using their own discretion. Officers must be improving police-community relations. In well-trained so that when they act,their recent years, many police departments have actions fall within the department's regula- placed greater emphasis on improving relations and policies. tions and have developed special units for this Most large departments divide the work- purpose. load into five basic units: With most officers in operations, many departments havespecializedoperational 68 Unit 2: The Police 65 divisions. As a general rule, the larger the rape, homicide. Special detective units may be department, the more special divisions it will set up for homicide, robbery, bunco, vice, auto have. The special divisions include: theft, sex crimes, and narcotics. Patrol. Most officers belong to the patrol unit. They investigate crimes by collecting phys- These uniformed officers patrol the streets, ical evidence, interviewing witnesses, contact- keep the peace within their assignedareas, and ing informants, checking criminal files, and respond when a crime or other emergency is talking with lab technicians and forensic sci- reported. Their very presence on the street entists. In some cases, police stakeout loca- helps prevent crime. tions or even work undercover (especially in A patrol officer's job can be divided into drug and vice operations). three functions, which often overlap. The first If a suspect is arrested, detectives help pre- is law enforcement, activities directly related to pare the case for prosecution. If any suspect catching suspected criminals. A citizen reports agrees to talk, they conduct the interrogation. a crime. Police respond. They make an arrest. Traffic. From 3 to 10 percent of many depart- They investigate the crime. These are the ments consist of traffic officers. They enforce things people think police do most. But the traffic laws, investigate accidents, and keep other two functions take up much more of a traffic moving. Most traffic stops are routine, patrol officer's time. ending with a ticket or warning. Some, howev- The second function is order maintenance. er, uncover criminal suspects and can become A person complains that a neighbor's stereo is violent. too loud. Two people are having a dispute on the street. A large group of people are assem- Juvenile. Many departments have juvenile units. Officers in these units undergo special bled in one place (for a parade, demonstration, or sporting event). An accident is blocking training in dealing with juveniles and in laws traffic. A homeless person is sleeping on a related to them. Officers exercise great discretion in deciding whether to take a juvenile into crowded sidewalk. Patrol officers must take custody and whether the juvenile should be care of these situations. processed through the justice system. The final function isservice. Someone asks for directions. A mother reports that her On the Job small child has wandered off. A motorist is As most police department remain open stranded on the highway. Service is large part around the clock seven days a week, police of the job. Patrol officers are usually the first must work all hours and days. They usually to arrive at any emergency. They may have to work eight-hour shifts, which rotate week-todo first aid. They may even take someone to week from day, swing, and graveyard. Officers the hospital. When people don't know who can expect to work many holidays, especially else to call, they call the police. New Year's and the Fourth of July, which may Detectives. After a period of working as a require the force to be on alert. patrol officer, an officer may be assigned to Police work is growing increasinglymore the detective division. Detectives do not neces- complex. In the 1950s, an officer needed street sarily outrank patrol officers. But they have smarts, good judgment on using force, and more prestige, they often get paid more, their moral strength to resist the temptations that hours are more flexible, and they work in often arise on the job. A good officer today plainclothes. They are strictly involved in one still needs all these qualities. In addition, the police functionlaw-enforcement investiga- officer must know criminal law and procedure, tions. be able to collect evidence properly, be familiar Although patrol officers investigate some with forensic science, know how to interact crimes and usually initiate all investigations, with different people, and be able to mediate detectives investigate serious crimesrobbery, disputes and analyze crime problems.

66 CRIMINAL JUSTICE IN AMERICA 69 Average Base Starting Salaries in Local Police Departments, by Size of Population Served

Population served Chief Sergeant Officer afterl year itevel.offiear. All $38,700 $32;300 $25,600 $23,300 1,000,000 or more 100,700 4'7,500 34,000 30 600 500,000-999,999 87,600 42;900 32,000 29;300 250,000-499,999 80,900 45,500 33,000 30,600 100,000-249,999 74,700 43,900 33;200 30,500 50,000-99,999 70,600 44,700 33,300 30;500 25,000-49,999 63;000 42,600 32,500 29,200 10,000-24,999 53,200 38,100 29,900 26,400 2,500-9,999 40,000 31,400 25,800 23,500 Under 2,500 25,700 24,300 20,600 18,800

Source: "Local Police Departments 1997," Bureau cif Justice:Statistics (2000

All departments require that applicants departments pay generous pension and dis- have at least a high school education. In 1973, ability benefits. theNationalAdvisory Commission on Criminal Justice Standards and Goals recom- Minorities and Women mended that every police agency require police In 1950, only 2 percent of all police were officers to have completed four years of col- minorities. Many departments openly refused lege. Today, about 30 percent of all officers to hire them. No department in the United belong to departments that require some-col- States had a woman patrol officer. The civil rights movement helped change lege education. Other requirements are usually a mini- this.In 1972, CongresspassedEqual mum age of 21, good physical condition, and Employment Opportunity Act. It banned pub- no criminal record. Applicants must also pass lic employers from discriminating on account an entrance examination and tests for drug of race, national origin, religion, or gender. use, mental fitness, and physical strength and Most of the largest police departments have agility. Most departments also conduct exten- been sued under the act. Many cities are under sive background checks. To attract more court order to improve their hiring practices. women, most departments have done away In addition, minorities in many cities have with minimum height and weight require- gained political power. They have used this power to ensure that departments have fair hir- ments. Policing has traditionally been a low-paying practices. ing job, but in the 1960s many police started By 1997, more than one-fifth of all police joining unions. Today about 75 percent of all officers were minorities. The percentage of officers belong to unions. Most states outlaw African Americans on police forces reflected strikes by police. Even so, a few police strikes their proportion of the population. Women have taken place. Job actions like "blue flu" made up 10 percent of all police. In cities of 1 epidemics (officers calling in sick) and "ticket million or more, they comprised 16 percent of droughts" (officers not writing tickets) have the force. occurred in many cities. Unionization has No one today argues against the ability of raised salaries, improved working conditions, minorities to perform police duties. Some, however, express such doubts about women. and put grievance procedures in place. Starting salaries average about $23,000. The main argument is that they are not strong The top salary reaches around $50,000. But or tough enough for police work. But studies most police earn more than their base salary have proved otherwise. They make as many because of overtime work. In addition, many arrests as men, and they do well in work

Unit 2: The Police 67 Local. Police Officers corruptionscandalsdrovethischange.

Race.and Ethnicity Male and Female Reformers felt that beat cops were too close to local criminals and too easy to corrupt. But 785% white 90% male 11.7% black economics accounted for much of the change. 10% female 7.8% Hispanic Through mobility and technology; reformers 2.1% other believedeffectiNie policing could be maintained with fewer officers. source: :local Police Departments 1997," Bureau of JustiCe Statistics (mob) The system that developed did away with evaluations. Some even argue that they may foot patrols in favor of squad cars. Often make better officers than men because they're called proactive policing or motorized rapid less confrontational and more adept at medi- response, this approach relied on radio to ating disputes. direct cruising police cars to emergency calls. This meant that most officers had little con- For Discussion tact with their communities, except when they 1.Some departments only hire officers who were arresting suspects or investigating crimes. livein the area the police department And what officers did see of a community was serves. Why do you think they do this? Do often from the window of a car. you think it is a good idea? Explain. By the 1980s, many people were criticizing 2. Do you think police should have college theshortcomingsofrapidmotorized degrees? Why or why not? response. They felt this system left the police too divorced from the community and created 3.In 1973, the National Advisory a bitter "us and them" feeling on both sides. Commission on Criminal Justice Standards Cities began to experiment with different sys- and Goals recommendedthat police tems. They sent many officers back on beat departments should try to get a workforce patrols on foot, horseback, or even bicycle. that reflects the ratio of minorities in the They set up neighborhood mini-stations. They community. What are pluses and minuses also tried to develop Neighborhood Watch of such a policy? Do you agree with it? programs of local residents who would watch Explain. over their communities and tell the police of 4. Do you think police forces should recruit any problems they could see developing. female officers? Explain. The point of most of these new programs was to get the patrol officers to think in terms Community Policing of patterns of criminal activity, not single radio calls for help. Officers would be visible From the 1930s through the 1960s, most continuously in an area, not just sent periodically into a community. And most of all, the police departments in America went through a officers would work actively to win local coop- reform process that left them more disciplined and more professional. They began training eration and look for causes of crime. This new type of policing was called community-orient- programs designed to teach officers the latest ed policing, or problem-oriented policing. It policing techniques. They grew independent consists of three basic ideas. from political influence and corruption. Their hiring practices required that applicants have 1. Strengthening the community. First, the more education and go through a battery of goal of community policing is to help make psychological tests and background checks. the community stronger. In a strong neigh- Also, by the 1950s, the police had come to borhood, people care about what happens. rely heavily on squad cars, radio, and other They know one another and watch out for technology.Theirprimaryactivitywas each other. They may sometimes callthe responding to emergency calls. In some cities, police, but citizens do most of the "patrolling"

68 CRIMINAL JUSTICE IN AMERICA 7 1. when theyare out and about inthe Since 1994, the top brass of the New York community. Police Department has met frequently with precinct commanders, examining the comput- 2. "Broken Windows" theory. In 1982, James erized crime statisticsfor each precinct. Q Wilson and George L. Kelling wrote a high- Commanders discusstactics of what has ly influential article in the Atlantic Monthly worked and what hasn't. With the hot spots of titled "Broken Windows." It advocated that crime mapped out, commanders send out police find out what bothers community patrol and plainclothes officers to make arrests members and focus on solving these problems. on quality-of-life crimes in these areas. The problems often turn out to be seemingly The arrests have paid off. At first police unimportant thingsgraffiti, panhandlers, found many people carried weapons who were derelicts drinking on the cornerwhat Wilson arrested for drinking in public or other so- and Kelling called "quality of life" issues. They calledquality-of-lifecrimes. Fewer people explained this strategy by giving the example today risk carrying a gun, and fewer guns on of a car left on the street with a broken win- street has resulted in fewer murders. Anyone dow. They say that if the car is left in this con- arrested is questioned about other criminals dition, soon other windows will be broken and and crimes. Intelligence about what was taking eventually the car will be torn apart. The unre- place in the criminal community grown. paired broken windows send a signal of neg- With better intelligence, policestarted they claim that disorderly lect.Similarly, focusing on the criminal support systemthe behavior, when ignored, leads to worse behav- fences who sell stolen property, the chop shops ior and eventually to violent crime. This is that buy stolen cars, the gun dealers who sup- because people view the neighborhood as out ply weapons to criminals. Without the support of control and stop going out. The street is system, crime fell. taken over by drug dealers, prostitutes, and With itsfull-scale attack on crime and hoodlums. quality-of-life issues, crime dropped dramati- 3. Problem-oriented policing. Community cally. Between 1991 and 1998, the number of policing stresses problem solving. The police homicides fell from 29.31 to 8.60 per 100,000 must not just respond to incidents. For exam- people, a 70-percent drop. In 1999 and 2000, ple, when residents of a Los Angeles neighbor- however, the homicide rate rose slightly. Even hood complained about graffiti, the police did so, New York today claims to be thesafest large not merely try to catch the taggers. They city in the United States. helped organize neighborhood groups into painting out graffiti immediately to discourage San Diego's Neighborhood Policing With a much smaller department than tagging. Many police departments across the coun- New York's, the San Diego Police Department try have adopted community policing.Its has taken a different approach to community growth was aided by the Violent Crime policing. Its Neighborhood Policing program partnership Control and Law Enforcement Act of 1994, encourages a problem-solving which set up funding for 100,000 community between citizens and police. police officers over six years. The methods of Citizens play an active role in crime pre- community policing vary from city to city. vention and detection. The SDPD has revital- ized Neighborhood Watch programs, with New York's Emphasis on community coordinators, watch coordinators, Accountability and block captains working together. More The New York Police Department has a than 1,000 citizens have volunteered for more computer system that tracks crimeblock by active roles. Some serve on citizen patrols, block. 'Precinct commanders are held account- which go through neighborhoods looking for able for controlling crime in their precinct. problem areas and suspicious activity. Others

4 Unit 2: The Police 69 Critics explain that communities must make a choice. Either they can have police respond rapidly to crime. Or they can have community policing. They cannot have both. It would cost too much. Community policing costs more than rapid-response policing, because more personnel is required than it takes to just respond to 911 calls and other reports of crimes. Further, many police officers view community policing as social work that detracts from what they view as the real job of the policeto make arrests and solve crimes. They Bicycle patrols are an important part of many cities' dismiss community policing as a misguided community policing. experiment that wastes personnel. Finally, many in police leadership positions believe they are the experts on law work at police stations, freeing officers to go enforcement. They are reluctant to share their out in the community. power with non-experts in the community. The police now have more time to work Indeed, some citizens say that police depart- on solving crime problems. Officersare ments only pay lip service to community trained to identify a crime problem, learn as policing instead of actually getting involved much as possible about it, develop a carefully with a neighborhood and its residents. planned response, and evaluate their response. In one case, officers discovered that the design For Discussion of a trolley station contributed to the high rate 1. What are the advantages and disadvantages of crime there. They presented the informa- of community policing? tion to the transit board, which agreed to 2. What are the advantages and disadvantages redesign the station. of motorized rapid response? Crime has since dropped at the station, as 3. Why might some police officers prefer it has in San Diego in recent years. In 1990, 135 working in a department that uses commu- murders took place. By 1999, this number had nity-oriented policing? Why might others dropped to 57. prefer a department that uses motorized Critics of Community Policing rapid response? Not everyone favors community policing. 4. New York and San Diego exemplify two Some doubt that the drop in many cities' differentstyles of community policing. crime rates can be attributed to community Which do you think is best? Why? policing, because crime has dropped every- 5. Which type of policing would you prefer in whereeven in places without community your community? Why? policing. They point to failed experiments such as Houston's "Neighborhood Oriented Policing."Disenchantedofficersopenly Activity: Checking Out ridiculed it as "Nobody on Patrol." A new mayor was elected who vowed to end it, and it Community Policing was abandoned in 1992. The mayor and new In thisactivity,students research and police chief's answer was more police on report on local or national efforts at commu- patrol. Houston's crime rate has plummeted nity policing. since 1992. 1.Break up into teams. Each team should

70 CRIMINAL JUSTICE IN AMERICA 73 find a police department in your area that Securing the scene helps preserve the physical is putting into practice at least some part evidence. In an 1892 story, fictional detective of community policing. (If there is none in Sherlock Holmes lamented about a crime your area, choose one of the major plans, scene: "Oh, how simple it would all have been such as New York, Chicago, San Diego, or had I been here before they came like a herd of Seattle and use the Internet or library to buffalo and wallowed all over it." Today's conduct your research.) detectives have powerful tools for combing a 2. Look up articles in your local newspaper or crime scene. They, even more than Holmes, local magazines about the system. Then place great importance on sealing off crime talk to someone in the police department scenes from spectators and other officers. They about their experiences. cannot risk picking up fingerprints,foot- 3. As a team, prepare a report on the success- prints, and hair left behind by spectators and es and failures of the local strategy. Divide other officers who enter a crime scene. the report so everyone gets to contribute. The main job of detectives on the scene is 4. Have the teams present their reports to the to document it. They take statements from wit- class. nesses. They note conditions at the time of the crime. Were curtains open or closed? Were the Criminal Investigations lights on or off? Where was each piece of furniture? Many departments photograph and The goal of criminal investigations is not videotape crime scenes. All documentation simply to catch criminals. Investigators must goes into the case file. also collect evidence that can be used in court Detectives must carefully mark allevi- to convict them. If investigators don't follow dence taken from the scenewhether hair, proper procedures, they open themselves up to blood, or the suspected murder weapon. They courtroom attack by defense attorneys. In usually place items in special plastic envelopes. some cases, if police don't follow proper pro- They seal each envelope, write the date and cedures, the court will not even allow the evi- time, and sign it. Most evidence either goes to dence to be introduced. police evidence lockers or to crime labs. Each Two of the most common investigatory new person who takes custody of the envelope techniques are searches and interrogation, or must also write the date and time and sign it. questioning, of suspects. Courts have set out In this way, a chain of custody is established. special rules for these techniques. Chapter 6 When the evidence is introduced at trial, each will discuss them in detail, but we will touch custodian can be called to testify about what on them here. We will mainly, however, take a happened to the evidence while it was in that look at some other techniques and issues of person's custody. The police can prove that the criminal investigation. evidence wasn't tampered with. If police cannot establish a chain of custody, the evidence The Crime Scene may not be allowed in evidence. Patrol officers are almost always the first to arrive at a crime scene. They pursue susptcts at Lineups, Showups, and Throw- the scene and make arrests. Or, more typically, downs they interview victims and witnesses and make If people witness a crime, detectives will a report. For most crimes, they arethe only try to get them to identify the suspect. They investigating officers. If the crime is serious or may call out a sketch artist to draw a picture if patrol officers believe the case merits further of the suspect, based on descriptions of wit- investigation, they will call in detectives. nesses. Many departments today use software By the time detectives arrive, patrol offi- to create pictures of suspects. They also may cers have already conducted apreliminary call witnesses down to the precinct to look investigation and secured the crime scene. through books of mug shots.

P"! (1 Unit 2: The Police 71 If police catch a suspect, they will want extend the right to counsel for lineups held eyewitnesses to identify the suspect. Beyond prior to an indictment. providing a strong basis for arrest, eyewitness The same year as Kirby, the court in Neil v. identification resounds in the courtroom. "It's Biggers refusedto overturn aconviction the most theatrical moment of the trial,"says because the identification was based on a UCLAlawprofessorJohnWileyJr. showup. The court statedthat although "Everybody in the jury box looks at the wit- showups were highly suggestive to witnesses, ness, looks at the [eyewitness's] finger and fol- the "totality of the circumstances" showed that lowsthelinerighttothedefendant." the identification was reliable. The court noted Eyewitness identifications can make a case. that the witness had not identified others at Yet experts have known for years that eye- previous lineups, showups, and throw-downs witnesses are sometimes unreliable. Innocent and that the suspect fit the witness's prior people have gone to prison because witnesses description. The court had ruled similarly in wrongly identified them. Even witnesses who the 1968 case of Simmons v. US. where witness- express absolute certainty can be mistaken. es made in-court identifications arguably based Our brains are not videotape recorders storing on previous exposure to a suggestive photo- information perfectly. Psychologist Elizabeth graphic array. The court held that "convictions Lofthus explained: "Every time we recall an based on eyewitness identification at trial fol- event, we must reconstruct the memory and lowing a pretrial identification by photograph with each recollection the memory may be will be set aside...only if the photographic changed....Thus our representation of the identification procedure was so impermissibly past takes on a living, shifting reality." suggestive as to give rise to a very substantial So investigators must be careful when get- likelihood of irreparable misidentification." If ting identifications. They typically use three there is not such a likelihood, then the evi- methods for witnesses to identify suspects dence can be admitted and the jury is allowed lineups, showups, and throw-downs. In a line- to determine whether it is reliable. up, five or six people, one of whom is the suspect, stand on a stage so witnesses can view Informants them. In a showup, the witness is shown a sin- Many police officers develop a network of gle suspect. In a throw-down, detectives show informants, who give intelligence about what pictures for the witness to choose from. is going on in the criminal community. Most All three methods can be highly sugges- informants are low-level criminals involved in tive. A showup gives the witness no possibility so-called "victimless crimes"drugs, gambling, of choosing anyone but the suspect. A lineup prostitution. Known derisively as "snitches," can be just as suggestive if only one suspect informants can provide information that an resembles the description given by the witness officer could get only by going undercover and or if officers hint who the "right one" is. working for months to gain the trust of crim- Throw-downs can be equally as suggestive if inals. Police can put the word out that they officers give hints or fail to offer an array of want information about a particular case or photographs. person. Informants often supply it. In the late 1960s and early 1970s, the U.S. Police commonly use informants to get Supreme Court made several rulings on line- search warrants. The Fourth Amendment pro- ups, showups, and throw-downs. In 1967 in tectsagainstunreasonablesearchesand US. v.Wade, the court held that a person seizures. It requires warrants be issued only on indicted for a crime has the right to have an "probable cause." This means that before a attorney presentatalineup. The court judge may issue a warrant, police must pro- believed the attorney's presence would help duce evidence of criminality that a reasonable prevent irregularities. Five years later, however, person would believe. This is usually done in a in the court in Kirby v.Illinois refused to sworn, written statement by a police officer.

72 CRIMINAL JUSTICE IN AMERICA 7 5 The statement describes the place to be For Discussion searched and things to be seized. It also sets 1. What isa chain of custody? Whyisit forth the evidence of criminality. Often this important? evidence consists of the officer stating that a 2. What are lineups, showups, and throw- reliable informant has told the officer facts downs? Which do you think is the most about a crime. The U.S. Supreme Court has reliable? 'Why? held that such evidence is enough for a search 3. What problems might arise from using warrant as long as the "totality ofthe circum- informers? What can be done to prevent stances" in the sworn statement show a "fair these problems? probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates, 1983) Class Activity: Is This Informants usually ask for something in return. Some informants getpaid in cash. the One? Police departments often have fundsfor In this activity, students analyze police informants. Other informants get charges procedures for identifying suspects. against them dropped. Many police agencies 1.Break the class into pairs. agree not to arrest eachothers' informants as a professional courtesy. 2. Each pair should: Some critics condemn the use of inform- a. Read each of the cases below. informants are ants for several reasons. Most b. For each case, discuss and answer: criminals, and critics question their reliability. (1) Why might this identification Critics claim that informants often say what be unreliable? police want them to say. In addition, they point out that informants don't make good (2)What should the police have witnesses at trials because juries tend not to done to make it more reliable? believe them. Informants themselves don't (3)Do you think the identification want to testify, because they don't want tobe should be admitted in court? branded as a "snitch" and risk getting hurt by Explain. other criminals. 3. Have the pairs report back anddiscuss each Critics particularly disapprove of jailhouse case as a whole group. informants, those already in jail who testify Case #1: Hospital Visit. An attacker in the thata cellmate hasconfessed. The U.S. Supreme Court has ruled that police cannot victims' home slays the husband and severely elicit incriminating statements wounds the wife. Police bring a suspect to the deliberately hospital handcuffed to a police officer. The from indicted defendants without their attor- suspect is the only AfricanAmerican in the neys (Massiah v.U.S., 1964). This means that the wife whether the sus- police cannot send informants into cells to get room. An officer asks "a confessions. But if cellmates without prior pect is "the man." After the suspect repeats police contact offer information to police, few words for voice identification," the wife their testimony can be used in court. Critics identifies him as the attacker. At trial, the wife point to many celebrated cases of jailhouse identifies the suspect. (Stovall v. Denno, 1967) informants helping convict innocent defen- Case #2: Hallway. An undercover officer buys dants. heroin from a dealer in a hallway lit only by Most police defend the use of informants natural light. The two stand two feet apart for as a necessary evil. Mostalso agree, however, about three minutes. Afterward, the officer that the practice must be closely controlled to describes the dealer to another officer as "a col- prevent abuses. ored man, approximately fivefeet eleven

Unit 2: The Police 73 inches tall, dark complexion, black hair,short taken to a sealed-off room where thetempera- Afro style, and having high cheekbones,and ture and humidity are controlled. Examiners of heavy build." The other policeofficer carefully scrape it off witha metal spatula. Any thinks he recognizes thesuspect from the hairs, fibers, or other debris fallon a clean description. He leavesa police photograph of sheet of paper and examinersmount them on the suspect for the undercover officer,who microscope slides for study. The unit main- sees it two days later and identifies itas the pic- tains huge collections of fibers, wig hair, ture of the dealer. In court, the officer identi- human and animal hairs, feathers,ropes, fies the suspect. (Mansonv. Brathwaite, 1977) woods, and seeds. Using the collections for ease #3: Lineups. Atan initial lineup, the wit- comparison, examiners can sometimesre-cre- ness fails to identify the suspect. Policearrange ate entire crime scenes. They can figureout a showup, at which the witness makesa tenta- what criminals were wearing and the color, tive identification. Finally,at another lineup, length, and style of their hair. In thecase of the witness makesa definite identification of serial killer Ted Bundy, agents matched nearly the suspect. (Fosterv. California, 1969) 100 clothing fibers between Bundy andone of his victims. The match helped the jurycon- Crime Labs nect Bundy to the crime and he was convicted. Questioned Documents Unit. This examines Because of rapid developments in technol- anything that has to do withpaper. The unit ogy, particularly the computer, crime laborato- has many specialties, from determining whata ries play an increasingly important rolein piece of paper is made of to analyzing hand- investigating crimes. Today'scomputers allow writing and breaking codes.Itdeals with huge amounts of data to be stored, compared, machines that usepaper, including typewrit- and retrieved quickly. Crime labsacross the ers, computers, copy machines, and printers. country are developing databases and linking It also handles footprints and tire tracks since them to one another. they leave marks behindon a surface, much More than 300 crime laboratories exist in like writing or typingon paper. It maintains this country. Every state andmany large police collections of anonymous letters, bank rob- departments run crime labs. The FBIoperates bery notes, fraudulent checks, officeequip- the nation's largest, which examines evidence ment, shoe prints, and tire tracks. The unit has from other federal, state, and local agenciesas solved many cases by studying indentations well as from FBI cases. left by writing. Inone case, a suspect had The FBI divides its crime lab into units, drawn a map to show her accomplice ina mur- each specializing in onearea, like firearms, der where to wait for the victim. Themap was explosives, or hairs and fibers. One piece of found, but it had to be connectedto the sus- evidence may be examined by several different pect. When her belongings were searched, the units. All the units work togetheras a team, police found a blank notebook. Agents studied sharing their piece of the puzzle and tryingto the marks left by the machine thatcut the piece together as much informationas they paper and found that the map fit perfectly can discover about a crime or criminal. The between the 12th and 14thpages. On the 14th following are some of the FBI crime lab units: page, they found indentations showing the map the woman had drawn. This linked the The Trace Evidence Unit. This examines suspect to the crime. hairs, fibers, ropes, cordage, feathers, plants, woods, soils, glass, and building materials.It Firearms and Toolmark Unit. This examines usually gets evidence firstso that tiny fibers, guns, ammunition, evidence with residue from hairs, or other debris can be collected before gunshots, tools, motor vehicle numbers, and they fall off and are destroyed. The evidence is serial numbers. The unit maintainsa collection of firearms, ammunition, and their

74 CRIMINAL JUSTICE IN AMERICA 77 Identifying DNA.Evidenca

The list below identifies.some common items of .evidence police may need to collect, the possible location.of... the DNA on the evidence, and the biological source.containing the cells. Only a few cells are needed to obtain..:. useful DNA information. Just because a stain cannot be seen does not mean there are not enough cells: for DNA typing. Evidence Possible Location of Source of.DNA DNA on the EVidence baseball bat or similar weapon handle, endi sweat, skin, blood, tissue hat, bandanna, or mask inside sweat, hair, dandruff eyeglasses nose or ear pieces, lens sweat, skin facial tissue, cotton swab surface area mucus, blood,.sweat.semen, ear wax- dirty laundry surfaCe area blood; sweat, semen toothpick tips: saliva used cigarette cigarette butt saliva stamp or envelope licked area saliva tape or ligature inside /outside.surface skin, sweat bottle, can, or glass sides, mouthPiace saliva, sweat used condom inside/outside,:sUrface semen; vaginal.ceils blanket, pillow; ,sheet surfaCe area sweat, hair, semen, urine, "through and througtf' bullet outside surface: blood, tissue bite mark person's skin or dothing saliva fingernail, partial fingernail scrapings blood, sweat, tissue

Source: "What Every Law Enforcement Officer Should Know About DNA Evidence," National Institute of Justice(1999)::." distinctive markings. Its ballistics experts can experts have many methods for combing tell what kind of a gun fired a bullet. If police crime scenes for fingerprints, palm prints, have an alleged murder weapon, lab experts footprints, and even lip prints. They can find fire it into a tank of water. The water stops the prints using lasers, alternative light sources, bullet without disfiguringit.Experts then and chemicals as well as dusting for prints compare the bullet fired into thetank to those with powders. Once they've discovered prints, found at the crime scene. If the bullets match, experts compare them with the known prints they have found the murder weapon. Experts of victims and suspects. In October 1993, Polly can also tell by the pattern ofgunshot residue Klaas, a 12-year-old girl, was kidnaped from on the victim whether the shooterfired from her home. Local police worked with FBI crime- close range. In addition, the unit examines scene experts to collect and analyzeevidence. marks made by tools. Every tool leaves it own Using fluorescent powder, special goggles, and distinct marks and can be identified. In one an alternative light source, agentsfound a par- case, the unit showed that a seriesof bank rob- tial palm print on the girl's bunk bed. But the beries in Virginia were done by the same crim- print didn't do much good without a suspect inals because of the tool markings on the safe to match itto. Two months later,police deposit boxes they pried open. A tip to one of learned that a car had been stuck on a nearby the screwdrivers broke off at one robbery. road on the night of the kidnaping. From a When the suspects were arrested, police found computer, detectives found out that the car the screwdriver. From this evidence, they were belonged to Richard Allen Davis, who had a convicted. police record and prints on file. The palm print matched. When Davis read about the Latent Print Unit. According to specialists, match in a newspaper, he called a detective and and they everyone has different fingerprints confessed to kidnaping and killing Polly Klaas. remain the same throughout life. This makes Davis was convicted and sentenced to death. them excellent for identification. Since 1924, Today, new technology is making automated the FBI has had a fingerprint unit. Today,

75 BEST COPY AVAILABLE Unit 2: The Police identification of fingerprintspossible. A national database will soon be used to match Class Activity: DNA prints automatically from all 50 states. From Everyone DNA Units. DNA (deoxyribonucleic acid) is Arrested? the genetic code that determinesa person's physical characteristics. No two people,except DNA would be a more powerful weapon for identical twins, have identical DNA. Each for law enforcement if more people's DNA human cell holds the complete genetic blue- profiles were available on a database. At pres- print for an individual. Each cell contains 3 ent, most people's DNA is not on file. The pro- billion "base pairs," the building blocks of cedure for getting a DNA profile is simple and DNA. Current technology cannot chart all non-intrusive. A technician simply brushes a these pairs, but instead chartsa few selected cotton swab against the inside of a person's areas. From a small amount of blood, saliva, mouth. The sample is sent to a crime lab, semen, skin, fingernail, or hair, scientists can which makes the profile. England now requires make a DNA profile, which looks likea bar everyone arrested to give a DNA sample. This code. The DNA profile from a suspectcan be has resulted in more than half a million new compared to DNA found at the crimescene. If DNA profiles since1995, and police have they don't match, then the suspect is cleared. linked DNA from crime scenes to 70,000sus- In recent years, DNA has playeda major role pects in their database. Some propose that in clearing innocent suspects and freeing jurisdictions in the United States require every- wrongly convicted prisoners. If the suspect's one arrestedto give DNA samples. The and crime scene's DNA do match, this does American Civil Liberties Union opposes this. not necessarily mean, the DNA at the crime Barry Steinhardt, associate director of the scene belongs to the suspect. Since the profile ACLU, stated: "While DNA databases may be charts only a few sections of DNA, conceivably useful to identify criminals, I am skeptical other people could share the same DNApro- that we will ward off the temptation to expand file. Scientists calculate the odds. The oddscan their use. In the last ten years alone we have sometimes run as high as 1 in 20 billion and gone from collecting DNA only from convict- make the match almost certain. ed sex offenders to now including people who Contamination can be a problem if people have been arrested but never convicted of a collecting and storing DNA evidence do not crime. There have even been proposals to store follow proper procedures. Once DNA evidence newborns' DNA for future use by law enforce- gets to a lab, poor lab procedures can cause ment." mistakes, but today this seems less likely. A Inthisactivity,students evaluate the National Academy of Sciences report conclud- pros and cons of requiring DNA from those ed that overall lab procedureswere "funda- arrested. mentally sound." 1. Form small groups. 2. Each group should: For Discussion 1. Which unit do you think is most impor- a. Discuss the pros and cons of the tant? Why? requiring DNA from everyone who is arrested. 2. Do you know of any other aspects of crime labs not mentioned in the article? b. Decide whethertosupportor oppose this proposal. c. Prepare to discuss its decision and the reasons for it with the class. 3. Have the,gr'ibilps 'report back. 4. Conclude the activity by having students vote on whether they think this proposal should be adopted in their state. 9, 76 CRIMINAL JUSTICE IN AMERICA CHAPTER 6 Police and the Law court in the land, the U.S. Supreme Court Criminal Procedure often decides whether particular criminal pro- rThere are two areas of law that police cedures meet the U.S. constitutional standards of the Bill of Rights, particularly the Fourth, officers must study. One is criminal law, which you learned about in Unit One. It Fifth, and Sixth amendments. Originally, the Bill of Rights only applied defines which acts are illegal. Because police to the federal government. But after theCivil enforce the criminal law, they must know it. War, the 14th Amendment was added to the The second area of law that police must study Constitution. Its so-called "due process clause" is criminal procedure. declares that no state shall "deprive any person Criminal procedure deals with procedures of life,liberty,or property, without due for arrests, trials, and appeals. It sets out the process of law... ." This means that states can- rules for processing someone through the not deprive people of certain rights. Butwhat criminal justice system. Because illegal arrest rights does the 14th Amendment's due process or investigation procedures mayjeopardize a clause include? criminal case, the police must pay close atten- In the 1930s, the Supreme Court ruled that tion to criminal, procedure. the clause incorporates those guarantees in Criminal procedure comes from a variety the Bill of Rights that are "rooted in the tra- of sources, including federal and state statutes. dition and conscience of our people." (Palko v. Most importantly, it comes from the U.S. and Connecticut, 1937.) Since that time, the Supreme interpret state L.....astitutions. Appellate courts Court has decided on a case-by-case basis these statutes and constitutions when criminal which rights in the Bill of Rights were funda- defendants appeal their convictions claiming mental and were therefore rights that every that their constitutional rights have been vio- state had to grant to individuals. lated. Deciding these cases, appellate courts In a series of landmark cases beginning in produce rules that police and criminal trial the 1960s, the Supreme Court applied almost courts must follow. As the highestappellate Rights Incorporated by the 14th Amendment Supreme Court Decision Date Rights Amendment &low v New York (1925) Freedonof. Speech & Press First Powell v Alabama DeferistCoUnsel in Capital Cases: Hamilton v. Regents of U.C. ..419341. Free Exerciie.Of:Religiorv.-.. Delonge v. Oregon .''Freedonfof Assembly & Petition, First: Everson v. Board of Education (1947) Freedom frornEStablishment of Religion First In re Oliver '09481 Public Trial' Sixth Protection Against Unreasonable. Mapp v. Ohio Searches,and,.Seizures! Fourth Protectiori from Cruel .& Unusual. Robinson v. California (1962) Punishments: Eighth Gideon v. Wainwright (1963) Defense: Counsel for Felonies Sixth . Malloy v. Hogan (1964) Privilege Against Self-Incrimination Fifth '(1965)° Sixth Pointer v. Texas Confrontation..of Witnesses '4(1965) .. Sixth Parker v. Gladden ImpartiaUury Trial '.(1967) Sixth.. Klopfer v. North Carolina :Speedy Compulsory Process in Obtaining Washington v Texas .(1967) Witness Duncan v. Lousiana 11968) Trial by Jury Sixth Benton V. Maryland f',:(1969)- 1 No DdiibleAeiiiPardy Fifth.;- Argersinger v. Hamlin (1972) :Defense.Counsel for Crimes Sixth with Jail Terms

B EST COVLIVALABLE Unit 2: The Police 77 all the rights found in the Fourth, Fifth, and how police officers investigate crimes and Sixth amendments to the states. Not only did gather evidence, because the Supreme Court the court apply these rights to the states, it also has ruled that illegally seized evidencemay not strengthened them. When speaking of the be used at trial. The Fourth Amendmentpro- court, it should be noted that not every justice vides: on the court agreed with all of these decisions. The right of the people to be secure in their per- Some justices complained that strengthening sons, houses, paper% and effects, against unreason- the constitutional rights of individuals made able searches and seizures shall not be violated, and law enforcement too difficult. But the majori- no Warrants shall issue, but upon probable cause, ty stressed the need for the police to respect supported by Oath or affirmation, and particularly rights. The court made so many profound describing the place to be searched, and thepersons changes that the era markeda revolution in or things to be seized criminal procedure. All police searches, seizures of evidence, Following the 1960s when the rights of and arrests must comply with this amend- criminal suspects and defendants rapidly ment. Courts have interpreted the amend- expanded, the court changed. New justices ment's meaning in hundreds of search-and- were appointed to the court forming a new seizure cases. These interpretations havegrown majority. Although these justices didnot into a full body of law, knownas the law of directly overturn the decisions of the 1960s, search and seizure. Although the law iscom- they often restricted them. So while thecourt plicated, determining whethera search or minority complained that the courtwas erod- seizure is legal comes down to two basicques- ing basic rights, the new majority stressed the tions: need for crime control. Has a governmental search or seizure taken This tension on the court reflects theten- place? sion between the two, often conflicting, goals If so, was the search or seizure reasonable? of the criminal justice system: protecting society from criminals and protecting the consti- In the sections that follow,you will learn tutionalrights of those being processed how to answer these questions for most search- throughthesystem.Criminal procedure es or seizures. attempts to achieve both. For Discussion Has a Search or Seizure 1. What is the difference between criminal Taken Place? law and criminal procedure? 2. How do appellate courts create rules of To be a search or seizure under the Fourth criminal procedure? Amendment, it must be (1) done bya government employee or agent and (2) it must fit the 3. What are the two, often conflicting, goals courts' definition of a searchor seizure. We of the criminal procedure? How might they will examine each of these issues. conflict? Which do you think ismore important? Why? Did a government employeeor agent conduct the search or The Law of Search and seizure? The first step in analyzing search-and- Seizure seizure problems is to determine whocon- ducted the search or seizure. The Fourth One of the most important and complex Amendment protects citizens from actions by areas of criminal procedure comes from the government officials. The Fourth Amendment Fourth Amendment. This amendment affects does not usuallycover actions by private

78 CRIMINAL JUSTICE IN AMERICA 8I Police do a pat-down search checking for weapons. Every search must conform toFourth Amendment standards. individuals. If, for example, your neighbor which a person has a reasonable expectation breaks into your house, finds evidence of a of privacy. This privacy interest covers places crime, and turns it in to the police, your rights and things such as houses, yards, garages, under the Fourth Amendment would not have apartments, diaries, briefcases, and mail. been violated. If you were prosecuted, this evi- The court has held, however, that there is dence could be used against you at trial. Of no reasonable expectation of privacy inplaces course, the police could also arrest the person or things that are in plain view. Forexample, who broke into your house for burglary, and a person growing a four-foot-highmarijuana you could sue the person incivil court. plant in a front bay window cannot claim that Note, however, that if the police had a search was conducted if a policeofficer spots requested your neighbor to break into your it from the street. But officers who detect house, then Fourth Amendment protections things in plain view must do so from places would come into play. The neighbor would be they have a legal right to be in. For instance, if considered an agent of the government. an officer climbs over an eight-footfence surrounding a yard and spots marijuana growing 'Was it a search or seizure as defined in some back corner, a search has taken place. by the courts? Persons normally have a reasonable expecta- The Fourth Amendment protects people tion of privacy in their private property that from unreasonable searches and seizures of cannot be seen except by trespassing. their "persons, houses, papers, and effects." But the court has held there is no reason- But what is a "search'? What is a "seizure"? able expectation of privacy for open fields The next consideration is to decide whether a away from a residence. Even thoughthey are government official's conduct amounted to a private property, they usually are readily acces- search or seizure. sibletothe public. Thus police walking In the landmark case of Katz v.U.S. in through open fields are not conducting a 1967, the Supreme Court defined a search as search. any governmentalintrusion into something in

8 2 Unit 2: The Police 79 A similar rule applies to abandonedprop- c. Officer Sanchez climbs a hill in a erty. For example, if a person placed letters public park and spots three stolen containing incriminating statements into the cars in a nearby backyard surround- trash, the police could retrieve them from the ed by a 10-foot-high fence. garbage dump without having conducted a d. On surprising George Meyers,a search. There is no reasonable expectation of knownnarcoticsdealer,police privacy in such items. observe him swallow severalcap- The idea of "seizure" is somewhat easier to sules. They take him to the hospital understand. A seizure is any taking intopos- and have his stomach pumped. session, custody, or control. Propertymay be e. The police stop Anna and question seized, but so may people. An arrest is one her for a few minutes about where form of seizure, because in makingan arrest, she's been and what she has been the police take someone into custody. Thus doing the past few days. (Anna has arrests fall under the requirements imposed by been arrested twice in the lastyear the Fourth Amendment. for prostitution but has never been For Discussion convicted.) 1. What is the difference between a search and a seizure? Class Activity: Is Ita 2. The Supreme Court has ruled that the Search? police have not conducteda search if the object is in plain view, inan open field, or In thisactivity, has been abandoned. Why does the court students analyze and research cases to determine whether say this in each instance? Do you agree? a search or seizure has taken place. Why or why not? 1.Divide the class into groups ofseven. 3. Why do you think the Fourth Amendment 2. Each group should: protects only against intrusions by the government? Are these intrusions more dan- a. Discuss each of the cases below and gerous than intrusions by individuals? Why decide if a search or seizure has or why not? taken place in the following situations. 4. For each of the following, decide whethera search or seizure has taken place and b. Assign each group member one of the cases cited to look up. The explain why or why not. Don't becon- cases cerned whether it was legal. can be found on the Internet or at a law library. A good place to start a. A police officer arrests Mary Clark Internet research is Research Links for shoplifting. or Criminal Justice in America Links b. Lois Kindel,a custodianatthe on Constitutional Rights Founda- Shadyville Police Department, tion's web site (www.crf-usa.org). Law believes her neighbor deals drugs. libraries can be found at law schools She tells police but they haveno evi- and at county and municipal courts. dence. She agrees to keepa close (The librarian can help you find the watch on her neighbor. One day she cases you are looking for.) spots a marijuana plant, which has 3.After researching, students should meet in grown taller than her neighbor's one of seven groups according to the case fence. they looked up. In this "expert"group, students should:

83 80 CRIMINAL JUSTICE IN AMERICA a. Discuss the case and prepare to squeezes the luggage that passengers have report on it to the class. stored above their seats. When he squeezes bag,hefeels a suspicious b. Assign one person to report on the Bond's facts of the case, another to report "brick-like" object, which the agent believes on what the court majoritydecided to be a "brick" of methamphetamine. See and why, and another on what the Bond v. US. (2000). court dissenters believed and why. Debriefing Questions Finally, each member should state 1. What is the test used by the Supreme Court how he or she would have decided to determine whether a search has taken the case and why. place? Cases 2.Do you think this is a good test? Explain. a.Unable tosee over Mike's10-foot-high 3. Do you think the Supreme Court has fence, police hire a plane and fly over the applied thistestsatisfactorily in these 1,000 feet and see marijuana house at cases? Why or why not? plants growing inthe backyard.See California v.Ciraolo (1986) and Florida v. Riley (1989). Is the Search or Seizure b. Police install a device at the phone compa- Reasonable? ny office that keeps track of thenumbers that Gilbert dials from his home phone. After a court determines that a search or See Smith v. Maryland (1979). seizure has taken place, then it must determine c.Suspecting drug dealing, police have the whether it was reasonable. This section will trash collector turn over Bill's trash to help you analyze whether searches or seizures them instead of throwing it in the trash are reasonable. truck. See, California v. Greenwood (1988). Was the search or seizure conducted d. The FBI listens to Joe's conversation by pursuant to a warrant? attaching anelectroniceavesdropping In general, courts have held that a search device to the outside of the public tele- or seizure is unreasonable without a warrant. phone booth he uses at 11 a.m. every day. A warrant is a court order issued by a judge See Katz v. U.S. (1967). authorizing a search, an arrest, or a seizure of e.Investigatinga shooting,policelegally evidence. Warrants must specifically describe enter an apartment looking for weapons the place to be searched or the person to be and the shooter. While inside, an officer seized. spots a high-priced stereo that seems out of Before issuing a warrant, a judge must place in the rundown apartment. The offi- receive evidence presented under oathusually cer picks it up, jots down theserial num- supplied by a police officer. The evidence must ber, puts it down, calls headquarters, and show that there is probable cause to believe finds out the stereo is stolen. See Arizona v. that: Hicks (1987). (1)a crime has been or is about tobe committed, and f.Oliver posts "no trespassing" signs around his land and locks the gate to his property. (2)the person, place, or thing to be Police go onto a highly secluded part of his searched or seized is related to that land about a mile from his house and find crime. marijuana plants growing. See Oliver v. U.S. Probable cause means that the evidence (1984). must be strong enough that an independent, cautious person would have good reason to g.A Border Patrol agent boards a bus in Texas. As he walks down the aisle, he believe it.

Unit 2: The Police 81 to ensure that evidence will be seized before it can be hidden or destroyed. to help apprehend suspects or prevent their escape. In determining whether a warrantless search or seizure is reasonable, courts weigh the need for immediate police action against the invasion of individual privacy involved. Here is one such case. U.S. v. Ross (1982) Late one evening, a reliable informant telephoned Detective Marcum and told him that an individual known as "Bandit" was selling drugs. The informant had justseen Bandit complete a narcotics sale, and Bandit had told 4 him that he had more drugs in the trunk of his car. The informantgave the detective a Police prepare to break down a door duringa drug detailed description of Bandit, described his raid. To search a house, police normally needa car as a maroon Chevrolet Malibu, and told search warrant. Marcum the address where it was parked. Detective Marcum, along with two other Once the police get .a search warrant, they police officers, immediately droveto the must carry out the search promptlyusually address and found a parkedmaroon Malibu. A within 72 or 96 hours, dependingon the state. license check disclosed that thecar was regis- Many states allow police to execute warrants tered to Albert Ross. A computer checkon only during daytime hours except in special Ross revealedthat hefitthe informant's cases. Police must normally announce that description and was known touse the alias they have a warrant. But theycan forgo this "Bandit." The officers cruised through the formality if they have reason to believe thata neighborhood, but did not see anyone match- fugitive is hiding out or that evidence is being ing Ross' description. destroyed. In most jurisdictions, the police When they returned to the address, they may forcibly enter a place when no one will let saw the maroon Malibu going down the street. them in. They pulled alongside the Malibu,saw that the If police do not obtain a warrant, driver matched the informant's description, and stopped the car. They ordered Ross does one of the court-recognized out of the car. While the officers were searching him, exceptions to the warrant Detective Marcum noticed a bulleton the car's requirement apply? frontseat. Marcum took Ross' keys and The courts do not require police to obtain opened the trunk, where he founda closed a warrant before every search and seizure brown paper bag. He opened the bag and dis- (though probable cause isstill required in covered many cellophane envelopes contain- almost all cases). Over the years, courts have ing white powder. created exceptions to the warrant requirement. Later at the police station, the officers They have made these exceptions for several thoroughly searched thecar again. They dis- reasons: covered a red leather pouch in the trunk. to protect the safety of officers and the Unzipping the pouch, they found $3,200 in public. cash.

82 CRIMINAL JUSTICE IN AMERICA J Can Police_Stop People Because They Run Away?

Ateenager is standing on the corner in a high-crime area. Suddenly, he sees a police car : Hei ..buns. Can the police chase him just because he ran? Or do they need more evidence that. he is involved in criminal activity? In 2000 in Illinois v. Ward low, the U.S. Supreme Court ruled on these questions. Sam Ward low was standing-in front of a house in a high-crime neighborhood ataboutnoon. When four police cars rounded the corner, he took off running. Officers caught: him,. patted him. down, and found a loaded gun. Arrested, charged, and convicted of a weapons crime, Wardlow appealed. He argued that the police had no right to stop him. A state appellate court, agreed,. ruling that officers did not have reasonable suspicion to make a stop and frisk. The Illinois Supreme Court affirmed, determining that sudden flight in a high crime area:does not create. a.reasonable suspicion justifying a stop because flight may simply.be an exercise of the right. to "go on one's way." In a 5-4 decision, the U.S. Supreme Court upheld the stop and frisk,.declaring..that the officers' actions' did not violate the Fourth Amendment. The court ruled that; given the cit.= cumstances, the officers had reasonable suspicion that criminal activity was:taking place. (This is the standard for stop and frisks, set by the 1968 case of Terry v. Ohio.) Being in a high-crime area is a factor, said the court, but not enough by itself for reasonable suspicion. "Nervous, evasive behavior is another pertinent factor in determining reasonable suspicion .. . and head- long flight is the consummate act of evasion....Such a holding is consistent with the deci-

sion in Florida v. Royer. ..that an individual, when approached, has a right to ignore the police and go about his business. Unprovoked flight is the exact opposite of 'going about one's business.'" For Discussion 1. Why might people in high-crime areas run when they see police? 2. Do you think the circumstances in Wardlow gave officers reasonable suspicion that criminal activity was going on? Explain.

The police laboratory later determined What about the brown paper bag? The cel- that the powder in the cellophane envelopes lophane envelopes? Explain your answers. was heroin. Ross was chargedwith possession 4. Assume that opening the trunk, brown bag, of heroin with intent to distribute. and cellophane envelopes were searches. Do The police had never obtained a search you think they were reasonable underthe warrant, and Ross claimed the searches were circumstances or should the officers have unreasonable. He made a motion to suppress secured a warrant first? 'Why? the heroin and the cash from evidence at his 5. Was unzipping the red leather pouch at the trial. police station a search? If so, was it reason- For Discussion able under the circumstances or should the 1. What do police officers have to prove officers have obtained a warrant first? Why? before they can get a warrant from a judge? 2. Why do you think courts require police officers to obtain warrants? BEST COPY AVAILABLE

3.Did Detective Marcum's opening of Bandit's car trunk constitute a search? 3 Unit 2: The Police 83 nak

The U.S. Supreme Court has ruled that police do not need a warrantto search a vehicle, but musthave probable cause. Motor Vehicle and tic limits on warrantless automobile searches, it repeals the Fourth Amendment war- Other Exceptions rant requirementitself.By equating a police officer's estimation of probable The U.S. Supreme Court decided U.S.v. cause with a magistrate's, the Court utterly Ross in 1982. In a 6-3 decision, the court ruled disregards the value of aneutral and that the searches and seizures were reasonable detached magistrate.... and did not violate Ross' Fourth Amendment rights. Police officers who have legitimately The court simply ignores the critical func- stopped an automobile (as they did in this tion that a magistrate serves. And although case) and who have probable cause to believe the Court purports to rely on the mobility that contraband is concealed somewhere with- of an automobile and impracticability of in it (as they did in this case) may conduct a obtaining a warrant, it never explains why warrantless search of the vehicle. these concerns permit the warrantless In addition, when police have probable search of a container, which can easily be cause to search a vehicle, they may conduct a seized and immobilized while the police warrantless search of every part of the vehicle are obtaining a warrant. and its contents. This includes all containers Justice Marshall disagreed with the deci- and packages that may conceal whatever the sion as well. In his dissenting opinion, he police are searching for. But it excludes con- warned that the majority ruling would have tainers that could not hold what they are look- "profound implications for the privacy of citing for. For example, probable cause to believe izens traveling in automobiles." that undocumented aliens are being transport- The Ross case removed the warrant require- ed in a van will not justify a warrantless search ment for motor vehicle searches. The court of a suitcase in the van. made this exception because, if the police had Justice 'White argued in dissent: to wait to get a warrant, motor vehicles could The majority... notonly repeals all realis- easily be moved and any evidence in them

84 CRIMINAL JUSTICE IN AMERICA 87 concealed or destroyed. (Of course, before and presently dangerous...he is entitled for the searching any vehicle, police must still have protection of himself and others in the area to probable cause to believe it was used in the conduct a carefully limited search of the outer commission of a crime or it contains evidence clothing of such persons in an attempt to dis- of a crime.) cover weapons which might be used toassault him." (Terry v.Ohio, 1968, emphasis added.) Other Recognized Exceptions Thus a brief stop and frisk does not require There are other situations in which search- probable causeevidence strong enough to es and seizures may be conducted without a give a careful person good reason to believe it. warrant: A stop or frisk requires reasonable suspicion Searches Incident to Lawful Arrests. In evidence that would make an experienced Chimel v. California (1969), the U.S. Supreme police officer suspicious. Most searches and Court held that searches and seizures incident seizures require probable cause. to lawful arrests may be done without a war- Examples: rant. The court said: "When an arrest is made, Reasonable Search: The police see Fritz run itis reasonable for the arresting officer to out of a dark alley at 3 a.m. They stop him, ask search the person arrested in order to remove him who he is and what he has been doing, any weapons that the lattermight seek to use and frisk his outer clothing. In doing so, the in order to resist arrest or effect his escape officers detect what feels like a large metal [and to] seize any evidence on the arrestee's object in his coat pocket. They reach inside person in order to prevent its concealment or and pull out a gun. destruction." These so-called "Chimel search- Unreasonable Search: The police see Fritz es" may extend to everything within the area run out of a dark alley at 3 a.m.They stop and of the arrestee's immediate control. Questions frisk him. In doing so, the officers detect what sometimes arise as to whether the arrest itself feels like a plastic bag in his coat pocket. They was lawfiil. If it was not, any searchconducted reach inside and pull out a small bag of mari- along with it would not be valid. juana. (Because of the nature of the object, it Examples: could not possibly have been a dangerous Reasonable Search: Didi is arrested outside weapon.) of Elliot's Department Store for shoplifting. Unreasonable Search:Policereceive an Without a warrant, the police search the book anonymous telephone tip that J.L., ajuvenile bag she is carrying. unknown to officers, is carrying a handgun. Unreasonable Search: Didi is arrested out- The anonymous tipster describes J.L. and says side of Elliot's Department Store for shoplift- he is at a bus stop. Police find J.L. at the bus ing. The police go to her home, a block away, stop, frisk him, and find a gun. (The officers' and search her bedroom. (The search is not suspicion was not reasonable because it was incident to the arrest. The police could have not based on any observations of their own obtained a warrant if they had probable cause to believe there was evidence of a crimein the house.) Ask an Expert Stop and Frisk. In certain cases, the police Invitea prosecutor,defense attorney, or police and briefly dis- may stop and frisk, or patdown, the outer lay- officer to visit your classroom law with you. Then ers of a person's clothingwithout making an cuss search-and-seizure have the resource experttake part in the class arrest."[W]here a police officer observes activity "Applying theChecklist." The attorney unusual conduct which leads him reasonably pairs of students and discusseach that can help to conclude in light of his experience case whenthe activity ends. criminal activity may be afoot and that the persons with whom he is dealing maybe armed

Unit 2: The Police 85 but only on a call made by an unknown caller. #10B, but Josie won't let them in. The police Florida v. J.L., 2000.) kick down the door. (There is no "hot pursuit" Consent. The police may search without awar- in this case. The police were only following a rant if the person "knowingly and voluntarily" lead and could have gotten a warrant.) consents. (But these searches are not reason- Emergency situations. Police do not need a able if the police use deception or fraud to get warrant to conduct a search or seizure in emer- the person's consent.) Sometimes an individ- gency situations. ual may consent to a search of someone else's property if the consenting party owns or Examples: shares the property with the one being Reasonable Search: An officer on the beat hears a woman's loud screams and the sound searched. of shattering glass coming from atrailer Examples: home. He radios for help and then opens the Reasonable Search: The police stop Luis front door to see what is happening. on the highway for driving with a broken Unreasonable Search: The police are con- brake light. They ask him to open his glove cerned about gang violence at Jackson High compartment. Luis opens it and the officers School. Three students have been killed look inside. already. The police hear that a fight between Reasonable Search: Without a warrant, the two rival gangs is supposed to take place on police go to Meg's house and ask her parents Friday. The day before, they ask the principal if they can search her room for illegal drugs of Jackson High to assemble all students in the that they believe she has been selling at school. gym. Without a warrant, the officers then Meg's parents let the officers in to search. open all the lockers with a passkey and search Unreasonable Search: Mike and Murray for dangerous weapons. (The policeare not are roommates in a two-bedroom apartment. reacting to an immediate emergency.) The police go to their apartment and ask Mike A number of other kinds of searches have to let them search Murray's bedroom and file been held to be reasonable by the courts. They cabinet. Mike consents to the search. (Though include: they share the common areas of the apart- Airline searches of passengers andcarry- ment, Mike has no right to consent to a search on baggage by means of metal detectors, of Murray's private space.) physical pat-downs, or drug-sniffing dogs. Hot Pursuit. Police in hot pursuit of a crimi- Border searches by immigration control nal do not need a warrant to enter a place officers within areas reasonably close to where they saw the suspect go. U.S. international boundaries. Examples: Customs searches at borders, ports, and Reasonable Search: The police see Josie international airports by U.S. customs knock down an old lady, hit her with a lead agents. pipe, and take her purse. They chase josie into For Discussion a building about a mile away and see her run 1. What reasons does the court consider in into apartment #10B. When she refuses to making exceptions to the warrant require- answer, the officers kick down the door. ment? What are the dangers in making Unreasonable Search: Mrs. Thackaberry exceptions? reports that someone broke into her mailbox and stole her Social Security check. The police 2. Why did the court carve out an exception suspect Josie, a known robber of the elderly. to the warrant requirement in automobile They trail her for a few days and finally follow searches? What reasons did the dissenters her into an apartment building where she give in opposing it? Do you agree with the often goes. The police knock on the door to decision in Ross? Why or why not?

86 CRIMINAL JUSTICE IN AMERICA A Search and_ Seizure Checklist This checklist provides a summary analysis.of whether the-Fourth Amendment has been violated. Use.the checklist to help you determine the legality.of searches and seizures. 1. Has a search or seizure taken place? Did, a government employee or agent conduct the search or seizure? [If NO, then no violation] Was it 'a search or seizure as defined by the courts? ,Did the person have a reasonable expectation of privacy? [If NO,' then no violation] Was the item.. . _in plain view? _in an open field? abandoned? If,YES-to any of these; then:no violation

2. Was the search or seizure reasonable? Was.the search or seizure conducted with a valid warrant? [If YES," their no violation] If not;does one of. the court recognized exceptions:to the warrant requirement apply? Motor Vehicles Incident to a Lawful Arrest Stop and. Frisk COnsent Hot Pursuit Emergency Circumstances Border Searches Airline/Security Searches [IIATS, then no violation]

3. The court has carved out several other 2. As a pair, do the following: exceptions: searches incident to a lawful a. Review the checklist on this page arrest, stop and frisks, consent searches, and what you have learned about searches done in hot pursuit, searches in search-and-seizure law. emergency circumstances, border searches, b. Analyze the following cases and and airline security searches. Do you dis- decide if any Fourth Amendment agree with any of these exceptions? Why or violations have occurred. why not? c. Be prepared to explain your answers and discuss any differences of opin- Class Activity: Applying ion that may arise. the Checklist 3.Regroup the class and discuss each case. In this activity, students apply the Search Case 1: Hans Metcalf. Smith and Houston, and Seizure Checklist to evaluate the legality special investigators from the district attor- of some hypothetical search and seizures. ney's office, had been following Hans Metcalf, 1.Divide the class into pairs. a suspected bookie. They saw him enter a

90 Unit 2: The Police 87 telephone booth with a briefcase in his hand Interrogation and and make a short call. He then left the phone booth, but without his briefcase. Smith and Confessions Houston rushed to the phone booth, opened the briefcase, and found several bundles of bet- Another important area of criminal proce- tingslips. Just then, Metcalf returned to dure comes frorri the Fifth Amendment to the retrieve his briefcase and he was arrested. U.S. Constitution. Part of this amendment says "(no) person .. . shall be compelled in any Case 2: Vivian Madison. Mary Krensy was criminal case to be a witness against himself.. angry with her roommate, Vivian Madison. .." This means that unless you agree to talk to She went to the police and offered to show the police, they cannot force you to answer them where Vivian was hiding 50 stolen holi- questions about a crime they think you com- day turkeys. The police accompanied her to mitted. Unlike the Fourth Amendment, which the garage both women shared and discovered balances your right to privacy against the 50 turkeys reported stolen from the Henderson police's need to act, your Fifth Amendment Poultry Company. The police confiscated the right not to talk to police is absolute. If you poultry and placed Vivian under arrest. invoke it, the police may not legally make you Case 3: Dan Lewis. Officer Hanano was on talk. patrol late at night. Suddenly, she spotted a The Supreme Court did not apply the house trailer behind, but not attached to, a car Fifth Amendment to the states until 1964. But with no license plates. On closer inspection, even before this, it struck down cases where she noticed a thin wisp of smoke escaping confessions were not made voluntarily. The from one of the trailer windows. She walked to court determined that these cases violated the the door and knocked a few times. A voice due process clause of the 14th Amendment. called back, "Go away!" The officer forced This clause declares that no "State shall deprive opened the door and found a young man any person of life, liberty, or property, without preparing a liquid substance in a makeshift due process of law...." Due process of law laboratory. Officer Hanano arrested the man, guarantees fair procedures and basic liberties. whose name is Dan Lewis, for the manufacture Among the cases that the court struck down as of illegal drugs. violating due process were: Brown v. Mississippi (1936). Trying to get a Case 4: Betty Kim. Acting on an informant's confession, deputies hung the defendant tip that Betty Kim was receiving stolen prop- from a tree twice. Then they whipped him. erty, Detective Drebs went to her apartment to Whipping him a second time, they told talk to her. She invited him in, but when he him they would not stop until he con- started to poke around the living room she fessed, which he finally did. Then they took screamed, "I said you could talk, not search him to jail. the place. Get out!" He grabbed, handcuffed, and frisked her. He found a scout knife in her Ward v. Texas (1942). So that no friend or pants pocket and arrested her for disturbing attorney could contact the defendant, the the peace and carrying a concealed weapon. He police took him out of the county to three then searched the living room and found a different jails in three days. Questioned stolen stereo receiver. continuously, the defendant at one point said he would make whatever statement the police wanted even though he claimed not to have committed the crime. Finally, he confessed. Ashcraft v.Tennessee (1944). Police put the defendant in an interrogation room on Sp,tu1 rday night at 7 p.m. and questioned

88 CRIMINAL JUSTICE IN AMERICA him in relays so they would notg(I On Monday at 9:30 a.m., thedel confessed. During the .36-hour ink tion, police had given the defendai one five-minute break. Malinski v. New York (1945). Instead ing the defendant to jail, police to to a hotel room. They told him to his clothes. They questioned him fc hours while he was naked. Then al him to put on his underwear, the, tioned him for seven more hours until he El confessed. Then after letting him dress, Ernesto Miranda, right, had his conviction overturned because police failed to tell him that he they took him to jail. didn't have to talk with them. He was retried and Leyra v. Denno (1954). After questioning the convicted a second time without his confession defendant for days and allowing him little entered in evidence. sleep, police brought in a doctor trained in hypnosis. The police had wired the room Miranda v. Arizona (1966) so they could listen in. During his one-and- In this case, Ernesto Miranda was arrested one-half hour visit, the doctor repeatedly at his home and taken to a police station. A suggestedthatthe defendant confess. witness identified him, then two detectives Eventually the defendant did. The doctor took him into a special room. After two hours then brought officers into the room and of interrogation, the officers got Miranda to had the defendant repeat the confession. sign a written confession. Spano v. New York (1959). Although the At his trial, Miranda was convicted of kid- deteiidant refused to talk and asked for his naping and rape and was sentenced to 20 to 30 lawyer, police continued to question him years in prison. But he had never been told of for eight straight hours. Police sent in a his right not to talk to the police. He had childhood friend, a policeman with four never been told of his right to a lawyer. These children, who falsely told the defendant he rights are guaranteed by the Fifth and Sixth would be fired unless the defendant con- amendments. When the Supreme Court heard fessed, which he ultimately did. this case, it decided that any interrogation of Lynum v.Illinois (1963). Police told the suspects in custody is unconstitutional unless defendant that if she confessed, nothing the police clearly tell suspects before any ques- would happen to her, but if she did not, tioning begins that: her children would be taken away from her. they have the right to remain silent; She confessed. anything they say may be used against them in court; Finally in 1964 in Malloy v. Hogan, the they have a right to a lawyer; and SupremeCourtruledthattheFifth Amendment protection against self-incrimina- if they want a lawyer but can't afford one, tion applied to the states. But courts still faced the court will appoint one before any ques- the difficult task of determining on a case-by- tioning. case basis whether confessions were coerced or Also, after giving a suspect these warnings, voluntary. So in 1966 in the landmark case of the police cannot go on interrogating unless Miranda v. Arizona, the Supreme Court laid the suspect "knowingly and intelligently" down clearer guidelines for police and courts waives his or her rights. That is, suspects must to follow. completely understand their rights before they can give them up.

C.4 v Unit 2: The Police 89 This important decision meant that if up and directed the officers tothe gun (a police did not give suspects in custody these major piece of evidence in his later conviction warnings before questioning them, nothing for robbery and murder). The court ruled that that they said could be introduced as evidence the officers' remarks did not constitute inter- against them at their trials. rogation so his rights were not violated. The Supreme Court believed that police In 1984 in New York v. _Quarks, the Supreme questioning of suspects in the station house Court carved out a major exception to was inherently coercive. In other words, the Miranda. In that case, police chased a rape sus- court believed that the station house sur- pect through a supermarket. Finally catching roundings andpoliceinterrogationput and handcuffing him, they found he had an tremendous pressure on suspects to say what empty shoulder holster. An officer asked him the police wanted them to say. It felt that the where the gun was. Nodding toward some only way to prevent coerced confessions was to empty boxes, the suspect said, "The gun is over make sure suspects knew their rights. Thus there." The police retrieved a loaded .38 caliber police need to tell suspects that they do not handgun from a box. Since the suspect had have to say anything and that they can have a not been given any Miranda warnings, his lawyer with them during questioning. The incriminating statement and perhaps the gun court concluded that if police do not give a should have been excluded from evidence. But suspect this information, they violate the sus- the court created a public safety exception to pect's Fifth Amendment rights. Miranda. It ruled that the police do not have to give Miranda warnings when their questions Miranda's Aftermath are "reasonably prompted by a concern for the Miranda requires the police to read sus- public safety." Since the loaded gun in the pects in custody their rights before any inter- store caused reasonable concern for public rogation. Police do not need to get people to safety, the court ruled that the evidence was waive their rights if they are not in custody or admissible. not being interrogated. Since Miranda, the court has clarified its decision by focusing on Miranda Upheld what "in custody" and "interrogation" mean. In 2000, the Supreme Court decided a case To be in custody, a person's freedom must that directly challenged Miranda. It was based be significantly restrained. The court has held on a law more than 30 years old. In 1968, two that most people stopped briefly by police are years after the Miranda decision, Congress not in custody, because they will soon be on enacted the Omnibus Crime Control and Safe their way. Thus routine traffic stops and even Streets Act of 1968. Section 3501 of this act pur- stop and frisks do not normally require ports to overturn Miranda for federal cases. It Miranda warnings. (Berkemer v. McCarty, 1984.) permits a confession to be given in evidence In Rhode Island v. Innis (1980), the high "if it is voluntarily given." Section 3501 lists court defined interrogationas "words or several factors for a court to consider in deter- actions on the part of police officers that they mining whether a confession is voluntary. should have known were reasonably likely to Miranda warnings are one of these factors, but elicit an incriminating response." In that case, are not considered necessary for a voluntary police officers talked to each other as they confession. drove the defendant to the police station. One For 30 years, prosecutors and police mentioned that it would be too bad if children ignored Section 3501, believing it unconstitu- attending a nearby school for the handicapped tional. They reasoned that Congress cannot found the abandoned shotgun that Innis had overturn a Supreme Court decision on consti- supposedly used to rob one taxi driver and kill tutional law. another. Innis, who had previously requested a But a law professor at the University of lawyer after hearing his Miranda rights, spoke Utah, Paul Cassell, thought Section 3501 was

90 CRIMINAL JUSTICE IN AMERICA 9 3 which existed prior to Miranda. This test, said the court, did not adequately protect a defendant's constitutional rights. For Discussion 1.Supreme Court Justice Arthur J. Goldberg once wrote: "We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on 'confession' will, in the long run, be less reliable than a system which depends on extrinsic evidence independ- Much police work involves questioning people. ently secured through skillfulinvestiga- Before police can question people incustody, tion." What did he mean by this? Do you however, they must read them their rights. agree? Why or why not? 2. According to the Miranda decision, why constitutional and waged a campaign to get it should the incriminating statement in the upheld. He noted language in Miranda that Quarles case be excluded from evidence? said Congress or states could adopt substitutes 3. The court majority in Quarles said that the for Miranda warnings as long the procedures public safety exception did not give the were "at least as effective in apprising accused police the right to coerce confessions from persons of their right of silence and in assur- suspects. According to the Miranda deci- ing a continuous opportunity to exercise-it." sion, was Quarles' incriminating statement Cassell argued that Congress had done this in made in a coercive situation? Why or why 1968. not? In 1999, a federal appeals court adopted 4. Both the majority and dissenting opinions Cassell's argument in U.S.v. Dickerson. The in Quarles stated that the decision would case involved a defendant who claimed the FBI "lessen the desirable clarity" of the Miranda had not read him his rights before he con- rule. Why isit desirable that the rule be fessed. The trial judge, although noting that clear? the confession was voluntary, threw out the confession. When the judge refused to hear 5. Do you think Section 3501 is constitutional? Explain. new evidence that the FBI had given the defen- danthis Miranda warnings,prosecutors 6. When Miranda was decided,itscritics appealed. The appeals court reversed the trial claimed that suspects would stop making judge's decision, reasoning that the confession confessions. This claim has proved false. was voluntary and therefore admissible under Suspects confess today as often as before Section 3501. Miranda. In fact, one commentator has The U.S. Supreme Court, however, over- stated that "next to the warning label on turned the appeals court decision. By a 7-2 cigarette packs, Miranda is the most widely vote, the court ruled that Miranda was based ignored piece of official advice in our soci- on the Constitution and that Congress does ety." Do you think Miranda sufficiently not have the power to overturn the decision. It protects suspects' Fifth Amendment rights? therefore ruled that Section 3501 was unconsti- Do you think it goes too far? Explain. tutional. It further rejected the argument that Section 3501 provided an effective substitute for Miranda warnings. The court stated that Section 3501 was simply a return to the "totality of the circumstances" test of voluntariness, 94 Unit 2: The Police 91 Class Activity: Taking Attorneys' Instructions As attorneys, you are responsible for pre- the Fifth senting the court with sound arguments supporting your side. In this activity, students use their knowl- If you represent the government, you will edge of the Fifth Amendment to argue actual arguethatthe incriminating statements cases that have come before the Supreme should be allowed in evidence at the trial. Court. If you represent the defendant, you will 1.Divide the class into triads. Assign students arguethattheincriminating statements in each triad a numberone, two, or three. should be excluded at trial. All ones will role play Supreme Court jus- Carefully read your case. Then review the tices. All twos will role play defense attor- section above on Miranda and the cases fol- neys. All threes will role play attorneys for lowing it. How do these cases apply to your the government. Assign each triad one of case? the cases belowa, b, c, d, e, or f. To prepare your argument, write a clear, 2. Regroup the class so they can consult with brief statement of your position. Include: one another while preparing for the role At least one fact from the case that sup- play. Students arguing for the government ports your position. should sit on one side of the room, stu- An explanation of how that fact supports dents arguing for the defendants on the your position. other side, and the student justices in front. Each group should followitsgroup's One previous court decision that supports instructions, listed below. your position.

3.Regroup into triads and begin the role play. An explanation of how that decision sup- The defense will present its case first. Each ports your position. side will have two minutes to make its pres- One reason why your position is fair to the entation. The justice can interrupt to ask government or defendant. questions. After both sides present, each One reason why a court decision in your justice should stand and prepare to present favor will benefit society. a decision on the case. Make an outline ordering this information 4. When every justice is ready, go around the so that you can include all of it in a two- room and have each justice read thefacts of minute presentation. the case and present his or her decision and reasons for it. Justices' Instructions arguments, Conclude the activity with a discussion When preparingtohear 5. Supreme Court justices review the cases and using the Debriefing Questions on page 94. the law with their clerks and develop questions they want to ask the attorneys. Working with other justices, read each case. Take notes while Ask an Expert you discuss the following: How do Miranda and the cases following it Invite a prosecutor, defense attorney, or apply to your case? police 'officer to discuss briefly the Miranda What questions would you like to ask the decision. Invite your guest to stay and take attorneys about your case? part in the activity "Taking theFifth." The guest can help different groups anddebrief Remember: When you decide your case, the class. you must consider the previous Supreme Court cases interpreting the Fifth Amendment, but you are not bound by them. 9 3 92 CRIMINAL JUSTICE IN AMERICA National Opinion Poll onMiranda

"When the police arrest someone, doyou think the police should or should not be required to inform that person.ofitheirconstitutional rights?* , . Yes; should' 94%.. No, should not.am 6% No opinion

"Do you think confessions obtained from defendants whowere not read their constitutional rights when they were arrested should or should not be admissible in trial?"

Yes, should 45% No, should not. 49% No opinion:. 6%" Source: Gallup Poll (2000)

Cases his wife in to talk with him, but they con- The issue in each case is the same: Can the spicuously placed a tape recorder on the defendant's confession or incriminating tablebetweenthem, whichrecorded statements be introduced in evidence at the incriminating statements. trial? d. Farev. Michael C.(1979).Police gave a. Illinois v. Perkins (1990). Police suspect that Miranda warnings to Michael, a 16-year-old Perkins, an inmate injail on another boy accused of murder. When asked if he charge, has committed a murder. They put wanted a lawyer during the interrogation, an undercover agent in Perkins' cell. After Michael asked if instead he could call his gaining Perkins' trust, the agent asks him if probation officer. When the police told he h?c,ever killed anyone. Perkins confesses him they would not call the probation offi- to the murder. cer right away, Michael somewhat reluc- b. Duckworth v. Eagan (1989). Duckworth con- tantly agreed to talk and eventually incrim- fessed to a crime after receiving Miranda inated himself. warnings from police. Police had deviated e.Oregon v. Mathiason (1977). Weeks after a from the standard warnings in one way. burglary, police sent Mathiason a note ask- They had told Duckworth: "You have a ing him to call. He called and made an right to talk to a lawyer for advice before we appointment at his convenience to come ask you any questions, and to have him into the station. On his arrival, an officer with you during questioning. You have this informed him he was not under arrest, but right to the advice and presence of a lawyer led him into a conference room. The offi- even if you cannot afford to hire one. We cer falsely told Mathiason that police had have no way of giving you a lawyer, but one found hisfingerprintsatthe burglary will be appointed for you, if you wish, if and scene. Mathiason confessed to the crime. when you go to court. If you wish to answer The officer then let Mathiason leave with- questions now without a lawyer present, out arresting him that day. you have the right to stop answering ques- f.Beckwith v. U.S. (1976).Arrivingat tions at any time. You also have the right to stop answering at any time until you've Beckwith's house at 8 a.m., IRS agents asked Beckwith if they could ask him some ques- talked to a lawyer." (Emphasis added.) tions. He invited them in and they inter- c. Arizona v. Mauro (1987). Arrested for killing viewed him for three hours. During the his son, Mauro declined to answer any interview, he made incriminating state- questions without a lawyer. The police let ments. He was later arrested for tax fraud.

vi f`0 Unit 2: The Police 93 Debriefing Questions 1. Which of the justices' decisions expand the Miranda decision? Which restrict it? Why? 2. What were some strong arguments presented by the attorneys for the government for each case? What arguments would have improved their cases? 3. What were some strong arguments presented by the attorneys for the defendants? What arguments would have improved their cases? 4. What were some key questions asked by the justices? What other questions should they have asked? 5. Which decisions do you agree with? Why?

The Exclusionary Rule

"Criminals always get off on technicali- After seizing evidence, police must tag and store it ties." You have probably heard this before or for use at trial. even thought it yourself. But do youknow what these "technicalities" are? Generally, they refer to the individual rights protected by the Judicial integrity. Courts are supposed to Constitution, particularly provisions of the uphold thelaw.If they allow illegally Fourth and Fifth amendments. When these obtained evidence to be used at trial, they rights have been violated by an illegal search, fail to uphold the law. They condone, even seizure, or interrogation, an accused person encourage,illegality. How can citizens may invoke the exclusionary rule. This isdone respect our judicial system if the system by making a motion in court to suppress any accepts illegal practices? illegally obtained evidence. Deterrence. Excluding tainted evidence is The exclusionary rule is a special remedy the only effective way to prevent police created by the courts to compel police to abuse of constitutional rights. If illegally respect the constitutional rights of suspects. obtained evidence may not be introduced Under the rule, no illegally obtained evidence in court, police will not resort to illegal whether papers, objects, or testimonymay be searches and seizures. presented in court to convict a defendant The rule has applied to federal criminal whose constitutional rights have been violated. cases since 1914. The Supreme Court did not at This does not mean that the accused will auto- first apply the rule to the states. Instead, the matically be set free. But in some cases, this court let states decide how to uphold constitu- evidence makes up the bulk of the govern- tional rightswhether by the exclusionary rule ment's case. In such cases, the charges may or by other methods. But in 1961, the Supreme have to be reduced or dropped altogether. Court decided that the exclusionary rule was The exclusionary rule is based upon two required to assure that police would obey the theories: Constitution. In Mapp v. Ohio, it applied the exclusionary rule to state criminal trials.

9°-) 94 CRIMINAL JUSTICE IN AMERICA Fruit -of the Poisonous Tree

If police find eVidence duringan illegal searck the exclusionary rule bars prosecutors from using this evidenceat trial. But what if the illegally obtained evidence leads police to other evidence? For example, police conductan illegal search of an office building and find cocaine in Dan's office. When Dancomes to work, they read him his Miranda rights and question him. He confessesto possessing and selling cocaine. The cocaine cannot be usedas evidence at Dan's trial because of the illegal search. Butcan the confession be used? Police have complied with Miranda. But if Dancan show that police never would have had reason to question him except for their illegal search, then the confession wouldbe excluded from the trial under the "fruit of the poisonous tree doctrine." This doctrinehOlds that if illegally obtained evidence (the poisonous tree), leads policeto new evidence (the fruit), this new evidence may not be used in court against the person whose rights haVe been Violated. Courts have recognized several exceptionsto this doctrine, and in recent years the Supreme Court has liberally interpreted these exceptions: Independent source. If police did not haveto rely on the illegal evidence to find the new evidence, then the new evidence could be usedat trial. For example, if a witness had told police that Dan dealt drugs, then they would have hidreason to question him and the confession would be admitted. (Silverthorne Lumber Co.v. U.S., 1920, Segura v. U.S., 1984, and Murray v. US., 1988.) Inevitable discovery. If police would have found the evidenceeventually, then the evidence can be admitted in court. In Nixv. Williams (1984), police were searching for a body. They illegally obtained a confession that indicated where the bodywas. The body could be used as evidence at the trial because thecourt ruled the police would have found it eventually.

Cleansed taint. If the connection between the illegal action and thenew evidence is weak, then the new evidence will be allowed at trial. For example, ifDan's confession had not taken place the day of the search but had been volunteered byhim a week later, a court might allow the confession as evidence. (Wong Sunv. U.S., 1963.) For Discussion 1. What is the fruit of the poisonous tree doctrine? Doyou agree with this doctrine? Why or why not? 2. What are the exceptions to the doctrine? Do they make sense? Whyor why not?

Mapp v. Ohio (1961) door immediately, the police broke into the Dollree Mapp lived with her young daugh- house. ter in a two-story house in Cleveland. On May When they entered, Mapp was coming 23, ':'1957,police arrived at her house and down the stairs. She demanded to seea war- demanded entry. Although they gave Mappno rant. An officer waved a piece of paper at her, explanation, they later said they were respond- but it was not a warrant. She grabbed it and ing to a tip about a recent bombing. After stuffedit down her blouse. The officers phoning her attorney, Mapp refused to let the forcibly retrieved it and handcuffed her. Then officers in without a warrant. They left. Three they dragged her upstairs to her bedroom and hours later, they returned, still without a war- searched through her belongings and personal rant, but with reinforcements. They pounded papers. on the door. When Mapp did not come to the Meanwhile, Mapp's attorney arrived, but

98 Unit 2: The Police 95 the officers would not let him in the house. But the Mapp decision did not end legal They continued searching through the rest of debateovertheexclusionaryrule.The the house. After searching everywhere, officers Supreme Court has considered the issue many found some obscene materials tucked away in times. In recent years, the court has carved out a basement trunk. Mapp was arrested,tried, several exceptions to the rule: and convicted of possessing these materials. If criminal defendants testify in their own During Mapp's trial and her subsequent defense, evidence illegally seized can be appeals, the state never denied that the search used to challenge the defendants' testimo- was illegal. Instead, the state argued that the ny. (Harris v. New York, 1971, Michigan v. illegal search was irrelevant. Mapp had obscene Harvey, 1990, and James v. Illinois, 1990.) materials in her basement. She had broken the Evidence gathered by police acting in good law and was guilty as charged. Her conviction faith can be admitted if the police have rea- should not be overturned because of an illegal sonably relied on a search warrant issued by search. a judge which turns out to betechnically The Supreme Court disagreed. Ruling that defective or, through a judge's error, turns "nothing can destroy a government more out not to be based on probable cause. quickly than its failure to obey its own laws," (US. v. Leon, 1984, and Arizona v. Evans, the court threw out Mapp's conviction and 1995.) returned the case to a lower court for further proceedings. In doing so, the court extended Critics of the exclusionary rule believe it the exclusionary rule to all criminal trials in hampers the fight against crime. Some argue the countryboth state and federal. that too many criminals escape conviction The court stated that the constitutional because the rule excludes evidence attrial. right against invasions of privacy by police Others simply say the rule makes no sense. should not be an empty promise. The court Justice Benjamin Cardozo reflected this opin- said it could no longer permit this right ion in 1926 when he asked: "Is it right the to be revocable at the whimof any police criminal is to go free because the constable has officer who, in the name of law enforce- blundered?" ment itself, chooses to suspend its enjoy- Supporters of the rule say that it affects ment. Our decision, founded on reason few criminal prosecutions, partly because and truth, gives to the individual no more police today do a good job of following prop- who claim than that which the Constitution guaran- er procedure. In response to critics tees him, to the police officer no less than the procedures themselves hinder law enforce- that to which honest law enforcement is ment, supporters point out that these proce- entitled, and, to the courts, that judicial dures are required by the Constitution. The integrity so necessary in the true adminis- exclusionary rule simply helps ensure that the tration of justice. police follow the Constitution. The Exclusionary Rule Since Mapp For Discussion 1. What is the exclusionary rule? 'Why was it The Mapp decision affected police behav- established? What two justifications are ior immediately. Police, who had rarely both- given for it? ered to get warrants, started applying for them. In New York City, for example, police had 2. Do you think it is necessary? Why or why requested no search warrants in 1960, the year not? before the Mapp decision. The year after Mapp, 3. Why do you think the court created the the police requested more than 800 search war- good-faith exception to the rule? What rants. The exclusionary rule, with its threat of problems could arise from this exception? suppressingillegalevidence, pushed police Why? into seeking warrants. 9 96 CRIMINAL JUSTICE IN AMERICA 4-1 In this activity, students evaluate the pros Class Activity: A Second and cons of the exclusionary rule and pro- Look at the Exclusionary posed changes to it. Rule 1.Form small groups. 2. Each group should: Critics of the exclusionary rule have set a. Discuss the pros and cons of the forth a variety of proposals to change the rule. exclusionary rule. These proposals include: Abolishing the exclusionary rule and allow- b. Discuss the advantages and disad- ing all relevant evidence to be used in vantages of the proposed changes to the rule listed above. court. c. Discuss whether there are other alter- Abolishing the exclusionary rule but estab- natives that would respect people's lishing other civil and criminal remedies Fourth and Fifth Amendment rights for citizens when the police violate their but not place too heavy a burden on rights (e.g., a person could bring a civil suit police. against the officer for invasion of privacy in cases of unreasonable searches and d. Decide whether the group favors seizures). changing the rule and if so, what change the group supports. Extending the good-faith exception to all situations where police act in good faith e. Prepare to discuss its decision and and in the reasonablealthough mistaken the reasons for it with the class. belief that their actions were legal. 3.Have the groups report back. Write any new alternatives to the exclusionary rule on the Critics of the exclusionary rule claim it board. needs to be changed to prevent criminals from avoiding punishment when police make tech- 4. Conclude the activity by having students vote on whether they think the exclusion- nical violations of the law. Its supporters argue ary rule should be changed. If they vote to that any change would encourage police law- change it, have them vote on the alterna- lessness. tives.

100

Unit 2: The Police 97 CHAPTER 7 The Limits of Police Authority

Racial Profiling the use of any evidence seized from the driver. Federal civil rights laws outlaw it and several For many years, blacks and other minorities states have passed laws specifically against this have complained that police often target practice. minority drivers, pulling them over for minor The more difficult question arises over infractions or no reason at all and often sub- police officer discretion in deciding who to jecting them to humiliating car or body pull over. In the 1996 case of Whren v. U.S., the searches. Christopher Darden, an African U.S. Supreme Court unanimously ruled that American and former prosecutor, has been police may stop a car for any traffic or equip- stopped many times by police. He said that "to ment violation even if they have a different be pulled over for no good reason is very motivation for making the stop, such as the offensive. But then to be asked for consent to suspicion of drug trafficking. search your vehicle just ratchets things up Some experts point to "profiling" as the another notch. And in those situations where major cause of disproportionate traffic stops you've been forced out at gunpoint or you've on minorities. Profiles are systems used by been asked to spread out on the street, to lay police to predict criminal behavior. Some use out on the pavement, makes you boiling with scientific methods and statistics to develop a anger." list of factors that make up a profile of a John Lambeth of Temple University con- potential suspect. They might include age, ducted a study to determine whether. blacks location, type of car, time of day, driving pat- were beingtargeted on the New Jersey terns, route of travel, and whether the driver is Turnpike. He found that African Americans alone. Profiles can also target white citizens. made up 13.5 percent of highway users and 15 For example, a police officer might be more percent of the speeders, but he found that they likely to pull over a late-model car for a minor represented 35 percent of those stopped by traffic violation if it were driven by a white police. They were almost five times more like- youth at night in an inner-city neighborhood ly to be pulled over as other drivers. Similar where drug dealing occurs. In this case, the results were found in studies conducted in driver might fit a profile of someone who is Maryland and Florida. likely trying to buy drugs. Other minority community members There are two types of racial profilingfull complain that they too are stopped and ques- and partial. A full racial profile is when race is tioned by authorities for no good reason. the only factor that causes an officer to stop Latinos protest that they are targeted at Border someone. As mentioned above, this practice is Patrol checkpoints within the United States, unconstitutional, illegal, and universally con- and Arab-Americans claim that they are often demned. Even so, many minorities complain detained for long periods by airport security, that it happens all the time. Police officials dis- especially after some terrorist scare. agree and say the practice is not widespread. Pulling over a car, or stopping a person, In 1999, Connecticut and North Carolina solely on the basis of the driver's race violates passed laws requiring police to keep track of the 14th Amendment to the U.S. Constitution, the race and ethnicity of everyone they stop. which guarantees equal protection under the The data will be forwarded to experts to ana- law. If proven, it would invalidate an arrest or lyze whether and to what extent officers are

98 CRIMINAL JUSTICE IN AMERICA tive law-enforcement tool. Bernard Parks, chief of the Los Angeles Police Department, has stated: "We have an issue of violent crime against

jewelry salespeople....It's a collection of several hundred Colombians who commit this crime. If you see six in a car in front of the Jewelry Mart, and they're waiting and watching people with briefcases, should we play the per- centages and follow them? It's common sense." Parks is an African American. He sees nothing wrong with partial racial profiling. °PROSADIry Randall Kennedy, a law professor at CAUSE Harvard, opposes using race as a factor in pro- YOU'REILACK. files. He doesn't think that police necessarily use thispractice because they have racist motives. He thinks they may believe it is an effective law-enforcement tool, and Kennedy believes they may be right. But Kennedy points out that many innocent people get stopped by police using these profiles. And, he says, they often don't just getstopped once, but many times. This, he says, causes great targeting people on the basis of race or ethnic- anger and alienation. "Alienation ofthat sort ity. These laws are widely supported by minor- gives rise to witnesses who fail to cooperate ity leaders. Walter Wilson, legislative director with the police, citizens who view prosecutors theNationalAssociationforthe of as 'the enemy,' .and jurors who yearn to 'get Advancement of Colored People, has stated: even' with a system that has, in their eyes, con- "The NAACP believes that comprehensive data sistently mistreated them. For the sake of bet- collection is critical to the process of ending ter law enforcement, we need to be mindful of racial profiling. Without data collection, there the deep reservoir of anger toward the police is no progress on this issue." that now exists within many racial minority Other states and the federal government neighborhoods. Racial profiling is a big part are considering such laws. But strongopposi- of what keeps this pool of accumulated rage tion to these laws has come from police filled to the brim." groups. They argue that stoppingpeople is already hazardous and forcing officers to ask For Discussion people about their race and ethnicity will need- 1. A bank isrobbed and the suspectis lessly lengthen stops and inflame the situation. described as an Asian woman driving a red They also don't think the statistics will prove sports car. Police start looking for such a anything because people stopped will probably suspect. Is this a racial profile? Explain. reflect the racial makeup of the community 2. What is the difference between partial and they are stopped in. They believe that instead full racial profiling? of collecting data, all allegations of officers tar- 3. Do you think profiling is an effective law- geting minorities should be thoroughly inves- enforcement tool? If so, are its benefits tigated. worth its costs? Explain. Another set of issues concerns partial racial profiling, where race or ethnicity is one 4. Should police ever be allowed to consider of several factors. Many people support this race when deciding whether to stop some- type of profiling. They arguethat it is an effec- one? 4 :d Unit 2: The Police 99 Class Activity: What ished. Most got their jobs as political patronage, and many routinely did favors for their Should Be Done About political bosses. The Progressive era at the turn Profiling? of the 20th century did away with much political patronage. But many reformers also called To find out more about racial profiling, for strict enforcement of prostitution, gam- some states have passed laws requiring police bling, and liquor laws, which in turn often led to collect data on the race and ethnicity of to bribes, protection money, and other cor- everyone they stop. Other states and the feder- ruption. The Prohibition era in the 1920s saw al government are considering doing the same. increasing numbers of law-enforcement offi- Opponents of data collection support other cers accept payoffs to leave alone the thriving measures such as police videotaping every traf- underground liquor industry, which was usu- fic stop or police distributing their card to ally controlled by mobsters. everyone they stop so that people can easily In our time, the war on drugs has made file complaints. In this activity, students role drug dealing both dangerous and highly lucra- play advisers to a state governor who is con- tive. With so much money at stake, criminals sidering introducing legislation on racial pro- sometimes have lured officers into accepting filing. bribes and helping their criminal enterprises. 1.Divide the class into small groups. Some officers have stolen drugs and money 2. Each group should: discovered in dealers' residences. A few have even dealt drugs themselves. Almost every a. Discuss the problem of racial profil- large city police force has experienced a major ingandvariousproposalsfor drug scandal in recent years. addressing it. b. Decide which proposal, if any, to For Personal Benefit support. (Students may create their Corruption can be defined as misusing own proposal.) one's official powers for gain. Often police c. Prepare to report its decision and the corruption is for personal benefit. Officers get reason for it back to the class. money, favors, food, sex, goods, or services in return for doing something they shouldn't do. 3.Have the groups report back and discuss One of the most widely publicized cases of the various proposals. Conclude the activi- corruption was revealed by New York detective ty by voting as a class on the proposals. Frank Serpico in the late 1960s. (His story was made into a feature-length film starring Al Corruption Pacino.) Serpico witnessed widespread corruption and payoffs within the department. For Police work provides many opportunities years, he repeatedly reported the corruption to for corruption. A driver pulled over by police higher-ups and even to the mayor's office. may hand an officer $20 along with his license Although some officials paid attention, noth- hoping the officer will let him go without a ing happened until he told his story to the ticket. A restaurant owner may give police free New York Times. When officers learned what he meals in exchange for them providing extra had done, they considered him a "rat" and protection for her restaurant. Bookmakers, shunned him. The city formed the Knapp prostitutes, and drug dealers may offer payoffs Commission in 1969 to investigate. The com- for officers who ignore their operations. mission's report gave some insight into how Throughout the history of policein corruption can remain unchecked in any America, many officers could not resist some police department. It divided corrupt officers of these temptations. In the early days, police into two groupsthe "grass eaters" and the were loosely controlled and corruption flour- "meat eaters.), 103 100 CRIMINAL JUSTICE IN AMERICA o o - " How serious What discipline Would you report a Is It? (Ranked do:you think thefellow officer who from 1, least officer should did this? (Averaged serious, to 8, receive? from 1 = definitely no most serious) to 5 = definitely yes) Case Scenario An officer . runs an off -duty None 1.37 security system business gets free meals, Verbal 1.94 discounts on beat reprimand gets holiday Verbal 2.36 gifts from merchants reprimand covers up a DUI Suspend 2.34 accident of a fellow officer without pay gets free drinks to Suspend 3.47 ignore a bar closing late without pay steals contents of 6 Dismissal 4.23 a found wallet takes a bribe from 7 Dismissal 4:19 a speeding motorist steals a watch from Dismissal 4.54 a crime scene Source: 'The Measurement of Police Integrity," National institute of Justice(2000)

Meat eatersactively seek bribes or other For Departmental Benefit favors. They may extort money from people Not all corruption is done for personal they stop (in exchange for letting them go) benefit. It may be done in a misguided attempt and even commit crimes like dealing drugs, to make sure justice is served or the depart- burglary, robbery, or murder for hire. They are ment or unit looks good. An officer may testi- the ones who, when caught, make the head- fy, for example, that he saw a gun lying in lines. But they make up a small percentage of plain view in the defendant's apartment when, corrupt officers. in fact, he found the gun in the defendant's Grass eaters compose the overwhelming desk drawer. The officer knows that if he tells majorityof corrupt officers. They do not the truth, the gun will be excluded fromevi- actively seek bribes or other favors. But if dence.More dangerous, and much less com- something is offered to them, they will accept mon, are instances of police planting evidence it. They seem less dangerous than the meat to make sure a suspect is convicted. eaters, but they can cause serious damage. A scandal in the Rampart division of the They create an atmosphere in a department Los Angeles Police Department was, at least in that corruption is acceptable. They help build part, an example of this type of corruption. In up the "blue wall of silence" thatkeeps other 1999, an officer was charged with stealing an officers from reporting any corruption, how- eight-pound bag of cocaine from a police evi- ever flagrant. dence room. In return for a lighter sentence, he started accusing other members of his elite anti-gang unit of intimidating witnesses, committing perjury, planting evidence, beating 104 Unit 2: The Police 101 suspects, and even shooting people without justification. The scandal has tainted hundreds of cases, which has led to many people being released from prison. In February 2000, the city council learned it might cost up to $125 million to settle lawsuits stemming from the actions of the corrupt officers. LAPD Police Chief Bernard C. Parks blamed the scandal on a lack of supervision and faulty hiring practices. What Can Be Done? Various proposals have been suggested for ridding police forces of corruption. Some are more practical than others. Get rid of victimless crimes. This is a radical solution that has little chance of being adoptedat least in the short term. Most corruption grows out of so-called"victimless A police officer displays money recovered during a crimes"drugs, prostitution, gambling. These drug raid. are crimes that all the parties consent to. A segment of the population desires these goods or services. And the criminals who service this segment are more than willing to pay off investigated and taken seriously, fewer will dare policesometimes with huge sums. Get rid of to be corrupt. these crimes and much police corruption will Break down the blue wall of silence sur- disappear. rounding corruption. Most people go into Monitor police officers better. Another policing thinking they can help their commu- reason corruption takes place is because the nity. Few officers start off being corrupt. They badge gives police great authority, which they usually learn it on the job and it comes over can exercise at their own discretion. In some time. It progresses from accepting a meal to departments, supervisors don't know what taking money for not writing a ticketto their officers are doing and don't care as long accepting bribes from gamblers and finally as they make arrests. One way to ensure this from drug dealers. To break down the wall of doesn't happen is to hold supervisors account- silence, departments must teach and continu- able for having corrupt officers in their ranks. ally reinforce that corruption is unacceptable New York did thisfollowing the Knapp and hurts the department. They must encour- Commission. Another corruption scandal age, not discourage, the reporting of miscon- (which produced yet another commission) duct. broke out in the 1990s. But it was far less per- For Discussion vasive than the corruption exposed by Serpico 1.In your opinion, which type of corrupt and the Knapp Commission. officer is more dangerousa grass eater or a Make internal review stronger. Almost meat eater? Why? every department has an internal affairs unit to investigate police. If this unit is strong, cor- 2. Which type of corruptionthat for person- ruption will be lower. Some departments have al benefit or for departmental benefitdo adopted a policy that internal affairs must you think is more dangerous? Why? investigate every complaint by a citizen. If offi- 3. What do you think can be done to prevent cers know in advance that complaints will be police corruption? Explain.

102 CRIMINAL JUSTICE IN AMERICA105 They practice adjusting the level of force to the Class Activity: circumstances. For each situationwhether it is Preventing Corruption an arrest, crowd control, or citizen confronta- tionthey are taught to begin with the lowest In this activity, students evaluate different level of force possible. They should only esca- proposals for preventing police corruption. late the level of force if the situation requires 1. Form small groups. it. For example, if a suspect quietly submits to 2. Each group should: an arrest, a simple pat-down search and handcuffing is all that is necessary. But if the sus- a. Discuss the pros and cons of the proposals for getting rid of police pect suddenly throws a punch, a higher level of corruption, listed under "What Can force is probably required, such as using a physical-restraint technique. All of this works Be Done?" on page 102. well in theory. On the street, other factors b. Discuss whether there are other poli- including fear, anger, darkness, and split-sec- cies that would help prevent corrup- ond changescan make deciding what force is tion. reasonable and necessary much more difficult. c. Decide which proposals should be Police use of deadly force, especially adopted. firearms, is often highly publicized and con- d. Prepare to present its proposals and troversial. Deadly force is commonly defined the reasons for them to the class. as "force that poses a high risk of death orseri- 3. Have the groups report back. Write any new ous injury to its human target, whether or not proposals for preventing corruption on the death or serious injury actually result." State board. criminal codes spell out laws governing the use of deadly force. Some police agencies and 4. Conclude the activity by having students departments have even stricter standards for vote on the various proposals. their officers. The following factors, among others, are used in determining whether dead- Use of Force ly force is justified in a particular situation: The officer is making an arrest for a felony One of the most controversial aspects of violation. (In general, deadly force is not police work is the use of force. Controversy justified in apprehending a person suspect- does not arise over whether police should be ed of committing a misdemeanor or lesser allowed to use force. Police are authorized to offense.) use force to enforce the lawand make arrests. The officer has made the reason for the Questions arise when an officer uses a gun, a arrest known to the suspect. baton, or even restraining holds in particular The officer believes that deadly force is nec- situations. Did the officer need to use force? essary to prevent death or great bodily Was the force the officer used excessive? Did injury to the officer or another person. the force amount to brutality? As a general rule, police may use whatever The officer believes that the deadly force level of force is reasonable and necessary to does not create a substantial risk to inno- make an arrest. For instance, shooting an cent persons. unarmed person who has stolen an apple from The criminal used deadly force or probably afruitstand would not be reasonable. will use it if arrest is delayed. Clubbing a suspect with a nightstick when a In Tennessee v. Garner (1985), the Supreme simple arm hold would suffice is not neces- Court ruled the Fourth Amendment puts a sary. constitutional limit on the police's use of In training programs, police officers learn deadly force. In that case, police investigating how much force may be used in specific cases. 1(Jc3 Unit 2: The Police 103 When Is It Wrong- 3.In People v. Gilmore (1988), Gilmore, a pri- for the Policesto_Use-Force? vate citizen, found a man trying to bur- glarize his house. The man ran, but Police may use' whatever force is.-reasonable Gilmore yelled three times for him to halt and necessary to make an arrest. Often it is and then fired his gun and killed the man. not reasonable or necessary for police to use Gilmore was convicted of manslaughter, force. Professor Albert Reiss has listed six but a California Court of Appeals reversed examples when an assault by an arresting his conviction. It stated that Tennessee v. police officer would be wrong: Garner only limits what police officers may do, not private citizens, because the Fourth When the officer does not:-.'attempt to Amendment only applies to government arrest the person after using-force to sub, officials. Under California law, any killing due. "necessarily committed in attempting, by When the -person' does not resist arrest lawful ways and means, to apprehend any person for any felony committed" is justi- When the person resisting, arrest can be fiable. So the court found the killing justi- easily restrained by other methods. fiable. Do you think private citizens should When many other officers are on the be able to shoot non-violent fleeing felons? scene and can easily control the person. Do you think police should be able to? When the person is handcuffed and does Who should have more right to use force not try to escape or resist violently. police or private citizens? Why? When the;use of.force goes on after the person stops;resiking. Class Activity: Split Second a burglary saw an unarmed teenage boy run If you were a police officer in a dangerous out of a house. Giving chase and calling for situation, how do you think you should him to halt, they saw the boy start to climb a respond? In this activity, students decide how chain-link fence. Realizing that the boy would they would respond as officers in different sit- escape if he made it over the fence, an officer uations. shot and killed him. The officer had acted in 1.Break into pairs. accordance with Tennessee law. The law gave 2. Each pair should: police authority to use any means necessary to arrest a fleeing felon. a. Read the cases below. The Supreme Court ruled the law did not b. Decide how to handle each case and meet the constitutional standards of the how much force, if any, is reasonable Fourth Amendment. The court held it was not and necessary. reasonable to use deadly force to arrest some- c. Review the list of factors (page 105) one unless that person posed a threat to anoth- that police officers might take into er person. account when deciding how much force to use. Discuss: For Discussion 1. Why might deciding what force is reason- (1)Which, if any, went into your able and necessary be difficult for a police decision in the previous cases? officer in the field? (2)Did any additional factors go 2. Do you agree with the Supreme Court's into your decision? decision in Tennessee v. Garner? Why or why d. Be prepared to discuss the cases and not? answers with the class. !07 104 CRIMINAL JUSTICE IN AMERICA 3.Call on teams to report and discuss their 9. Suspect's weapon findings. Close the activity with a discus- 10. Time of day sion using the Debriefing Questions on 11. Visibility this page. 12. Location 13. Distance between suspect and police Cases 14. Cover for officers #1: Eulia 15. Cover for suspect Eulia, a 39-year-old black woman, had a dis- 16. Possibility of suspect's escape ifdeadly force is not used pute with a gas company serviceman.The serviceman appeared at Eulia's home to turnoff 17. Presence of bystanders the gas because of an unpaid bill. Sheattacked 18. Availability of backup the serviceman and struck him severaltimes 19. Number of suspects with a shovel. The serviceman left andcalled 20. Number of officers the police. When two police officers arrived at Eulia's Debriefing Questions 1. What was the minimum use offorce sug- home to arrest her for the aggravated assault, gested for each case? What was the maxi- Eulia screamed at them and threw somedish- mum? es on the floor.The noise attracted several curious neighbors to her front porch to see 2. After hearing all the team reports,would what was going on. While the officerstalked to you modify theapproach you suggested? Eulia from a corner of the kitchen, shesud- Why or why not? denly picked up an 11-inch knife fromthe 3. What factors from the list were most com- counter and prepared to throwit at them. monly used in making a decision? (List #2: Tony them on the board.) Which factors were least commonly used? Tony, a 'tall, thin, 17-year-old boy, wasspeeding 4. What factors should affect an officer'sdeci- and swerving his car back and forth between sion to use force in a particular situation? the lanes on the highway late one night. Two police officers stopped him and asked to see Why? his driver's license. Tony, who hadobviously Note: In a study, 50 police officers were been drinking, became enraged andverbally asked to respond to hypothetical cases just majority of the officers abusive. as you did here. A One of the officers, a 20-year veteranof considered the following factors important: the police force, attempted to handcuffhim, 1. Suspect's weapon but Tony pushed him away, grabbed a crowbar 2. Location from his back seat, and waved it at theother officer. "I'll kill you if you come near me 3. Number of suspects again," he screamed. 4. Cover for officers 5. Presence of bystanders Factors Police Might Consider 6. Availability of backup 1. Suspect's sex 7. Distance between suspect and officer 2. Suspect's age 3. Suspect's race From this study, it appeared that most offi- location and the suspects' 4. Suspect's demeanor cers focused on actions, not the suspects themselves. Other 5. Suspect's height factors, such as suspects' race, sex, height, 6. Suspect's weight and weight, did not have as much bearing 7. Suspect's mental condition on the officers'decisions. 8. Police's weapon

Unit 2: The Police 105 Policing the Police

But who will guard the guardians? The Roman writer Juvenal (A.D. 50-130) Who polices the police? This question has repeatedly comeup, especially in minority communities, after incidents of alleged police brutality. Among the most notorious incidents are: In 1991, a citizen videotaped several Los Angeles police officers beating Rodney King following a high-speed chase. The Los Angeles County districtattorney filed charges against four officers. But in April 1992, a jury acquitted them of all charges. This provoked rioting andoutrage in Los "I have the right to remain silent. Anything I say can be Angeles and other cities. It also prompted used against me in court. If I cannot afford a lawyer,one the federal government to bring criminal will be provided..." charges against the four officers for violating King's civil rights. At the federal trial, two of the officers were convicted. In apartment. Police thought he was a burglar and yelled at him to freeze. Diallo tried August 1993, they were sentencedto 30 to: months in prison. open his door. When he reached for his wallet, police thought he hada gun. They In 1997, several New York police officers opened fire, shooting 41 rounds and killing arrested Abner Louima,a Haitian immi- Diallo. Diallo was unarmed and hadno grant. They mistakenly thought he had criminal record. The four officerswere assaulted an officer duringa brawl outside charged with second-degree murder and five a nightclub. Louima charged that police lesser offenses. In February 2000,a jury beat him in the patrol car and thattwo found the four defendants not guiltyon all officers in the station house rammeda charges. Diallo's family has fileda large law- broomstick up his rectum. Louimasus- suit. tained serious injuries. Federal authorities took over the investigation. One officer Many members of minoritygroups have pleaded guilty to violating Louima's civil long complained about police brutality and harassment on the street. 'What rights and was sentenced to 30years. In can be done June 1999, a jury convicted another officer, about police officers who behave improperly? who faces life imprisonment. In March In cases of severe misbehavior, officerscan 2000, the second officer and two others be charged with crimes, suchas in the cases were convicted of conspiracy to obstruct above. If officers use excessive force, theycan justice for lying to investigators about what face, depending on the circumstances, charges happened to Louima. They faceup to five of assault under color of authority, assault years in prison. Louima has filed a multi- with a deadly weapon, oreven manslaughter or million dollar lawsuit. murder. Except in the most blatantcases, however, it can be very difficult to convict a police In 1999, four plainclothes officers of the officer for using excessive force. Police reform New York Police Department's Street Crime experts point to the following as likely reasons saw Amadou Diallo, an African immi- for this difficulty: grant, standing in the entrance hall to his

106 CRIMINAL JUSTICE IN AMERICA 109 Prosecutors may resist bringing charges ly over the last 30 years. Some cities pay out against police. Prosecutors work with police millions of dollars annually to plaintiffs alleg- on a daily basis.They depend on officers to ing police brutality. Because of their high cost, investigate crimes and testify at trials. When these suits must have some effect on encour- an officer is accusedof using excessive force, aging cities to root out problem officers. other police officers tend to rally around the But for an individual with a complaint accusedofficer.Because prosecutors have against the police, filing a lawsuit is seldom an working relationships with police, many avoid option. Since few people can afford to pay prosecuting police except in obvious cases of lawyer fees, those choosing to sue must find a excessive force. lawyer who will take the case on a contingency fee. This means the lawyer will not chargethe Proving excessive force can be difficult. client unless the client wins. Since lawyers want Since police are authorized to use force, the to get paid, they will onlytake cases that they prosecutor does not merely have to provethat have a reasonable expectation of winning. the officer assaulted the victim. The prosecu- Lawyers know these cases must be very strong. tor must show that the officerused excessive For although civil suits do not shareall the force. Many of these incidents happen at night obstacles of a criminal trial, they do share with few witnesses other than the victim and onejurors, most of whom are concerned the police. And as with all criminal trials, the about crime, may tend to see the case from the prosecution must convince all 12 jurors that police's point of view. This means thatcivil no reasonable doubtexists that the officer suits, like criminal cases, are likely tosucceed used excessive force. in dealing with only the most outrageous mis- Many jurors tend to identify with the police. behavior by the police. Like most Americans, jurors worry about So what can individuals with complaints crime. They see the police as the thin blue line against the police do? One option is tofile between them and the criminal element. complaints against the officers. Most police Knowing how hazardous police work is, they departments have a set procedure for taking are thankful for theprotection police offer citizen complaints. But methods for handling them. Since police work is so important and these complaints vary. so dangerous, most jurorstend to give the In some cities, the police departmentitself police the benefit of the doubt at trial. handles complaints against policeofficers. Advocates for the police see the matter in Other police officers or the chief of police quite a different light. They believe that crim- investigate the charges. In larger police depart- inal prosecutions for excessive force are nor- ments, an internal-affairssection staffed by mally inappropriate. They argue that police work is highly regulated and that incidents of Ask an Expert abuse are extremely rare. In addition, they claim that criminal laws and departmental Does your police -departrnent,have-a'Written If so, rules regulating excessive force are difficult to policy regarding the use of deadly-force? ask for a copy and see howitdoes-ordoes not apply in the field, where officers sometimes incorporate the basic :requirements as.outlined work underlife-and-deathcircumstances. above. Finally, they argue that police are expected to have a writ- criminals, and If your police department does not protect citizens, be tough on ten policy, interviewofficers s-and find out what, deal with the most dangerous elements in soci- if:any, formal or informal .guidelinesthey follow ety, often with inadequate resourcesand little in the use of deadly force. public support. Also, for most people .firearms..come -tomind What about civil lawsuits? Are they more when they hear the phrase ifcleadlyforce." Find effective at policing the police? The number of out if other formsof deadly force are used by lawsuits against police officers has risen steadi- police in your area...... ,,,4,,,-,0,.....---m-,,-.....,,,,,,z.-...... ,.

Unit 2: The Police 107 Rate of Police Use of Force be taken. Citizen review boards may or may Incidents in One-Year not have the power to carry out their recommendations. Type of force Rate per 1,000 Controversy, however, surrounds these sworn officers boards. Police often oppose creating these boards. They feel that their job is dangerous Handcuff/leg restraint 490.4 and not easily understood by the public. They Bodily force (arm, foot, or leg) 272.2 admit that misconduct sometimesoccurs and Come-alongs 226.8 citizen complaints must be treated seriously. Unholstering weapon 129.9 But they usually insist that justice ismore like- Swarm 126.7 ly to be obtained if an accused officer is inves- Twist locks/wrist locks 80.9 tigated by other officers who know what police Firm grip 577 work is really like. Furthermore, Chemical agents (Mace or Cap-Stun) 36.2 many police Batons 36.0 officers believe citizen controlsmay hamper Flashlights 21.7 police work and that outsiders may be hostile to the police. Dog attacks or bites 6.5 Electrical devices (TASER) 5.4 On the other hand, many citizensargue Civilians shot at but not hit 3.0 that in our society civilians must exercise Other impact devices 2.4 direct control over police behavior. Without Neck restraints/unconsciousness- effective civilian control, the policemay apply rendering holds 1.4 their own standards, and abuse may bemore Vehicle rammings 1.0 acceptable. If this occurs, citizens will lose Civilians shot and killed 0.9 respect for the police and for the law that the Civilians shot and wounded but not killed 0.2 police are expected to enforce.

Reported incidents of police use of force. per 1,000 For Discussion sworn officers during 1991 in city departments. 1.There are several ways of disciplining prob-

Source: National Data Collection on Police Use of Force. lem officerscriminal prosecutions, civil Bureau of Justice Statistics (1996) lawsuits, departmental action, and citizen review boards. What are the strengths and specialofficersinvestigatescertaincitizen weaknesses of each? complaints and disciplines police officers who 2. Who should police the police? How should violate the law or police department regula- it be done? Explain your answer. tions. These are the ways the police "police" themselves. In recent years, the number of citizen com- Class Activity: A Board plaintsagainst the police has increased. Complaints range from relatively minor mat- of Rights ters, such as failing to investigate a crime prop- In this activity, students simulate erly, to more serious cases involving policecor- a review ruption or police brutality. Some complaints board on police misconduct and decide hypo- charge the police with mistreating people in thetical cases. custody. 1.Break into groups of four members each. Each group will function as a Police Board Many people have seen a need to give citizens more control over police behavior. Some of Rights whose purpose is to decide about possible disciplinary action against officers cities have used citizen review boards for this receiving complaints from citizens. purpose. Composed of community members, these boards investigate reports of police mis- 2. Each board will deal with the same two conduct and recommend what action should cases. In each case, the board must:

108 CRIMINAL JUSTICE IN AMERICA I 4. a. Determine the guilt or innocence of e. After deciding, prepare a brief report the officers. discussing the reasons for the decision and be prepared to discuss b. If guilty, decide the punishment the them with the class. officer should receive. These cases have been thoroughly investi- 4. All the boards should report their decisions gated by the police department's Internal and reasons to the class. Conclude the Affairs Division, and the accused officers activity by holding a discussion using the Debriefing Questions on page 111. are fully aware of the chargesagainst them. You and the other Board of Rights mem- Case #1: Officers Mark Thomas and bers are all high-ranking police officers. Stephen Campbell You have already heard the evidence for and Description of Events: against the accused officers and you have Mark Thomas has been on the force for discussed the contents of each officer's per- six years and Stephen Campbell for five years. sonnel file. (A summary of the events of They are good friends. Recently, they met in a each case and the evidence before you is cocktail lounge at about 1 a.m. Both were just given below.) off duty and still in uniform. They had five or The board must evaluate the evidence and six beers, and Officer Campbell bought sever- decide on the guilt or innocence of the offi- al drinks for one of the off-duty waitresses. cers accused in the two cases. The two officers had a running joke about Officer Thomas wanting to buy Officer 3.Each group should: Campbell's gun. Campbell had brought the a. Select a chairperson. gun that evening to sell it toThomas. Thomas b. Read the materials on the two cases kept offering more money than Campbell was to be presented to the board on willing to accept and the matter became a joke pages 109-111. Review each casethor- between them as they passed the gun back and oughly with all the members of the forth under the table. group. Meanwhile, Officer Thomas and the wait- c. Using the questionslisted under ress had some disagreeablewords because the "Recommendations," discuss each waitress felt Thomas had insulted her. Thomas case, vote on the guilt orinnocence contends he did not mean to insult her and of the accused officer, and decide on was only joking. an appropriate penalty, if necessary. Later, when Officer Thomas leftthe The chairperson should record the lounge, he pretended he was going to steal a answers to the questionsand the rec- decorative keg of beer from thecocktail ommendationsofthegroup. lounge. Thomas claims he was only joking and Minority opinions should also be had no intention of stealing the keg. But the noted by the chairperson. waitress grabbed the keg and took it back to d. If the board determines that an the bar. The waitress was upset, and Officer accused officer is innocent, recom- Campbell was unable to calm her down. mendthatthecomplaintbe The next day, the waitress complained to dropped. If the board finds an offi- the police department that the two officers cer guilty, decide on oneof the fol- had been at the bar waving guns around. She lowing penalties: stated it was "a regular O.K. Corral without (1)Reprimand (warningtobe the shots fired." She also accused Officer placed in the officer's file) Thomas of trying to steal the beer keg. In her written complaint, she said both Thomas and (2)Suspension up to six months with loss of pay Campbell were drunk.

(3)Removal from the force 2 Unit 2: The Police 109 National. Poll of. Police_Officerson the Code. of Silence.

Strongly Strongly Agree Agree.. Disagree Disagree The. code of silence::is ari:essential part. 1.2% 15:7% 65.6% 17.5% of: the mutual trust necessary to good policing.

Whistle blowing is not worth: it. 3.1 21 :8 63:5 11.7

An officer who reports another officer's 11.0 56.4 30:9 1.8 misconduct is likely to be:given the cold shoulder by his or herfellow officers.

It-is not unusual for a police officer to 1.8 50:6. 43.3 4.4 tuma blind eye to improper conduct:. bi other officers::

Pcilicesofficers always report .serious 361 58:5 criminal violations involving abuse of authortity by fellow officers

Source: 'Police. Attitudes Toward Abuse of Authority: Findings From a National Study,"National Institute. of Justice.(2000)

The waitress and her girlfriendwere later ited, and a good marksman. interviewedtogether by Internal Affairs Officer Campbell has receivedno previous Division investigators, andso neither could complaints and has been found an excellent be used to corroborate the other'sstory. The officer by his superiors. parking lot attendant was not interviewed,nor were other witnesses found who could verify Recommendations: whether the officers were drunk. The bartender Based on your review of this information, claimed the two officers were not drunk, but do you feel that Officer Mark Thomas should be found guilty of any of the following: by law he must not serve intoxicatedpersons, so he would most likely claim they were sober. (1) exposing a firearm unnecessarily in public; The waitress has a record of being underpsy- (2) misappropriation of property (beer keg); chiatric care. All evidence indicates, however, (3) disturbing the peace? that she is completely sincere and truthful. Three charges currently exist against the Should any penalty be applied? Ifso, two officers. They are listed below. The recom- what? Do you feelthat Officer Stephen mendation of the captain in charge of these Campbell should be found guilty ofany of the officers was 15 days suspension withoutpay for charges listed above? If so, what penalty Thomas, and 10 days for Campbell. Both offi- should be applied in thiscase? cers have appealed their case to the Board of Case#2: Officers Sam Allen and Mary Rights contending that the punishment is McCrea unjust and the investigationwas improperly handled. Description of Events: Officers Allen and McCreawere sum- Personnel Records: moned about 2 a.m. to a wealthyarea of town Officer Mark Thomas has received only by a resident. The resident complained ofa dis- one previous complaint. This was from a turbance from a loud party goingon next motorist who objected to the traffic ticket he door. The resident also stated that three people received and said that Officer Thomaswas wearing black leather motorcycle jackets who rude and did not call him "sir" when he spoke apparently were attending the party hadcome to him. Officer Thomas' evaluation from his to his door, obviously drunk. One of the three superiors describes him as energetic, high spir- reportedly carrieda kitchen knife and asked to

110 CRIMINAL JUSTICE IN AMERICA 11. 3 borrow a "cup of sugar and maybe some Officer Allen began to frisk the group. He blood." found a kitchen knife in the boot of one. As As the officers approached the caller's he searched the second man, Dusty Adams house, they saw a young man, about 21; stand- turned saying, "Hey, man, listen, you don't ing by three motorcycles. When the man saw want any trouble do you?" the officers, he joined a young woman and "Keep your hands on the wall or we'll began walking toward the front door of the shoot," said Officer Allen. Adams took a step house. The officers followed them and ordered away from the wall.Officer McCrea fired, them to stop. wounding Adams in the shoulder. No weapon Officers could hear a stereo playing music was found on his person. seemingly at full volume inside the house. But Subsequently, a complaint was filed against the two people in front said that nearly every- Officer McCrea charging that she overreacted one had gone home except maybefor "two or and used unreasonable force. Internal Affairs three people in the back yard." It was clear to investigated the complaint and referred it to the officers that the two were under the influ- the Board of Rights. ence of alcohol or narcotics orboth. Officers Allen and McCrea contended that When asked what had been going on, the under the circumstances they had probable two people replied that some peoplehad "just cause to act as they didand probable cause to been listening to music" and "having a good believe that Dusty Adams was reaching for time." The officers explained that a neighbor another weapon when he moved suddenly and had called about a disturbance and someone removed his hands from the stone wall. using a knife in a threatening manner. The Furthermore, the officers stated that the sus- officers overheard the girl say, "I wonder if pects had been warned, and thatunder the cir- Dusty was at it again." cumstances the officers had notacted unrea- Officers Allen and McCrea asked to speak sonably. The captain has recommended that to the owner of the house but were toldthat he no disciplinary actionbe taken against officers was not at home. Then theofficers asked to Allen and McCrea. speak to the host or hostess and were informed Personnel Records: that it was an open party and there was no Officers Allen and McCrea have been on host ,-.!r hostess. The two did not know who the force for three and two years respectively. lived at the house. They went inside, leaving Both are highly regarded by their superiors. the officers on the front lawn. Neither has received any previous complaints. Just then, three people wearing black leather motorcycle jackets appeared from the Recommendations: side of the house. Officer Allen ordered the In your opinion should Officer Sam Allen group to halt. He andOfficer McCrea or Officer Mary McCreabe found guilty of approached them. The trio was somewhat bel- using unreasonable force? If so, what should ligerent and, when questioned about the neigh- the penalty be? bor's call, said they knew nothing. Debriefing Questions Officer Allen asked for their names. One 1. What was the most difficult part ofdecid- of the group identified himself as Dusty ing these cases? Why? Adams. The officer asked the group to remain 2. What factors might make the jobof a until they could be identified by the com- police rights board difficult and controver- plaining neighbor. They refused and said they sial? Why? were going to leave. Atthis point, Officer Allen 3. What if your group had been made uponly ordered the three to stand spread-eagle with of citizens concerned about police behav- their hands on the stone wall next to the drive- ior? Would you have decided any of these way. All of them began to curse. cases differently? While Officer McCrea held her gun,

114 Unit 2: The Police 111 You and the Police If You Are Arrested or Held 1.Never run away, strike an officer, or physi- At some time, you may havea difficult cally resist, whether you are innocentor contact with the police. They may want to guilty. If you resist or try toescape, the question you. You may be subject to arrest. It police can use whatever force is reasonable might be because of your conductor just and necessary to stop you. because you happen to be in thewrong place 2. You are entitled to your Miranda rights, at the wrong time. which include the right to remain silent. Itisimportant to remember that the You are required to tell the police nothing police work for you as a citizen ofyour com- except your name and address. Giving munity, whatever your age, race,or job. The explanations or stories or trying toexcuse police are required to respectyour rights. You, your conduct will rarely benefit you unless in turn; should respect their authority and your lawyer advises you to do so. understand the difficulties of their job. 3.Ask to see a lawyer immediately. Ifyou can- Mutual respect can go a longway toward eas- not pay for a lawyer, you have the right to ing tension in a difficult situation. request the police to get you a lawyer before The following is some general adviceon you talk to officials. what to do if the police stop you. Inany par- 4. After arrest, use your right to make ticular situation, you should always relyon a tele- your best judgment and, when possible, the phone call to a relative, trusted friend,or advice of a lawyer. lawyer for assistance. Ifyou are under age 18, you may not be permitted to make tele- If You Are Stopped by a Police phone calls. Ask to see a lawyer. Yougener- Officer ally have the right to go intocourt the next 1.Be courteous and cooperative. Avoid hos- court day after your arrest and you can ask tility, profanity, or aggressive movements. to be released on bail, although the law may Do nothing to cause ari officer to believe differ fo minors. you are a threat. 5. Do not make any decisions inyour case 2. Give your name and address, or showan until you have talked to a lawyer and under- I.D. if requested. stand what your choices are. 3. The police can search you for concealed For Discussion weapons by patting your clothing. Do not 1. How can you best assure mutualrespect physically resist, but you have the rightto between you and the police? tell the officer that you do notagree to any 2. Do you think mutual respect between search of yourself, your car,or your sur- you and the police is important? Why roundings. By making it clear thatyou do or why not? not consent to any search, you can protect your right against unlawful searches. The 3. Why is it important not to resist police? police may search you or your surroundings anyway. Do not try to stop them physically. You can question the legality of the search in court. If the policesay that they have a warrant, ask to see it. 4.If you believe the police have violatedyour rights, you have the right to filea complaint.

112 CRIMINAL JUSTICE IN AMERICA On July 6, shots ring out in a quiet residential community. A human life is taken and a suspect arrested. So begins the criminal case of People v. Carter. Although fictional,it is like real-life events that take place each day in cities and towns throughoutthe United States. There is only one important difference. This time, you and your class will be on the scene frombeginning to end and not just as observers. You will step into the roles oflawyers, judges, and jurors in a criminal case. You willstudy;the police report, meet the defendant and hear his side of the story, help the prosecutors preparetheir case, rule on motions, and select a jury. Eventually, you will seethe trial itself unfold and participate in finding the truth about the events onthat hot July evening. Ultimately, 'Out action's and decisionswill take the case to a final verdict. When you are 'finished, you will have taken abehind-the-scenes look at how the criminal justice system handles acriminal case and at the philosophies and procedures that shape the system.

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Unit 3: The Criminal Case 113 CHAPTER 8 Courts and theCase Process

The Two Systems of lawruling what evidencecan be admitted, Criminal Courts ruling on different motions from defense and prosecution, and instructing the juryon the In the United States, the criminal law in the case. courts If a defendant is convicted in belong to two separate systemsthe a federal state trial court, the defendant and federal. The state may appeal to the courts try defendants next level of courtsthe circuit courts of charged with state crimes and the federal sys- appeals. There are 13 of these tem deals with those charged with federal courts, each having jurisdiction over a particular crimes. Far more criminal trials take place in part of the United States. Each circuit state courts, because states have traditionally court has from handled most criminal offenses. In six to 30 justices. The courts normally hear recent appeals in panels of three justices. years, however, the federal government has Appeals courts, also knownas appellate created more federal crimes and,as a conse- courts, do not try cases. They review what the quence, has increased the workload of the fed- trial court has done and rule eral criminal courts. on matters of law. They rely on the record of evidencepre- The Federal Courts sented in the trial court and usually receive The federal court system consists of three written legal arguments, knownasbriefs, basic levels. On the lowest levelare more than from attorneys for the prosecution and 90 district courthouses. These handle trials in defense. In cases that concern important legal the federal system. issues, an appeals court might also receive A single judge presidesover a criminal amicus curiae (friend of the court) briefs from trial. The Sixth Amendmentto the U.S. groups interested in the outcome. The appeals Constitution gives every criminal defendant court hears oral arguments from both sides. the right to a trial by jury. Formany criminal Then the justices retire and discuss thecase trials, defendants choose to havea jury, but among themselves. They vote, and one justice often they waive this right and let the judge is assigned to write the opinion of thecourt, hear the case alone. In jury trials, the jury lis- which states the facts of thecase, the issue, the tens to testimony by witnesses and views other court's decision (knownas the holding), and evidence presented. The judge ruleson the the reasons for the holding. Ifa justice disagrees with the holding, heor she may Criminal_Coutt Systems

STATE FEDERAL State Supreme Court U.S. Supreme Court Intermediate Court of Appeal Circuit Court of Appeals State Trial Court District Court

The federal judicial system, and moststate systems, have three levels of courts.

114 CRIMINAL JUSTICE IN AMERICA 117 write a dissenting opinion. Sometimes jus- which cases they will hear by granting writs of tices may also write concurring opinions certiorari. when they agree with the holding but disagree If a state supreme court hears an appeal, with the court's reasoning or want to add it has the last word on interpretations of state something that is not in the opinion of the law and the state constitution. Defendants cannot appeal further unless they chargevio- court. - On the highest level is the U.S. Supreme lations of the U.S. Constitution. Then they Court. It hears appeals from the prosecution may ask the U.S. SupremeCourt to hear their or defense on federal courtsof appeals' deci- cases. also can hear appeals of state sions.It For Discussion supreme courts' decisions onissues of U.S. 1."We don't have two systems of criminal constitutional law. justice. We have 51." Do you agree? The U.S. Supreme Court has what is Explain. known as discretionary jurisdiction. This means that the court does nothave to take 2. What is discretionary jurisdiction?Why every appeal. Parties mustpetition to have do you think the U.S. Supreme Court and have this type their appeals heard by the court. If four of the many state supreme courts nine justices agree that the court should hear of jurisdiction? a case, then the court grantswhat is called a 3. Under what circumstances could theU.S. writ of certiorari, and the court will hear the Supreme Court overrule a state supreme appeal. court's interpretation of itsstate's law? In making their decisions, appeals courts Explain. and ultimately the Supreme Court interpret what the Constitution and other federal laws mean. Decisions can actually overturnlaws if Judges and Judicial the court believes they conflict with the Independence Constitution. Their written opinions add to the body of law. When trial judges preside over criminal trials, they make many legal rulings: Should The State Systems this evidence be admitted? Should this objec- Each state has its own criminal court sys- tion be sustained? What law applies to this tem. Many states have two typesof trial case? Is the law constitutional? On appeals, courtscourts of limited and courtsof unlim- appellate court judges review these rulings. ited jurisdiction. Courts of limited jurisdic- All judgestrial and appellateare supposed tion try only misdemeanors and lesser offens- to be fair and impartial. Whenjudges inter- es. But they may holdpretrial felony hearings pret and apply the law, they mustbase their also. They are often called municipal, magis- decisions on statutes, Constitutional law, and trate, orpolicecourts.Courts of prior court cases. They must never be swayed unlimited jurisdiction commonly hear felony by politics or popular opinion. This is what these courts are cases. Depending on the state, separates courtrooms fromlynch mobs. This usually called superior, district,circuit, or is what is meant by the rule of law. Our general-sessions courts. democracy depends on an independent judi- If convicted, defendants may appeal their ciary. cases to appellate courts. Most stateshave two The U.S. Constitution attempts to ensure levels of appeals courtsan intermediate level judicial independence. All federal judges are and the state supreme court. But some states appointed by the president, confirmed by the have only a state supreme court. Like the U.S. U.S. Senate, and serve for life. There isonly Supreme Court, many state supreme courts one way under theConstitution that federal have discretionary jurisdiction. They choose

1. Ati 'Unit 3: The Criminal Case 115 judges can be removed: The U.S. House of Representatives can vote to impeach any federal judge for "treason, bribery or other high crimes or misdemeanors." The judge is then tried by the Senate. To remove the judge, two- thirds of the Senate must vote to convict. Only 13 federal judges in our history have been impeached by the House and justseven convicted by the Senate. All have been convicted for criminal behavior. None has ever been convicted for making unpopular decisions or for holding an unpopular judicial philosophy. From presiding on the highly publicized O.J. State Judges Simpson murder trial Los Angeles Superior Court Judge Lance Ito became one of the most well Most judges in the United States are not known trial judges in America. members of the federal judiciary. Most belong to the various state courts, which dif- remains of their 12-year term of office and fer in how they select judges. then stand for election to a full 12-year term. About 20 states hold direct elections for Trial judges also go before the voters in the judges. This means that judges run for office. next general election after their appointment. This allows voters to elect judges in their dis- But their terms are shorter, typically six years. trict, but it has some drawbacks. Judges must And in some states, opponents canrun raise money for campaigns, often from against them. lawyers who will appear before them. That In addition, in many states, voters can can give the appearance that lawyers are pay- recall judges that they believe do not belong ing for favoritism. Judicial campaigns in on the bench. People opposing a judge must themselves are problematic. Judges can't make get a certain number of signatures on recall campaign promises that they will rule in a cer- petitions. Then the judge's name is put on the tain way. That would make the judge biased. ballot and voters decide whether they want to Bringing judges into the political process can retain or recall the judge. If a majority votes make them seem less neutral in the court- to recall the judge, then the judge must be room. replacedeither by election or appointment, For these reasons, most states have moved depending on the state. away from direct election of judges. In these This system has generally shielded judges states, the governor usually appoints all state from politics. It allows judges to serve long appellate court judges and most trial court terms with a limited degree of accountability judges. In some states the governor makes to voters. But in recent years, some recall and selections from a list prepared by a judicial retention elections have provoked controversy. commission, which searches for the most The late Bernard Witkin, a noted legal schol- qualified judicial candidates. ar, warned: stillrequire But most of these states "What we're seeingisa new way to judges to face voters. Appellate judges usually approachjudicialelections,challenging go on the ballot in the next general election judges' qualifications on the basis of particu- after being appointed. These are called reten- lar decisions that affect particular groups.... tion elections because voters get to decide If we reach the point where... weend up whether or not to retain the judges. No one telling the court, 'If you don't do as we want, can oppose them. Voters must choose "yes" or we'll remove you,' then the courts won't be "no." If voters retain them, they serve what worth saving."

116 CRIMINAL JUSTICE IN AMERICA 119 For Discussion dence, prosecutors say they will be unable to 1. What is judicial independence? Why is it retry the defendant. important? Justice #2: Samuel Grodin. In the last 12 2. What are the differences between the way capital punishment appeals before the court, state and federal judges are appointed and Justice Grodin has voted to overturn the removed? death sentence nine times. Despite Justice 3. What do you think the best system of Grodin's votes, the court upheld all 12 death appointing and removing judges would sentences. be? Why? Justice #3: John Chen. Justice Chen is known as a law-and-order conservative. He rarely votes against death sentences or against Class Activity: Retention overturning any case on the grounds that Election police did not conduct a proper search or interrogation. In this activity, students take the role of voters in a state retention election forseveral Debriefing Questions justices of the Supreme Court, the highest 1.Review the reasons people gave for retain- ing or not. What do you think are valid appeals court in the state. reasons for voting for and againstjudges? 1.Break the class into small groups. In each group, students should: 2. Did you have enough information to vote? If not, what additional information would a. Discuss each of justices described you need? below. b. Decide whether to vote "yes" to retain or "no" to remove each jus- Criminal Lawyers tice. c. Prepare to report each decision and Lawyers are highly educated professionals. the reasons for it to the class. To become a lawyer, students must graduate 2. After the groups have made their deci- from a four-year college and complete three sions, have them report back and discuss years of law school (obtaining ajuris doctor- each justice, indicating the reasons for vot- ate, or J.D., degree). After law school,they ing to retain or not. Conclude the activity must pass a bar examination in the statein by holdingadiscussionusingthe which they want to practice law. This is usu- Debriefing Questions. ally a two to three day examination on all aspects of the law. They also must certify that Justices they have no criminal record. (Those with All the justices have much experience as criminal records must be cleared and found both lawyers and judges and have served at fit to practice law by a state bar committee.) least one term of 12 years. The state bar asso- Once they pass the bar exam, they may prac- ciation rates each as "highly qualified," the tice law in the state. Members in good stand- highest ranking. Each of the justices has ing of a state bar may practice before federal drawn some public criticism for the incidents courts as well. related below. Although members of the bar may practice in all areas of the law, few general practi- Justice #1: Joyce Harris. Justice Harris wrote the majority opinion last term overturning tioners exist today. Most specialize in one the conviction of a defendant accused of areacorporations, labor relations, real estate, child molestation. The court ruled that police wills and trusts, taxation, personal injury, civil litigation, and other fields. Few practice had illegally seized evidence. Without this evi- e) 0 Unit 3: The Criminal Case 117 criminal law, probably less than 1 percent of Defense Attorneys all attorneys. The criminal bar is divided into Defense attorneys prepare and present prosecutors and defense attorneys. defendants' cases at pretrial hearings, at trial, Prosecutors and on appeal. The U.S. Supreme Court has Prosecutors are government employees. also ruled that a criminal defendant has the right to have a lawyer present atany interro- They represent the public and present thegov- ernment's case against the defendant in crim- gation (Escobedo v.Illinois,1964) and post- indictment lineup (U.S.v.Wade, 1967). To inal cases. At trial, the prosecutor mustprove the defendant's guilt beyonda reasonable present defendants' versions of thefacts, doubt. defense attorneys try to find supportive wit- At the federal level, prosecutors work out nesses and call them to testify at trial. They raise reasonable doubts about defendants' of about 90 U.S. attorney officesacross the guilt and may present affirmative defenses. country. Each office is headed by a U.S. attorney, appointed by the president and con- Defense attorneys can be either private attorneys or public employees. Historically, firmed by the Senate. U.S. attorneysserve under the U.S. attorney general, the cabinet most defense attorneys were private attorneys member who heads the Department of who required payment from their clients. Ifa Justice. criminal defendant could not afforda lawyer, Since most criminal prosecutions take then the defendant might have togo to court without one. place in state criminal courts, thereare thou- A series of Supreme Court decisions sands of prosecutor offices for cities,coun- changed this and, in the process, changed the ties, and states. Most are headed byan elected state, district, or city attorney. In rural areas, defense bar. In 1932 in Powell v. Alabama, the Supreme Court ruled that states must supply the prosecutor's office may consist ofone lawyer. The nation's 75 largest counties, how- attorneys for indigent defendants in death- ever, account for more than half of all prose- penalty cases. In 1938 in Johnsonv. Zerbst, the cutions. Los Angeles County has the largest court ruled that the federal government must office, with more than 1,000 deputy district provide lawyers for indigent defendants in all attorneys and an annual budget of more than federal cases. In 1963 in Gideonv. Wainright, $200 million. Large offices have specialized the court extended the rule to all felonycases in units for prosecuting cases involving drugs, statecourts.In1972in Argersingerv. juveniles, child abuse, homicide, domestic Hamlin, the court further extended the rule to violence, gangs, career criminals,arson, and any misdemeanor that could result in the white-collar crime. defendant spending time in jail. The decisions Aside from presenting cases, prosecutors rested on the Sixth Amendment, which states must decide whether to bring charges, what in part that in "all criminal prosecutions, the accused shall enjoy the right.. the charges are, and whether to changeor . tohave the assistance of counsel for his defense." The drop charges. They are officers of thecourt with a duty to protect the integrity of the jus- court reasoned, as Justice Hugo Blackwrote tice system. The American Bar Association in Gideon, that "any person hauled intocourt, (ABA), the leading organization of lawyers, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided statesin its CodeofProfessional for him." Responsibility that the prosecutors' job is to "seek justice, not merely to convict." This Following these decisions, the defense bar means that they must only prosecute those changed. It is no longer dominated by attor- they believe are guilty. In addition, they must neys in private practice. States and counties turn over to the defense any evidence that set up three systems to provide counsel to tends to exculpate a defendant. defendants who could not afford private attorneys. One isthe assigned counsel

118 CRIMINAL JUSTICE IN AMERICA 1 24. MERMAN By Under Whether attorneys are public defenders or

0.0 %rowan. ram tpalrear in private practice,' defending people accused of crime is difficult. Many people in the community don't understand the important role defense attorneys play. Questions often arise, such as, "How can they defend those people?" or "How can they defend someone they know is guilty?" The answer is that everyoneguilty or innocentis entitled to a fair trial. Our jus- m tice system is an adversary system. For it to work, both the state and defense should have able advocates. The state must prove that a person is guilty beyond a reasonabledoubt. This may mean that guilty people will gofree, but our system is set up on the principle: "Better that 10 guilty persons escape than that one ri just found out your lawyer specializes., in featestate." innocentsuffer."(WilliamBlackstone, Commentaries on English Common Law.) The system, which is often used in ruralareas. A entire power of the governmentthe police judge appoints private counsel from alist. The and prosecutor's officeis lined up against the lawyers are reimbursed by the government. defendant. The defense attorney protects the Another system is contract counsel. Private rights of the defendant and in so doing pro- firms under contract with the government protects the rights of everyone. vide legal services. The third system, the pub- The ABA states in its Code of Professional lic defender, is the most widely used system. Responsibility that "a lawyer should represent Public defenders work full-time for the gov- a client zealously within thebounds of the ernment. Their job is to defend indigent defen- law." In short, an attorney should represent all dants. They often work under staggering case- defendants fully and forcefully. loads. Defense attorneys, like prosecutors, are The public defender system has received officers of the court. As the ABA notes, there criticism on several counts. Some say the heavy are limits on what defense lawyers cando. caseload causes public defenders to dispose of They cannot, for example, advise a client to cases quickly instead of working wholeheart- break the law or put anyone on the stand who edly for defendants. Others claim that by the lawyer knows will lie. In 1986 in Nix v. .working day-after-day with the same judges Whiteside, the Supreme Court was asked to rule and prosecutors, public defenders feel that on these limits. A defense attorneytold his they are on the same team and don't vigor- client that if he took the stand and told a false ously battle in court. Still others claim that story, the attorney would have to report him since public defenders are on the government to the court. The defendant took the stand and payroll, they cannot rock the boat too much. did not lie. He was convicted, but he appealed But many praise the work of public claiming that his lawyer had denied him effec- defenders as zealous advocates for their clients. tive counsel by forbidding him to commit per- They point out that many public defenders jury. The Supreme Court ruled that the attor- have far more experience and knowledge of the ney had acted properly. criminal courts than private attorneys, who criminal law. For Discussion may not even be specialists in 1. What does it mean that prosecutors and They also believe that because public defenders defense attorneys are"officers of the know prosecutors and judges well, they know court"? which tactics work best against them.

BEST COPY AVAILABLE Unit 3: The Criminal Case 119 Ask an Ekpert they do give us a dramatic glimpse of the criminal justice process. These cases introduce us to Invite a representative froma local law school a mind-boggling array of courthouse charac- TO tell about the:requirements forlaw school ters, legal terminology, procedural steps, and and the courses offered. legal issues. At any point along theway, we might throw up our hands and mutter, 2. Doyou think defense attorneys should "What's the point of all this? Did he do itor defend people they know are guilty? Why didn't he do it?" Since no one can reada sus- or why not? pect's mind and no one can peer back into the past to find out exactly what happened, we 3. Do you think indigent criminal defendants need some system to find the truth. should be provided lawyers? Explain. 4.In 1979 in Scott v.Illinois, the Supreme The Adversary System Court refusedto overturn the misde- Central to truth-finding in our criminal meanor shoplifting conviction of a man case process is the so-called adversarial process. who was tried without a defense attorney In it, opposing attorneys introduce evidence to because he could not afford one. The neutralfactfindersthejudgeorjury. statute he was convicted under authorized Ultimately, the fact finder must decide the facts up to a year in jail but the trial judge sen- of a particular case and come to a verdict. tenced him to pay a $50 fine. The Supreme In this process, the attorneys are advocates Court ruled 6-3that since the judge and adversaries. They try to present facts ina imposed no prison time, the sentence light most favorable to their side and point out could stand. Do you agree with this deci- weaknesses in their opponents' case. Through sion? Explain. well-planned strategies and legal arguments, they try to convince the court to see "truth"as they do. In a criminal case, the opposing sides The Criminal Case are the prcsecution and the defense. Process The basic goal of the prosecution is topro- tect society from crime by making sure the Every year, state and federal criminal jus- guilty are tried, convicted, and punished. By tice systems handle thousands of criminal filing charges against a particular defendant, cases. Most cases are routine: A crime occurs, the prosecutor is claiming that the individual and asuspectisidentified,arrested, and has committed a crime. At trial, the prosecutor charged. If the defendant pleads guilty, which must prove the claim beyond a reasonable most do, a trial does not take place. Aside doubt. from realizing that police departments are The basic goal of the defense is to chal- overworked, courts are overburdened, and pris- lenge the prosecutor's case by raising allrea- ons are overcrowded, the general public knows sonable doubts about the defendant's guilt. little about the daily routine of criminal justice Defense attorneys must also make sure that the activity. defendant gets every right and benefitguaran- What does capture public attention is the teed under the law and Constitution. big case. A sensational murder or a multi-mil- By pitting these two sides against one lion dollar fraud case can make headlines in another, it is believed that the truth will our daily newspapers for months. Reporters come out. For example, if the prosecution's robbery clamor for interviews with the prosecution case depends on an eyewitness's identification and defense teams, TV-news programs detail of the defendant, the defense might go to great the day's courtroom events, and the defen- lengths to question the memory or eyesight of dant's name becomes a household word. the witness. The defense can be assured of Although these big cases are not typical, a similar strict examination of any evidence it

120 CRIMINAL JUSTICE IN AMERICA123 produces. Under the adversary system, the dence can tell a story of guilt or innocence. judge or jury must decide which version is As you will discover, facts are important at true. every stage and to every person in the crimi- The factfinder must go through this nal-case process. Consider just a few examples. process with all the evidence produced at trial. A police officer must have sufficient facts to Before determining whether or not a defen- show probable cause to arrest a suspect or con- dant is guilty, the fact finder must weigh a lot duct a search. A judge examines these facts of evidence and establish facts. Are the wit- before issuing a warrant. A criminal trial judge nesses believable? Are the lab tests accurate? may be called upon to decide whether facts Are the connections between the various pieces offered in evidence are relevant to the case. of evidence logical and supportable? What The facts in the case of People v. Carter will other explanations for the alleged events are be important throughout this unit. They are possible? Indeed, the quest for truth pervades a found, among other places, in the Police criminal trial. Investigation Report, in the defendant's story, Because the adversarial process involves and in the witnesses' statements. Sometimes humans, it is not foolproof. Memories fail, you will be using facts as attorneys do. For witnesses see the same event in different ways, example, in one activity you will take the role reasonable people differ about what is true. of prosecutors and, based on the facts, decide Sometimes, biases and prejudices arise, lies are whether to bring a particular charge. In anoth- told. In extreme cases, truth can get lost when er, you will cross-examine witnesses to estab- an advocate goes too far in trying to win. An lish or refute facts contained in their testimo- emotional argument can sway a jury in spite of ny. the facts. Important evidence can be con- Other times you will take a more impartial cealed. attitude toward the facts. For example, as jurors To protect against these problems, our you will decide what the facts are and whether criminal-case process has developed sophisti- taken together they amount to the defendant's cated checks and balances. Some protect the guilt beyond a reasonable doubt. process itself, while others protect the defendant. Judges and jurors can be removed for For Discussion 1. What is the main purpose of the criminal- bias or prejudice. Witnesses are sworn to tell the truth and can be punished if they lie. case process? Lawyers are bound by ethical rules against 2. What is the adversary system? How does it knowingly presenting false testimony. aid truth-finding in a criminal case? What Criminal defendants in seriouscases can might be some weaknesses in the system? count on representation by an attorney, a trial 3. What are some checks and balances found by jury, the right to confront accusers, a in the criminal-case process? speedy and public trial, and the right to appeal. They are also protected against having to post an excessive amount for bail or having to testify against themselves. These protections come from the U.S. Constitution and the constitutions and laws of the various states. Facts, Facts, Facts Basic to every criminal case arefacts. When used to prove a point before a court, they are called evidence. Evidence comes from the testimony of witnesses or from physical items related to the crime. Woven together, evi-

Unit 3: The Criminal Case 121 Class Activity: Just the Defendant's Facts a. D testified that his pistol was stolen from Facts his house about July 29. No police report was made because D did not discover it In this activity, students analyze the facts of a missing until August 2. hypothetical criminal case in which a defendant (D) is charged with assault with a deadly b. D's business partner testified that D was weapon. having dinner with her between 6:45 and 1.Each student should: 8:30 p.m. on August 1. a. Read Prosecutor's Facts and Defendant's Facts. b. Write a summary" of the sequence of Using This Unit events as they prosecution might see them. This unit has four major features: c. Do the same from the defense's point of view. The Criminal Justice Case Guide d. Write answers to the following ques- This chart on page 123 will show you each tions: important step in a criminal case.It starts To prove a case beyond a rea- when a crime is committed and continues sonable doubt, whichfacts through the entire criminal case process. must the prosecutor cast doubt Because procedures vary in different jurisdic- upon? Why? tions, your state's procedures may vary slight- If the facts described in point b ly from this guide. of Defendant's Facts are proved Key Steps false,could the defensestill These special sections are found through- win? Why or why not? out the unit and provide more detailed infor- Why would the examination of mation about the various steps outlined in the witnesses under oath be very Criminal Justice Case Guide. A typical key step important to this case? will give a particular procedure's purpose and 2. After students turn in their papers, discuss describe what happens during that procedure. each point. Case Notes Prosecutor's Facts These reading selections tell you about the a. D owns a .38 caliber Smith & Wesson hand- Carter murder case. In them, you will meet all gun registered in his name. the main characters, discover facts, and learn b. D's pistol was found by the investigating law about the case. officers at the scene of the shooting on August 1. Activities c. A fingerprint expert testified that D's fin- Each activity focuses on the criminal gerprints were all over the handgun found casean issue or eventand you will be on the at the scene. The gun had no other finger- firing line. Sometimes you will be asked to take prints on it. the role of an attorney, sometimes a judge or a d. One witness testified that two hours before juror. By the time the unit is over, you will the assault, he heard D threaten to shoot have argued constitutional questions, evaluat- the victim. ed evidence, examined witnesses, made judicial rulings, and come to a verdict in the case of e. The victim's neighbor, who reported the crime, testified that he heard shots fired at People v. Carter. 7:35 p.m. on August 1.

122 CRIMINAL JUSTICE IN AMERICA A 11 ADD

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Unit 3: The Criminal Case 123 CHAPTER 9 Investigation and Arrest

Police Crime Key Step: Arrest Investigation Report What It Is: Date of Investigation: July 6-7 An arrest is the taking of a criminal suspect into custody to charge the suspect with a Investigating Officer: Lt. Tony Jackson crime. Crime Description: At approximately 7 p.m. What Is Required: on Tuesday, July 6, Joyce Ann Miller, age 4, was An arrest must be based on probable cause hit in the head and chest by a shotgun blast at and must be made: a range of about 10 yards. The victim died with a valid warrant; instantly. or Arrest: At 11:45 p.m. on July 7,Iarrested without a warrant under one of the Thomas Wade Carter and booked him for judicially recognized exceptions to murder in the first degree. the Fourth Amendment warrant Report of Investigation: requirement. 1. On Monday evening, July 5, the arrestee, Who May Arrest: Thomas Wade Carter, age 18, went to a 1T7pending on the jurisdiction, arrests may party at the home of his girlfriend, Gail be carried out by: Duran. Witnesses at the party report that Law enforcement officials. almost everyone there, including the sus- Private citizens. (Many jurisdictions, pect, consumed a lot of beer. A fight broke however, restrict your right as a pri- out at about 3 a.m. Witnesses could not vate citizen to make an arrest. In identify everyone who was involved in the some jurisdictions, you may only fight, but told me that suspect Carter was arrest people for certain offenses, clubbed over the head with a beer bottle by for example, felonies and misde- another guest named Oscar Hanks. Friends meanors, but not for violating ordi- took Carter to the hospital for treatment. nances. In other jurisdictions you Five stitches were required to close the may not make a citizen's arrest for a wound. misdemeanor unlessthemisde- 2. On Tuesday, July 6, at about 5 p.m., Carter meanor is committed in your pres- visitedthe apartment of afriend, Joel ence. In a few jurisdictions, you can- Robertson. Robertson stated that Carter was not make a mistake: If it turns out still angry about being hit during the fight that the suspect did not actually the night before. Robertson also said that commit the offense, then the arrest Carter remarked, "I'm going to get that guy is not valid and you can be sued for once and for all. That man is going to pay false arrest. It is important to find in a big way." Carter also asked Robertson out the law in your own state.) how to work one of his shotguns. Robertson is a hunter who owns several guns.

124 CRIMINAL JUSTICE IN AMERICA 4' Felony Defendants (by most serious arrest charge)

Other Offenses Murder .9% 16.5% Rape 1.5%

Robbery 7.1%. Driving-related offenses 2.7% -.a Assault 11.4% Weapons offenses _3,, 2.8% -01-- Burglary 8.1%

-"IF. Theft 12.3% Drug trafficking 18.5%

Drug possession 18.2%

Source: "Felony Defendants in Large Uban Counties, 1996," Bureau of Justice Statistics (1999)

3.At about 6:30 p.m. on July 6, Carter visited ter went to close the gate. Ms. Miller then the home of Gail Duran. Ms. Duran told noticed a black car driving slowly on the me that Carter was still angry about what street in front of her house. She also saw a had happened the night before. She also long gun barrel pointing out of its rear win- said that Carter told her he knew who had dow right at her daughter. Before she could hit him. Carter invited Duran to go for a say or do anything, Ms. Miller stated, there ride with him and she agreed. He asked was a loud blast and Joyce Ann collapsed. Duran to drive his car while he sat in the Ms. Miller and her neighbors rushed to help back seat giving her directions. Duran stated Joyce Ann. Paramedics were called, but Joyce that Carter directed her to Fourth Street. Ann was pronounced dead on arrival at When he spotted a red Toyota truck parked Central Receiving Hospital. Ms. Miller stat- in front of one of the houses, he told her to ed that she had no idea who killed her slow down. At this point, according to daughter and could offer no description of Duran, she noticed for the first time that the occupants of the black car except that Carter was handling a shotgun. She said she she thought the driver was a young woman. became very nervous. Suddenly, according 5. The Miller residence is located three doors to Duran, there was a loud explosion inside to the east of Oscar Hanks' residence on the car. Startled, Duran stepped on the gas Fourth Street. pedal and quickly drove away. She stopped on a quiet street nearby. Carter then got into 6. That evening at 10:05 p.m., I received an the driver's seat and took her home. Duran anonymous phone call at the police station. stated that Carter told her on the drive back The caller said, "If you want to know who to her home that all of a sudden the shot- murdered that little girl, you better check gun had gone off by itself. He also stated out what happened at Gail Duran's party that he did not think he had hit anything. last night." After interviewing a number of witnessesattheparty,including Joel 4. The only eyewitness to the shooting of Joyce Robertson and Gail Duran,Iarrested Ann Miller was her mother, Ms. Karen Thomas Wade Carter at11:45p.m. on Miller. At about 7 p.m. on July 6, Ms. Miller July 7. I read the suspect his Miranda rights told her daughter to close the front gate to and booked him for the first-degree murder the yard. Ms. Miller watched as her daugh- of Joyce Ann Miller.

Unit 3: The Criminal Case 125 For Discussion (a) Voluntary Manslaughter: All intentional 1.To arrest Carter, Lt. Jackson must have had killings committed as a result of serious provo- probable cause. Probable cause means that cation or extreme anger. the officer has enough evidence to cause a (b) Involuntary Manslaughter: All uninten- reasonable person to believe that a crime tional killings that are the direct result of com- was committed and that the suspect committing: mitted it. Murder is often defined as the 1. any dangerous and unlawful act or unlawful killing of a human being with maliceaforethought."Maliceafore- 2. any lawful act in an extremely careless thought" refers to the state of mind of the or negligent manner. person doing the killing. Malice afore- For Discussion thought can mean that the killer with no 1.Under the laws of Joyce Ann Miller's state, serious provocation from the victim what is the major difference between the intended to kill; crimes of murder and manslaughter? intended toinflictgreat bodily harm; or 2. What is malice aforethought? What is premeditation? (If necessary, review materials intended to do any act where there in Chapter 3.) was an obvious risk that death or great bodily injury might result. 3.Reread section 274 of the state code. What is the major difference between first and What evidence did Lt. Jackson have that second-degree murder? might give him probable cause to arrest Carter on a charge of murder? Explain your 4. Reread section 298 of the state code. What answer. is the major difference between voluntary and involuntary manslaughter? 2. According to the information gathered by Lt. Jackson, do we know for sure what happened inside the Pontiac at the moment the Class Activity: Is It shotgun was fired? What else could have happened? What are some other ways the Murder? shooting could have taken place? In pairs, read the following descriptions of other killings in Joyce Ann Miller's state. For Case Notes: State each one, decide which form of criminal Criminal Code homicide should be charged, based on the elements from the state criminal code. a.Mr. Jones poisoned his wife's coffee over a In the state where Joyce Ann Miller was period of several weeks, resulting in her killed, the following criminal laws define the death. various forms of criminal homicide. b.David, not aiming at anyone, fired his rifle Section 274: Degrees of Murder Any killing committed with malice afore- into a passing bus, killing the driver. thought. c.Mary, furious because Joan hit her with an umbrella, stabbed and killed Joan. (a) Murder in the First Degree: All killings that are premeditated. d.Jim threw apples onto the highway from an overpass, causing a car to swerve off the (b)Murder in the Second Degree: All other road and crash. The driver died from his killings with malice aforethought. injuries. (A state law makes throwing any- Section 298: Manslaughter thing off an overpass a misdemeanor.) Any killing committed without malice e.Donna, a scuba diver, pulled her friend's aforethought. 0 126 CRIMINAL JUSTICE IN AMERICA 149 Time from Arrest to Adjudication them. To qualify for such an appointment, for Felony Defendants defendants must show that they cannot afford to pay an attorney. Most serious Median The first thing Carter's attorney did was to arrest charge number of days go to the police station to interview her client. All offenses 89 Jaffee asked Carter to explain what happened.

Violent offenses 105 Carter told his side of the story, and she took Murder notes. Rape 142 Robbery 111 Carter's Story Assault 94 "Last Monday night I went to a party at Other violent 95 my girlfriend Gail's house. We drank some Property offenses 75 beer and had a good time. Then sometime Burglary 70 around 3 a.m. a bunch of guys started to fight. Theft 76 I don't even know why it started. All I know is Other property 82 that I got hit on the head with a beer bottle. It Drug offenses 90 split my scalp, and I was all bloody. I had to Trafficking 90 go to the hospital. It took five stitches to stop Other drug 90 the bleeding. "While we were driving to the hospital I Public-order offenses 84 was mad, and I wanted to know who hit me. Weapons 98 When one of the guys mentioned that Oscar Driving-related 85 Hanks could have done it, I knew he was right. Other public order 69 Oscar and I got into a fight about a month * More than 1 year. ago, and he knifed me in the leg. "The day after Gail's party, I decided to get Based on reports from the 75 largest counties back at Oscar. I know it was dumb, but I decid- in =the nation. ed to take my Dad's shotgun and blast a bunch Source: "Felony Defendants in Large Urban Counties, 1996," of holes in Oscar's truck. He really loves that Bureau of Justice Statistics (1999) truck, you know. Well, this is when I got into mouthpiece regulator out when they were trouble. I got the shotgun, and even asked Joel 50 feet underwater as a joke. Her friend Robertson how to work it. He's a hunter and drowned. has a couple of his own. Then I went over to Gail's to get her to drive me around Oscar's When everyone finishes, discuss each situ- neighborhood. I spotted his truck and was ation with the whole class. going to blast it. Before I had a chance, the car swerved or something, and the gun went off. I Case Notes: In the didn't even think I hit anything. I didn't see anybody. Still, it was real scary! I told Gail to Defense of Thomas get us out of there fast. Carter "Look, I know I'm in big trouble. But believe me, I didn't mean to fire the gun or After his arrest, Thomas Carter exercised shoot that little girl. I didn't even know she his Miranda rights and remained silent. He was there! I swear, it was an accident." called his parents, who hired a private attor- How It Looks to Carter's Attorney ney, Susan Jaffee, to represent him. Many defendants cannot afford an attorney and Susan Jaffee finished jotting down her must wait for the court to appoint a public notes and then gave Carter an overview of her thoughts on the case. defender or free private attorney to represent 130 Unit 3: The Criminal Case 127 "Tom, I hope you are telling me the truth.. Back in her office, Jaffee reviewed the But even if you are, it's still going to be a information Carter had given her about his tough case to defend. For one thing, the shoot- background. She knew that another court ing death of a 4-year-old girl is going to stir up agency would be compiling a similar report a lot of emotion in this community. The news- for the judge to consider in deciding on the papers have been running stories for weeks on issue of Carter's pretrial release. A summary of youth violence and gangs, and your case will her notes follows. get a lot of coverage. At this point, the police are talking about first-degree murder, and with File: Thomas Carter/Background all this publicity the prosecutor could stick to Prior Arrests/Convictions those charges. We'll just have to wait until they No prior convictions. One arrest for dis- review the evidence and decide what charges to turbing the peace. The charges were subse- file. They might decide to charge you with quently dropped. At the age of 17, Carter was something less serious. Meanwhile, I'llstart cited for reckless driving, and hisdriver's checking out the witnesses. A lot can happen license was suspended for six months. between now and the trial. Employment "To begin with, we have to get through Employed full time as an assistant manag- your first court appearance. I'll need to ask er of the parts department of a local auto deal- you some questions. This information might ership. He has held his present position for help get you out of here on bail. It will be dif- nearly six months after having worked there ficult, but if your family can raise the money, part time during high school. His current I'll try. income is $26,000 a year. "Next, we have to face a probable cause hearing where the judge will decide whether School Record you have to stand trial on whatever the prose- Carter was an average student throughout cutir- charges you with. In the meantime, we high school. Because of poor attendance, how- have the right to discovery. This means we will ever, he completed some credits for graduation find out exactly what evidence the prosecution at a continuation high school. He was sus- is relying on. The probable cause hearing will pended twice, once for fighting, once for tru- give us a chance to test some of their witness- ancy. Recently, he completed a special three- es. week course offered by Ford Motor Company "If there is a finding of probable cause, in parts management before qualifying for his you will have to make an appearance at an present job. arraignment. There, depending on what hap- Residence pens, you'll have to plead to the charges, and Carter's dad died when he was 5. He lives a trial will be scheduled. At that stage, I might at home with his mother, sister, and younger be able to do something about the publicity cousin. He makes monthly contributions for problem. At the very least, we'll do our best to rent, utilities, food, and maintenance. make sure the jurors are not influenced too much by media reports. "While we are waiting to hear from the prosecutors, I want you to think about some things. I want you to think over everything you have told me today. If you have forgotten anything, I want to know. If you did not give me the whole story, I want to know. Right now, I'm the best friend you've got. No surprises, OK?" 1 3 I 128 CRIMINAL JUSTICE IN AMERICA CHAPTER 10 Pretrial Case Notes: The Key Step: First Question of Bail Appearance Before a Judge As outlined in the Key Step, there are two ways for criminal defendants to be released from jail pending trial. First, a judge might set Purpose: bail: The judge will require defendants to To ensure that criminal suspects know deposit a certain amount of money with the their rights and are not abused by authorities, court as security that they will come back for most jurisdictions require that the police bring trial. Some defendants have enough money to an arrested person (arrestee)before a judge. pay for bail themselves. Others rely on private Some states require that this first appearance bail bond companies to post the necessary take place within a specified periodfor exam- amount for a feeusually between 10 and 20 ple, within 24 or 48 hours after arrest. Other _percent of the amount. If defendants post bail jurisdictions simply say that it must take place and show up for trial, they get their bail without unnecessary delay. money back. Defendants who fail to appear in court lose all their bail money. Typical Procedures The second method of pretrial release is The judge: release on one's own recognizance. This means Informs the arrestee of the charges. that a judge releases a criminal suspect after Informs the arrestee of the right to coun- the suspect promises to return for trial. No sel. If the arrestee cannot afford to hire an bail is required. This method is usually avail- attorney, the judge will appoint one. (These able only to persons accused of non-violent court-appointed lawyers for criminal defen- and relatively minor crimes. As in bail cases, dants are often government employees, the judge must be convinced that the defen- known as public defenders. In some cases, dant will not leave town or try to intimidate the judge appoints private attorneys to rep- witnesses before the trial. resent criminal defendants.) In certain cases, a judge may refuse to Determines bail. Generally, state laws or release a defendant prior to trial. Many state court rules set bail schedules for misde- criminal codes define particular crimes as non- bailable offenses. Typically, these are crimes meanor offenses. Thus, if a personis accused of committing a misdemeanor, the punishable by death or by life imprisonment judge simply refers to the predetermined without possibility of parole. In some states, bail list to set bail. In felony cases, the defendants who have stalked their victims, judge must either: who are members of criminal organizations, or who pose a high risk of running away may 1. fix the amount of bail (often with also be denied bail. These cases present a much referencetostate-imposedstan- greater danger to society or a higher risk of the dards); defendant fleeing to avoid prosecution. 2. release the arrestee without bail (on the arrestee's own recognizance); or Judicial Criteria for Setting Bail Under the criminal laws of the state where 3. in limited instances, deny bail alto- Joyce Ann Miller was killed, the offense in this gether. I32Unit 3: The Criminal Case 129 particular case is bailable. As for being released 4. Conclude the activity by holding a discus- on his own recognizance, Carter would have sion using the Debriefing Questions on almost no chance in this or any other state. page 131. Therefore the criminal court judge must determine an appropriate amount of bailfor Attorney Instructions Thomas Wade Carter. Prosecutors: To make sure Thomas Carter The criteria that a judge must take into appears for trial, you believe that a high bail is consideration in setting bail include among necessary. Work with a partner from within other things: your own group to develop arguments to sup- the crime, port your position. Refer to Police Crime the past record of the accused, and Investigation Report on page 124-125. List five the likelihood that the defendant or more facts you think are the most impor- will remain in the state and appear tant to support your position. Keep in mind in court. the criteria (mentioned above in the Case Notes) that the judge will apply in deciding. Once you have developed your arguments and Class Activity: Bail have listed the facts to back them up, share Hearing your ideas with the other members of the prosecution group. What are the three best argu- In this activity, students role play the bail ments in favor of a higher bail for the accused hearing in the Carter case. In preparation for in this case? What facts do you have to support this, you might invite a criminal lawyer into your arguments? the class to take part in the activity and Defense attorneys: Follow the instruc- debriefing. tions in the paragraph above, except that you 1.Divide the class into three groups. Students will be trying to persuade the judge to set as in the first group role play prosecuting low a bail as possible for your client, Thomas attorneys, those in the second role play Carter. You believe he will appear for trial and defense attorneys, and those in the third you want to minimize his financial burden. role play judges. Assume that $100,000 is Carter's mom has told you that at most she the minimum bail set by law and that the can raise $15,000. Since a bond requires 10 per- maximum would be $500,000. Each group cent up front, this means the maximum bail should meet separately and follow the the family can meet is $150,000. Work with a instructions (below) for its group. partner from within your group to develop 2. After the groups have prepared, form small arguments in favor of your position. Refer to groups consisting of one prosecutor, one Thomas Carter's statement on page 127 and defense attorney, and one judge. The judge Susan Jaffee's file on page 128. List five or in each group should conduct the bail more facts you think are the most important hearing. to support your position. Keep in mind the criteria (mentioned above in the Case Notes) 3.After both sides have presented their argu- that the judge will apply in deciding. Once you ments, the judges should write down their decisions on Thomas Carter's bail and have developed your arguments and have listed the facts to back them up, share your ideas their reasoning. Regroup the class and have with the other members of the defense group. each judge announce the bailsetfor Thomas Carter and discuss the facts and What are the three best arguments in favor of arguments that influenced the decision. If a a low bail for the accused in this case? What criminal lawyer has taken part in the activ- facts do you have to support your arguments? ity, he or she should be asked to discuss the likely outcome of the bail hearing if this had been a real case. 133 130 CRIMINAL JUSTICE IN AMERICA Judge Instructions Reasons Prosecutors Decline Your job will be to listen to the lawyers' to Prosecute Felony Cases arguments and determine what bail should be set for Thomas Carter. Work with a partner Interest of Prosecution by others 3% from within your group to develop questions justice 4% to ask the attorneys. List five or more ques- Due process tions you think are important. Keep in mind problems the criteria (mentioned above in the Case 5% Notes) that you, the judges, will apply in deciding. Once you have developed your questions, share your ideas with the other members of the judge group. At the bail hearing, let the attorney for the defendant speak first, then the prosecutor. You may interrupt the attorneys to ask questions. After heaiing both sides, make your decision on what Thomas Carter's bail should be. Be From a study of the prosecutor's office in Manhattan, New York City. sure to base your decision on the criteria. Do not announce your decision to the attorneys. Source: Report to the Nation on Crime and Justice, Instead write it on a piece of paper. Be pre- Bureau of Justice Statistics (1988) pared to discuss the facts and arguments that Insufficient evidence is the main reason prosecutors influenced your decision. decline to prosecute felony cases. Debriefing Questions. 1. Do you agree that bail should sometimes be denied and an accused person held in after arrest. After the review, the case may be custody? Explain your answer. If you agree, assigned to another prosecutor. under what circumstances should judges be During the initialreview, prosecutors allowed to deny bail? Why? must first decide if they have enough evidence 2. The American criminaltrialsystemis to file formal charges against the arrestee. To based on the notion that a person is pre- do this,they must go over the possible sumed to be innocent until proved guilty. charges. Then they must review each element Do you think that the system of bail runs of these crimes and decide whether they have contrary to this concept? Why or why not? enough evidence to prove it. For example, the crime of larceny usually has the following four elements: Case Notes: (1) The taking and carrying away Prosecutorial Review (2) of personal property (3)that belongs to another person After the police make a felony arrest, the (4)with intent to permanently deprive the prosecutor reviews the case to decide what owner of possession of the property. crimes should be charged and what strategies distinguish might be used in handling the case. The pros- Inaddition, many states ecutor exercises what is called prosecutorial between the crime of grand larceny (a felony) discretion in choosing how to approach the and petty larceny (a misdemeanor) depending (In many case. Depending on the jurisdiction,the on the value of the property taken. states, for example, taking property valued at review can be made by an individual prosecu- $400 or more is a felony, taking property of a tor or by a special team of prosecutors work- lesser value is a misdemeanor.) ing closely with the police in evaluating cases

134Unit 3: The Criminal Case 131 Analyzing a Case cute if, after a thorough investigation, they Imagine that prosecutors have to decide find that: whether to file formal court charges for grand (1)a crime has been committed, larceny in a state with the theft laws described (2) they can identify the person who com- above. They have the following evidence drawn mitted it, and from the police investigation and report: (3) they have evidence that supports a John Witness saw Mary Defendant reach guilty verdict. into a car, remove a watch from the dash- But as has been mentioned, the prosecutor board, and walk away with it. John summoned does have discretion in deciding what charges, the police. They caught Mary several blocks if any, to bring. To decide, a prosecutor might away while she was trying to sell the watch to consider many factors, for example: a passerby. Other evidence includes a state- Is there reasonable doubt that the defen- ment by the owner identifying the watch as her dant is guilty? property. Was the harm caused by the offense incon- Should Mary be charged with grand larce- sequential? ny? To find out, it is necessary to match the Is the probable punishment out of propor- evidence with each element of the crime. tion to the offense or the offender? Inthiscase, John Witness' testimony establishes a taking and carrying away of the Is the crime itself rarely enforced (to the watch. The location of the property (on the extent that the community no longer con- dashboard) and the owner's statement estab- siders it a crime)? lishanother person's ownership. The law Is the offender extremely young or old? defines a watch as personal property. The testi- Is the crime not a high priority of the pros- mony of the police officer and passerby estab- ecutor's office (e.g., violent crimes tend to lishes the necessary intent element. (By trying have high priority;so-called victimless to sel! the watch to another, Mary has demon- crimes may not)? strated an intent to permanently deprive the owner of the property.) Is the case too old to find witnesses or So far it looks as if the prosecutors have physical evidence? enough evidence to prove a case of larceny What Should the Charge Be? beyond a reasonable doubt. But should they In the following scene, three prosecuting file a felony or misdemeanor complaint? The attorneysMartin, Stein, and Kawaharahave answer to this question depends on the value been assigned to review the Carter case. They of the watch. The prosecutor can have an are going over the crimes that they might investigator find evidence of the watch's value. bring against Carter. If it turns out the watch was worth more than $400, a felony charge can be made. If the evi- Martin: Let'sstart with the most serious dence does not support such a high value, a offense.First-degree murder requires malice charge for the lesser crime of petty larceny can aforethought and premeditation. The decision to be filed. kill someone had to have been weighed and As you can see, evaluating a case can be reflected upon after the intent to kill was quite complex. Many related issues may come formed. Now, in Carter's case we have evidence into play. Was all the important evidence legal- that he had more than 12 hours to consider ly obtained? Are the witnesses reliable and killing Oscar Hanks... believable? What evidence might the defense Stein: Just one problemhe didn't kill Oscar produce which counters the prosecutor's case? Hanks. Factors in Exercising Discretion Kawahara: I don't see any big problem there. In general, the prosecutors should prose- If we can show that Carter did form the intent

132 CRIMINAL JUSTICE IN AMERICA 13 5 Prosecutors must carefully evaluate every case to decide what charges to bring. to kill Hanks, we might be able to invokethe Martin: You would consider a charge of invol- transferred intent doctrine. It holds that the untary manslaughter? elements of first-degree murder can be satisfied Stein: Sure. Such careless handling of a loaded even if the killer gets someone otherthan his shotgun in a residential area amounts to crim- intended victim.Also, Carter may have inal negligence in my book. thought that the little girl was Hanks' sister or maybe a relative. Or maybe he formed a whole Kawahara: At the very least. new intent to kill the littlegirl and premedi- Martin: I suppose voluntary manslaughter is tated before pulling the trigger. also a possibility. Martin: Maybe, but it doesn't seem likely. Stein: Be serious, Martin. After 12 hours? What about second-degree murder? Remember Even if he was seriously provoked by Hanks, malice aforethought can be established by an he had plenty of time to cool off. intent to do any act where there is an obvious risk that death or great bodily harm may Martin: Maybe so. Anyway, we've got plenty to think about and we've got to decide. The news- result. Here we have a guy who stated a desire papers are showing a lot of interest inthis case. to get Hanks. He loaded a shotgun, gotinto a The boss told me that she has a personal inter- car, and started blasting away.I don't care if he est in this casetop priority and all that. We've was trying to hit the littlegirl, the house, or the truck. There were people on the street. He got to charge Carter with something. But didn't care about their safety, and he should what? have known that he was endangering them. For Discussion Also, just firing at the truck is a felony. Any 1. In your own words, what is prosecutorial killings that take place while attempting to discretion? What are its advantages and dis- commit a felony are murder under the felony advantages? murder rule. 2. Review the factors in exercising prosecutor- Stein: Let's not be too hasty. What if Carter ial discretion on page 132. Which do you didn't "start blasting away," as you put it? think are valid? Which, if any, don't you What if the gun just went off accidentally? think should be used? Why?

40 Unit 3: The Criminal Case 133 3.Review "What Should the Charge Be?"on 2. As a group, answer the following questions page 132-133. Then answer the following about the possible charges. One person questions: should record the group's answers on a What is the doctrine of transferred sheet of paper. Be prepared to discussyour intent? How does it apply to the answers with the class. Carter case? (Try drawing a diagram Possible Charges: on the board using the characters from the case.) First-Degree Murder. Is there evidence that... Why might Prosecutor Stein think Thomas Carter formed an intent to kill that the facts do not support pre- Oscar Hanks? Explain. meditation or transferred intent? Thomas Carter premeditated the crime? Why did Prosecutor Stein argue Explain. againstachargeof voluntary Thomas Carter's intent was transferred to manslaughter? Explain your answer. the killing of Joyce Ann Miller (using the What additional evidence, if any, do doctrine of transferred intent)? Explain. the prosecutors need to make a deci- or sion? Thomas Carter formed an intent to kill and premeditated the killing of Joyce Ann Class Activity: The Miller? Explain. Prosecutor Decides Second-Degree Murder. Isthere evidence that... In the following activity, assume that you Thomas Carter formed an intent to kill are a prosecutor working with Martin, Stein, Joyce Ann Miller? Explain. and Kawahara on the Thomas Cartercase. or Form small groups and exercise your prosecu- Thomas Carter had the intent to do an act torial discretion as directed below. where there was an obvious risk that death 1.Review the following materials: or gleat bodily harm would result? Explain. a. "Police Crime Investigation Report," Voluntary Manslaughter. Is there evidence pages 124-125. that... b. "State Criminal Code Sections," Thomas Carter formed an intent to kill page 126. Oscar Hanks? Explain. c. "What Should the Charge Be?" page Oscar Hanks seriously provokedthe 132. actions of Thomas Carter? Explain. (You may also wish to consult Thomas Carter did not have sufficient time "Murder Most Foul," page 40, for to calm down after being provoked? additionalbackgroundinforma- Explain. tion.) Involuntary Manslaughter. Is there evidence that... Ask an' Expert, Thomas Carter committed an act in a crim- Invite,a attorney: class:; Ask how inally negligent manner? Explain. prosecutorial.reVieW arid":dikretion Work in 3.Considering all relevant factors, what crime area What faCtorsdoeijhe:.0rosect.itor would you charge Thomas Carter with? (Be decide.whiCh'Crimes to charge' att.ciii- prepared to present and discuss your final ney tojoin'you iri the "activity "The: Prosecutor;N recommendation with the class.) Decides" and leadthe debriefing., BEST COPY AVAILABLE

134 CRIMINAL JUSTICE IN AMERICA Plea Bargaining Felony Convictions in State Courts

This unit takes us completely through the Jury trial 4% criminal case process. It begins with an arrest Bench trial 5% and ends with a trial and verdict. Most criminal cases do not go this far. In about 90 percent of all criminal cases, the defendant pleads guilty. Often the defendant does this because of a plea agreement made with the prosecutor. In return for a reduction in charges or a lighter sentence, the defendant agrees to plead Guilty plea 91% guilty. This is known as plea bargaining. A plea agreement can occur at almost any stage in a criminal case. An agreement is sometimes reached before the preliminary hearing Source: Sourcebook of Criminal Justice Statistics 1998, or shortly after. The prosecution anddefense Bureau of Justice Statistics (1999) can agree to a plea before trial, during trial, and even just before the jury returns with its They point out that a prosecutor with a weak verdict. In fact, the two sides sometimes carry case and a defendant facing a long sentence on plea negotiations throughout all the stages may not want to gamble with a trial. Inthis sit- of the case process. The negotiations may not uation, they say, a defendant may plead guilty simply cover what charges or sentence each to get a light sentence even if the defendant is side will accept. Often each side tries to con- totally innocent. vince the other of what facts can be proven in Some critics emphasize that plea bargain- court. Once they agree to the facts, then they ing tarnishes the dignity of the justice system. can agree to a plea. According to them, it turns the important In some jurisdictions, the judge plays an process of dispensing justice into a game of active role in plea bargaining. In most states, "let's make a deal." They say it even punishes however, the judge takes no part in the negoti- defendants who refuse to go along with the ations. This means that the prosecutor can game and go to trial. These defendants,they make no promises about sentencing. The most say, receive harsher sentencesthan those who the prosecutor can offer is to make a sentence agree to a plea. recommendation, which judges often accept. Other critics use this last point to com- But the judge may impose a stiffer sentence plain that plea bargains result in defendants than the one the prosecutor recommends. The serving less time than they should. Plea bar- judge may even refuse to accept the guilty plea gaining, they say, lets defendants off the hook if the judge believes the facts do not warrant it too often. (this, however, rarely happens). Supporters of plea bargaining offer several Critics have objected to plea bargaining for reasons in favor of it. They point outthat the many different reasons. Some explain that the courts couldn't possibly handle the load if trial process is carefully designed to protect the every case went to trial. Millions ofdollars defendant's rights, guarantee a fair trial, and would have to be spent on new courtrooms, ensure that only the guilty get convicted. They judges, prosecutors, and defense attorneys. argue that plea bargaining subvertsall of these. Plea bargaining, they say, saves money and In a plea bargain, a court does not examine time. It gives prosecutors time to pursue more whether the defendant's rights were violated, a important cases and keeps more police on the trial does not take place, and worst of all, they streets instead of spending hours in court- say, an innocent person may go toprison. rooms. In addition, it saves victims ofcrimes

4 f .1 Unit 3: The Criminal Case 135 James H. Linden, left, discusses his sentencing in 1999, with Franklin County, Idaho, ProsecutorJay McKenzie, center, and defense attorney John Souza. Linden, accused ofa 1986 slaying of a woman, entered into a plea bargain to a lesser felony. from the emotional trauma of testifying and it year in North Carolina v. Alford, the court even give: ._hem the satisfaction of seeing the defen- refused to overturn a plea agreement when the dant confess to the crime in court. This admis- defendant claimed he did not commit the sion of guilt, they add, is the first step in reha- crime but was just pleading guilty to avoid the bilitating a criminal. Moreover, they point out death penalty. The court upheld the guilty plea that more criminals go to prison because of because the record showed strong evidence of plea bargains. They note that anythingcan the defendant's guilt and the defendantrecog- happen at trial. A jury may find that the pros- nized that he would probably be found guilty ecution has not proven guilt beyond a reason- of first-degree murder at a jury trial. able doubt and set the defendant free. Plea bar- Some states have attempted to eliminate gaining, they say, gives the prosecution and plea bargains. Alaska did away with them in defense a chance to agree on a fair disposition 1975. The courts did not get overwhelmed with of the case. It can even help alleviate harsh trials. The same percentage of defendantscon- mandatory sentences that some first-time tinued to plead guilty. Skeptics think they kept defendants face. pleading guilty because informal agreements The Supreme Court has dealt with issues werestill made despite the ban. In1982, surrounding plea bargaining. The court has California voters approved Proposition8. upheld plea bargains as long as the defendant Among other things, it banned plea bargains has not been coerced and both sides comply in Superior Courts, which try felonycases. with the deal. In 1971 in Santobello v. New York, Several years later, a study found thatprosecu- Chief Justice Warren Burger stated that "'plea tors and defense attorneys started making their bargaining'...is an essential component of plea agreements earlier in the caseprocess, the administration of justice. Properly admin- when felony cases were in pretrial hearings in istered, it is to be encouraged." The previous Municipal Courts.

136 CRIMINAL JUSTICE IN AMERICA 139 In recent years, the stakes for plea bargains have risen. Many states have adopted three- Key Step: Probable strikes laws, which impose harsher penalties Cause Hearing and even life sentences on repeat offenders. Some defendants resist pleading to a charge if it will count as a strike, especially a third strike. Purpose Therefore many are more willing to opt for a Before a felony case can go to trial, a court trial, and the process of reaching a plea agree- must find that there is probable cause tobelieve ment has become more complex. that a crime was committed and the arrestee committed it. The purpose of the probable For Discussion cause hearing is to keepcharges with insuffi- 1. What are the advantages of plea bargains? cient evidence from being brought to trial. The What are the disadvantages? Do you think hearing thus protects both the accused and the they should be banned? Explain. state from spending time and money unneces- 2. Assuming that plea bargaining exists,do sarily. you think courts shouldbe allowed to take Alford pleas? Why or why not? Types of Hearings Preliminary Hearings. Some states use preliminary hearings or examinations to deter- Class Activity: Plea mine if the arrestee should be brought to trial. Bargain Other states use them to determine if the accused should be bound over for a grand jury Form pairs. One person in each pair hearing. At the preliminary hearing, the pros- should assume the role of prosecutor and the ecution presents evidence to a judge to prove other of defense attorney. Imagine that the that there is probable cause. The defense may prosecution has charged Thomas Carter with cross-examine the prosecutor's witnesses. In first-degree murder. Spend a few minutes and many states, however,crime victims do not try to reach a plea agreement thatsatisfies both have to testify in person. Their statements can of you. be read to the court, so the defense cannot cross-examine them. Debriefing Questions If the judge finds that there is probable 1. How many groups reached an agreement? cause, the prosecution isauthorized to file a What did you agree to? Do you think the document called an information with the agreement was fair? Do you thinkthe court, and preparations for thetrial begin. defendant would accept it? Grand Jury. In some states and in all federal 2. What problems did you have in negotiat- felony cases, grand juries determine probable ing? Do you think you had enough time? cause. A grand juryis made up of citizens Enough information? If not, what addi- usually 23 peoplefrom the county where the tional time or information would you crime occurred. It meets in closed session, and need? the prosecutor calls witnesses. The defense 3.Defense attorneys sometimes accuse prose- attorney does not get to cross-examinethese cutors of overcharging (chargingthe defen- witnesses or participate in the hearing. After dant with crimes that he or she could never the prosecution presents its case, the grand be convicted of) to help them in plea bar- jury votes on whether probable cause exists. If gaining. Do you think this might be a dan- a certain number ofthe 23 grand jurorsoften ger? Do you think your agreementwould 12 or 14find probable cause, then anindict- have been different if the prosecution had ment is issued. Like aninformation, an indict- started with second-degree murder instead ment is a document accusing thedefendant of of first-degree? el Unit 3: The Criminal Case 137 committing a crime. Followingan indictment, Tom heard nothing about the grand jury preparation for trial begins. for two weeks. Finally, Susan Jaffee called. "The In most states, the prosecutor has the grand jury returned an indictment todaysec- option of using a grand juryor a preliminary ond-degree murder." hearing. Since the accused hasno right to The words stunned Tom. "Murder?" he counsel or to cross-examine the state's witness- stammered. es in grand jury hearings, a prosecutor might "Second degree." be more likely to seeka grand jury indictment "How did the grand jury decide that?" when cross-examination would be traumaticto Tom asked. a witness (e.g., for sex crimes or for very young "I don't know, Tom. We'll geta copy of the or frail witnesses). Most felony cases, however, grand jury's transcript. We'll read what the wit- use a preliminary hearing and information. nesses had to say. Then we'll be ready for our Complaintfor misdemeanors only. In mis- next stepyour arraignment." demeanor cases, there is no separate hearingto establish probable cause after the accused has Key Step: been arrested. A written complaint against the arrestee serves as the formal accusation to get Arraignment the prosecution of misdemeanorcases under- way. (The defendant can ask for a copy of the Purpose complaint with copies of the policereport After an information, indictment,or com- attached.) plaint has been filed, the defendant is called into court to plead to the charges. Thiscourt Case Notes: Carter's appearance is known as the arraignment. (In most misdemeanor cases, this step takes place Probable Cause Hearing at the defendant's first and only pretrial hear- When Tom Carter heard Susan Jaffee's ing.) Aside from various insanity pleas, the defendant has three basic choices of pleas: voice on the phone, he felt nervous. What she Not guilty. said did not calm him down. "I've got some news foryou, Tom. The Guilty. prosecutor decided to take your case to the Nolo Contendere. (No contest. This has grand jury instead of holdinga preliminary the same effect as a guilty plea, except it hearing." does not serve as an admission of guilt if Tom remembered her saying that the next the defendant is sued in a civil case.) step would be the probable cause hearing. He Typical Proceedings asked, "Is it worse to have a grand jury instead of a preliminary hearing?" The judge: "It's worse in that I won't get tocross- Informs the defendant of various constitu- examine any of the witnesses. But sometimes tional rights. prosecutors take their weaker cases to grand Reads the informationor indictment and juries, because the prosecutorsare more in usually gives the defendanta copy. control at grand jury hearings than prelimi- Asks the defendant to plead to the charges. nary hearings. So maybe it's not such bad news." Asks whether the defendant wantsa jury "So what do we do now?" asked Tom. trial or a court trial (decided by the judge "We wait. You might be called to testify without a jury). before the grand jury. If you are, I cannotgo The defendant may make pretrial motions in with you. But you will just refuse to testify. (e.g., to suppress illegally obtained evidenceor You will take the Fifth Amendment." to 9-after the case to a different judge). , 4 138 CRIMINAL JUSTICE IN AMERICA It you'vEum) TuETint.Loizs; youOvf SEEN -1-HE*Tv. moviE; sfoo'vE WATC WEI THE-calk 51.40w5: xt-StrTo You."

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A Problem for the Defense Case Notes: An Issue at All of this deeply concerned Jaffee.She the Arraignment feared that the publicity would hurther client's chances of getting a fair trial.Finding Joyce Ann Miller's death shocked the resi- jurors who had not already formed anopinion dents of the community. Many citizens and about the case would be difficult. Evenif such community leaders condemned what they jurors were found, they could stillbe influ- called "this latest example of youth violence." enced by publicity and public opinionduring Newspapers covered the caseextensively. the trial itself. Neighbors of the Miller family told TV After the grand jury found that Carter reporters that they wanted the deathpenalty would have to stand trial, his attorneydecided for Carter. A police officer was quoted in a to act. At the arraignment,he would plead not local newspaper as saying that he thought guilty and ask for a jury trial. Thenshe would Joyce Ann's death must have been a "joy make a motion for a gag order. killing." A representative of the district attorney's office announced at a press conference Motion for a Gag Order that he believed "drugs were involved." One Judges may issue gag orders to ensurethat newspaper headline read, "ChildKiller Says It criminal defendants receive a fair trial.These Was 'An Accident!" Thomas Carter's attorney, orders prohibit trial participants and govern- Susan Jaffee, also received several anonymous ment officials from making statementsto the phone calls threatening to harm her if she did press. By preventingthese statements, gag not drop out of the case. orders make it less likely that pretrialpublicity will influence the fact finderthe judge orjury. Itis crucial that the judge or jurybe impartial. When judges act as the factfinder, it BEST COPY AVAILABLE 14410 Unit 3: The Criminal Case 139 is assumed they will be ableto ignore outside influences and decide the facts solely fromthe Class Activity: Rulingon trial evidence. Jurors, who have littleor no the Motion experience with the law, might bemore easily swayed by outside influences, includingopin- Imagine that you are the judge whomust ions of friends, statements by public officials, rule on the defense's motion fora gag order in and newspaper or TVaccounts of the crime. this case. To prepareyour ruling, complete the For example, what might happen ifa juror following steps: were to read about a piece of evidence legally 1.Review "An Issue at the Arraignment," excluded from considerationattrialthat pages 139-140. pointed to the defendant's guilt? Knowingthis 2. In comingto a decision, consider these fact might influence that juror's opinionand questions: if he or she shared it with other jurors,it could What is the purpose of sway the whole jury. Gag orders are designed to a gag order? prevent such interference. Those who disobey What are some arguments in favor gag orders can be held in contempt of court of issuing a gag order in this case? and punished. What are some arguments against At the close of her argument for her issuing a gag order? What rights and motion, Ms. Jaffee made the followingstate- interests would be affected? ment: Are the alternatives toa gag order "Public reaction to the death of Joyce Ann mentioned by the prosecutor suffi- Miller has almost reached hysteria. Public offi- cient to preserve a fair trial in this cials, including the police and representatives case? of the district attorney's office, have made prej- Should a gag order be issued in the udicial and unfounded statements about the Carter case? Why or why not? case. The news media is behaving irresponsibly -3.Write a one-page decision statingyour rea- by suggesting that Thomas Carter is already sons for it. Be prepared to present it to the guilty. If these incidents continue, it will be rest of the class for discussion. impossible to conduct a fair trial, if indeed it is even possible now. Under these circumstances, a gag order is essential, your honor." In opposition, the prosecutor argued against issuing a gag order. He reminded the judge that public attention to sucha case was natural. Under the First Amendment of the U.S. Constitution, the news media hasa right to keep the public informed. If deniedaccess to participants in the trial, various reporters might print or broadcast misinformation. Furthermore, he argued thata gag order should only be used in exceptional circumstances and that normal procedures such as cautioning the jury not to discussor read about the case would probably be sufficient in this case. The judge thanked theattorneys and said that she would consider thematter and announce her decision the next day.

140 CRIMINAL JUSTICE IN AMEN CA 14 3 CHAPTER 11 Trial

when they question their own witnesses. After Key Step: Trial direct examination, opposing attorneys cross- examine the witnesses. Lawyers conduct cross- Procedures examination to test and find weaknesses in the testimony of their opponents' witnesses. They trict rules ensure that each side in a trial may also try to put doubts intothe minds of Swill have an equal chance to present its the jurors about the believability of these wit- case. A judge must make sure that eachside nesses. follows these rules closely. The major procedures observed in a criminal court trial are 4. Closing Arguments outlined below. After each side has presented all its evidence, each side makes a closing statement to 1. Jury Selection the jury. In these closing arguments, attorneys In all criminal jury trials, the first step is summarize what has been established or not and to impanel, or select, a jury. Prosecution established during the trial. The closing argu- defense attorneys pose questions to prospective ment presents attorneys with their lastchance jurors. The judge may also take an active role to persuade the jury. The defense deliversthe in the process. first closing argument to the jury. The closing 2. Opening Statements argument of the prosecution ends the evidence After calling the court to order,. the judge phase of the trial. will ask for the trial to begin with opening 5. Instructions to the Jurors statements from the prosecution and defense. Following the closing arguments, the The opening statements outline the evidence judge gives instructions to the jury. These each side intends to present during the trial. instructions state the law that applies to the The prosecution delivers its opening statement case. The judge reminds the jurors tobase their first. The defense attorney usually follows verdict solely on the evidence admitted during immediately with a statement, but may delay it the trial. Since the prosecution has the burden until after the prosecution presents all its evi- of proof, the judge instructs the jurors to find dence. a verdict of guilty only if the statehas proved 3. Presenting Evidence its case beyond a reasonable doubt. The prosecution presents its side of the 6. Jury Deliberations case first. This is called theprosecution's case- After hearing the judge's instructions, the in-chief.Itusually consists of introducing jury leaves the courtroom and meets in a jury material objects called exhibits (e.g., a gun), as room to decide on a verdict. Jurymembers wellas questioningprosecution witnesses. first select a foreperson who will lead their dis- After the prosecution has finished presenting cussions. The jury then reviews the evidence its side, the defense may introduce its exhibits and votes on a verdict. Although the U.S. and witnesses. Both exhibits and witnesses' tes- Supreme Court has ruled that unanimous ver- timony are trial evidence. Strict rules of evi- dicts of guilty or not guilty are not mandatory dence must be followed, however, before either in all criminal cases, almost every state still is allowed into the trial. requires them. Attorneys conduct direct examination

144 Unit 3: The Criminal Case 141 Several votes may be necessary before the The Courtroom-Setting- jurors arrive at a unanimous verdict. If aftera reasonable time, the jurors cannot reacha As with all dramas;'there isa setting,for..a unanimous verdict,they become a "hung criminalctnal. Itis the:: courtroom: In "it: the!' jury." The foreperson will report this factto judge..:presides, the ;-:)Ury is impan ed,:wit= the judge. If the judge believes that further nesses;:are'sworn imand examined,.` anda ver, jury deliberations are futile, the judge will dict is `rendered.-: siage,..:the.'"fates,Of declare a mistrial. The prosecutor will then individuals::: are debafedand:;decided.:and.the. have to either request another trial witha new aims OVjUstice arepirsued:: Sairie:., court:: jury or drop the charges against the defendant. room&areornately.CarvediciarkWoOds:'aridi If the jury returns a unanimous verdict ofnot rich:fUrniShings..biliers,aretdeSi.griedwith an guilty, the defendant goes free. When the jury eye toWiidi.effiCiency and ... Some unanimously finds the defendant guilty, the are 'o threadbare Others, judge will set a date for a sentencing hearing. starkly:modern: AllAerve:the:'same.purpose Case Notes: Cast of typical:.:courtrooMi.Wheir activities ; in ::.the trial Of Thoina'S1.C.irter;: Characters arrange:your: classroom similarly. A criminal courtroom in session is filled For Discussion with people. Some are spectators. Someare 1. In most courtrooms, theticige!S friends and family of the victimor accused. bench is Others take an active part in the trial itself. on.a raised platform Why-do:you think this is so? The following descriptions will giveyou an idea about the major participants. (Someyou 2. In all courtrooms; the witnessstand is Orr: have already met, but review them againcare- the side of the :judge's benchclosest ,:to, fully.) As the trial of Thomas Carterprogress- the jury box. Why do yoxi'thinkihis is.sOi es, you will be asked at times to take on their 3. The partition between the,..spectatorsand roles. the:active courtroom parciCipant tra-!.- The judge presides over the trial. Heor she ditionally been called the. bar.Why do rules on all motions made by theattorneys, on you think it is there? Who maypass the the admissibility of testimonyor items in evi- bar?. dence, and on the procedures to be followed during the trial. At the end of the trial, the judge instructs the jury about the applicable assists the court clerk in ceremonial duties such as asking all to rise when rules of law. In a criminal trial, if the jury the judge enters the court. reaches a verdict of guilty, the judge then determines the sentence to be given thecon- The court clerk is the main administrative victed person. (In almost all states, the jury assistant to the judge. The clerk: determines the punishment in death penalty keeps track of courtroom proceed- cases.) If the jury reachesa verdict of not ings. guilty, the judge discharges the defendant. catalogsandtakescustody of The bailiff is usually a deputy sheriff, exhibits and other items of evidence. marshal, or some other law enforcement offi- prepares all written orders of the cer. The bailiff: court (summons and warrants, for keeps order in the courtroom. example) as directed by the judge. protects the jury from outside influ- administers oaths to witnesses. ence. calls the jurors for selection. The court reporter records by machineor shorthand everything said in the trial. The

142 CRIMINAL JUSTICE IN AMERICA 1 4 5 Typical Courtroom

To Judge's Chambers The Judge Witness (Bench) Stand

Jury Court Court Box Clerk Reporter

Prosecution Defense Table Table Bailiff

Bar of the Court

Spectator Benches Spectator Benches court reporter prepares a typewritten tran- only testify about what they actually saw and script of these records. heard. But expert witnesses may testify about Theprosecution lawyersare members of their knowledge and give opinions. They are the district attorney's office, city attorney's persons with special knowledge,such as doc- office, or state and federal attorney general's tors, psychologists, and scientists. office. They represent either the people of the Thejuryis a panel of adult citizens (usu- state or the U.S. government. They must prove ally 12) from the community. It must decide that the accused is guilty of a particular crime questions of fact from the evidence presented beyond a reasonable doubt. in the courtroom and reach a verdict based on The defense lawyers are private attorneys those facts. or members of publiclysupported organiza- For Discussion tions, such as the public defender's office. 1. What are the main functions of the defense They must defend the accused by showing that and prosecuting attorneys? the government does not have enough evidence to convict the defendant. All lawyers 2. At trial, whose role is it to decide issuesof both prosecution and defenseare officers of law? Whose role is charged with deciding the court. They must therefore observe all issues about facts? rules of law and ethics so that a fair trial will take place. Activity: In the Halls of The defendant is the person accused of a crime. The defendant assiststhe defense Justice lawyers in presenting the case and accepts or There is perhaps no better way to under- appeals the results of the trial. stand the criminal court process than to Police officers investigate crimes and observe it in person. To do this, you must visit arrest suspects when they uncoverenough facts a courthouse. to establish probable cause. The restof the As a class or in small groups, make criminal case process tests these facts. Their arrangements to visit a criminalcourthouse. job does not end with arrest, however. They Many courthouses have tour programs or will also help prosecutors prepare for trial and fre- accommodate groups. Contact the court's quently testify as witnesses. clerk of services or the clerk of the criminal Witnesses are persons asked to tell under docket for information. The clerk can suggest oath what they know about the case. Most may 11`6 Unit 3: The Criminal Case 143 an appropriate time for the visit and help you What is your overall impression of plan an itinerary. Try to include a visit to (1)a the courthouse visit? Wereyou con- preliminary hearing, (2) an arraignment, (3)a fused by anything yousaw or heard? jury selection, and (4) a criminal trial. 6.If the opportunity arisesor can be When you arriveatthe courthouse, arranged, interview an officer of thecourt observe appropriate decorum. Be especially (e.g., court clerk, judge, attorney). Select quiet when entering or leaving courtrooms. questions from the following listor make Use the following information guide andques- up your own. tions to help arrange your visit and for reporting your experience to the class. Does the court have a large backlog of cases? If so, why? Information You Will Need: (1)name of the Does plea bargaining take place? courthouse, (2) its address, (3) the telephone How? What is your opinion of it? number, (4) the reporting time, (5) the contact What percentage of the cases before person (if any). the court are disposed of by plea bar- Questions for Field Experience gaining? Report How long does it take a criminal 1.Describe the general environment of the case to come to trial in this court? A courthouse. Are the court facilities crowded civil case? and noisy, or calm and businesslike? What percentage of defendants at 2. Describe the security arrangements in the trialarerepresentedby public court building and in the courtrooms. defenders? 3.In the arraignment court, describe what is In what percentage of trials is the going on. defendant found guilty? 4. In a preliminary hearing, describe what is What percentage of those convicted going on. by the court are locked up ina correctional institution? Put on proba- 5. At a criminal juiy trial: tion? What is the case about? What percentage of accused persons Is it a felony or misdemeanor prose- remain in jail awaiting their trials? cution? Who is the prosecutora deputy dis- Case Notes: The Trial of trict attorney, deputy city attorney,a federal prosecutor? Thomas Carter What do you observe the prosecutor doing during the trial? Thomas Carter felt mixed feelings of dread and relief as he climbed the wide steps leading Who isthe defense attorneya to the massive courthouse door. In the weeks deputy public defender or a private since the shooting, he had thought of little attorney? else. His mind played the eventsover and over What do you observe the defense attor- again. Often, he hoped for the trial to start ney doing during the trial? only when it was over could his life begin What do you observe the judge doing again. There had been delays. Motionswere during the trial? made and extensions of time granted. Though Describe the questioning of one wit- he had complete trust in his lawyer, he wished ness in the trial. she could move things along faster. Nowat last his trial would begin. Today Do the jurors seem to be attentive? was the day. Describe them. Inside the main lobby of the courthouse,

144 CRIMINAL JUSTICE IN AMERICA 147 Size of Juries in Felony Cases

All states require 12-member juries and unanimous verdicts in capital cases. Eight states allow less than 12-member juriesin felony cases. 12 jurors 8jurors

UM 6 jurors jurors for minor M6felonies; 12 for major felonies.

r/4If defendant All states except agrees, jury may be Oregon require less than 12, but unanimous verdicts not less than 6. in felony cases. Oregon allows a Source: "State verdict when five of Court Organization, thesixjurors agree. 1998," Bureau of Justice Statistics (2000)

Tom looked at a blur of moving figures. The gavel several times and said, "The case of People footsteps of people going about court business v. Carter. Is the state ready?" echoed off the cold marble walls. The drone of The prosecutor said, "The state is ready to a hundred conversations filledhis ears, yet he proceed, your honor." and his parents barely spoke at all. They were Turning to Ms. Jaffee, the judge repeated too occupied with trying to find theright the question, "Is the defendant ready?" courtroom by the appointed hour, 9 a.m. Ms. Jaffee spoke in a loud firm voice, "Yes, At last they foundit,Department D, your honor." Criminal Trials Division. Tom breathed a sigh The trial of Thomas Carter had begun. of relief when he saw Ms. Jaffee leaning against For Discussion the court rail. She smiled as he approached 1. What is the charge in the Thomas Carter and directed his parents to seats in the specta- case? What are its elements? tor gallery directly behind the defense table. Although she had already prepared Tom 2. Review the "Key Step: Trial Procedures" on for what would take place at his trial, she page 141. What will happen nextin Thomas briefly explained it all again. He listened care- Carter's trial? fully, vaguely comforted by the confidence in her voice, until she repeated what the charge Key Step: Jury would be: "Second-degree murder." No matter how she said it, it sent a chill through his body. Selection Ms. Jaffee reached across and patted his arm. "It's a serious thing, Tom," she smiled, "but Selected at random, people on juries come they haven't proved anything yet." from the defendant's community. Their names Just then the clerk stood up and said in a may be gathered from voter registrationlists or loud voice: "All rise and come to order. The drivers' license lists, depending on the state. Superior Court is now open and in session. These citizens are then called to jury duty. The Honorable Judge Coghlan presiding." Before a trial starts, a group of up to 40 from Tom looked up just in time to see a black- the jury pool go to the courtroom where the robed figure enter from a door behind the trial will take place. The court clerk draws the bench and sit down. She softly tapped her names of 12 of themcalled prospective jurorsand asks them to sit in the jury box. 4 0 0Unit 3: The Criminal Case 145 Prospective jurors then take an oath promising to answer truthfully the questions put to them by the judge and lawyers. Next comes voir direquestioning of the prospective jurors by the judge and attorneys for both sides. The judge starts the voir dire by telling the jurors the charge(s) against the defendant and by asking them theirname, age, address, occupation, and previous jury experience. The judge might also inquire if there is any reason why they should not be jurors in this particular case. (For example,a person who had been a victim of a similar crime might not be able to be a truly impartial All jurors take an oath to base their verdict entirely juror.) The judge will excuse prospective jurors on the evidence presented in court. from a case if their answers indicate a biasor prejudice toward one side. Prospective jurors may also be excused if they would suffer eco- (Batson v. Kentucky, 1986, Georgia v. McCollum, nomically due to the length of the trial. The 1992, and J.E.B. v. Alabama ex rel. TB., 1994). The voir dire continues until 12 jurors and excused jurors, however, may have toserve in another case. alternates have been chosen, usually twoor four. (Some jurisdictions allow juries of six, If the judge finds no reason to excusea prospective juror, the attorneys for both sides seven, or eight persons.) In some cases, espe- normally get an opportunity to question them cially those that have been highly publicized, in greater depth. In most states, the attorneys lawyers challenge many prospective jurors themselves question the. jurors. In others, the before a full jury is selected. This process may attorneys submit questions to the judge, who take anywhere from a few hours to many days conducts the questioning. Based on the to complete. Once the jury has been chosen, answers jurors give, attorneys can raise chal- jurors take another oath. They swear that they lenges to jurors and thus have them excused will try to reach a fair and impartial verdict from a case. There are two types of challenges. based solely on the evidence presented during A challenge for cause occurs when a lawyer the trial. claims the prospective juror does not meet the For Discussion government's legal requirements or is biased 1. Why is there no limit on the number of and could probably not reach an impartial ver- challenges for cause and a limit on peremp- dict. After the attorney explains the reasons tory challenges? for challenging for cause, the judge must 2. Should the Supreme Court ban peremp- decide whether to excuse or accept the prospec- tory challenges based on religion or dis- tive juror. Usually there is no limit on chal- ability? Why or why not? lenges for cause. A peremptory challenge needs no expla- 3. The goals of the judge, prosecution, and nation from the attorney. When a lawyer defense in criminal trials are often quite makes a peremptory challenge, the prospective different. What differences might they have jurorbeing questionedisautomatically about jury selection? excused. Each side, however, has only a limited number of these challenges. According to U.S. Supreme Court rulings, neither the prosecution nor defense may make a peremptory challenge on the basis of a juror's race or gender

146 CRIMINAL JUSTICE IN AMERICA 1 4 Class Activity: Choosing How to Ask Effective Questions The following list should be used by the a Jury attorney role players in preparing effective questions. In addition, observers should use In this activity, students simulate the jury this list for evaluating the questions asked by selection for the Thomas Wade Carter trial. In the attorney role players. advance, you might invite an attorney to 1.Plan most of your questions ahead of time. attend your simulation and play the role of the Make sure that they are precisely worded. judge. 2. Begin with basic questions about the 1.Assign the class members the following juror'sbackground. Thenaskmore roles:2-4prosecutingattorneys;2-4 advanced questions on the juror's feelings defense attorneys; 14 prospective jurors; 1 about the case. court clerk; observers (remainder of class). 2. Students should read their appropriate role 3.Always keep the question's purpose in mind when you are formulating it. descriptions below. In addition, observers and lawyers should read the materials on 4. Individualize your questions. Reword any "How to Ask Effective Questions" and long or complex question if an individual "Sample Questionsfor Lawyersina juror does not understand it. Criminal Case." 5.Develop questions thatcall for short 3. The court clerk should: responses. Don't include too manythings in one question. swearintheprospectivejurors before the voir dire begins, and 6. Avoid questions that require a single "yes" call the first prospective juror (by or "no" answer. You do not want tolimit name) to the jury box. jurors' responses. Prepare questions that allow jurors to express their feelings in 4. The judge should tell all of the prospective their own words. For example, the ques- jurors the charge against Thomas Carter tion, "Do you have any prejudices against and then ask the first prospective juror insurance companies?" might be changed some introductory questions. to "What is your opinion of insurance 5.Prosecutors, and then defense attorneys, companies?" question the first prospective juror and Explore incomplete answers. If a juror either accept or challenge the juror. If a 7. claims not to know an answer, you should challenge for cause israised, the judge ask questions to find out why. should rule on it. Each side is allowed only one peremptory challenge. 8. Unless it is crucial to your case, try to avoid questions already addressed to a juror by 6. Repeat steps 4, 5, and 6 above until all another attorney. You usually do not need prospective jurors have been questioned. to go over the same ground twice. Observers should watch the proceedings carefully and then complete the Observer Sample Questions for Lawyers: Evaluation Form. Criminal Case 1.Are you married? Do you have any chil- Lawyers for Both Sides dren? If so, what are their ages? Lawyers will question each prospective juror searching for persons to accept or to 2. What type of work do you do? challenge for cause. Before the simulation 3. Do you belong to any union? begins, lawyers should prepare a list of ques- 4. What is your educational background? tions to ask prospective jurors. 5. Have you ever had any jury experience before? 417,n 0 Unit 3: The Criminal Case 147 6. Would any of the criminal cases you heard 1.Michael: Anglo, 38 years old, junior high in previous jury duty limit your ability to school education. He is a third cousin to sit on future cases? Tom Carter, but has never met him. He is 7.Was there anything about your previous a mechanic, married with five children and jury experience that would lead you to feel is a non-drinker. He has no prior jury duty. that you may have some prejudices either 2. Ralph: Latino, 61 years old, married with for or against the prosecution? For or two children, college education. Ralph is a against the defendant? union leader and an officer in his United 8. Do you have an opinion on this case? Auto Workers local. He has no prior jury duty. 9. Is there anything about what you have seen since you came for jury duty that would 3. Judy: Of Greek descent, 22 years old, and lead you to feel that you have an opinion single. She attends law school and wants to on this case? become a criminal defense lawyer. She lives with her parents, does not work, and has 10. Was there anything in the news media, tele- no prior jury duty. vision, or radio that leads you to believe the defendant is guilty or not guilty? 4. Bob: Anglo, 69 years old, single. High school graduate. Bob is a retired construc- 11. Do you believe that the defendant is inno- tion worker and has no prior jury duty. cent until proven guilty? 5.Richard: Anglo, 38 years old. He is married 12. Would you tend to believe the police offi- with six children and is an attorney at law. cers in their testimony more readily than He has no prior jury duty. you would a person who was not a police officer? 6. Rosa: Latina, 62 years old, married with two children and three grandchildren. She 13. Were you ever connected with any type of finished high school, has been married for police force? 30 years, and is a supervisor at the post 14. Do you have any relatives who would have office. Her niece was once wounded in a any interest in seeing the jury reach a ver- drive-by shooting by a youth gang. She has dict either for or against the defendant in served on one prior jury, which hearda this case? criminal prosecution for being drunk in a 15. If you are chosen as a juror, will you stand public place. She voted to convict. on your own individual analysis of the evi- 7. Bernice: African American, 39 years old, dence and not be swayed by the emotions married with one child. College graduate of other jurors? with a B.A. in English. Bernice is a counselor at Freedom High School, where she Court Clerk has worked for the past 13 years. She has no Before voir dire begins, the court clerk will prior jury duty. ask all prospective jurors to raise their right 8. Russell: Anglo, 57 years old, college gradu- hands and state:"I solemnly swearIwill ate. He has been a vice president in charge answer all questions truthfully and to the best of my ability." The court clerk will call each of a large business corporation for 10 years. He is married with two children and is a prospective juror, in turn, to the witness stand former alcoholic. No prior jury duty. for voir-dire questioning. 9. Carol: African American, 32 years old, Prospective Jurors divorced three years ago, with one child. Each student should assume the role ofProtestant. She is a marketing analyst, but one of the prospective jurors described in the is currently unemployed and is receiving biographies below and answer the judge's and unemployment benefits. She is active in the attorneys' questions accordingly. feministmovementandtheBlack

148 CRIMINAL JUSTICE IN AMERICA tJi" 4 Observer Evaluation Form-

Copy this form on a sheet of paper 1. Put a (+) next to the most realistic role players. Put.a (-), next to theleast realistic .groups. Prospective jurors Lawyers Judge

,2.:The jurors who most realistically portrayed. their roles were:

3 Basedonthe.jUry that was finally selected, Who doyoulhinkivilliwithis ,case? Why?.

An effeCtive question:asked by .the-defense..:OtOrneywat..-

An effective question asked by the prosecuting attorney was:

-.6"AgoOd question not asked of the prospectii-reiUrors

Community Action Council. She has no Observers prior jury duty. As part of the courtroom audience, you 10. James: Of Irish descent, 58 years old, high can observe all the role players. Your job is to school education. James is a produce man- evaluate the simulation. The observer evalua- ager in a supermarket, is married, and has tion form should help you focus on the key one child. As a young man, he was once issues. Copy the form onto a sheet of paper convicted for a misdemeanordisturbing leaving enough room for you to answer the the peace. No prior jury duty. questions. You will present and discuss your impressions with the entire group at the end of 11. Mary: African American, 54 years old, the simulation. widow with three children who live with her. Mary has worked as an insurance agent Debriefing Questions for over 35 years. She has managed to pay 1.Have the observers read their evaluations off the mortgage on her modest home and to the class. Discuss the answers. send her oldest child to college. She has no 2. Ask your visiting attorney: prior jury duty. How did this simulation compare 12. Larry: African American, 38 years old, with real voir dire in your local married with four children. He is a com- courts? puter programmer. No prior jury duty. How fair and effective is voir dire? 13. Priscilla: Asian, 62 years old, widow, ex-college professor. She derives her income from her pension. She has had two prior jury Case Notes: Trial duties. Both cases involved grand theft Strategy auto, and she voted to acquit both times. 14. Janis: Anglo, 70 years old, single. She works In histrial, Thomas Carter faces two as a secretary for a smallaccounting firm. chargessecond-degree murder and man- She has no prior jury duty. slaughter. Before a trial begins, attorneys for both sides must analyze the case and prepare re) J 4 Unit 3: The Criminal Case 149 Chart for Trial Strategy inPeople v. Carter Section 274Second-Degree Murder.A killing with malice aforethought Witness:

Supporting Facts for the Prosecution Supporting Facts for the Defense

element of crime"a killing"

element of crime--"with malice aforethought"

their trial strategies, beginning witha careful the groups, break into six attorney teams review of the charges. To properly defendor (pairs or triads). prosecute a case, attorneys must understand all 2. Assign one witness statement to each team. potential arguments, both for and against (The witness statementsare on pages their interests. By completing thisanalysis 159-161.) before the trial begins, every decision and presentation the attorneys make will be informed 3.Each team should review the statutory lan- and will support the outcome they seek. guage of second-degree murder.(The One way to analyze a case thoroughly is to charges are onpages 164-165.) use a chart identifying all of the elements of 4. Then the team should carefully read the the charges, as well as the corresponding evi- assigned statements and identify support- dence that could be used to prove or disprove ing facts for both the prosecution and each of those elements. Above is the outline defense cases. This information should be for a chart based on the charge of second- recorded onto a chart. degree murder. It lists the two elements forsec- 5. The team should make a second chart for ond-degree murder(1) a killing and (2) with involuntary manslaughter by repeating malice aforethought. An attorney would fill steps 3 and 4. out a chart for each witness in order to better 6. After students complete the charts, regroup understand what needs to be proved or dis- the teams with all the members of their law proved at trial. offices and have them present their findings.

Class Activity: Preparing 7.Students should make copies of the charts for Trial so they have a complete view of the what the prosecution and defense need to prove. In this activity, students complete charts The charts will help them throughout the that will help prepare trial strategy trial. 1.Divide theclassinto two groups of lawyersone representing the prosecution and one representing the defense. Within 153 150 CRIMINAL JUSTICE IN AMERICA The attorneys then turn to the jury and begin their statements. Opening statements often include such phrases as: The evidence will show that... The facts will prove that... Witness [name] will be called to tes-

tify that...

The defendant will explain...

Case Notes: Opening Class Activity: Writing Statements an Opening Statement

Once the jury has been impaneled, the In this activity, each student will take the attorneys for both sides deliver an opening role of defense attorney or prosecutor and statement about the case to the jury. Opening write an opening statement for the Thomas statements outline the facts that the attorneys Carter trial. They may find it useful to use the expect to prove during the trial. An opening charts they prepared in"ClassActivity: statement should present the jury with an Preparing for Trial." 1.Divide the class in half: one half to take the orderly and easy-to-understand version of the role of lawyers for the state, the other for case from the attorney's perspective. It should the defense. be persuasive but without emotion. In criminal trials, the prosecuting attorney 2. At home, list the most important facts of goes first. Usually, the defense gives its opening the Thomas Carter case from your assigned statementimmediatelyafterwards.The point of view (prosecution or defense). defense, however, may choose to wait until the 3.Write a one- or two-page opening statement prosecution has called all its witnesses and the from your assigned point of view. defense is ready to present its case-in-chief. 4. In class, have students meet in groups of Writing an Opening Statement four, deliver their opening statements to To prepare an opening statement, attor- each other, and choose the best one. Then neys must organize and outline the entire case the groups should join together to form they intend to prove at trial. A good opening new groups of eight, and the two students statement should: chosen should deliver their statements. The Explain what the attorney plans to group should again decide which is best. prove and how they will do it. Have the finalists from each group stand and deliver their opening statements to the Present the events of the case in a whole class. clear, orderly sequence. 5. As a class, select the best opening statement Suggest a motive or emphasize a lack of motive for the crime. given for each side on the basis of: (a) use of facts, (b) clarity, and (c) presentation. Attorneys usually begin their statement with a formal introduction: "Your honor, ladies and gentlemen of the jury, opposing counsel, my name is[full name], representing [the state or the defendant] in this action." 11. tr.- 1 1/4)4 Unit 3: The Criminal Case 151 Case Notes: Direct and Circumstantial Evidence

Evidence proves or disproves facts in a trial. The trier of factjudge or jurymust base its verdict solely on the evidence admitted at the trial. Documents, testimony of witnesses, drawings, andphysicalobjectssuchas weapons, drugs, clothing, and other items are all forms of evidence that the fact finder considers and weighs in reaching a verdict. There are two basic kinds of evidence: The distinction between direct and cir- direct and circumstantial. In a criminal case, cumstantial evidence may make little differ- direct evidence is evidence of one or more of ence. Both are important if the fact finder the elements of a given crime. For example: believes them to be convincing or credible in a Will sees Maria point a gun at Marsha and particular case. In fact, many criminal suspects pull the trigger. In a trial for murder or are tried and convicted only with compelling manslaughter, Will's testimony about what circumstantial evidence. he saw Maria do would be direct evidence against her. Miguel hears Warren scream at his neigh- Class Activity: Direct or bor, "I'm going to take this bat and kill Circumstantial you, old man!" In atrialfor assault, Miguel's and the old man's testimony In this activity, students analyze samples of would be direct evidence against Warren. evidence to determine whether they are direct Circumstantial evidence in criminal or circumstantial evidence. cases indirectly supports one or more elements Each student should: of a crime. Circumstantial evidence requires 1.Write the letters "a" through "e" down the the fact finder to make an inference that some- side of a sheet of paper. thing happened. For example: Will sees Maria with a smoking gun in her 2. Read the items below. For each one write hand standing over Marsha's dead body. In on your paper whether the evidence a trial for murder or manslaughter, this described is direct or circumstantial. Explain would be circumstantial evidence that she your answers. shot Marsha. a. Suzanne is charged with resisting Miguel sees Warren running away from the arrest. Officer Monroe testifies that old man's house with a bat in his hand. In the defendant hit him with her brief- a trial for assault, this would be circumstan- case after he had stopped her on the tial evidence. highway for speeding. b. Charles is on trial for vandalism. An It is possible for the same evidence to be expert testifies that the color and both direct and circumstantial. It all depends composition of the paint found on on how it is used. Imagine that Brad's finger- the school building is identical to prints are found on a murder weapon. The fin- that of a can of paint found in gerprints are direct evidence that Brad had Charles' book bag. possession of the weapon. It is circumstantial c. Jennifer is on trial for the burglary evidence that Brad had used it in a murder. of a local record shop. Mrs. Ramirez testifies that she saw Jennifer's car

152 CRIMINAL JUSTICE IN AMERICAI 5- 5 parked outside the record shop at vant to an issue in the case. It must help prove the time the burglary is believed to the defendant's guilt or innocence. This rule have taken place. prevents the fact finder from confusing essen- d. Jeff is charged with the sale of mari- tial facts of the case with extraneous details. juana. An undercovernarcotics Suppose that a prosecutor is trying to agent testifies that Jeff handed him a prove that Bob robbed a bank. Evidence large bag of marijuana and took offered to prove that Bob speaks several lan- $2,000 in cash from him. guages is probably not relevant. The defen- e. Danny is on trial for kidnaping a 2- dant's skills in foreign languages are not at year -old girl. Ms. Joseph, Danny's issue. landlady,testifiesthatshesaw But what if a witness has testified that the Danny loading an unusually large robber spoke French? Evidence offered to bundle covered with a sheet into his prove that Bob speaks French would, in this car just minutes after the crime was case, be relevant. reported by the victim's parents. But what is relevant to prove that fact? Evidence that Bob owns a French poodle would not be relevant, because it has no value Case Notes: Rules of in proving he speaks French. But evidence that Evidence Bob has a master's degree in French would be relevant. Many rules dictate when and how evidence Even relevant evidence may not be admis- may be presented in court. Known as rules of sible if its value in deciding an issueits pro- evidence, they help ensure that trials will be bative valueis outweighed by other considera- fair, orderly, and more likely to discover the tions. Thus a judge may disallow relevant evi- truth. They do this, for example, by excluding dence if it is unfairly prejudicial, confusing to from court any evidence that is unreliable or the jury, or a waste of time. unreasonably prejudicial or inflammatory. How to Object: Also, in some instances, the rules require that "Objection, your honor. This evidence is attorneys in a trial take certain steps before not relevant to the issues of this trial." they can introduce evidence. "Objection, your honor. Counsel's ques- Sometimes judges make their own objection calls for irrelevant testimony." tions to an attorney's questions or a witness's answer. But in most situations, all evidence If the objection is made after the witness will be admitted into a trial unless an attorney answers: "Objection, your honor. The testi- objects that it violates one of the rules of evi- mony is not relevant to the facts of this dence. So lawyers must know the rules of evi- case.I ask that it be stricken from the dence well. Such knowledge helps them prove record." their case, because they can present evidence If the judge thinks an objection is invalid, important to their case and keep out an oppo- the judge will say, "Objection overruled." But nent's improper evidence, which could hurt if the judge agrees with the objection, the judge their case. will say, "Objection sustained." The rules of evidence in state and federal courts are complex and often differ. On the 2. Foundation next few pages, you will find an explanation of To establish the relevance of evidence, some basic rules of evidence followed in all attorneys may need to lay a proper founda- American courts. tion. Laying a foundation means that, before a witness can testify to certain facts, it must be 1. Relevance shown that the witness was in a position to First and foremost, evidence must be rele- know about these facts. For example, if a

Unit 3: The Criminal Case 153 prosecutor asks a witness if he saw Bob leave the scene of the bank robbery, the defense attorney may object for a lack of foundation. After the court sustainsor upholdsthis objection, the prosecutor would have to ask the witness if he was near the bank on the day of the robbery. This lays the foundation that the witness is legally competent to testify to the underlying fact. Sometimes when an attorney is laying a foundation, the opposing attorney may object that the testimony is irrelevant. The question- letter written by Marty's sister, which states: ing attorney then has to explain how the testi- "Marty needed the money so he killed mony relates to the case. him." How to Object: Both of these are examples of hearsay evi- "Objection, your honor. There is a lack of dence. Neither of them would probably be foundation." admissible as evidence in a trial. Hearsay evidence is any out-of-court statementoral or 3. Personal Knowledge writtenoffered to prove the truth of that Witnesses in a trial must have personal statement. (Think about the word "hearsay." It knowledge of what they testify about. Jessica is something "heard" out of court and "said" could not, for example, testify that Isaac is a in court to prove that what was asserted is bad driver if she had never seen Isaac drive. true.) How to Object: "Objection, your honor. The witness has Consider another example from Marty's trial: no personal knowledge to answer the ques- Sam testifies, "I heard Joe yell to Marty, tion." `Get out of the way.' If the objection is made after the witness Is this hearsay? It's an out-of-court state- answers: "Objection, your honor. I ask that ment. But it's not offered to prove the truth of the witness's testimony be stricken from the statement. Instead, it is being introduced the record because the witness has no per- to show that Joe had warned Marty by shout- sonal knowledge of the matter." ing. So it is not hearsay, and a court would admit this testimony into evidence. Hearsay is 4. Hearsay a tricky subject. In general, witnesses must have personal It grows even more complicated because knowledge of the facts they testify about. there are various exceptions to the rule that Evidenceis more trustworthy if a witness hearsay is not admissible. Below are a few of observed something directly ("I saw Bill steal the most common exceptions: the wallet") rather than heard something secondhand ("Mary told me Bill stole the wal- a. Admissions against interest. When parties let"). Second-hand statements are normally to a case make statements that go against their hearsay evidence. legal interest, these statements are admissible Consider some examples: evidence. If, for example, Sam testified, "Marty Sam, a witness in Marty's murder trial, tells told me that he wanted to kill Joe," this state- the court that he overheard a friend of ment would be admissible because it was made Marty's say, "Marty killed Joe because he by Marty (the defendant and thus a party to had to." the case) and it goes against his legal interest (i.e., it hurts his case). The prosecution attempts to introduce a

154 CRIMINAL JUSTICE IN AMERICA 1 5 b. Excited utterance. Any statement made by 6. Argumentative Questions a person in an excited state is admissible. Witnesses may ordinarily only be asked c. State of mind. Any statement that shows questions to get facts from them. Questions the speaker's state of mind is admissible. For that challenge witnesses to reconcile differing example, if before the murder Joe told Sam, parts of their testimony may be objected to as "I'm really scared." This statement would be being argumentative. For example, an attorney admissible in testimony by Sam. asks, "How can you expect the court to believe that you were at Main Street that day when you d. Official records and writings by public previously testified you were out of town?" employees. This question may be objected to as argumen- e. Records made in the regular course of tative. doing business. How to Object: How to Object: "Objection, your honor. Counsel is being "Objection, your honor. Counsel's question argumentative." calls for hearsay." "Objection, your honor. Counsel is badg- ering the witness." If the objection is raised after the witness answers: "Objection, your honor. This testi- 7. Special Rules for Direct mony is hearsay. I ask that it be stricken Examination of Witnesses from the record." Direct examination takesplace when lawyers call their own witnesses to the stand 5. Opinion Testimony and ask them questions. With a few limited exceptions, only experts with special knowledge and qualifica- a. Form of Questions tions can give their opinions in a trial. An Generally, attorneys must ask questions attorney who calls an expert to testify, must that evoke a short narrative answer from the first qualify the individual as an expert. In witness, but not an answer too long or ram- other words, an attorney must lay a founda- bling. In direct examination, attorneys usually tion that the person qualifies as an expert. The may not ask leading questions. A leading ques- attorney does this by asking a series of question is one that suggests the desired answer. It tions about the person's professional training usually elicits a "yes" or "no" answer. Often, and experience in a particular field. The attor- leading questions are really statements with ney then asks the court to acknowledge the wit- something like, "isn't that right?", "isn't that ness's specific expertise. so?", or "didn't you?" tacked on the end. All witnesses, even non-experts, may give For example, this question would be prop- their opinions about things like color, size, er on direct examination (assuming that the weight, drunkenness, speed of a moving fact was in issue): "Mr. Stevens, when did you objectanything within the realm of a person's and your wife adopt Charles?" ordinary, everyday experience or perception. This one would be improper: "You and your wife adopted Charles two years ago, is How to Object: that correct, Mr. Stevens?" "Objection, your honor. Counsel is asking the witness to give an opinion." How to Object: If the objection is made after the witness "Objection, your honor. Counsel is leading answers: "Objection, your honor. This wit- the witness." ness was not qualified as an expert. I ask b. Character that the witness's opinion be stricken from the record." Unless a person's character is at issue in a case, witnesses generally cannot testify about a person's character. But a witness's honesty is 158 Unit 3: The Criminal Case 155 one aspect of character always at issue. In addition, the defense may introduce evidence of the defendant's good character and, if relevant, show the bad character of an important prosecution witness. Once the defense introduces character evidence, however, the prosecution can try to refute it. Consider these examples: The prosecutor calls the owner of the defendant's apartment to testify. She testifies that the defendant often stumbled in drunk at all hours of the night. This character evidence would not be admissible unless the defendant had already introduced evidence of good character. Even then, a judge might disallow it because its prejudicial nature would probably outweigh its probative value. The defendant's minister testifies that the defendant attends church every week and witnesses remember. This is called "refreshing has a reputation in the community as a the witness's recollection." In the example law-abiding person. This would be admissi- above, the attorney could take a typed copy of ble. a statement you made near the time of the How to Object: accident, mark it as an "exhibit," have you read "Objection, your honor. The witness's char- it, and then take the statement away. She could acter is not at issue in this case." then ask you the question about the license plate number again. "Now I remember," you "Objection, your honor. The question calls answer. "The number was XOJ 489." for inadmissible character evidence." 8. Special Rules for Cross- c. Refreshing Recollections Imagine that you are a witness of a hit-and- Examination of Witnesses run accident. Two years later, the driver of the After direct examination, the lawyer for car comes to trial. The prosecutor calls you to the opposing side cross-examines each witness. the stand and asks you to describe what you Cross-examination has two purposes.Itis saw. You give as many details as you can, but designed to: when the attorney asks you what the license (1) clarify the witness's testimony from the plate number was on the car, you draw a other side's point of view, and blank. "I know I saw it, and I know I told you (2) give the opposing side an opportunity when you talked to me after the accident," you to impeach the witnessthat is,to answer, "but it's been so longI just can't attack the witness's credibility. remember the number." a. Form of Questions Since cases often take time before coming While leading questions (e.g., "You drank to trial, witnesses often may have a hard time like a fish that night, didn't you, Mr. Saski?") recalling specific details of events occurring are usually not permitted during direct exami- months or years earlier. In addition, witnesses nation, they are allowed during cross-examina- may be so nervous that their memoriesfail tion. them. The rules of evidence deal with this problem by allowing attorneys to help their

156 CRIMINAL JUSTICE IN AMERICA 15 9 b. Scope of Cross-Examination For Discussion Cross-examination questions are limited to 1. Why is eyewitness testimony ("I saw Bill matters that were brought out on direct exam- steal the wallet") more trustworthy than ination. In other words, cross-examination something heard secondhand ("Mary told may not go beyond the scope of the direct me she saw Bill steal the wallet")? How can examination. Most judges, however, broadly the first statement be tested in court? How interpret this rule. can the second statement? How to Object: 2. When are leading questions permitted and "Objection, your honor. Counsel's ques- prohibited? Why do you think this differ- tion is going beyond the scope of direct ence exists? examination." 3. Can you think of examples of relevant tes- c. Impeachment timony that would not be allowed in evi- Impeaching a witness on cross-examina- dence? tion is designed to reduce the importance that the fact finder gives a witness's story. An attor- Class Activity: Objection ney can impeach a witness by asking about: In this activity, students decide whether to Bias or prejudice the witness has make objections in trial situations based on toward the issues or parties in the the Thomas Wade Carter case. case. Each student should write the letters "a" The accuracy of what the witness through "1" down the side of a sheet of paper. saw, heard, smelled, etc. Each should (1) next to each letter write "yes" Prior statements that the witness or "no" to indicate whether an objection made that are inconsistent with the should be made in each situation and (2) give witness's testimony in court. a reason for each answer. Prior criminal convictions of the a.Ms. Karen Miller testifies: "I am convinced witness, but only if they relate direct- my little girl was intentionally killed by the ly to truth-telling ability. Carter boy." Prior acts of misconduct, but only b. Joel Robertson testifies: "A friend of mine if they relate directly to the witness's said he saw Oscar hit Tom over the head ability to tell the truth. (Such ques- with a beer bottle." tions may only be asked if the attor- c. The prosecutor asks Gail Duran: "What ney conducting the cross-examina- kind of potato chips did you serve at your tion has information showing that party?" the bad conduct actually happened. The attorney may not base the ques- d. Ms. Karen Miller testifies: "I told the police tion on some rumor or just ask the officer that I thought whoever shot Joyce question to make the witness look was on drugs." bad.) e. On cross-examination, the attorney asks If the witness's credibility is attacked on Gail Duran: "You didn't stop the car when cross-examination, the attorney whose witness you heard the explosion behind you, did has been impeached may ask more questions you?" to try to limit the damage done and restore the f.Ms. Karen Miller testifies: "Joyce was shot witness's credibility. This is done on redirect with a 12-gauge shotgun." examination by the lawyer who put the wit- Joel Robertsontestifies:"Oscar Hanks ness on the stand in the first place. g always parks his truck across the street from his house. It must have been there that day wkien, Joyce Miller was shot."

'1/4) Unit 3: The Criminal Case 157 h. Lt. Tony Jackson of the police department cross-examination of its witness. The visit- testifies: "We know that Tom Carter had ing attorney or law student should rule on connections with drug dealers in the area." the objections and help debrief the activity. i.One of the guests from Gail Duran's party 4. After all witnesses have been examined and testifies: "Tom Carter told me after the cross-examined, discussthe Debriefing fight that he was going to fix Oscar Hanks Questions on page 161. once and for all." Witness Instructions A neighbor of Ms. Miller states that a car Select one of the six witness descriptions with a gun sticking out of the back window on pages 159-161 and study it carefully. For this drove by at about 15 miles per hour. activity, try to become the character described. k. On direct examination, Carter's attorney Be prepared to answer questions that both the asks him: "You never intended to shoot prosecuting and defense attorneys might ask anyone, did you?" you. When you are on the stand, it will be your

1. Joel Robertson testifies: "If you ask me, a job to recall the events leading up to Joyce shotgun is effective up to about 20 yards." Miller's killing. Do not add anything to the facts contained in your witness statement. Class Activity: Cross Fire Attorney Instructions Assign one of the six prosecution teams to Now that you've had a chance to test your each of these tasks: understanding of some basic rules of evidence, 1. Direct examination ofJoel take the role of attorneys and prepare to exam- Robertson ine witnesses in the case of Thomas Carter. 2. Direct examination of Gail Duran It is recommended that you invite a lawyer or law student into class to work with the 3. Direct examination of Lt. Tony attorney groups and act as judge during the Jackson direct and cross-examination of witnesses. (If 4. Direct examination of Karen Miller none is available, the teacher should take the 5. Cross-examinationofThomas role of judge.) Carter 1. Organize theclassinto the following 6. Cross-examination of Lillian Sweet groups: Six teams of prosecutors (num- Assign one of the six defense teams to each bered 1-6) consisting of 2-3 students each; of these tasks: six teams of defense attorneys (numbered 1. Directexamination of Thomas 1-6) consisting of 2-3 students each; and Carter six witnesses. 2. Direct examination of Lillian Sweet 2. Students should prepare by following the 3. Cross-examination of Joel Robertson instructions for their appropriate group 4. Cross-examination of Gail Duran (witnesses or attorneys) described below. 5. Cross-examinationofLt.Tony 3.After all of the teams have developed their Jackson questions, role play the examination of the 6. Cross-examination of Karen Miller witnesses. The team assigned to cross-exam- To prepare to examine witnesses, carefully ine a particular witness should be primari- review: ly responsible for raising objections to the 1. "Rules of Evidence," pages 153-157, direct examination, although all students so that you can raise or counter on the opposing team may do so. Likewise, objections. a team assigned to direct examination of a particular witness should be primarily 2. The statement of the witness you are responsible for raising objections to the assigned, pages 159-161.

158 CRIMINAL JUSTICE IN AMERICA I Your team should develop questions for direct examination so you can get rid of any the witness you are assigned to. Keep in mind inappropriate cross questions you have devel- the rules of evidence and your team's overall oped. strategy for the case. Also, be prepared to object to any state- The, prosecution must prove Thomas ments you believe violate the rules of evidence. Carter guilty of murder beyond a reasonable doubt. It must bring up evidence in its favor Statement of Karen Miller and anticipate and attempt to dilutethe My name is Karen Miller. I am 25 years impact of evidence against it. The defense old and divorced. must raise every reasonable doubt it can about I was home on the evening of July 6. Carter's guilt. Around 7 p.m., Joyce was playing in the front In most states, a defendant charged with yard. I asked her to close the front gate and murder could be found guilty of manslaughter come inside the house, since it was her bath instead. Since Carter has no alibi and doesn't time. As I watched her go to the gate, a black deny being in the car with the shotgun in his car slowly drove down the block. I think it was hand, the case will boil down to the issue of a late model Pontiac, but I'm not really sure. Carter's intent. The prosecution will try to Suddenly, the barrel of a rifle or shotgun was prove that Carter knew exactly what he was pointing from the car window right at Joyce. doing and that he intended to shoot the gun. Before I could say or do anything, there was an The defense, on the other hand, will try to explosion, and the car took off quickly. show that Carter didn't really mean to hurt At that instant, I looked at Joyce and saw anyone and that the gun went off accidentally. her fall to the ground. Horrified, I ran to her Since you can only cross-examine witness- and saw blood all over her face and body. es about what they testified about on direct I can't describe the occupants of the black examination, cross-examination questions can Pontiac. Still, I think the driver was a young be difficult to write in advance. But the wit- woman. nesses' statements should give you an idea of A red Toyota truck was parked in front of what witnesses are likely to be asked on direct, my house that evening. I believe it belonged to and you can write cross-examination questions a teenager named Oscar who lives across the accordingly. You should then be alert during street.

16;nit 3: The Criminal Case 159 Statement of Joel Robertson There was blood all over the place. I asked Joel I am Joel Robertson and I am 21 years old. Robertson and some others to take Tom to the I have known Tom for a few years, but we're hospital while I tried to get everybody out of not close friends. the house before the police came. On the evening of July 5,I attended a The next day Tom called me to say he was party at Gail Duran's house. I and most of the all right and would be over to see me later on. others at the party drank beer for several Around 6:30 p.m., Tom arrived at my place. He hours. Around 3:30 a.m., a fight broke out. I was very upset about getting hit the night was not involved in the fight, but I saw Tom before. He said he thought he knew who had Carter get hit over the head with a beer bottle. hit him with the bottle. He said it was Oscar I did not know who did it. I and some of the Hanks. Tom then asked me to go for a ride others at the party took Tom Carter to the hos- with him. I agreed to go with him. pital for emergency treatment. On the way to Tom asked me to drive his car while he sat the hospital, Carter kept asking who hit him in the back. Tom owns a Pontiac Firebird. He wi;.h the bottle. He was really angry. The peo- told me he wanted to look for Oscar Hanks. ple in the car suggested several names, includ- He gave me directions to drive to Fourth ing Oscar Hanks. Street. While driving down Fourth Street, Tom The next day about 5 p.m., Tom Carter said, "Hey, that's his truck. Slow down, Gail." came over to my apartment. Carter was still As I slowed down, I noticed for the first time very angry about what had happened the night that Tom had a shotgun in the back of the car before.I know from past experience that with him. Carter is the type of guy to carry a grudge. At this point, I really got scared and began He's a real hothead. He was always getting into to swerve down the street. I had never seen fights with guys at school and in our neigh- Tom act this way before. Then there was a loud borhood. Carter told me that he thought he bang, and Tom yelled to me, "Get us out of knee the guy who split open his scalp. He said here, fast!"I managed to drive out of the he thought the guy was Oscar Hanks. Carter neighborhood. I stopped on a quiet street. told me, "I'm going to put a scare into that Tom got into the driver's seat and took me guy that he won't forget." home. We watched a video for a while and had a On the way home, Tom told me that the soft drink. Carter was really nervous. A little shotgun just went off by itself, but he did not later, Carter started asking me about my gun think he had hit anything. I did not actually collection. I am a hunter and collect rifles and see the shotgun discharge, but I believe that shotguns. Carter was especially interested in the swerving motion of the car must have one of my shotguns. He asked me to show him caused Tom to accidentally pull the trigger. how to work it. He also asked me how far a Tom would never intentionally shoot anyone. shotgun would shoot. I responded that a shot- He's always been a sensitive and gentle guy. gun would be effective up to about 20 yards. Sure, he had a few fist fights when we were in About 6 p.m., Carter left my apartment. high school, but he didn't mean anything by it. He's basically a great guy. Statement of Gail Duran My name is Gail Duran. I am 17. I have Statement of Thomas Wade Carter been dating Tom Carter for about a year. My name is Thomas Wade Carter, age 18. On the evening of July 5, I had a party for I have recently graduated from high school. I about 50 of my friends while my parents were work at an auto parts store. on vacation. During the party a lot ofpeople I was totally shocked when I was arrested got drunk on beer. Sometime around 3 a.m., a for shooting a little girl. I have never been in fight broke out among about a dozen guys. serious trouble before. I was suspended from Tom was hit on the head with a beer bottle. high school once or twice because of problems

160 CRIMINAL JUSTICE IN AMERICA 6 3 with other guys, but they always started the Carters for almost 20 years, and I was the prin- fights, not me. cipal of the high school that Tom attended. Gail Duran is my girlfriend. She and I I did have to suspend him for brawling have been going together for about a year. I with other boys once or twice. But kids will be went to her party on July 5 and had a good kids. I think Tom was just following the lead time drinking beer with my friends until I got of his friends in .those days. As a principal, I in a fight with a dozen other guys around 3 was not very seriously concerned about Tom's a.m. During the fight, I was struck in the back behavior. I knew he'd grow up to be the fine of the head with a beer bottle. Joel Robertson young man he is today. and some others at the party took me to the Tom has always been a joy to have in the hospital.It took five stitches to close the neighborhood. He is kind to old people and wound on my scalp. children. He helps his mother with grocery The next day (July 6), I called Gail and told shopping. Sometimes he even drives me to my her I was all right and that I would be drop- doctor appointments if the weather is bad or ping by later in the day. he has a free afternoon. I was angry at Oscar and wanted to pay In my opinion, Tom could never have him back some way. So I decided to take my done what he is accused of doing. He's' a very father's shotgun and scare him a little. stable and responsible young man. He's just After picking up the shotgun, I stopped by not capable of murder. Joel Robertson's apartment around 5 p.m. I Statement of Lt. Tony Jackson knew he was a hunter. I got him to tell me how to work a shotgun so I could make Oscar NOTE: For Lt. Jackson's statement see the Police Crime Investigation Report on pages think I was serious. But I never knew the gun was loaded, and I never meant to hurthim. I 124-125. just wanted to teach him a lesson. Debriefing Questions From Joel's place, I went over to see Gail. 1. Which witnesses were most important to I asked her to go with me for a drive. I had her the prosecution and defense? Why? drive my car while I sat in the back seat look- 2. 'Which questions were most effective during for Oscar's house. I knew he lived some- ing the direct examinations? During the where on Fourth Street. I also knew he drove a cross-examinations? red Toyota truck. Finally, I spotted his truck 3. Which objections were raised most often? parked along the street. But the car suddenly Why do you think this happened? lurched, and the next thing I knew, the shot- 4. What characteristics do you think tend to gun went off accidentally. I panicked. Ididn't make a witness seem believable? What char- know it was loaded! I told Gail to get out of acteristics detract from a witness's credibil- the neighborhood fast. I did not see anybody ity? in the yard where Joyce Ann Miller was killed 5. What qualities would a person need to be a and certainly did not aim the shotgun at her. successful trial lawyer? Explain. It was an accident. Statement of Lillian Sweet My name is Lillian Sweet. I am a retired school principal. I have a Ph.D. in education- aladministration from the University of Illinois. I was a history teacher and a school guidance counselor before I became a principal. I have known Tom Carter since he was a little boy. I've lived down the street from the

1 6 1 Unit 3: The Criminal Case 161 IN THE INTERESTS OF JUSTICE, I'LL NOW HEARTma SUMMATIONS FORTHEDEFENSE ANDFORTHE PROSECUTION!

Case Notes: Closing Proper phrasing includes: "The evidence has clearly shown Statements that..." "Based on this testimony, there can After the defense's case-in-chief, the oppos- be no doubt that..." ing counsels make closing arguments. These arguments give the attorneys a chance to sum- "The prosecution has failed to prove that..." marize their cases, review the testimony of witnesses, and make a last appeal to the judge or "The defense would have you believe jury. that..." 10. Conclude with an appeal to convict or Guidelines for an Effective Closing acquit the defendant. Statement An effective closing statement should: 1.Be emotionally charged and strongly Class Activity: The appealing (unlike the calm, rational open- Defense Rests... ing statement). 2. Only refer to evidence that was admitted In this activity, students take the role of during the trial. attorneys developing closing arguments in the case of People v. Carter. 3. Emphasize thefacts that support the 1. Each student should: claims of your side. Choose to represent either the pros- 4. Note weaknesses or inconsistencies in the ecution or defense. opposing side's case. Review the witness statements on 5. Summarize the favorable testimony. pages 159-161 and consider the main 6. Attempt to reconcile inconsistencies that points brought out in witnesses' tes- might hurt your side. timony in the previous activity. Develop a three-minute closing argu- 7.Be presented so that notes are barely neces- ment for presentation to the class. sary. (Besuretofollowtheabove 8. Be well-organized (starting and ending with "Guidelines for an Effective Closing your strongest point helps to structure the Statement.") presentation and give you a good introduc- 2.Select 12 members of the class to act as a tion and conclusion). jury. They will judge the quality of the pre- 9.Focus on reasonable doubt. The prosecu- sentations. To do this, each must take a tion should emphasize that the state has blank piece of paper and make a rating proved the elements of the crime beyond a sheet as follows: reasonable doubt. The defense should raise Write each presenter's name and role questions suggesting that reasonable doubt (prosecutor or defense attorney). exists. Under each presenter's name, write

162 CRIMINAL JUSTICE IN AMERICA the numbers one through nine in a 1. Duties of the Judge and Jury column. Each of the numbers corre- In determining whether the defen- sponds to one of the "Guidelines for dant is guilty or not guilty, youas an Effective Closing Statement." jurorsmust base your decision After each presentation, place a entirely on the evidence presented check mark next to the item if the during this trial and on the law as presenter'sstatementmetthe explained by me. You must not be criterion. governed by sympathy, guesswork, 3.Call on three prosecutors and then three emotion, prejudice, or public opin- defense attorneys to make closing argu- ion. You must not be influenced by -ments. (Alternate defense attorneys and the mere fact that the defendant has prosecutors with the defense going first.) been arrested, charged, and brought After all have presented, poll the jury to to trial. find out which prosecutor and defense 2. Evidence attorney made the best presentation. Jurors If the evidence equally supports two should explain their choices based on the reasonable versions of the truth, one listed criteria. of which points to the defendant's guilt and the other to the defendant's innocence, it is your duty to Case Notes: Instructing adopt the version pointing to the the Jury defendant's innocence. 3. Credibility of Witnesses After closing arguments in a criminal trial, Every person who testifies under the judge gives the jury instructions it must consider when arriving at a verdict. This oath is a witness. You are the sole judges of the credibility of the wit- process is sometimes called charging the jury. nesses who have testified in this case. The primary purposes of these instructions are to explain the law, point out the elements of a Discrepancies or differences that crime that must be proved, and show the rela- occur in a witness's testimony, or tionship of the evidence to the issues at trial. between one witness and another, do In many states, judges base their instructions not necessarily mean that a witness on models adopted by the legislature. In other is lying. Failure to recollect facts is a In states, judges may develop their own. Still, a common human experience. judge must be careful. Inaccurate or mislead- addition, two persons witnessing the same incident will often see or hear ing instructions to the jury are the most com- it differently. You may simply have mon reason for verdicts being overturned on to decide which version of the facts appeal. is more believable. Imagine you are in the jury box just as the court clerk in the case of People v. Carter rises 4. StatementsofCounseland and announces: "The court will now charge EvidenceStrickenfromthe the jury. No one may leave or enter the room Record during the charge." Judge Coghlan then gives Any testimony or other evidence the following instructions: rejected or stricken from the record is to be treated as if you had never Ladies and gentlemen of the jury: heard it. It is my duty to instruct you in the law that applies to this case. You must follow the Also, if an objection to a question law as I state it to you. was sustained, you must disregard the question. This means that you

Unit 3: The Criminal Case 163 1G6 Degrees,of:Belief- in-a Defendant=s Guilt

To'reach a guilty verdict, jurors must believe thatthe defendant is gui "beyond a reasonable doubt."'

beyond all possible doubt- GUILTY beyond a resonable doubt

clear and convincing highly: probable. NOT GUILTY more likely than not highly possible possible

must not speculate about what wit- Malice aforethought may be either nesses might have said if they had express or implied.Itisexpress been allowed to answer. Neither may when a person intends unlawfully to you speculate about why an objec- kill a human being. Itis implied tion was made to a question. when the killing results from an 5. Presumption ofInnocence intentional act that: ReasonableDoubtBurdenof (1)is dangerous to human life, Proof and A defendant in a criminal action is (2) was deliberately performed presumed tobe innocent until with knowledge of the dan- proved guilty.This presumption ger and with conscious dis- places upon the prosecution the bur- regard for human life. den of proving the defendant guilty Malice does not necessarily require beyond a reasonable doubt. This any ill will or hatred of the person does not mean that no possible killed. doubt must exist, because doubt will Aforethought does not imply delib- always exist. Beyond a reasonable eration or the lapse of considerable doubt means that after hearing all time. It only means that the required the evidence, a juror isstill con- mentalstate must come before vinced to a moral certainty that the rather than follow the act. defendant is guilty. If you find beyond a reasonable 6. The Charges in this Case: doubt by the evidence presented in Thomas Wade Carter has been this trial that Thomas Wade Carter charged with two crimes: Second- intended to kill Joyce Ann Miller, degree murder andinvoluntary then you shall return a verdict of sec- manslaughter. ond-degree murder. Second-Degree Murder OR Second-degree murder is the unlaw- If you find beyond a reasonable ful killing of a human being with doubt by the evidence presented in malice aforethought. this trial that Thomas Wade Carter

,164 CRIMINAL JUSTICE IN AMERICA i 6 7 intended to fire the shotgun that You should not hesitate to change killed Joyce Ann Miller, and that the your opinion if you are convincedit act involved a high degree of proba- is wrong. You should not, however, bility that death would result, and be influenced one way or the other that it was done with conscious dis- because the majority of jurors favor regard for human life, you shall a certain verdict. return a verdict of second-degree 10.Concluding Instructions murder. You shall now retire and select one Lesser Charge: Involuntary of your number to act as foreperson. Manslaughter The foreperson will preside over Involuntary manslaughter isthe your deliberations. To reach a ver- unlawful killing of a human being dict, all jurors must agree to the deci- without malice aforethought and sion. As soon as all of you have without intent to kill. If you are sat- agreed upon a verdict, you shall have isfied beyond a reasonable doubt it dated and signed by your foreper- that the killing was unintentional son, and then you shall return to and the direct result of a very dan- announce it to the court. gerous or unlawful act, youshall For Discussion returnaverdict of involuntary 1. What things should be considered and dis- manslaughter. cussed by the jurors? What things should not 7. DoubtWhetherMurderor enter into the jury's deliberations? Manslaughter 2. Review the definition of "beyond a reason- If you are satisfied beyond a reasonable doubt" in instruction #5. According to able doubt that the killing was this definition, which one of the following unlawful, but you have a reasonable statements would be true? doubt whether the crime is murder a. A juror should vote to convict only if or manslaughter, you must givethe 100 percent sure that the defendant defendant the benefit of this doubt is guilty. and finditto be manslaughter A juror should vote to acquit if the rather than murder. b. juror believes there is any possible 8. UnanimousAgreementasto chance that the defendant is not Offense: Second-Degree Murder or guilty. Manslaughter A juror should vote to convict if the Before you may return a verdict in c. case, you must agree unani- juror believes that a very high degree this of probability exists that the defen- mously. If you return a verdict of dant is guilty. not guilty,it must be agreed on unanimously. If you return a guilty 3. Review the second-degree murder charge verdict, you must unanimously find against Thomas Wade Carter in instruction him guilty of manslaughter or of #6. According to the prosecution, how was murder in the second degree. Joyce Ann Miller killed? According to the defense, how was Joyce Ann Miller killed? 9. EachJurorMustMakean Independent Decision Each of you must decide the case for yourself, but you should also do so only after discussing the evidence and these instructions with the other jurors. 168 Unit 3: The Criminal Case 165 Class Activity: We, the Debriefing Questions 1.Sometimes juries are unable to reach a ver- Jury dict and become what is known as hung juries. How is it possible for people who In this activity, students take the role of have heard the same evidence to reach dif- jury members charged with rendering a final ferent conclusions? verdict in the case of People v. Carter. Tocom- plete this activity, follow these procedures: 2. How does this jury activity compare to 1.Form two or three juries of 12 students what you know about real jury delibera- each. (Remaining studentsmay form a tions? For example, were some students smaller jury.) unable to be objective after having taken the role of the defense or prosecution? Did 2. Each jury should appoint a foreperson the jurors know too much about the case? who will help lead discussions, collect signatures on the verdict, date it, and deliver it 3. Which witnesses did you find most believ- to the court. able? Least credible? What makes a witness credible? 3. You should refer to the judge's instructions on pages 163-165 during your deliberations. 4. 'Which roles were the most difficult to play? Why? 4. During the deliberations, the foreperson may wish to take one or more polls to 5. What did you learn about the job of the determine if the jury has reached aconsen- judge, attorneys, witnesses, and jurors? sus. Remember, your verdict must be unanimous. Class Activity: Verdict 5.First determine your verdict on the charge of second-degree murder. If the jury finds As a concluding activity, write an essay Carter not guilty or it deadlocks on this explaining your personal verdictinthe issue, then determine the verdict for invol- Thomas Wade Carter case. untary manslaughter. 6. After about 15 minutes, the teacher, acting as judge, will ask if you have reached a verdict. A jury not reaching a unanimous verdict will be considered a hung jury. The forepersons of juries reachinga unanimous verdict will deliver it to the court along with the 12 signatures attesting to it. 7. In either case, the judge may poll individual jurors and ask each to explain therea- sons for their decisions. (In a real case, a judge polling individual jurorsmay not ask for the reasons for their decision.)

_L. U 0 166 CRIMINAL JUSTICE IN AMERICA Jay is .19 'years,.old..:.-:Today, hewill appear before a judge to be sentenced. He stole a car::;..W.is about to enter.correctionsthe part of our criminal justice system thatCleali:'Withconvicted Offenders. Though Jay has neverbeen in trouble writ;';tlie::1*before,:..he',:lias:_a.lot to worryabout. Will the judge send him to priSOn?..-04.becauSe .1*;44.:.noprior record, will he be given some alternative.to::prisbnprobatiOn. some kindof community service? If asked Jak's..inctim, you-.migtit...hear ademand that he go to prison. If youasked.',:sorrieonelamiliar with. the prison system,however, you might get adifferent-opinion Some might even arguethat Jay should be given a second chance. Many experts .believe that contactwith hardened criminals only locks someone into.alife..of crime. In many parts of the country,Jay could be sentenced to a special programin a grouphome, where he would workunder the supervision of a staff of trained specialists. In that setting,he could receive psychological counseling and job training. Or he couldbe sent to a boot camp programthat tries to instill self-discipline in youngoffenders. This chapter explores howsentencing decisions are made andwhat the alternatives areprison, probation,community service, and several innovative programs,which may be promisingalternatives to existing programs. We will also explore how prisonsdeveloped, the problems they currentlyface, and someexperimental corrections programsthat are under way. Finally, you will take a look at what isperhaps the most hotly debatedof all corrections issuesthe death penalty.

Unit 4: Corrections 167 CHAPTER 12 Corrections and Society

The Purpose of Punishment

All societies have maintained the right to Is punish people who break their rules. But what is the purpose of punishment? What is it supposed to accomplish? This is a difficult question to answer. Experts and lay people alike often disagree. Over the years, different theories have been advanced. Some of these theories involve very different ways of handling wrongdoersfrom ducking stools to imprisonment to psychotherapy. People advocating one approach have often condemned allothers asbrutal, or unjust, or ineffective. Recently, scholars have tried to bring some order to the debate by developing an inclusive theory of punishment. This theory holds that one approach might work best in one situation while another would be better in a different situation. 4,4 The following are brief descriptions of A state trooper walks in the shadow of each of the major reasons for punishing a law- a fence surrounding a prison. breaker: Rehabilitation seeks to treat and reform the lawbreaker. Advocates of this theory believe Incapacitation seeks to isolatea criminal that prison or release programs should try to from society to protect ordinary citizens. turn the wrongdoer into a productive mem- Confinement in a secure prison makes it ber of society. To implement this theory, the impossible for a criminal to commit further prison system has to provide job training, crimes in the surrounding society. Critics of psychological counseling, and educational this theory point out that most criminals programs. And these programs should be tai- have fixed prison terms, and they will be lored to the best interests of the individual released sooner or later. If nothing is doneto prisoner. Critics of the rehabilitation theory reform them, the protection is only tempo- admit that it may be a noble idea, but they rary. argue that it just doesn't work in practice. Deterrence seeks to prevent further crimes. Restitution seeks repayment. The offender This can operate in two ways. Oneway, called repays the victim or community in money or specific deterrence, targets the criminal in services. Critics say money and services can- question, hoping that the memory of harsh not repay for the harm caused by violent punishment will deter that criminal fromany crimes.

r-'1 4 168 CRIMINAL JUSTICE IN AMERICA further crime. General deterrence targets student isresponsible for taking in other potential criminals. Others will seethe notes and reporting the penalty harsh punishment and be discouraged from that case to the whole class. committing the same crime. Critics argue that b. Review the cases below, which have few criminals expect to be caught, and deter- come before the court. Afterdiscus- rence is only powerfulwhen criminals fear sion, the court should set an appro- they will be caught and punished. priate and specific penalty for each wrongdoer. Retribution seeks revenge. This is perhaps the oldest theory of punishment, based on 3.Reconvene the whole class. Make headings of the five the idea that society has to retaliate against a on the board using the names rule breakers. Have the appropriate mem- person who commits acrime. This idea dates back to the ancient "eye for an eye" philoso- ber of each court report its recommended penalty and write it under the appropriate phies of Mesopotamian and Judeo-Christian traditions. Advocates say that by imposing heading. punishment we in some way get even with 4.. For each sentence described, discussand criminals. Some critics of retribution say it is decide whether it best meets the purposes too cruel for a modernsociety, and others of (a) rehabilitation, (b) restitution, (c) claim that it does nothing to address serious incapacitation, (d) deterrence, (e) retribu- issues like reforming criminals or protecting tion, or (f) some combination. Conclude the the innocent. withaclassdiscussionusing Debriefing Questions. For Discussion 1. Which of the five reasons forpunishment Cases do you agree with? Disagree with? Why? 1. Chris Hodges was caught smokingin the offense. 2. If someone broke into your houseand restroom. This is his second stole your television, what do you think 2 Terry Rodriguez was cited forlittering the would be an appropriate punishment? campus quad areaduring lunch period. Which of the reasons for punishment did 3. Kelly Janus, a candidate forstudent body you base thepunishment on? treasurer, was caught tearingdown other candidates' campaign posters. Class Activity: The 4. Linden Sommerville started a foodfight in the cafeteria by smashing an overripe Student Court banana in her friend's hair. 5. Jan Turner defaced several librarybooks. In this activity, students act asmembers of a student court, assigning penalties to Debriefing Questions those who break school rules. Wrongdoers 1. Which of the sentencesrecommended by may be sentenced todetention, hours of the student courts do you think are fair? school service, loss of student body privileges, Which are not fair? Why? or other penaltiesthe court thinks appropri- 2. Which of the five theories ofpunishment ate. comes closest to youridea of what is just? 1.Divide the class into student courts of five Why? students each. 2. Each court should:

a. Appoint a chief judge to lead the discussion and to assign one of the cases below toeach student. Each

Unit 4 Corrections 169 A Brief History of Punishment in the United States

In the last 30 years, moststates have cracked down on crime and sentmany criminals to prison. America today hasabout 2 million people behind bars, almostseven times the number of people in prison andjail in 1970. America hasa far higher percentage of its citizens in prison than almostevery other country in the world. Thisdrastic changeisnot unique. America's attitudes on crime and punishment have changed dramaticallymany times in its In colonial times, a ducking stool history. Looking back on this history,we can was often used to punish offenders. gain some insight into the problemswe face today. Punishment in Colonial America inmates- had to pay for theirown food and Before the American Revolution, all the blankets. Some poor inmates starvedto death colonies punished even minor offenses harsh- before their trials began. Many inmates ly. They would mete out public humiliation were hired out to work as laborers building roads for petty offenses. A lawbreaker might have to and working farms, and the profits stand in a public square, hands locked went to up in the jailkeepers. One observer noted seeing a device called a pillory, or sit with feet locked inmates weighed down by "iron collars and in stocks. In many towns, offenders were tied chains, to which bombshells to ducking stools and dunked into the icy were attached, to be dragged along while they performed their water of a river or pond. Some lawbreakers degrading service." were forced to wear a symbol of their crime, such as the large red "A" for adultery thatwas Regret and Remorse: The sewn to the dress of the character Hester Penitentiary Prynne in Nathaniel Hawthorne's The Scarlet After the American Revolution,con- Letter. cerned citizens of the new American republic More serious lawbreakers might receive objected to the brutal treatment of criminals. lashings at a public whippingpost. Others, In Pennsylvania, the Quakers,an influential particularly runaway slaves in the Southern religious group opposed towar and violence, colonies, might be branded witha hot iron or worked for reform. They introduced the idea mutilated by cutting off theirtoes.In of changing criminals' behavior by locking Northern colonies, thieves might have their them up behind high thick walls. This reform ears cut off or the letter "T" branded on their movement led to the first prisons as we know necks or faces. This wasnot only a punish- them today. In 1790, Philadelphia builta ment, but a warning to other thieves. For block of cells, each one six by eight feet in many serious crimes, the penalty was death by size and nine feet high. The Quakers hoped public hanging. that solitary confinement would give crimi- Some colonies had jailsto house the nals the opportunity to think about their accused while they awaited trial. Jailkeepers deeds and become penitent,or sorry, for what often ran these institutions for profit, and they had done. Early prisons, therefore,came

170 CRIMINAL JUSTICE IN AMERICA 7 3 operate to be called penitentiaries.The Quakers also many prisons, inmates learned to sponsored other reforms, including separat- simple machines to manufacture items such ing prisoners by sex, keeping children outof as furniture for governmentoffices. In some adult jails, and providing food and clothing places, prisoners performed services such as to inmates at government expense. growing food or cleaning laundry. The Pennsylvania System, as these reforms Treating Criminal Behavior: change in the phi- were called, represented a Rehabilitation losophy of how to deal with criminals. Its pur- Following the Civil War, a new group of punish, but also to correct pose was not just to prison reformers questioned the work system. the behavior of lawbreakers. This new ideaof These reformers argued that criminal behav- correcting; or reforming, criminal behavior ior was like a disease and that prisons should the United States and soon spread throughout try to cure the diseasewith some form of Europe. treatment. Prisoners shouldbe rehabilitated Unfortunately, the system of corrections and ready to take up a normal life insociety sponsored by the Quakers seldom accom- when they were released. plished its purpose. Prisoners locked up in A rehabilitation program was first tried in solitary confinement frequently became sick, 1877 in a youth reformatory at Elmira,New went insane, or died.In1842, Charles York. Elmira offeredits young offenders Dickens, the famous English novelist and school classes, vocational training,health sccial reformer, visited the Pennsylvania peni- care, and counseling.When inmates demon- tentiaries and reported: strated that they were ready for release,they I believe it, in its effects, to be cruel and could leave. Many other youth reformatories wrong. In its intention, I amwell con- soon took up this new system. vinced that it is kind, humane, and meant Adult prisons also adopted parts of the for reformation, but I am persuaded that Elmira system. By 1918, doctors, psycholo- those who devised this system of prison gists, and social workers were beingbrought do not know what it is they discipline.. . into the prison to help rehabilitate prisoners. few men are are doing. I believe that very In addition, many statesset up separate of estimatingtheimmense capable prison facilities for dangerous prisoners,low- amount of torture and agonywhich this risk prisoners, women, drug addicts,and the dreadful punishment ...inflicts upon the criminally insane. Rehabilitation becamethe sufferers....I hold this slow and daily model for American prisons. tampering with the mysteries of the brain As crime rates soared in the 1960sand to be immensely worse than any tortureof 1970s, however, many began toquestion the body. whether rehabilitation worked. They pointed Leading a Useful Life: The Work to high recidivism ratesthe ratethat those further System released from prison go on to commit The failure of solitary confinement led crimes. About half of those releasedfrom prison officials to try a new system that prison were arrested again within three years. emphasized work instead of isolation. Under As the crime rate grew, the publicsupported this system, prisoners were locked up in cells more "get tough oncrimemeasures." at night. But during theday, they worked Officials turned away from the model ofreha- together in prison shops and ate in a com- bilitation to one of incapacitation,getting mon dining area. Atfirst, rules banned talk- criminals off the street so they cannot harm ing among prisoners. Later reforms allowed anyone. This hasresulted in the staggering conversation. number of people behind bars in America The work system became widely used, and today. But the debate over how to treat crimi- of it still influences prison philosophy today.In nals hasn't stopped. Every generation

Unit 4: Corrections 171 Americans has carried on this debate. Itcon- tinues today. Sentencing

For Discussion William Smith, a banker, has beencon- 1. Why did prisons develop? victed of fraud. He secretly altered his 2. Discuss this statement: "The history of bank's computer system to stealone dollar corrections has been one of good inten- a year from every customer. He has no tions and bad results." What does it mean? previous record, and no onewas badly Do you agree with it? Why or why not? hurt by the crime. Jennie Blaine has been found guilty of manslaughter. She hit and killedan 8-year- Class Activity: Pros and old girl while driving drunk. Blaine is the Cons of Punishment sole support for her own three children and she just lost her job. She hasno pre- T_n this activity, students evaluate different vious record. types of punishment. Andy Travers, a heroin addict, has been 1.Break into small groups. found guilty of beating an 80-year-old 2. Each group should: woman to death during a burglary. He has several previous drug convictions. a. List the advantages and disadvantages of the following kinds of pun- Should they all go to prison? Would it be ishment: better for society if some criminalsare given (1) Solitary confinement fines, or probation, or community service,or (2) Hard physical labor other alternatives? (3) Public humiliation These decisions are made at sentencing hearings held shortly after the defendant is (4) Physical punishment found guilty. Most jurisdictions provide that (5) Therapy a sentence must be imposed "without unrea- (6) Fines sonable delay." Many providean actual time b. Discuss the following questions: limit such as 14 or 21 days after conviction. (1)Which kind of punishment is Typically, only juries make sentencingrec- still in use today? ommendations in death penaltycases. Judges (2)Where is it in use? normally make all other sentencing decisions. It's a heavy responsibility. Defendants (3)What types of criminals or may be crimes might each punish- losing years of their freedom. Every defendant is entitled to careful consideration. And, ment fit? Why? of course, judges must consider the innocent (4)What other types of punish- citizens in the community. One dangerous ment can you think of? What criminal turned loose can harmmany people. are their advantages and disad- Judges must try to be fair, objective, and vantages? impartialall of this while burdened by heavy c. Assign one person in each group to caseloads and busy schedules. report back- to the class on one or Before the hearing, the judge is usually two kinds of punishment. provided with a pre-sentencing report, usually 3. Have each group report back. prepared by the probation department.It includes information about the defendant's family background, previous convictions, character, and attitudes. This report helps the judge iiialerstand the defendant and decide

172 CRIMINAL JUSTICE IN AMERICA About 63 milliori-adultsin the Un in prison I in jail on probation on pirole

Source: whether effortsat rehabilitation might be deliberate and calculating? Or was the effective. Many jurisdictions also require a pre- offender provoked or under some sort of sentencing court conference with the offender stress? and sometimes a psychological examination. Age. Is the offender either very young and The U.S. Supreme Court has ruled that the inexperienced or old and infirm? defendant is entitled to have an attorney par- Offender's attitude. Is the offender hostile ticipate at the sentencing hearing (Mempa v. and defiant? Or does the offender admit Rhay, 1967). The prosecution and defense may guilt and show remorse? present information to the courtand make sentencing recommendations. In many states, Public's attitude. How will the public and the crime victim and victim's family may make law enforcement react to the sentence? a statement abouthow the crime has impacted Other factors. These might include: What their lives. The defendant, in most states,also are the offender's reputation,position in has the right to allocute, to make a statement the community, general character, and to the court before sentenceis passed. prior contributions to society? Unless restricted by law, the judge may In sentencing, the judge must follow the consider many factors in sentencing, such as: state penal code, which sets out thepunish- The crime. Was the harm caused by the ments for crimes. Misdemeanors aregenerally crime great or small? punished in increments of days or monthsup The offender's actions. Were the offend- to one yearin a county or cityjail. Felonies are er's actions brutal, dangerous, and callous, generally punished in increments of years in or were they unintentionaland restrained? stateprison.Sentencingstructuresvary, depending on the state, and include indeter- The victim. Was the victim an aggressor or sentences,determinatesentences, particularly vulnerable due minate was the victim mandatory sentences, sentencing guidelines, to age or reduced mental orphysical capac- or some combination. ity? Indeterminate Sentences. As prison reform- Weapon. Did the offender use a dangerous 20th century focused on weapon or was theoffender unarmed? ers at the turn of the rehabilitation, they felt that flexible sentencing Offender's participation. Did the offend- could better meet the needs of individual con- er plan and promotethe crime or simply victs. A criminal who reformed sooner could aid and follow others? be released sooner, and one who did not Criminal record. Has the offender com- reform could be kept a longer time. As long as mitted previous crimes? How serious were the corrections system stressed rehabilitation, they? flexiblesentences were the norm. These Psychological state. Was the. offender flexibleprisonterms became known as

Unit 4: Corrections 173 BEST COPYAVAILABLE 11 o indeterminate sentences, because therewas no pay restitution to a victim, time in halfway pre-determined time to serve. Usually, thesen- houses, or being released under the supervi- tence was stated as a range of years. For exam- sion of a probation officer. But if judges ple, forgery might carry a penalty ofone to choose to give a prison term, statutes set the five years in prison; burglary, five to 10years; term. manslaughter, five to 20. The judge decided the range of the sentence. How much time the Mandatory sentencing laws. These take away the option of alternative sentences. They prisoner actually served was left to the state require judges to sentence offenders to prison parole board, which determined whena prisoner should be released. terms. Almost every state has passed mandatory sentencing laws for certain situations, such States with indeterminate sentencing vary on how much discretion they give judges. as use-a-gun, go-to-jail laws and repeat-offender laws like three strike laws. Usually, a judge has Many states give judges the power to suspend no option but to impose the mandatory sen- or give alternative sentences. In some states, the judge decides on both the maximum and tence and cannot shorten it, suspend it, or give the minimum sentences within statutory lim- an alternative sentence. The federal Anti-Drug- Abuse Act of 1986 sets many mandatory-mini- its. In other states, the judge sets only themax- mum sentences for drug offenses. It allows no imum. In still others, the statutes spellout the limits, and the judge hasno choice but to exceptions for first offenses or other factors. apply them. Sentencing guidelines. These are a more elab- In recent years, indeterminate sentencing orate attempt to curtail discretion in sentenc- has come under attack from several directions. ing. They provide formulas for judges to use in Some critics say that flexibility has allowed all sentencing decisions. For example, in 1980 lenient parole boards to let dangerous crimi- Minnesota enacted a grid formula, which nals out too soon. Other critics claim that reflects two sentencing factorsthe crime's indeterminate sentencing produces arbitrary severity and the offender's criminal history. and unjust prison terms. One car thief might The judge does little more than work out serve two years in prison, another five, and where a particular criminal falls on the grid, another seven. and the sentence is automatically defined. If the judge wishes to modify the grid sentence, Determinate Sentencing. Since the1970s, many states have introduced determinate, or reasons for any variance must be given in writing. On the next page is a simplified version of fixed-term, sentencing, which actuallywas the norm during the 19th century. In this system, Minnesota's grid. More than half the states parole boards do not decide when to release and the federal government have enacted sentencing guidelines. prisoners. Instead, judges sentence defendants to a specific time of imprisonment, based on For Discussion the severity of the crime. For example,a rob- 1.Review the list of sentencing factors on bery might be punished bya year in prison, page 173. Which do you think are the most but an armed robbery could bringa five-year important? Least important? Explain. sentence. Prisoners would know at the time of 2. Are there any additional factors you think sentencing when their prison terms would judges should consider? What factors end. In most parts of the country, there isa should they not consider? Explain. trend back to fixed-term sentencing. Instates with determinate sentencing, 3. What is the difference between fixed and judges often have discretion to give alternate indeterminate sentencing? What are some sentences. These alternatives include suspend- arguments for fixed sentences? What are ed sentences, time ina local jail, time served some arguments for indeterminate sen- on weekends, community service, working to tences? Which do you think is more just? Why?

174 CRIMINAL JUSTICE IN AMERICA SENTENCING GUIDELINES GRID Presumptive Sentence Lengths in Months

Italicized numbers within the grid denote the range within which ajudge may sentence without the sentence being deemed a departure. Offenders with nonimprisonmentfelony sentences are subject to jail time according to law. CRIMINAL HISTORY SCORE SEVERITY LEVEL OF CONVICTION OFFENSE (Common offenses) 4 5 6 or more I 0 1 2 3

Murder, 2nd Degree 406 426 326 346 366 386 X 306 379-393399-413419-433 -299-313319-333339-353359-373 Murder, 3rd Degree 225 240 165 180 195 210 IX 150 204-216 219-231234-246 144-156 159-171 174-186189-201 , . 146 158 Rape 98 110 122 134 VIII 86 129-139 141 -151 153-163 81 -91 93 -103 105-115 117-127

Involuntary 68 78 88 98 108 VII 48 58 94-102 104-112 Manslaughter 44-52 54-62 64-72 74-82 84-92 45 51 57 7';';:,.:: : 33 ' 39 Burglary VI 21;;.° 37-41 43-47 49-53 55-59 38 43 48 ;.::23,ii: 33 Perjury V 18, 31 -35 36-40 41 -45 46-50

18 24 27 30 Receiving Stolen IV 12 15 23-25 26-28 29-31

Property . . 21 23 15 ,17-1 19 Theft Crimes III 12;:. 13 18-20 20-22 22-24 (Over $2,500) 21 213 '''' 1 :17,1'-9--',' '19 Theft Crimes II 12'.: 20-22 ($2,500or less)

Tampering with a 17',::: 19 °:12 ':- 12 13 1 Fire Alarm I 12 18-20

Presumptive commitment tostate imprisonment.First-degree murder is excluded from the guidelines by law and continues to have a mandatory life sentence.

Presumptive stayed sentence; at the discretion of the judge, up to a yearin jail and/or other non-jail sanctions can be imposed as conditions of probation. Source: Adapted from Minnesota Sentencing Guidelines & Commentary(1999)

4. What are mandatory sentences? What do Class Activity: The you think are the pluses andminuses of these sentences? Do you think they are a Sentencing of Thomas good idea? Explain. Carter 5. What role do you think each of the following groups should have in sentencing: In this activity, students sentence Thomas judges, juries, parole boards, and legisla- Wade Carter, the defendant in the previous tures? Explain. unit. If a jury had found Carter guilty, it could have convicted him of one of two crimessecond-degree murder or involuntary manslaughter. For this activity, half of the groups will assumethat Carter was convicted

176 Unit 4: Corrections 175 of. involuntary manslaughter and the other Prepare a brief written statement justifying half, second-degree murder. Students will role your choice. A suspended sentence would play judges imposing an appropriate sentence take the following form: based on three different statutes (Determinate- Tom Carter's prison sentence is here- Sentencing Statute, Indeterminate-Sentencing by suspended. Carter willserve one Statute, and Sentencing-Guideline Statute). year in a county jail. For a certain 1.As a class, review and briefly discuss each number of years following county of the three statutes below. jail, he will be closely supervised by 2. Break into pairs, each pair actingas judges. a probation officer and have to meet Designate each pair either A or B. Assign A certain probation conditions. Should pairs a second-degree murder verdict for Carter violate any terms of proba- Carter. Assign B pairs an involuntary- tion, he will be returned to prison to manslaughter verdict. serve his prison term. 3.Each statutedeterminate, indeterminate, If you choose to suspend thesentence, and sentencing guidelineallows judgesto decide how long his probation should last choose within a range of sentences. Asa and the probation conditions. Fora list of pair, review each of the sentencing factors possible probation conditions,see page 192. on page 173 and discuss how these factors 6. Have a representative from each pair report affect the Carter case. Refer to information to the class on the sentences imposed. Write contained in the Pre-Sentencing Reporton the sentences reported by each pairon the page 178. In your pair, discuss the following board. questions: 7.After discussing the sentences submitted, a. Which circumstances in Carter's sit- take a class vote on the choices recordedon uation point to a harsh sentence? the board. Make a list. 8. Debrief the activity with the questionson Which circumstances in Carter's sit- page 177. uation point to leniency and the probability of his reform? Make a §575. Determinate-Sentencing Statute list. For all determinate sentences, thereare 4. As a pair, decide on three sentences, based three prison terms listeda lesser term,a stan- on the three sentencing statutes: dard term, and a greater term. The standard term is the second one listed.It should be a. For the determinate statute, specify imposed unless the judge decides that the exact number of years. aggravating factors or mitigating factors dictate the b. For the indeterminate statute, speci- greater or the lesser sentence. fy both a minimum and a maxi- (a)Involuntary manslaughter is punish- mum number of years. able by imprisonment in the state c. For the sentencing guideline statute, prison for two, three, or fouryears. specify the exact number of months. (b)Second-degree murder is punishable Then figure out the term inyears by imprisonment in the state prison and months for reporting to the for 10, 20, or 30 years. class. §606. Indeterminate-Sentencing Statute 5. Assume that your jurisdiction allows you to The court shall impose both suspend the sentence under the sentencing a minimum statute and to impose an alternative sen- term and a maximum term as follows: tence. Discuss and decide whether Carter (a) Minimum term of sentence. The minimum term of an indeterminate should serve the statutory prison termor sentence shall be at least one year shouldhavehissentencesuspended.

176 CRIMINAL JUSTICE IN AMERICA and the term shall be fixed as fol- 3. Find the box where the severity level lows: of the crime and the criminal history score intersect. This box tells the (1)For involuntary manslaughter, the minimum term shall be sentence in months. fixed by the court and shall not (a)If the box is shaded, the judge be less than one year nor more should suspend the sentence than five years. and put the offender on probation. At the discretion of the (2)For second-degree murder, the minimum term shall be fixed judge, up to a year in jail and by the court and shall not be other non-jail sanctions can be less than 15 years nor more imposed as conditions of pro- than 25 years. bation. (b)If the box is not shaded, then (b)Maximum term of sentence. The maximum term of an indeterminate the judge should impose a sen- sentence shall be at least three years tence within the range given. and the term shall be fixed as fol- Debriefing Questions lows: 1. Which group of statutesdeterminate, (1)For involuntary manslaughter, indeterminate, sentencing guidelinehad the term shall be fixed by the the greatest range of sentences? The small- court and shall not exceed 15 est range? Why? years. 2. Which sentences seemed the fairest? The (2)For second-degree murder, the most unfair? Why? term shall be fixed by the court 3. Which type of sentencing statute would and shall not exceed 50 years. you support in your state? Why? §898. Sentencing-Guideline Statute 4. Would you favor judges having the discre- A. All convicted persons shall be sentenced tion to give alternative sentences instead of according to the sentencing guideline grid prison terms? Why or why not? (on page 175). 5.In most states, mandatory sentencing laws B. If a judge wants to depart from the sen- would force a prison term on Tom Carter tencing guideline, the reason must be com- because he used a gun. Do you think pelling and the judge must explain the sen- mandatory sentences are a good idea? Why tence in writing. or why not? C. Instructions for using the sentencing guide- 6. There is a great difference in punishment line grid: between second-degree murder and invol- 1. Determine the severity level of the untary manslaughter. Do you think a jury crime. should be told of the difference before it 2. Calculate the criminal history score. decides a verdict of guilty or not guilty? Juvenileconvictionsscorezero Why or why not? points except for felony convictions, which count one point each. Adult convictions score one point for each misdemeanor and two points for each felony. Invite,a criminal attorney orcriminal court judge, to,,take partin,andalelv.debrief.the actiVitf uThe Sentencing-of ThomasCarter."

BEST COPY AVAILABLE 1. ri Unit 4: Corrections 177 Pre-Sentencing Report Below is a pre-sentencing report submitted by the probation department:

Background Report on Thomas Wade Carter Age: 18 Social background: Thomas Wade Carter is the oldest of five children.As the oldest child, he was pressured to excel in sports and school as his father had done. Around age 12, Carter began rebelling against his parents and school. He ran away from hometwo times. At school, he received failing grades and got into numerous fistfights. Hewas suspended from middle school once for fighting and from high school once for carryinga knife. His teachers and friends report that Carter had a quick temper and would carrya grudge for a long time. At age 17, Carter was transferred to a continuation high school because of poor attendance and lack of credits at his regular high school. He attended the continuation school and earned enough credits to get a high school diploma. Carter worked for short periods of timeas a fast food cook, gas station attendant, and car wash worker.

Prior Record: Carter, Thomas Wade Age Arrest Record Action by Juvenile Authorities 10 Runaway Counseled and released to parents by police 12 Runaway Counseled and released to parents by police

13 Curfew Counseled and released to parents by police 17 Reckless Driving Formal probation (six months) (misdemeanor)

Age Arrest Record Action by Adult Authorities 18 Disturbing the peace Conviction; $50 fine (bar fighting) (misdemeanor)

Current Background: Carter now lives in his mother's home with his sister andyounger cousin. His parents were divorced when he was 16. He contributes $500per month out of his salary to household expenses. Carter is currently employedas an assistant parts department manager at a local auto dealer. His income is $26,000 per year. His immediate supervisor, Hans Spencer, reports that Carter has performed well in his current position and is effective in dealing with customers. Neighbors report that except forsome loud parties and squealing tires, Tom seems to have settled down since high school. A number of his neighbors and friends have offered to vouch for his character.

Police informants indicate that Carter and Oscar Hanks have hada long-standing feud going back to high school. One month before Carter was arrested for the Joyce Ann Miller shooting, he and Oscar Hanks were arrested for disturbing the peace at a local bar. According tosome witnesses, Hanks knifed Carter in the leg during the fight at the bar. Carter, however, refusedto cooperate with the district attorney in the prosecution of Hanks for assault witha deadly weapon.

178 CRIMINAL JUSTICE IN AMERICA CHAPTER 13 Current Debates

Are Too Many People greater numbers of violent criminals. It notes that until1975,despite increasing violent Behind Bars? crime, the actual number of inmates in state prisons fell. The report says that, responding As crime rates started rapidly rising inthe to public demands, state legislatures inthe 1960s and 1970s, the public demanded 1970s started adopting mandatory sentencing that officials do something about crime. laws. These laws required judges to sentence Politicians started promising to "get tough on certain offenders to prison. By 1975, the num- crime." They adopted new policies designed to ber of prisoners started climbing and has been put more criminals behind bars. climbing steadily ever since. For most of the 20th century, our nation's Because of this new trend in incarceration, prison and jail population had remained sta- said the report, some progress had been made bleat or below 300,000 prisoners. Beginning in reducing violent crime. The report attrib- in. the 1970s, the states and federal government uted the falls in violent crime in the early 1980s started locking up more prisoners. By 1990, and 1990s to the rise in incarceration. In the they had put 1 million prisoners behind bars. words of former Attorney General Barr, "the One decade later, the total had almost reached eighties worked and the sixties didn't. It does- 2 million prisoners. An additional 4 million n't take a rocket scientist to decide which path convicts are currently on probation and to follow." Following this report, the incarcer- parole. The rate of incarceration in America is ation rate continued to climb, and the crime second only to that of Russia. The rate is six to rate started dropping. 10 times higher than most other industrialized Supporters of get-tough policies give two countries. (See chart on page 204.) reasons why increased incarcerationworks. The Bureau of Justice Statistics estimates First, it deters others from committing violent that it costs about $20,000 per year to house acts. When people realize that they will go to each prisoner. With 2 million in prison or jail, prison for a long time, they think twice about itcosts taxpayers $40 billion each year to committing a violent crime. But even staunch house the prisoners. Is it worth it? advocates of get-tough policies admit that Supporters of get-tough measures, such as deterrence is difficult to document. So most the American Legislative Exchange Council cite the second reason: Locking criminals up (ALEC), think so. ALEC is a non-profit bipar- keeps them from committing crimes. This is tisan membership organization for conserva- known as incapacitation. By some estimates, tive state legislators. In the foreword to its 1994 the average violent street offender commits 12 Report Card on Crime and Punishment, for- crimes a year. If the offender is in prison, this mer U.S. Attorney GeneralWilliam P. Barr savesthe public from 12 violent crimes. emphasized that 'getting tough works." He said Moreover, studies indicate that a small per- that "increasing prison capacity is the single centage of offenders commit many crimes. most effective strategy forcontrolling crime." (See "Studies Show That a Few Criminals The ALEC report documents that the vio- Account for Much Crime" on page 180.) If lent crime rate in 1992 was almost five times these habitual offenders were imprisoned, the higher than that of 1960. The report blames nation would experience a significant drop in this increase on the failure of states to lock up serious crime.

1S2 Unit 4: Corrections 179 Studies_Show Thata,Few Criminals recent form of mandatory sentence for repeat AccountforMuch-Crime- offenders. It mandates a lengthy, or even a life prison term, for certain third felony convic- A long-termstudyby criminologist tions. The federal government and many states Marvin Wolfgang followed the arrest have adopted versions of the three-strikes law. records of all males born in the years 1945 The three-strikesprovision infederal law and 1958 in Philadelphia. A mere 7 per- requires that the three convictions must be for cent of the males was responsible for more violent felonies. In some states, like California, than half the crime stemming from the only the first two convictions must be for vio- group. Those in the 7- percent grouphad lent or other specified felonies. The thirdcan been arrested at least five times each by age be for any felony. 18. They committed two-thirds of all the Truth in Sentencing. These laws attempt to violent crime and about three-fourths of reduce or eliminate parole. Before the end ofa all rapes, robberies, and murders. sentence, most convicts are released into the A study by the RAND Corporation community on parole under the supervision found that each year the most active rob- of a parole officer. In some cases, theyare put bers averaged almost 90 crimes and the on parole after serving less than half their sen- most active burglars averaged more than tence. Some prisoners are released by state 200 offenses. A review of habitual offend- parole boards. Others are released early because erstudiesbycriminologistAlfred they have earned credits, called good time, Blumstein showed that the most active 10 against their full term. They can earn good- percent of criminals committed about 100 time credits by behaving well and participating crimes in a year.. in special programs. Some jurisdictions allow prisoners to earn as much as one day of good time for every two days served. Prison author- GeVi'ough Policies ities say they need good-time programs to keep Supporters of getting tough have advocat- order. Truth in sentencing laws, however, force ed policies that send more convicted felons to convicts to serve close to their full sentences. prison and make them serve longer sentences. Since 1987, the federal government has adopted There are three main policies that they have truth in sentencing. All federal convicts must relied on: serve at least 85 percent of their sentence. The 1994 and 1995 federal crime bills offered prison Mandatory sentencing. Mandatory sentenc- construction aid to states that adopt truth-ining laws require judges to sentence offenders to sentencing laws similar to the federal law. Most prison terms. Since the 1980s, almost every states have already passed such laws. state has passed mandatory sentencing laws for certain situations, such as repeat-offender laws Pros and Cons and use-a-gun, go-to-jail laws. Usually, a judge Some critics of massive incarceration has no option but to impose the mandatory doubt that it affects crime rates. They cite the sentence and cannot shorten it, suspend it, or strong economy, better policing, the end of give an alternative sentence. In 1973, New York the crack epidemic, and other factorsas caus- passed harsh mandatory minimum sentences ing the drop in crime rates in the 1990s. They for drug offenses. In the 1980s, the federal gov- point out that incarceration rates have been ernment and many other states followed New climbing since 1975 and during much of that York's lead. Soon a quarter of all prison time, crime rates increased. Supporters of inmates were offenders who only committed increased incarceration counter that crime low-level, non-violent drug offenses. would have been much worse during that period without the increased incarceration. A Three strikes and you're out. This is a more Bureau of JusticeStatisticsstudy in1991

4c,) 180 CRIMINAL JUSTICE IN AMERICA .1. J supported that view. But a study published in NumberofzAdults.in-Prison; 1925-1999 Crime and Delinquency in 1992 comparing two states with far different incarceration rates 1,400,000 found that these rates didn't affect the rates of violent crime. 1,200,000

Some critics of massive incarceration 1,000,000 believe it may reduce crime. But they say it is an incredibly inefficient way to do it.They 800,000 claim the get-tough policies result in collective 600,000 all incapacitationlong sentences given to 400,000 felons. This means that non-dangerous prisoners serve along with the dangerousand that 200,000 prisoners serve time long after they reach an 0 0 0 0 0 . 00 0 0 rg In C.' LI1 CO al0 age where they pose no danger.These critics Cr) CTI cr) c)) Cr% al al0 advocate selective incapacitationtargeting CN the small percentage of career criminals who commit most crimes and targeting other Source:: Sourcebook of Criminal Justice Statistics 1998 and Corrections Statistics. Bureau of Justice Statistics (2000) offenders during their most crime-prone years (usually between the ages 15 and 24). This, they as $25,000. He estimated that eachcriminal say, would reduce crime withoutrequiring so many in prison. The only practical way todo committed an average of 187 crimes each year this, however, would be to allow judges and and that the average cost of each crime was parole boards more discretion in sentencing. $2,300. Based on these figures, he calculated Those who favor getting tough on crime that the benefits outweighed the costs by 17 to 1. Critics pointed out that only the most active oppose this, because theybelieve judges and parole boards are frequently too lenient on criminals would commit so many crimes. Zedlewski stood by his estimates, but limited criminals. Other critics of massive incarceration cite them to the prison population remaining in its cost. With states and the federal govern- the 300,000 to 600,000 range (which is now far ment paying about $40 billion each year to surpassed). Above that range, the law of dimin- ishing returns may set in, as most high-rate house prisoners, critics argue that corrections budgets are crowding out other worthwhile offenders may already be in prison. items. California, for example, for the first But still experts differ. Criminologist John time now spends more on its prison system Dilulio strongly supports three-strike laws as than on its University of California system. highly effective at targeting high-rate offend- study by the Critics say crime prevention programs and ers. Critics of three strikes cite a RAND Corporation. It found that less than $1 even police are feeling the squeeze.A 1999 billion of crime-prevention spending would studybytheRockefellerInstituteof have the same impact on crime as California's Government reported that in1983police three-strikes law, which costs an estimated $5.5 received 52 percent of all U S. criminal justice spending compared to 28 percent for prisons. billion a year. By 1995, prisons' share had climbed to 37 per- Both Dilulio and another RAND study drug cent and the police's had dropped to 43 per- agree that mandatory minimums for offenses should be repealed because they are cent. not cost effective. Jay Apperson, a federal pros- But the question is whether incarceration ecutor, disagrees. He thinks they are necessary is worth its price. In 1987, Edwin Zedlewski, an to convict high-level drug dealers. He states: economist for the National Institute of Justice, "Our experience is that without tough manda- did a cost-benefit analysis of incarceration. He tory minimum sentences, defendants facing a figured the annual cost of housing an inmate

;d' Unit 4: Corrections 181 What About Rehabilitation? For Discussion 1. What are "truth in sentencing" laws? Do Massive incarceration has caused the you think they are a good idea? Explain. nation's correctional systems to turn away 2. The United States has the second highest from rehabilitatingprisoners. With so rate of incarceration of any country in the many inmates in custody, the best that world. What dangers might too many peo- most prison systems can do is warehouse ple in prison pose to a democratic society? them. Supporters of massive incarceration What dangers might come from having too say that rehabilitation never worked and few in prison? Do you think it is a good incapacitation does work. They point to a idea to have so many people locked up? review of more than 200 studies of correc- Why or why not? tional programs by criminologist Robert Martinson in 1974. The review found that Class Activity: Three no program reduced the rate of recidivism (the rate of those released from prison who Strikes go on to commit other crimes). Since In this activity, students role play advisers "nothing works," it's pointless and waste- to a state legislator who is considering intro- ful, they argue, to try to rehabilitate pris- ducing three-strikes legislation. oners. 1. Form small groups. Each is a group of But criticsdisagreethat "nothing advisers to a state legislator who is consid- works." Although 'several studies have sup- ering introducing three-strikes legislation. ported Martinson's findings, a few have 2. Each group should: found programs that do work., particularly drug treatment programs and programs a. Make a list of the pros and cons of outside of prison settings. Critics further three strikes. point out that more than 500,000 convicts b. Consider whether any felony or only are released into society every year and that violent felonies should count as some effort should be made to make sure strikes. they don't return to crime. c. Decide whether or not to recommend three-strikes legislation. d. Prepare to report back its recom- few years time are generally willing to serve it, mendation and the reasons for it. rather than finger violent suppliers and big- time traffickers." 3.Have the groups report back and hold a America continues on the course of incar- discussion. Conclude the activity by taking cerating more people. One critic of massive a voting on two different three-strikes pro- incarceration has warned that it would be dif- posalsone with all felonies counting as ficult to change course. He claims that a strike and one with only violent felonies "prison-industrial complex" has developed, counting. consisting of prison guard unions, politicians using the fear of crime to win votes, rural areas Activity: Prison whose economies depend on nearby prisons, and private companies who look on the large Sentences prison budgets as opportunities for profit. But this "complex" is not invincible. In recent Write a brief essay, either supporting or years, as the crime rate has gone down, voters opposing the following proposition: America in some states have turned down bond issues should continue to put more people convicted of for new prisons. crimes behind bars. las 182 CRIMINAL JUSTICE IN AMERICA Do Some Mandatory MICHAEL RAMIREZ Minimum Sentences Violate the Eighth Amendment?

Excessive bail shall not be required, nor ex fines imposed, nor cruel and unusual punisi inflicted. Eighth Amendment to the U.S. Constit

Does the Eighth Amendment prohibit excessive or inappropriate punishment? For example, would a prison sentence of 25 years to life for stealing a slice of pizza be thrown out as a violation of the Eighth Amendment? More specifically, would it matter that the sentence was part of a repeat-offender law? In 1983, the U.S. Supreme Court did rule would receive in Michigan. In neighboring that an overly harsh sentence was unconstitu- Ohio, Harmelin would have received a sen- tional. A South Dakota court had sentenced a tence of from five to 15 years. A 5-4 majority man to life in prison for passing a $100 bad of the court upheld the sentence. Three of the check. The sentence followed a state repeat- justices in the majority ruled that the sentence offender law that allowed a life sentence for was not "grossly disproportionate" to the anyone convicted of a fourth felony. A 5-4 crime. Two justices, Scalia and Rehnquist, majority of the Supreme Court in Solem v. declared that Solem was "simply wrong" and Helm (1983) struck down the life sentence. It thattheEighthAmendmenttothe ruled "as a matter of principle, that a criminal Constitution does not require felony sentences sentence must be proportionate to the crime to be proportionate to the crime except in for which the defendant has been convicted." death penalty cases. They argued that a "pro- The court pointed out three objective fac- portionality principle" would be simply an tors to decide whether a sentence is propor- invitation for the court to impose its subjec- tionate to the crime. These include comparing tive opinion over that of a legislative body. (1) the seriousness of the crime to the severity The four dissenters believed the sentence of the penalty, (2) the kinds of sentences other failed to pass the proportionality test stated in criminals were given for the same crime, and Solem. They rejected Justices Rehnquist and (3) the kinds of sentences given in other juris- Scalia's argument that the Eighth Amendment dictions. only required proportionality in capital cases. In 1991 in Harmelin v. Michigan, however, They argued it was required in all punish- the Supreme Court seemed to back away from ments. its ruling in Solem. Harmelin, an Air Force vet- For Discussion eran with no prior record, was convictedof 1.Are the decisions in Solem and Harmelin possessing 672 grams of cocaine. Under a compatible? Explain. law,he Michiganmandatory-sentencing 2. Do you think the Eighth Amendment received a sentence of life in prison with no requires sentences be proportional to the possibility of parole. This is the same sentence crime? Why or why not? that a person convicted of first-degree murder

.4., Unit 4: Corrections 183 Class Activity: Cruel and Are Federal Drug- Unusual? Sentencing Laws Unfair to Blacks? In this activity, students take part in a role play of court decision on the constitutionality In 1980, federal prisons held only 24,000 of a sentence under a three-strikes law. people. By 1996, the federal prison population 1. Ask students to imagine that a three-strikes had soared to more than 100,000. This increase law exists in their state that mandates a sen- was due mainly to the' war on drugs. In 1980, tence of 25 years to life on conviction of a drug offenders accounted for only a quarter of third felony. Under this law, any felony all federal prisoners. By 1996, more than 60 counts as a strike. percent were drug offenders. 2. Inform them that a man a has been con- Many of the drug offenders put in federal victed of breaking into a restaurant and prison were African Americans. Blacks make stealing four cookies. Since this was his up about 12 percent of the general population third burglary conviction, he was sentenced and about the same percentage of drug users. to 25 years to life. The convicted man has Yet the percentage of African Americans, appealed his sentence to the U.S. Supreme mostly drug offenders, infederal prisons Court. jumped from 30 percent in 1987 to more than 3.Divide the classinto groups of three. 40 percent in 1996. The reason for the increase Assign every student in each triad one of was a change in federal sentencing laws. these three roles: prosecutor, defense attor- In the 1980s, crack cocaine hit the streets. ney, or justice of the Supreme Court. Crack is made by cooking a mixture of water, 4. Have all the prosecutors, defense attorneys, baking soda, and powder cocaine. When the and justices meet separately to prepare for concoction dries, it becomes hard. "Rocks" thr, role play. Attorneys should think up can be,broken off and sold in small amounts their best arguments and the justices to users. Unlike powder cocaine, which is usu- should think of questions to ask each side. ally snorted, crack is smoked and quickly produces an intense high. (Powder cocaine can do 5.Regroup into triads and begin the role play. the same if it is injected.) The justice should let the defense attorney Offering a cheap high, crack quickly grew speak first and then have the prosecutor popular in inner-city neighborhoods where it speak. The justice should ask questions of was sold on the streets. Soon rival gangs start- both. After both sides present, have the jus- ed fighting over who controlled the crack trade tices move to the front of the room, discuss on different streets. Neighborhoods became the case, and vote. Each justice should individually state the reasons for his or her terrorized by these turf wars. The media filled decision. with stories of drive-by shootings and "crack babies" born addicted to cocaine. The 1986 6. Debrief by asking what were the strongest drug-related death of University of Maryland arguments on each side. star basketball player Len Bias drew further national attention to the cocaine problem. Congressrespondedbypassingthe Anti-Drug Abuse Acts of 1986 and 1988. The acts created the Office of National Drug Control Policy. Its director, commonly called the "drug czar," plans the nation's strategy in the drug war. Among other things, the acts also set harsh penalties for dealers in cocaine. The law

184 CRIMINAL JUSTICE IN AMERICA 167 American dealers were arrested and more than 80 percent of the crack dealers sentenced in federal courts were black. In the early 1980s, the sentences and time served in federal prison for blacks and whites averaged about the same length. By 1995, blacks were serving federal sentences 40 percent longer than whites. Pros and Cons This disparity has provoked debate over the fairness of the sentencing laws. Critics have questioned the wisdom of punishing crack and powder cocaine differently. They point required a mandatory minimum 10-year sen- out that both are cocaine and that powder tence without parole for those dealing 5,000 cocaine can quite easily be made into crack. grams or more of powder cocaine (about 10 Criminologist Jerome Skolnick stated: "The pounds). Those dealing 500 grams or more law is equivalent, if eggs were illegal, to pun- (about one pound) receive a mandatory 5-year ishing the possession of omelets 100 times minimum. more severely than the possession of raw eggs." Congress alsosetasimilar two-tiered Critics also argue that the law makes small- structure for crack sentences. But Congress time crack dealers suffer the same punishment believed crack cocaine to be more addictive, as higher-level cocaine dealers. Five hundred more linked to violent crime, and more likely grams of powder cocaine produces 2,500 to to be dealt in small quantities than powder 5,000 doses and has a street value of from cocaine.Itthereforesetthe minimum $32,500 to $50,000. This compares to 5 grams amounts of crack drastically lower than pow- of crack, which produces 10 to 50 doses and is der cocaine. A person dealing 50 grams (about worth between $225 and $750. two ounces) of crack receives the same 10-year- Critics further question the association of minimum sentence as a person with 5,000 crack and violence. Crack users, they argue, are grams of powder cocaine. A person with 5 no more prone to violence than powder grams (about two-tenths of an ounce) of crack cocaine users. The violence associated with gets the same 5-year-minimum sentence as a crack, they explain, comes from the drug person with 500 grams of powder cocaine. In trade. Violence of this sort, they argue, could other words, Congress seta100:1ratio be linked to any illegal drug. They point out between powder and crack cocaine. (Most state that Miami in the 1980s had the nation's worst drug laws also set a ratio between the two rate of violence, and it was linked to traffick- drugs, but none as large as 100:1.) ing powder cocaine. When Congress passed these laws, no one Finally, some critics think the laws are objected that they would affect blacks more racist. Whites commit the most drug crimes. than other groups. Because of its price, crack Yet blacks get the most punishment. was favored by inner-city, predominantly black, Supporters of the laws believe they make drug users and dealers. Police concentrated on sense. Crack, they argue, devastated inner-city inner-city neighborhoods where crack was neighborhoods. Because it was sold openly, it dealt on the street or in "crack houses" known threatened these areas. Drive-by shootings and to neighbors and police. It was more difficult gang wars erupted over control of the crack to track down white crack and powder-cocaine business. Unlike crack, cocaine was usually dealers who usually met indoors in various sold behind closed doors and therefore did neighborhoods. As a result, more African- much less harm to communities.

183 Unit 4 Corrections 185 Prisoner Profile that "there's a difference between something being mistaken and counterproductive and Location something being racist.... [T]he war on drugs 90% in state prisons 10% in federal prisons may very well be counterproductive, but no, I don't think it's racist." Gender 93% male Court Challenges 7% female Defendants have challenged the 100:1 ratio Race in federal appeals courts, but the courts have 49% black refused to overturn the sentencing laws. The 48% white Supreme Court has declined to hear any of 3% other these cases. The challenges have been mainly .Hispanic origin based on three legal grounds. 15.8% Hispanic The first is that the 100:1 ratio, in practice, 84.2%Non-Hispanic discriminates against African Americans and denies them equal protection of the law. (The Most Serious. Offense 14th Amendment prevents states from denying State inmates Violent 47% anyone equal protection. The courts have held Property 23% that the Fifth Amendment's due process clause Drug 23% requires the same of the federal government.) Public-order 7% The courts have found, however, that neither the laws nor lawmakers had a discriminatory Federal inmates purpose. Therefore the courts have held that Violent 13% the laws must simply pass a "rational basis" Property '9% test. Courts have ruled that the laws pass this Drug 60% test, because Congress had a legitimate pur- Public-order 19% pose in protecting the public against a cheap, addictive drug and it believed that the 100:1 Detail may not add to 100% due to rounding. ratio would help do this. One state court struck down its sentencing Source: "Correctional Populations in the United-States, 1996," law as violating the state's guarantee of equal Bureau of Justice Statistics (1999) protection. Minnesota law had a 100:30 powder-to-crack ratio. The court noted that the ratio affected mainly African American drug Supportersalso argue that crack isfar more addictive than powder cocaine (as the users and therefore violated the state's guaran- two drugs are usually administered). Crack tee of equal protection (State v. Russell, 1991). The Minnesota legislature rewrote the law and addicts, they say, pose special problems. Many made sentencing the same for 30 grams of commit crimestosupporttheirhabits. Pregnant addicts give birth to "crack babies," cocaine as it was for 30 grams of crack. born addicted and damaged. Supporters say The second legal argument is that the laws that crack's relatively low cost and greater violate due process because there are different addictiveness makes it more likely to spread punishments for the same drugcrack and and a greater threat to society than powder powder cocaine. Some courts have rejected this argument stating that the two drugs are differ- cocaine. Further, even some who think the laws are ent. Other courts have stated that even if they are the same drug, they differ in usage and misguided do not think they areracist. Randall Kennedy, a black Harvard law profes- effect on the user. sor, believes they are not racist because they The final legal argument is that the laws weren't passed with racist intent. He has stated violate the Eighth Amendment's ban on cruel

186 CRIMINAL JUSTICE IN AMERICA and unusual punishment. The Supreme Court cocaine and lowering the amount of powder in Solem v. Helm ruled that criminal punish- cocaine. The Clinton administration advocat- ments cannot be disproportionate to the ed a10:1ratio. Senator Spencer Abraham crime. The Third Circuit in U.S.v. Frazier, (R-MI) introduced legislation for a 20:1 ratio however, found that: that keeps the five gram level for crack cocaine "There are reasonable grounds for impos- but lowers the amount of powder cocaine to ing a greater punishment for offenses involv- 100 grams. Congress has not acted on any of ing a particular weight of [crack] than for com- these proposals. parable offenses involving the same weight of cocaine. These grounds include differences For Discussion 1. What is the 100:1 ratio? in., ..the method of use, the effect on the user, and the collateral social effects of the 2.If Congress were to equalize the crack-pow- traffic in the drug." der ratio at 1:1, what might be some rea- The Supreme Court has never heard a case sons for and against either lowering the on the constitutionality of the 100:1 ratio. But amount of powder, raising the amount of it has decided a case that charged prosecutors crack, or moving both? Explain. of singling out African Americans for prose- 3. Do you think the federal sentencing laws cution under federal crack laws. Four defen- on crack cocaine discriminate against dants moved to have their case dismissed African Americans? Explain. because all 24 crack cases prosecuted in 1991 by one office had black defendants. The trial judge ordered prosecutors to provide a list of Class Activity: The Ratio all crack cases and the race of the defendants for the previous three years.Prosecutors In this activity, students role play a con- refused and appealedallthe way tothe gressional committee deciding whether to rec- Supreme Court. In 1996 in US. v. Armstrong, ommend changing the 100:1 ratio. the court in an 8-1 decision reversed the trial 1. Form small groups. Each is a congressional judge's order. The court ruled that to prove a committee considering changing the 100:1 selective prosecution case, defendants must ratio. show that prosecutors are refusing to prosecute 2. Each group should: other cases involving white defendants. The a. Make a list of the pros and cons of statistics shown by the defendants in this case, the 100:1 ratio. said the court, proved nothing, because "people of all races" do not "commit all types of b. Decide whether or not to recom- crimes." The court pointed out that statistics mend changing the ratio. showed that more than 90 percent of all con- c. If the group decides to change the victed LSD dealers, prostitutes, and pornogra- ratio, decide what the new ratio phers were white. should be and whether to lower the amount of powder, raise the amount Congressional Action of crack, or move both. In 1995, the U.S. Sentencing Commission d. Prepare to report back its recom- recommended that the 100:1 ratio be equalized mendations and the reasonsfor to 1:1. The commission is an independent, them. permanent agency set up by Congress. It devel- 3. Have the groups report back and hold a ops sentencing guidelines for federal crimes. discussion. Conclude the activity by taking Congress rejected the recommendation. Two a vote on whether or not to change the years later, the commission again recommend- ratio. ed a change, but this time suggested a 5:1 ratio reached by increasing the amount of crack

Unit 4: Corrections 187 CHAPTER 14 Alternatives to Prison The Need for cost savings over imprisonment. But judges seldom impose fines as the sole Alternatives punishment for serious offenders, because the offenders would remain in the community Since the1970s,the public has grown with no one keeping tabs on them. So usually increasinglyimpatient with America's only low-risk offenses, such as traffic infrac- crime problem. This has led to an increased tions, many misdemeanors, and some non-vio- demand for strict punishment, tough sentenc- lent felonies, are punished by fines alone. ing, and long prison terms. More and more Fines raise two problems. The first is pure- offenders are imprisoned each year. Prisons ly a practical problem. Since most criminals and jails have filled and suffer severe over- are poor, does it make sense to punish them crowding. Because of the overcrowding, each with fines? A fine might push an offender into year federal and state governments spend bil- committing new crimes simply to pay for the lions of dollars building and staffing prisons. old one. During the 1990s, space for about 1 million The second problem is one of fairness. If new prisoners was built. Yet prisons and jails two criminals, one rich and the other poor, remain overcrowded, and more are slated to be are fined $500 for the same offense, have they built. received equal punishment? A $500 fine could Costs of housing prisoners have become create hardship on the poor criminal, but so staggering that many legislators are looking mean little to the rich one. at less costly, but effective, sentencing alterna- To balance the equation, some jurisdic- tives. Many corrections specialists insist that tions are experimenting with day fines, which community-based correctionalalternatives, are calculated on how much a person earns which are far cheaper, can be more effective each day. The penalty for drunk driving, for than prison sentences. These alternatives may example, might be 30 day fines. This would be better at helping a criminal learn how to mean that a person earning $300 per day function effectively in society. Some common would pay 30 times $300, or $9,000. A person alternatives are fines, probation, community- earning $40 per day would pay 30 times $40, or service programs, andsupervisionina $1,200. But this method also raises questions halfway house. of fairness: Why should two people who commit the same act be fined such different Fines amounts? The Supreme Court has made one impor- Imposed in about three-fourths of all tant ruling on the fairness of fines. Judges cases, fines are the most common punishment commonly used to issue alternative sentences, inflicted on convicted offenders. They can be such as 30 days in jail or $300 in fines. In the imposed along with other punishments, such 1971case of Tatev.Short,a unanimous as probation or prison, or as the sole punish- Supreme Court ruled these alternative sen- ment. If a fine is the only punishment, the tences unconstitutional. The court stated these offender can continue living at home without sentences violated the equal protection clause supervision and the government will get some of the 14th Amendment, because they forced additional money. As such, fines offer clear the poor into jail while permitting the rich to pay their way out.

188 CRIMINAL JUSTICE IN AMERICAEU. States, spent about.$22 billion: on prisons in fiscal year 1996. The average annual operating eXpenditure per inmate was $20,100.

Operating expenditures $20.7 billion 94%

Salaries and wages 10.8 49

Employee benefits- 3.0 14

Other 6.9 31

Capital expenditures 111. $1.3 billion 6% Construction II 0.8 4

Equipment I 0.3 1

Land I 0.2 1

Total $22.0 billion 100%

Source: "State Prison Expenditures, 1996," Bureau of Justice Statistics (1999

For Discussion a. Make a list of the pros andcons of 1.In what circumstances do you think fines such a proposal. are appropriate punishment? When would b. Decide whether or not torecom- they be inappropriate? Explain. mend the proposal. 2. Do you think fines could substitute for c. Prepare to report back its recom- imprisonment in some cases? Why or why mendation and the reasons for it. not? 3. Have the groups report back and holda 3. What are day fines? What problem do they discussion. Conclude the activity by taking address? Do you think they are a good idea? a vote on whether or not the class favors Why or why not? the proposal. 4. Do you agree with the Supreme Court's decision in Tate v. Short? Why or why not? Probation Probation is from the Latin wordto prove. An offender sentenced to probation is allowed Class Activity: One Fine to return to the community, but must regular- Day ly prove that he or she meets certain condi- Some criminal justice experts recommend tions set by the court. Thecourt retains the using day fines for most non-violent offenses. authority to cancel probation and imprison In this activity, students role play advisers toa the offender if the conditionsare violated. governor considering instituting a comprehen- Probation was developed in the mid-1800s sive day-fine program. asa humanitarian measure to keep petty 1. Form small groups. Each is a group of offenders away from the corrupting influence advisers to the governor who is considering of prisons. By 1925,every state offered proba- introducing legislation making day fines tion for juveniles, but itwas 1956 before every the only punishment for first and second state offered it for adults. offenses of non-violent crimes. Probation only works well if itis combined with effective supervision. Offenders 2. Each group should: must re ort on a regular basis to a probation .1 2 Unit 4: Corrections 189 officer to make sure they meet all the condi- ations and dangers of jail. This form of moni- tions set by the court. Originally the probation toring can also be combined with community officer was a judge or a citizen volunteer. Early service or other forms of community-based in the 20th century, however, supervising pro- corrections. Some experimental programs also bation became a career in itself. use the tracking device to monitor those await- Individuals interested in becoming proba- ing trial for minor crimes. tion officers often take college degrees in social A few critics have objected because elec- work, with special classes in criminology and tronic monitoring is usually reserved for mid- corrections. Some probation officers also take dle-class offenders, at least in part because the classes in psychology and therapy to help poor cannot afford to pay the daily charge for offenders with their emotional problems. the transmitter. Some of the experimental pro- -Recent probation theory emphasizes the grams address this problem by offering the need to establish strong links between the device for free to those who cannot pay. Most offender and the community. Family, school, states now have experimental programs of business, and church connections help an high-tech house arrest for their non-violent offender feel part of a community. These ties criminals. Because it is cheaper than jail time make a return to criminal behavior much less and relieves jail crowding, it seems likely that likely. Unfortunately, many probation depart- this practice will become more common in the ments, like other government agencies, lack future. sufficient resources and personnel. As a result, Who Should Be Placed on many probation officers must handle high caseloads, making adequate supervision diffi- Probation? cult. There is general agreement about the criteria that should be used in deciding whether High-Tech House Arrest an offender should be placed on probation. In recent years, courts have begun to The following is a list of factors that might be experiment with house arrest for non-violent used by a judge to help identify likely candi- criminals. Offenders are required to wear small dates for probation: radio transmitters to monitor their activities a. The defendant did not cause or threaten and location, usually to make sure they remain serious harm. at home when they are not at work. So far, this b. The defendant did not intend to cause or has only been imposed on a voluntary basis, as threaten serious harm. an alternative to imprisonment. The offender must wear the transmitter on c. The defendant acted under a strong provo- an ankle or wrist strap. In some systems, the cation. device broadcasts continuously to a second d. Some factors tend to excuse or justify the unit on the telephone, and this unit tells the criminal conduct. probation department immediately if the e. The victim contributed in some way to the offender leaves home. In other systems, the commission of the crime. offender is telephoned at random times and f.The defendant has agreed to compensate must verify being home with a tone from the the victim. device. Electronic house arrest costs less than $10 g.The defendant has no recent history of per day to monitor each device, compared to prior delinquency or criminal activity. about $100 a day for jail time. In addition, the h. The criminal conduct was the result of cir- offender is usually required to pay between $10 cumstances unlikely to occur again. and $20 a day. Some advantages for the pris- i.The defendant's character and attitudes oner are obviousstaying at home, being able show that he or she is unlikely to commit to continue in a job, and avoiding the humili- another crime.

190 CRIMINAL JUSTICE INAMERICA I 3 The defendant is likelyto benefit from pro- bationary treatment. Askan Expert k. The imprisonment of the defendant would Interview a probation officer inyour commu- cause excessive hardship to the defendant nity:: To find one, consult thegovernmental or his or her dependents. liktirigs in your phone bookor contact your lot:it:court. Find For Discussion out about yourjurisdiction's pro, on procedures and 1. What aresome advantages in granting administration.For pro- example,you might ask: bation to an offender?What are somepos- flow sible disadvantages? are probation servicesorganized in your jurisdiction? 2. What aresome qualities that it would be ..,What is helpful for a probation officerto have? the averagecaseload ofa probation .officer? 3. Do you think high-techhouse arrest should be used more commonly?Why or why not? Nhat percentage ofoffenders successfully complete:: their If you agree that it should beused, for what probation? Howdoes' this crimes is it best suited? -..i:omparetoother jurisdictions? 'What is the 4. Which of the factors foridentifying likely typical day ofa probation officer like? candidates for probation doyou think are most important? Least important? Why? What conditions are most important forsuc- cessful probation? What are the biggest challenges tosuccess- Class Activity: WhoGets ..ful probation? Probation?

In this activity, studentsdecide whether Cases convicted offenders should beplaced on pro- A. Art Lewis, while setting off bation. fireworks in a wilderness area, starteda fire which burned 1.Break into smallgroups. down a U.S. Forest Serviceutility shed and 2. Each group should: destroyed a bulldozer. He hasno prior criminal record. a. Review the list of factors foridentifying likely candidates forproba- B. Barbara Keanewas convicted of pickpock- tion. eting. She hasone prior conviction for prosti- b. Assign two or three of the factorsto tution. She has paid back themoney she took each person. and has become activelyinvolved in church c. Discuss the cases below,one by one. charitable work. For each case, have eachperson in C. Carol Doepelwas convicted of the the group say whether hisor her attempted murder ofa co-worker. Though she assigned factors applyto that case. has no prior criminal record,she has been Then discuss whether thefactors fired from three jobs forassaulting employees. apply or not. She is currently undergoingtherapy. d. For each case, decide if theoffender D. David Perkins should be placed was convicted of embez- on probation and zling $20,000 from his employer. why Twenty years ago, he served one year in prison for forgery. 3. Reassemble the class and havegroups Since that time, he has raised report their answers and the a family and has reasons for been active in community-servicework. them. Students shouldcompare their decisions with those from othergroups. A "s

Unit 4 Corrections 191 Revoking Probation The probation officer is an agent of the court who monitors the activities of probationers offenders on probation. For probation to be effective, probation officers must carefully supervise offenders. Unfortunately, budget constraints often require probation officers to take on heavy caseloads. Officers usually require probationers to report regularly and they sometimes make surprise spot checks of probationers' condition, activities, and whereabouts. 7. Submit to periodic drug testing. If a probationer violates the terms set by 8.Possess no blank checks, write no checks, the court, the probation officer has two choic-choic- and have no checking account. es. The officer may issue a warning, or ifi the 9. Do not gamble, engage in bookmaking, or violation is serious enough, the officer may possess gambling paraphernalia, and do order the probationer back to court for a pro- not be present in places where gambling or bation revocation hearing. bookmaking goes on. At a revocation hearing, the judge decides 10. Do not associate with certain named per- whether to continue probation or revoke it. If sons. probation is revoked, the probationer is usually fined or imprisoned. Sometimes, a judge 11. Cooperate with the probation officer in a will continue probation but add new, stricter defined plan of behavior. conditions. 12. Support dependents. Conditions of Probation 13. Seek and enroll in schooling or job train- When an offender is convicted and placed ing as approved by the probation officer. on probation, the judge almost always sets a 14. Maintain a steady job. number of conditions of probation. These 15. Stay at a residence approved by the proba- conditions limit the offender's behavior, and tion officer. they are often related to the offender's crime or criminal inclination. Below, you will find a 16. Perform a certain amount of community list of the kinds of conditions of probation a service each month. criminal court judge might set depending on 17. Submit to a 10 p.m. curfew. the crime. 18. Surrender any driver's license to the court 1.Spend a short time in the county jail before clerk to be returned to the Department of probation begins. Motor Vehicles. 2. Pay a specified fine, plus a penalty assess- ment. 19. Do not drive a motor vehicle unless lawful- ly licensed and insured. 3. Make restitution of a specified amount to the victim through the probation officer. 20. Do not own, use, or possess any dangerous weapon. 4. Do not drink alcoholic beverages and stay out of bars. 21. Submit to search at any time of day or 5. Do not use or possess narcotics or associ- night by any law enforcement officer with ated paraphernalia, and stay away from or without a warrant. places where drug users congregate. 22. Obey all laws, orders, rules, and regulations 6. Do not associate with persons known by of the Probation Department and of the the defendant to be drug users or sellers. court. 0,J 192 CRIMINAL JUSTICE IN AMERICA Class Activity: Probation 4. The public defendermay call Lee Miller to testify. If this happens, the judgemay Revocation Hearing also ask questions. In this activity, members of the class role 5. The judge may ask the probation officer play a probation revocation hearing. At the questions at any time. conclusion of the role play, the class will 6. The public defender should close by decide whether probation should be revoked in summarizing the arguments against the case presented. revoking Lee Miller's probation. 1.If possible, invite a probation officer, crim- 7.The judge should then ask the probation inal lawyer, or judge to help you conduct officer to summarize thearguments in and debrief this activity. Ask theguest to favor of revoking probation. If there is compare the procedures in this activity more than one probation officer, both with those followed in your jurisdiction. should participate. 2. Divide the class into groups of four. 8.Finally, the judge decides whetherto 3. Each group should: revoke Lee Miller's probation. Referto a. Assign students the following roles: the alternatives listed in the judge's role description in the next section. judge,probationer(namedLee Miller), probation officer, and pub- Role Descriptions lic defender. Assign any remaining studentsasadditional probation Probationer Lee Miller. You feel that cir- officers. cumstances forced you to violate the condi- b. Read and study the probation report tions of your probation. Consequently,you on pages 194-195 and the description feel your probation should not be revoked. of the roles. (As a option, students Talk with the public defender who isrepre- can prepare for their role by meeting senting you and discuss thestrategy you with those in other groups who are should follow at your hearing. Decide with playing the same role.) the public defender whetheryou should take the witness stand and testify c. When ready, conduct the probation on your own revocation hearing with members of behalf, but remember that this will subject the group, using the Procedures for you to cross-examination by the judge. You have the right to remain silent if Revocation Hearing, below. you wish. 4. When you are finished with the simulation, Public Defender. You represent Lee Miller reassemble the entire class. Judges from at the probation revocation hearing. Discuss each group should announce their deci- with your client the strategy to follow in sions and the reasoning behind them. Ask attempting to convince the judge notto any guests how these simulated decisions revoke probation. Decide whether to call the compare to actual decisions. Debrief the probation officer to the witness stand in activity with the questions on page 195. order to cross-examine the officer'srecom- mendations about revoking probation. Also, Procedures for Revocation Hearing decide whether your client should take the 1. The judge opens the hearing and asks if all witness stand to testify. Your client has the parties are present and ready. right to remain silent, but if the client does 2. The judge asks the public defender topres- testify, the judge may also ask questions. ent the probationer's case. Probation Officer. You are Lee Miller'spro- 3. The public defender may cross-examine the bation officer. You have written the proba- probation officer. tion report on pages 194-195. This will be the focus ofr this hearing. Ifyou are called to .1,V4 Unit 4: Corrections 193 PROBATION REPORT

Name of Probationer: Lee Miller Age:38 Marital Status: Divorced Occupation: Assembly line worker Employer: United Radio Company

Current Conviction

1. Probationer Lee Miller was convicted two months ago of manslaughter. Probationer Miller, while driving an automobile under the influence of alcohol, struck and killed a 5-year-old girl. 2. Sentence: One year in county jail (suspended), $1,000 fine, placed on two-year formal probation. 3. Conditions of probation: a. Probationer must pay the fine within six months. b. Probationer must not drink any alcoholic beverages and must stay out of places where they are the chief items of sale. c. Probationer must cooperate with the probation officer in a plan for commuting without the use of a motor vehicle. d. Probationer must provide $300 per month toward the support of the dependent daughter Maria, now residing with the grandmother. e. Probationer must maintain employment with United Radio Company. f. Probationer must maintain residence at current address, as directed by the probation officer. g. Probationer must surrender driver's license to the clerk of the court to be returned to the Department of Motor Vehicles. h. Probationer must obey all laws, orders, rules, and regulations of the probation department and of the court. i.Special condition: Probationer is not to drive any motor vehicle during the period of probation.

Probation Violation Report

1. Two weeks ago at 7:55 a.m., probationer Miller was stopped for speeding and driving erratically by a highway patrol officer. The officer administered several field tests for drunk driving and concluded that probationer Miller may have been driving under the influence of alcohol. Probationer Miller was arrested and taken to a local highway patrol station where a chemical test for alcohol consumption was administered. The result of this test showed no indication of alcohol. Probationer Miller was cited for speeding and driving without a license, then released. Probationer reported the violation and admitted that he had a couple of beers the night before with a friend.

2. Probation Violations: a. Probationer Miller drank an alcoholic beverage. b. Probationer Miller drove an automobile without a license, and violated the speed law. c. Special condition: Probationer Miller drove a motor vehicle during the period of probation.

(Continued on next page)

194 CRIMINAL JUSTICE IN AMERICA la (Probation Report continued...) Statement of Probationer

I admit that I drove an automobile and was speeding in violation of my probation. But I reported these violations myself to my probation officer within 24 hours of the incident. I admit that I had a couple of beers the night before, but only in my own apartment. A friend had come over to spend the evening, and brought some beer. But I was asleep by midnight.

I overslept the next morning and had to get to work in half an hour. I have been taking the bus to work, but this takes an hour. I decided to ask a neighbor ifI could borrow his car so that I could get to work on time. He said it was okay to take the car.

I already had been late to work two times this month. So I was speeding and moving in and out of lanes to get to work on time. I was afraid that ifI lost my job I would not be able to make support payments for my daughter and pay off my fine to the court. Both are conditions of my probation.

As it turned out, I was half a day late for work, but my boss listened to my story and decided to give me one more chance. I believe that I have learned my lesson from this, and promise to strictly follow my conditions of probation in the future.

Recommendations of Probation Officer

Probationer Miller seems to mean well but also appears weak-willed. I recommend that the probation be revoked and the suspended one-year county jail sentence be imposed.

END

testify, you should defend your recommenda- Debriefing Questions tion that Miller's probation be revoked and 1. Did some judges decide differently from that the one-year suspended jail sentence be others? If so, how do you account for these imposed. differences? Judge. You were the trial judge at Lee Miller's 2. Assume thatthere was a great deal of pub- trial.After the conviction, you sentenced licity surrounding Lee Miller'soriginal Miller to a one-year county jail term. Then you manslaughter trial and that many people in suspended the sentence and placed Miller on the community were angry because Miller probation. Today, you must decide what to do was placed on probation rather than being in view of the probation violations. Your alter- sent to jail. Do you think the judge's deci- natives are as follows: sion should be affected by community feel- 1.Continue the probation under the existing ings of this sort? Why or why not? conditions. 3. Howis the probation revocation hearing 2. Continue probation with additional condi- different from a trial? How is it similar? tions that you will impose. 4.In your opinion, is the probation revoca-

3.Revoke probation and impose the one-year tion hearing a fair way to decide whether sentence. probation should be revoked? Why or why not?

Unit 4: Corrections 195 193 the assigned work, such as cleaningup graffiti, is directly related to the kind of crimecom- mitted. The Los Angeles County System Los Angeles County has developed a broad system for referring offenders convicted of misdemeanors to community-service agencies. Thissystem,calledthe Court Referral Community Service Program, involves the . cooperation of three groups: 4,C Add 1. Municipal court judges who agree to refer a, some misdemeanor offenders to community service instead of imprisonment or other punishment. In May 2000, former Obonpic figure skater Tonya 2. Community agencies that need volunteer Harding used a weed trimmer as she performed help. These agencies include hospitals, the community service work at the Camas Cemetery in YMCA and YWCA, the Red Cross, suicide and Washington. This was part of her punishment for a rape-crisis centers, teenage hot lines, alcohol disorderly conduct charge. and drug-abuse clinics, and many other community-based agencies that depend heavily on Community Service volunteers Probation is only one possible alternative 3. Volunteer Action Centers (VACs). A coun- to imprisonment. Another increasingly com- ty-wide system of these centers was in existence monalternativeiscommunityservice. before the court referral program. The VACs Community service can benefit both the act as clearinghouses for anyone wishing to do offender and society as a whole, as demon- volunteer work. They regularly contact com- strated by the following examples. munity agencies to create lists of volunteer Chris Lester, 18, was convicted of destruc- positions that need to be filled. The courts tion of public property after he vandalized his asked the VACs to begin placing referrals from school. Because this was his first offense, the the court system alongside their regular volun- judge did not think that a jail sentence was teers. The VACs help find useful jobs in many necessary. Instead, the judge fined him $1,000 community agencies for non-violent offenders. and required him to clean graffiti off the walls The Case of Cory Baker of public buildings. Cory Baker, age 40, was speeding in a Albert and Miriam Johnson, a husband school, zone. He struck a car and injured a and wife, were convicted of criminal child neg- child. Just before the accident, Cory had lost lect. Because of their religious beliefs, the cou- his job as a carpenter on a construction proj- ple kept their son away from medical care ect. In municipal court, Cory was convicted of when he was very ill. As a result, the boy near- speeding and reckless driving. ly died. The judge sentenced the couple to do Instead of sentencing Cory tojail or volunteer work at a nearby state hospital. requiring him to pay a large fine, the judge The community-service approach to sen- instructed him to do 40 hours of work for tencing is generally limited to people who have some community-service agency. The court committed non-violent crimes. These can referred Cory to a nearby volunteer action include traffic offenses, public drunkenness, center for placement with a community drug abuse, and white-collar offenses. Often, agency.

196 CRIMINAL JUSTICE IN AMERICA 1 9 Within a week, Cory had made an 2. Should community-service sentencing be appointment for an interview at a local VAC available to convicted adult felons? To juve- office. He was asked about his skills and inter- nile criminal offenders? Why or why not? ests, and about his willingness to do volunteer 3. What might be some problems in expand- work. Cory said that he was happy to become ing community-service sentencing to those a court-referral volunteer. convicted of violent crimes? The VAC interviewer then showed Cory a list of volunteer jobs near his home. Cory noticed that several agencies needed skilled Community Corrections workers, including carpenters. He chose the George Henry Home for Boys, a private group Community-service referrals provide one home for delinquent boys. alternative to prison that can help offenders Next, Cory scheduled an interview with develop roots in their communities rather the George Henry Home. The director of the than pushing them away or locking them out. home was satisfied with Cory and promptly There areseveral other programs such as put him to work. halfway houses and treatment centers that can Cory worked at the George Henry Home offer similar benefits. These are often called for about five hours a week for two months. community correctional programs, and they During this time, he got to know many of the can help offenders such as the following: boys, and he showed some of them how to do Rudy was lonely, bored, and 19. He got basic carpentry. Cory's work impressed the talked into something he didn't want to do. At director and staff at the home. After he had a friend's urging, he helped steal a late-model put in his 40 hours of referral volunteer work, Mercedes-Benz from a shopping-mall parking Cory was asked to continue at the home as a lot. Caught only a few blocks away, he is now paid worker. Cory accepted and was hired to awaiting sentencing for grand theft auto. set up a carpentry shop for the boys. Anna has completed more than two years of a three-year sentence in prison for passing Does It Work? bad checks. This was her second offense. She Not all court-referral volunteers are as for- wants to get out, but she is a little frightened. tunate as Cory Baker. Nevertheless, most do She wonders what might happen if she can't have a positive experience. As one Los Angeles make it. Without support, will she be tempted Municipal Court judge noted: to pass bad checks again? She worries whenev- "Community service... canwork won- er she thinks about going out on her own. ders. That's the beauty of it. Oftentimes, per- Both Rudy and Anna might benefit from sonal stress is the reason the people are here in a community correctional program. Rudy is the first place. If the man gets involved in help- not a hardened criminal, and he may only ing others, he is helping himself as well." need help learning how to funnel his energies Some critics of this form of sentencing say into positive activities. Anna, too, wants to that it is too soft. They call for stronger pun- make a go of her life. To make the transition ishments such as prison terms. In response to out of prison, she needs to live in a structured such criticism, a federal judge said, "We have environment for a time to give her direction toexaminetheoverallpublicinterest. and support. Warehousing' criminals in prison has not been successful.It just spawns more crimi- What is a Community Correctional nals." Program? Community correctional programs are For Discussion based in local facilities such as halfway houses, 1. Do you approve or disapprove of commu- community treatment centers, residential care nity-service sentencing? Why or why not? facilities, and group homes. Local centers offer 200 Unit 4: Corrections 197 A director at a halfway house in Columbia, Missouri, leads a group discussion on making the transition from prison to freedom. individualized care and supervision for those our example above), in the last few months of who would benefit from such aprogram. This their term who are judged a low risk of return- approach can involve the community more ing to crime. directly in dealing with problems of crime. Some pre-release programs operate busi- Most prisons are run by state and federal nesses, providing both income and work expe- agencies. And most jails, though they are local- rience for the residents. Others simply provide ly run, are largely intended to hold people who a home and supervision, and the residents are are awaiting trial or have been given fairly allowed to leave during work hours to go to short jail terms for misdemeanors. They offer jobs in the community. As residents demon- few opportunities for counseling, rehabilita- strate more responsibility, they are granted tion, or job training. Advocates of community more privileges and independence. Gradually, corrections argue that most of our criminal offenders assume complete responsibility for justice system isalready locally basedthe their everyday activities and are ready to re- police, courts, prosecutors, and public defend- enter the community. ersso there should be local responsibility and control in the correctional system as well. Beyond Pre-Release Programs Thecommunity-correctionsapproach In 1974, Minnesota put into practice a began in the early 1970s. Since then,some Community Corrections Act. This act extend- states have tried to divert a large percentage of ed the state's community corrections beyond state and county prisoners into correctional pre-release halfway houses. Minnesota's goal programs located closer to their home com- was to divert all but the most serious offend- munities. Community facilities can providea ers into programs in their home communities. supervised environment for troubled juveniles, The state set up an extensive community sys- non-violentoffenders, and some prison tem that accepts many of its offenders into inmates who are ready to start taking steps programs immediately after sentencing. Those back into society. offenders never see the inside of a prison. Pre-Release Programs Goals of Community-based Some of the first programs developed byCorrections the community-corrections movementwere The overriding goal of any community halfway houses. Theseserve as way stations in corrections program is to guide ex-offenders helping prison inmates re-enter society. The back into the community and help them Federal Bureau of Prisons and most statecor- develop positive, law-abiding lifestyles. This rectional systems offer pre-release programs. process works best under the supervision of They are mainly for prisoners, like Anna (from professional counselors who can offer support and guidance.

198 CRIMINAL JUSTICE IN AMERICA 2 0 Many offenders may need family, child, Habitual and Violent Criminals and marriage counseling. Others need legal Certain types of criminals pose further counseling. Ex-alcohol and drug abusers often problems. Halfway houses require a certain face severe temptation and require counseling minimum level of cooperation and social and supervision. Offenders who want to go behavior. Habitual lawbreakers often cannot back to school can discuss their plans -with meet that standard. They have always livedin a educational counselors. Some may choose job criminal culture, and they commonly reject training. Others simply need a therapist or opportunities to explore and develop new support group to discuss their problems. community contacts. Group support can be very important. In addition, there is a constant fear that Wily offenders identify best with people who offenders with records of violent behavior will have similar backgrounds and with people who not change. They might harm innocent com- have themselves overcome criminal attitudes munity members while staying in a halfway and behavior. house. Some programs simply refuse to admit The community facilities often look a lot criminals with histories of violence. like ordinary neighborhood homes and apartment buildings. They blend in, rather than Community Attitudes When an old home or apartment building stand out. Residents have their own bedrooms. is converted into a halfway house, nearby resi- Some have roommates. They share cooking dents often fear a wave of crime will sweep and cleaning responsibilities, much like a large their neighborhood or that property values family. Residents are encouraged to develop a will decline. Residents predict that homes will closeness that offers emotional support, com- be burglarized, women raped, automobiles panionship, and shared responsibility. stolen, and eventually, property values low- Obstacles to Community Corrections eredall because convicts live in the neighbor- There are obstacles facing community- hood and come and go as they please. Fear based correctional programs. These obstacles drastically multiplies if a halfway house resi- many deep-rooted in thecommunity itself dent does in fact commit a crime in the neigh- keep state, county, and federal correctional borhood. These fears are often reinforced by administrators from transferring all eligible feelings that halfway houses are soft on crimi- prisoners into community programs. They nals and don't punish their residents enough. include funding, habitual and violent crimi- These are serious problems. To work prop- nals, and community attitudes. erly, community-based corrections need to win the support of the community. And the facili- Funding ties need to be highly structured, supportive Operating the nation's prison system now environments with frequent counseling and costs about $40 billion a year, involving tens training and effective supervision. For all their of thousands of administrators and correc- good intentions, community facilities must tional officers. To divert a large percentage of not endanger their neighborhoods. the nation's prisoners into community correctional programs would require a tremendous For Discussion restructuring and rechanneling of funds. This 1. What are some of the advantages of com- would require a fundamental and wrenching munity-based corrections programs? What reform of a correctional system that is over 100 are some disadvantages? years old. Many peopleworking in the correc- 2. What types of offenders do you think com- tional system would resist such sweeping munity-based corrections are appropriate changes. for? Inappropriate for? Why?

Unit 4: Corrections 199 Class Activity: Halfway House Ask an Expert Many communities haveekconvict self help If a halfway house were proposed foryour groups. If there is such a group in your com- neighborhood, would you support it? Would munity, ask if it would provide speakerS to your neighbors? In this activity, students role your Class. Questions to.aSk the. visitor might play acity council hearing determining include: whether to grant a zoning variance that would What are conditions:like in:prison? What allow a halfway house to be placed ina partic- was the hardest part of prisonlife?..,. ular residential neighborhood. 1.In thisactivity, a non-profit group has Did your experienceS ?help you, adjust to opened a halfway house that treats drug life after you were released ? lf.so; hOw? offenders referredtoit by the courts. If not why Neighbors learning of the halfway house What was the hardest...aspect about your objected to its presence and went toa adjustment to freedom DrIce-,you,..were lawyer. The lawyer learned that zoningreg- released from prison? ulations for the neighborhood allow only Do you know about :pre-release: or five unrelated persons in a single dwelling. halfway house programs? Did youpar- The purpose of these regulations is topre- serve parts of the city for family homes. ticipate in one? If so, what wereyour The non-profit has requested that the city experiences? council grant a zoning variance (anexcep- Do you think that a community correc- tion to the regulation). tions program is helPfUl to.the 'Offender 2. Divide the class into three groupscity or community? Why or why..not?, council (seven members), residentsoppos- How do you feel society should deal with in6 the halfway house (half the remaining the criminal offender? students) and people from the non-profit and other parts of the community who favor the halfway house (other half of the 4. Whenthe hearing begins, the chairperson students). should state the issue to be decided and call alternately one person in favor andone per- 3. The three groups should meet separately. son opposed to the variance. After all six Those favoring and opposing the variance people have spoken and been questioned by should develop arguments supporting their the council, the council shouldvote. position. They should each pick threepeo- ple to speak at the city council hearing. The 5.Debrief the activity by asking how realistic city council should develop questions to students think the fears expressed by the ask the opposing sides. It should also select residents in the role playare. a person to chair the hearing and one member to represent the neighborhood (the other six members represent other parts of the city).

203 200 CRIMINAL JUSTICE IN AMERICA CHAPTER 15 Prisons Today

The vilest deeds like poison weeds wing, which also can be shut down separately. is Bloom well in prison air: The prisoners wear drab uniforms and each It is only what is good in man assigned a number. They are given little oppor- Even That wastes and withers there. ... tunity to associate with one another. tighter security exists for prisonersawaiting Oscar Wilde, from The Ballad of Reading Gaol capital punishment on death row, a separate (1898) cell block of a maximum-securityprison. About 40 percent of all prisoners residein Prison in America maximum-security prisons. Medium-security prisons aretypically 'Today in the United States, there areabout smaller versions of maximum-security prisons. 1 2 million people behind bars. The more They do, however, allow prisoners a greater than 1,000 state and federal prisons holdabout degree of freedom. They are permitted,for two-thirds of them. More than 3,000 county example, to use the library, exercise yard, and and municipal jails hold the other third.Some showers with fewer restrictions. At specific prisons may be well-designed, progressiveinsti- times each day, however, they must be intheir tutions, but far too many areovercrowded, cell or assigned place for the day'sheadcount, filthy, and brutal. Some have becomenotori- which can take place up to four times aday. ous for extortion,violence, homosexual rape, About 40 percent of all prisoners are inmedi- and vicious racial gangsa virtual hellof fear um-security prisons. and savagery. Minimum-security prisons can be far dif- At their best, our prisons can providewell- ferent. They usually allow prisoners to roam planned opportunities for education and voca- within the confines of the prison. Somehave tional training, but at their worst, theyoffer dormitory rooms and others haveprivate little more than a few hours a day out ofthe rooms instead ofcells. Prisoners usually wear cell to stand around in a crowded prisonyard. uniforms, but some prisons allow inmates the More than half of all prison inmates areidle freedom to choose their own wardrobe. for most of the day. The former headof the In the federal prison system, the threelev- Federal Bureau of Prisons has said, "Idlenessis els of prisons carry different names.High- the most serious problem in virtually every securityprisonsareU.S.Penitentiaries. penal institution." Medium-security prisons are known as Federal Correctional Institutions. Minimum-security Security Levels prisons are called Federal Prison Camps. Prisons typically fall into three security levels. Maximum-security prisons are usually Super-Maximum-Security Prisons large institutions holding several thousand To hold the most dangerous prisoners, prisoners. High fences (sometimes electrified), super-maximum-security prisons have been thick walls, and guard towers separate thepris- developed. The practice dates back to 1934, oners from society. Inside,armed guards watch when the federal government started Alcatraz. over prisoners, who livein spartan cells. A Known as the Rock, the penitentiary was locat- group of cells make up acell block, which can ed on a small island in San Francisco Bay.The be locked down from other cell blocks.In large treacherous ocean currents made escape all but prisons, several cell blocks make up aprison impossible. A small prison, Alcatraz housed in r),i v Unit 4: Corrections 201 single cells about 300 of themost hardened federal prisoners. Noone is known to have escaped and survived. Of the 14escape attempts made, prison officials captured all but five inmates, who remain missing andare presumed drowned. When Alcatraz closed in 1963,a new U.S. Penitentiary openednear Marion, Illinois. At first, prison officials didnot use this prison to replace Alcatraz. Withina few years, however, officials started transferring theworst federal prisoners to Marion and turned it intoa super-maximum-security facility. Prisoners Located on a small island in San Francisco Bay, were kept in individual cells. During the few Alcatraz was the first super- maximum security hours each week that they left their cells, they prison. wore handcuffs and sometimes leg shackles. In 1994, the federal government openeda plaints against them. Jenni Gainsborough, newsuper-maximum-securityprisonin Florence, Colorado. It holds about 500 prison- public policy coordinator for the National ers, each in a separate cell and isolated from Prison Project of the ACLU, has stated: "There other prisoners. Every cell hasa bed, stool, toi- is tremendous potential for abuse in these let, sink, and shower. A small black-and white- placesthe isolation, the weapons, the lack of television in each cell can deliver orders from any clear independent oversight. And the mental effect on people, particularly those who guards. The only view outside the cellis through a tiny window showing the sky. The come in with mental problems, can be horri- plumbing is flood-proof; the bedding, fire- fying." In 1994, several prisoners broughta proof. The furniture is made ofcement and successful class-action suit against thesuper- cannot be moved. Prisoners get their meals maximum-security wing at Pelican Bay. A fed- through a slot in the door. They leave their eral trial judge in Madridv. Gomez upheld sev- cells a couple timesa week to exercise alone in eral allegations of brutality by guards and wire cages. Guards watch the prisoners through ruled the prison could not hold inmates with almost 200 videocameras and can control mental illnesses in isolation. 1,400 gates electronically. Escape is almost Poor Prison Conditions impossible. One of the biggest prison problems is Many states have started buildingsuper- overcrowding. California prisons, for example, maximum-security prisonsor adding them as are operating at almost double their capacity. wings to other prisons. California's Pelican In fact, the federal prison system andmore Bay State Prison, locatednear the Oregon bor- than half of all state prisonsare running over der, is an example. One wing holdsabout 200 capacity. In some cases as manyas 11 prisoners minium-security prisoners. Another holds areheldincellsdesignedforfour. 2,000 in maximum-security. A third wing Overcrowding can lead to discipline problems, houses 1,500 prisoners in super-maximum- unrest, unhealthy conditions, and far too security. Prisoners in the super-maximum-secu- often, violence. rity wing live alone in windowlesscells that The following prison conditionswere they seldom leave. described in the 1978 Supreme Court decision Because they lock up the most dangerous of Hutto v. Finney: offenders, super-maximum security prisons The ordinary Arkansas convict hadto enjoy widespread support from the public. But endure..."a dark and evil worldcom- several human rightsgroups have lodged corn- pletely alien to the free world . . . ."

202 CRIMINAL JUSTICE IN AMERICA 2 05 Confinement in punitive isolation wasfor In most states, the 1980s saw a surgeof keep pace an indeterminateperiod of time. An aver- new prison construction to try to prisoners. age of four,and sometimes as many as 10 with the increasing number of Building prisons became a $17 billion a year or 11, prisoners werecrowded into window- less 8' x 10' cells containing nofurniture industry. A new prison could cost as much as other than a source of water and a_toilet $70,000 per cell to build, and annual costs rose that could only be flushed fromoutside the to about $20,000 to guardand house each prisoner. Some prisonauthorities were pleased by cell....At night the prisoners were given mattresses to spread on thefloor. Although the court actions since the judicial orders some prisonerssuffered from infectious forced reluctant state legislatures to appropri- diseases, such as hepatitis and venerealdis- ate funds. ease, mattresses wereremoved and jumbled In 1981, however, the U.S. Supreme Court together each morning, then returned to seemed to back away from further prison at random in theevening. reform. The court decided the case of Rhodes v. thecells of Prisoners in isolation received fewerthan Chapman, which had raised the issue 1,000 calories a day; their mealsconsisted whether confining two prisoners in a cell built primarily of four-inch squares of "grue," a for one violated the Eighth Amendment. The substance created by mashing meat, pota- court ruled that it did not.Voting 8-1, the jus- itself toes, oleo, syrup,vegetables, eggs and sea- tices held that overcrowding does not in soning into a paste and baking themixture violate the Eighth Amendment, if overall in a pan. prison conditions meet contemporary standards of decency. Justice O'Connor wrotefor federal Beginning in the late 1970s, the the majority that "harsh conditions" arethe upgrade judiciary began ordering states to price of crime and the Constitutiondoes not their prisons and reduce overcrowding.Cases require comfortable prisons. The court seemed that brought by public-interest lawyers charged to be saying it had goneabout as far as it inmates in the most dangerous and over- would go in ordering reform. Federal courts, "cruel crowded prisons were being subjected to however, still can demand changes to prisons by the and unusual punishment" as forbidden where overcrowding causes dangerous,unfit Eighth Amendment of the U.S. Constitution. conditions. In several cases, the SupremeCourt agreed. It held that the EighthAmendment Private Prisons prohibits penalties that "transgresstoday's Since the 1980s, some states have turned to broad and idealistic concepts ofdignity, civi- private industry to help reduce prison over- lized standards, humanity anddecency." crowding. Private security firms have gone into (Estelle v. Gamble, 1976.) the prison business, in some cases contracting Some federal courts imposed rigiddead- to operate existing prisonsand jails, and in lines to end overcrowding. Thesedeadlines had others, building new prisons for the states.In short-term and long-term effects. In Alabama, several cases, private operators have built pris- for instance, some 200 prisoners werereleased ons hoping to get a contract tohold prisoners. well before the end of their sentences tosatis- Private prisons now exist in more than 30 fy a federal court order. Texas wasrepeatedly states, and hold about 1 percentof the prison forced to halt new prison admissions tosatis- population. The three states with the most pri- fy the courts, and a federal judgethreatened vate prisons are Texas,California, and Florida. the state with fines of $800,000 a dayuntil it Charles W. Thomas, a criminologist atthe alleviated overcrowding. Some Texas legislators University of Florida, estimates that up to10 even proposed holdingprisoners on prison percent of all prison beds mayeventually be in barges, unused oil-drilling rigs, andforeclosed private hands, mostly in minimum-security buildings. institutions.

206 Unit 4: Corrections 203 World Incarceration Rates (Selected Countries)

Russia.. 685 United States 668 Singapore 465 Chile' 375' South:-Africa- 320' 1g0 Moroccb, Lebanon:,

Costa Rica, 155 Iran. United Kingdom 'Canada,

Mexicb: 110 Brazil, Australik Turkep France: Peru. -90 ttali Sweden. Vietnam, Senegal? Japan,. 40 India 11=225' '0 tn L11 0 111 o 0 m NI* -tr1 In .0 Rate of incarcaration per 100,000 people

Source : 'Research Findings no; 88, World Prison Population List," Home Office Research (1998)

The idea of privatizing prisons has drawn Supporters of private prisons dismiss these criticism. Ira P. Robbins, a professor at the claims. They argue that private prisonsare AmericanUniversity Law School in newer, better managed, and less costly than Washington, D.C., says, "It's privatizationrun government-run institutions. As for security, amok." The American Civil Liberties Union they argue that most private prisons takeonly has expressed fears that private companieswill minimum-security prisonersanyway. Finally, be less accountable than thestate and may they maintain that it is unlikelyprivate-prison even try to prolong prison sentences to keep companies would lobby for longer prison earning their per-day fees. Neighbors often terms because there is such an excess of pris- wonder if private companies will maintain the oners already. same standards for security. Over the long term, some critics also a fear that puttinga For Discussion large number of prison beds in privatehands 1. Do you think super-maximum-security will create a permanent lobby in favorof long prisons are a good idea? Explain. prison sentences. They think the driveto 2. Do you agree with the U.S. SupremeCourt increase profitsmay well hold back the move decision in Rhodesv. Chapman? Why or why to community corrections and alternativesen- not? tencing. 3. Do you think privatizing prisons isa good idea? Why or why not?

204 CRIMINAL JUSTICE IN AMERICA 2U BESTCOPYAVAILABLE Class Activity: Should Prison Revolts Prison Be Even In February 2000, the national media Tougher? reported that guards shot nine prisoners, killing one, during a race riot at California's In some states, there has been a"penal Pelican Bay Prison. Since the 1950s, at least one harm" movement. Members of this movement major prison riot has erupted each year. The want to make prisonstougher. They favor two most famous revoltstook place in 1971 removing televisions, weights, andcollege and 1980. classes from prisons. In this activity,students In September 1971, more than 1,200 pris- role play advising the governor onthe merits oners at New York'sAttica State Prison seized of a proposal to institute "penalharm" in the Cell Block D and took 38 guards hostage to state. protest what they calledoppressive prison 1. Divide the class into small groups.Each conditions. Influenced by the political move- group will roleplay a group of advisers to ments of the1960s,particularly radical the governor. The governor isconsidering African-American organizations, the prisoners proposing a law that would remove alltele- immediately organized themselves, setting up visions, weight equipment, andclasses a sick bay, clean-updetails, an elected negotiat- from all prisons in the state. ing committee, and a security force to guard 2. Each group should: and protect the hostages. One guard who had been seriously injured was sent out to the hos- Make a list of the positive aspects of a. pital and 10 other hostages needing medical this proposal. aid were released. The prisoners' first statement b. Make a list of the negative aspects of said, "We are men. We are not beasts, and do this proposal. not intend to be beaten ordriven." c. Weigh the positive and negative The prisoners met with a mediating team aspects and decidewhether to favor, that eventually included the New York director oppose, or modifythe proposal. of prisons, lawyers, journalists, and local polit- d. Be prepared to report back tothe ical leaders. Their demands were mostly for class on its decision and the reasons humane treatment: better prison conditions, for it. freedom of religion to allow Muslim worship, 3. Have each group report back.After they meaningful job training, the right to hold have reported, have the class vote onthe political meetings, and an amnesty for the proposal. Use the Debriefing Questions takeover. Most of the demands, except the below to conclude the activity. amnesty, were granted. But thisomission became crucial when the injured guard died in Debriefing Questions the hospital. Still, by the third day, most ofthe 1. What do you think the purposeof incar- mediators felt they were near a dealif ceration is? Does "penal harm" fit this pur- Governor Nelson Rockefeller would come to pose? Attica to give any agreement credibility. 2. Do you think making prisonerssuffer Rockefeller thought it would be unwise and more will change theirbehavior? Explain. stayed away. On Monday, the fourth day of therevolt, guards and state police assaulted Cell Block D with helicopters and nausea gas. More than 500 men firing rifles and shotguns pouredinto the yard. The gunfire killed 33 inmates and nine hostages and seriously wounded more

(7) 4U 4.) Unit 4: Corrections 205 Vocational training was mostly work ina huge laundry at 30 centsa day or being assigned with 15 othermen to a one-man machine tool in a shop thatnever dropped below 100 degrees F. Little educationwas available, the meals were often inedible, and there were hundreds of prison rules. Prison officials read all mail. In addition,more than 75 percent of the prisoners at Attica were black or Puerto Rican and all 383 guardswere white, and charges of racial discriminationwere common. than 100 other prisoners. In the aftermath, The revolt spurred four separate investiga- prisoners were stripped and beaten, and forced tions of conditions at Attica andmany of the to run gantlets of angry guards. Some sore serious abuses were eventually corrected. observers charged that a few of those killed New Mexico State Prison died hours after the prison had been retaken. The revolt at New Mexico State Prison More than 20 years later, a civil court awarded nine years later could hardly have beenmore prisoners millions of dollars in damages for different from the one at Attica. In February violations of their civil rights after the assault. 1980, prisoners at the New Mexico prison Life at Attica broke into the control room, seized the guards, Almost everyone, including the head of and opened all the cells. The politicalmove- New York prisons, agreed that the uprising ments of the 1960s had passed, and no one at had been sparked by terrible prison condi- New Mexico thought of trying to organizeor tions. Every inmate entered Attica in shackles control the revolt. Some prisoners went to the and leg-irons. He was issuedgray prison sick bay and started a drugorgy. Others went clothes and then placed inan isolation cell on a rampage smashing furniture and setting fires. One group broke into where he stayed for two full days. After fourto an isolation area where prison informers were held. Thirty-three eight weeks of lockup for about 20 hoursa day, prisoners were hacked to death he was assigned a job and transferredto a cell or tortured to block. death with blowtorches. Prison officials tried Each prisoner at Attica hada cell about to negotiate, but they found no one in charge to negotiate with. the size of a walk-in closet, six feet by nine feet. The nearest windowwas across the corridor. As the violence died down, most of the He had a bed, a metal stool,a small table, a prisoners came out one-by-one to surrender two-drawer metal cabinet,an open toilet, a peacefully. Those who didn't come out offered cold -water sink, and one 60-watt bulb. For the no resistance when police and National rest of his imprisonment, he spent 14 to 16 Guardsmen stormed the prison 36 hours later. hours a day alone in this cell. At Attica, all the deaths, except theone guard Five hours a day were for workor school, injured in the takeover, had come at the hands one hour or so for recreation, and about half of the police. In New Mexico, the inmates an hour for each meal. Each man could show- themselves had done all the killing. er once a week. During weekdays, the daily Despite the differences, post-riot commis- routine began at 5:50a.m. and the men were sions found many of the same abuses in New Mexico. In fact, some conditions locked in for the nightat 6:30 p.m. They could were probably worse. In New Mexico, prisoners did talk between cells until 8p.m. Then silence was not have individual cells, and homosexual required. The lights went out at 11p.m. rape was widespread. Also, drugs had become much

r) Q 206 CRIMINAL JUSTICE IN AMERICA -,' more common by 1980, and many ofthe pris- glory in violent acts against other races and oners were intoxicated during the riot.The fol- ethnic groups. Conflicts among the gangs grew lowing is one convict's letter, detailing some of so intense that in the 1980s some institutions his complaints: such as San Quentin were forced to segregate We seldom see any kind of exercise, the the bulk of their prisoners by race, putting heat is turned on high in some of the them into separate cell blocks. Prison authori- dorms whether it is a warm day or not, the ties were reluctant to give official sanction to food is bad, the mail is lost or comes late, racial separation, but they had little choice if the lighting in most dorms is bad, and all they wanted to protect the lives of the prison- around we face harassment by the guards. ers. Attica and New Mexico by no means rep- For Discussion resented the worst prisons in the United States. 1. How did the revolts at Attica and New They were just unlucky enough to have the Mexico prisons differ? Why? Give several necessary conditions come together to set off reasons. riots. Other prisons have even worse reputations. Louisiana's New Orleans Parish Prison, 2. What, if anything, do you think can be for example, crams six men into each 7-by-14 done to prevent future prison revolts? cell. Ohio State Prison is a gray and gloomy Explain. fortress built in 1834. New York's Sing Sing 3. How might conditions in a maximum- Prisonitsproper name is Ossining security prison affect a first-time offender? Correctional Facilityis almost as old as the 4. How do you think the racial divisions in Ohio prison and houses prisoners in zoo-like the prisons can be resolved? cells stacked five high. And all of these conditions have been made worse by the prison population explosion. Class Activity: Prison in Gangs the Classroom Some conditionsat Attica and New Mexico have improved since the uprisings, but In this activity, students simulate living in these prisons arestill subject to the over- prison cells. crowding and other problems that plague most 1.Break the class into three or four groups. of our maximum- and medium-security insti- Select corners of your classroom and, with tutions. Perhaps the biggest new prison prob- masking tape, have the students mark off lem has been the growth of violent, race- and areas nine feet long by six feet wide. ethnic-based gangs. Beginning in the 1970s, as 2. In each area, use the tape to mark off an dramatized in Edward James Olmos' film area large enough for a bunk bed,table, American Me, these gangs were organized two-drawer cabinet, toilet and sink. Put a almost exclusively along racial or ethnic lines. chair or stool in the open area of this imag- They have spread to almost every American inary cell. Assign two students to share this prison. The best known are the Black Guerrilla space. Try to imagine spending 14 to 16 Family for African Americans, two competing hours each day locked up there. families of whatispopularly calledthe 3. Then assign another pair of students to try Mexican Mafia for Hispanics, and the Aryan it. Continue until all the students have had White Brotherhood. an imaginary prison experience. These groups demand obedience and pro- 4. Now try the same thing with three students vide a sense of protection and community for their members. Because of their racial and in each imaginary cell, then four students. Discuss what overcrowding feels like and ethnic makeup, many of the gangs make heavy how it might cause conflicts. use of racist slogans andsymbols, and they

.L1 Unit 4: Corrections 207 5. Ask students to remember some event that than are locked up in prison. Yet the public happened to them about two years ago and hears little about this part of the corrections then to imagine spending all the time since system. When the public does hear something that event in a cell. The average prisoner about parole, it is usually about one of its fail- spends about two years in prison. ures or mistakes. Parole has many of the same problems as Debriefing Questions probation. The number of people to be super- 1. What do you think would be the most dif- vised is growing rapidly while the number of ficult part of prison life? supervisors is staying the same or even shrink- 2. What kinds of conditions should be main- ing. Although county or state officials may tained at prisons? Describe. oversee probation, a state parole board runs 3.Should non-violent offenders be lockedup parole in many states. Both systems in most with violent offenders? Explain. states have suffered badly from limited budgets. Parole The Parole Process The parole system is generally defined by Just as probation comes from the Latin state statutes, or in the case of federal prison- word "to prove," the word parole comes from ers, by federal law. Most states have independ- the French for "to speak," or "to give your ent parole boards. The boards function as hear- word." Parole is a process of returning prison- ing panels to determine whether prisoners eli- ers to society if they have displayed good gible for parole deserve it. Parole boardmem- behavior in prison and if they give their word bers are often political appointees who have to avoid further crime. Near the end of their professional staff members and case workers to prison terms, prisoners come before a parole advise them. board where their behavior and attitudes are The case workers compile reports on pris- examined. Those who are judged rehabilitated oners eligible for parole. They gather informa- or ready for release are granted parole. The tion about an individual's behavior while in parolee is then supervised for a specified time prison and what awaits the prisoner in the after release to make sure the promise is kept. community. They find out about the prison- A parole officer sees to it that the conditions er'sfamily, opportunities for employment, of parole are met and that the parolee makesa access to friends, availability of housing, and successful transition to life on the outside. the general climate that awaits the parolee in Some critics believe that the extensive use the community. An offer of employment is of parole is a mistake and too lenienton pris- often key to winning parole board approval. A oners. They argue that hardened criminals prisoner's success is much more likely if a sta- come to think of tricking the parole board as ble job is available. a game. Others take the view that parole offers If released on parole, offenders must meet a stepping stone back into the real world, and regularly with a parole officer and show that the time of release should be tailored to the they are living up to the conditions of their individual prisoner. release. Most often, these conditions forbid Today the trend is toward fixed sentences the use of alcohol and controlled substances, and a reduced role for the parole board. But possession of firearms, or association with many prisoners serving fixed sentences still other ex-convicts. Offenders must ask permis- can be released on parole by earning good-time sion to change their residence, to travel from credits against their sentences. one area to another, to marry, or even to buy In fact, most prisoners are eventually a car. released on parole. Nationwide, thereare about The parole officer has two, sometimescon- two-thirds more people on parole at any time flicting, roles. The first is as a social worker,

208 CRIMINAL JUSTICE IN AMERICA r) 4 40 Characteristics of Adults on Parole Ideal caseloads are considered to be rough- ly 35 per officer, or as few as 20 for serious Gender offenders.In some jurisdictions, however, 12% Female budget problems have pushed case loads up as 88% Male high as 250 parolees per case worker. That's less Race than 10 minutes per week per case, which is 55% White rarely adequate to check up on a parolee, let 44% Black alone offer help or advice. 1% Other Notorious Cases Hispanic origin Notorious cases pose special problems. 79% Non-Hispanic One problem is whether publicity denies some 21% Hispanic prisoners equal treatment. The case of Sirhan Status of supervision Bishara Sirhan illustrates this problem. In 83% Active June 1968, Sirhan shot and killed U.S. Senator 5% Inactive Robert F. Kennedy, who had just won the pres- 7.% Absconded idential primary in California. Convicted of 5% Supervised out of state murder, Sirhan was sent to the maximum-secu- Adults Entering Parole rity Soledad prison in California. A tentative 42% Discretionary parole* parole date was set for 1982, but a public debate 50% Mandatory parole** erupted over whether Sirhan should ever be Adults leaving parole paroled. Many people thought that the killer 43% Successful completion of a presidential candidate should never walk 42% Returned.to incarceration free. Nearly 4,000 letters flooded the parole 11% With new sentence board, as well as a petition bearing over 8,000 31% Other signaturesall opposing parole. 10% Absconder Sirhan's attorney claimed that his client 2% Other unsuccessful had a nearly spotless prison record, that his 13 1% Transferred already twice as much 1% Death years in prison were 2% Other time behind bars as most murderers served in California, and that there was no solid evi- * Discretionary parole means a prisoner was dence that he was any longer a threat to any- put on parole by a parole board. one. **Mandatory parole means a prisoner was The Los Angeles District Attorney present- released because of good-time credits or a ed new evidence that Sirhan was a continuing sentencing statute. danger. The D.A. said Sirhan had written two Detail may not sum to total because of threatening letters in the early 1970s. One cor- rounding. rections department psychiatrist did not feel

Source: "Probation and Parole in the United States. 1999," this was unusual considering the stress that Bureau of Justice Statistics (2000) Sirhan had been under. Others were not so sure. The D.A. alsocited testimony from fellow' prisoners that Sirhan had threatened to tryingto help the paroleemake a successful kill others. But questions were raised about the transition from prison to the community.The accuracy of this testimony. second is as a corrections officer, watchingfor In its reconsideration of the release date, any criminal tendencies.If necessary,the the board finally denied Sirhan parole. In all parole officer may have theindividual jailed subsequent hearings, it has denied him parole. pending an investigation of paroleviolations Many people believe the board has based its or new criminal acts. decisions on the nature of the original crime 4. 4. Unit 4 Corrections 209 and worries about Sirhan's continuing danger 5. Where should notorious offenders be to others. Some people believe the parole placed if their community does notwant board has yielded to publicpressure and will them back? Explain your answer. never release Sirhan. A second problem arises when notorious offenders do get released. Parolees normally Class Activity: Parole must return to the counties they lived in Board before their conviction. But communities In this activity, students role play members often object to the return of notorious crimi- of a parole board deciding whether to grant nals, particularly child molesters and murder- parole to convicts. ers. Lawrence Singleton offers an extreme 1. Form groups of three to five students. Each example. In the late 1970s, Singleton picked up will role play a parole board. a 15-year-old hitchhiker, brutally raped her, chopped off her forearms, and left her in the 2. Each group should: California desert to die. Somehow she lived. a. Read each of the cases below. Convicted for the crime, Singleton was sen- b. Decide whether to grant or deny tenced to 12 years in prison, the maximum parole in each case. then possible under California law. A model c. Prepare to present its decisions and prisoner, he earned enough good time to be reasons for them to the class. released in 1987 after only eight years. His crime had aroused so much attention that 3.Have the groups report on their decisions and reasons for them. Discuss what parole authorities did not know where to place purpose further imprisonment would serve in him. They tried convincing other states to take each case. (Refer to the purpose of punish- him, but none would. Theyeven talked of ment discussed on pages 168469.) housing him on prison grounds. Finally, amid much outcry and media coverage, they placed 4. Conclude the activity by holding a class him in his original community in Northern vote on whether to grant or deny parole in California. But citizenprotests proved so each case. intense that Singleton could not remain. Case 1: Sirhan Bishara Sirhan. See detailson Encountering protests wherever he went, he this case in the article above. moved from community to community in Northern California. When his parole ended, Case 2: Leonard Smith. Smith is one of the he moved to Florida. In 1997, he murdereda oldest prisoners held in your state. Fifty years prostitute and was sentenced to death. ago when he was 18, he took part in a bank robbery. He held a knife to a teller's throat. For Discussion When she did something that displeased him, 1. How are probation and parole alike? How he slit her throat. Smith has beena model are they different? prisoner, has earned a college degree, and is 2. What problems do parole officers face? deeply remorseful for his criminal act. He is 3. Why do parole boards have lesspower in serving an indeterminate sentence of one to 75 years. states with fixed sentencing laws? 4. Infamousconvicts,suchasCharles Case 3: Helen Campbell. Five years ago Manson and Mark David Chapman (the Campbell was convicted of second-degree mur- murderer of John Lennon), have been der and sentenced to a fixed term of 15 years. repeatedly denied parole. Do you think Campbell murdered her husband in his sleep. public opinion or pressure about such Campbell testified (and witnesses supported cases should influence parole board deci- her testimony) that her husband had beaten sions? Why or why not? her for 10 years. Campbell has beena model prisoner. This is her first parole hearing.

210 CRIMINAL JUSTICE IN AMERICA Case 4: David Garcia. Garcia wasconvicted of "I've been a thief all my life, and I've been burglary and sentenced under to an indeter- a pretty good thief. For me, itis easy to be bad minate term of from two to 10 years. Hehas and it's a struggle to be good. I could go out served seven years, twice as long as mostfor and get money just like that. It's my profes- his crime. Prison officials consider himdan- sionthe only thing I am good atso far. gerous and potentiallyviolent. "How do you tell someone you've been in prison for 21 yearshow do you tell them? How do you tell them you've been arrested for Staying Out of Prison murder? How do you tell them these things and then expect them to give you a job?" .,Many ex-convicts have difficulty staying out of troubleand outof prisononce they are released. Ex-convictshave special needs that Class Activity: Staying the parole program alone often cannot Out address. Several special programs, however, have been developed to help them. Onesuch Imagine that you are just paroled and try- program, the 7th StepFoundation, uses ex- ing to stay out of prison. Write a journal of offenders as counselors to help juveniles, your experiences in thefirst few weeks after parolees, and those who are soon tobe release. Include the following incidents and released. give an account about how you deal with them. Finding a place to live. Case Study of an Ex-Offender The following case study is based on an Relating to your family and loved ones. interview with a 7th Step counselor. Searching for a job and going to a job "One of the inmates who had a life sen- interview. tence without parole organized a groupof the Running into an old friend from your most dangerous criminalsin the prison.I criminal days, one you are forbidden to joined the group. We got together to help keep associate with. juvenile delinquents from turning to crime. Every Saturday these kids would be brought Reflecting on your time in a maximum- into the prison. We would talk to them and security prison. show them around. We showed them death row When everyone finishes, students who and the electric chair. It really shook them up. want to, should read the journalsaloud in That program helped those kids, and it also class and discuss them. helped me get turned around. "When I left prison I felt totally helpless and frightened. I didn't know how to talk to a lady, how to take a lady out, or how to dress. Fitting into society is a real problem. You have a feeling you want to make upfor lost time and it's hard to sit still even for five minutes. "As far as adjusting to society, I don't know how long it will take. For me, getting in my car and coming towork is a thrill. To go to the icebox and get a drink is a greatfeeling for me. I've only been out four months. That's a small amount of timecompared to 21 years in an institution. The adjustment period is not over, and I don't have any morechances. Next time I'll be sent away for the rest of my life. 2 4 Unit 4: Corrections 211 CHAPTER 16 Capital Punishment

History of the Death to eliminate the spectacle of public executions. In the 1800s, many people in America and Penalty in America Europe began to oppose the death penalty altogether. Michigan abolished it in 1845 and Capital punishment is another expression Wisconsin entered the Union in 1848 without for the death penalty, or the legalexecu- a death penalty in its statutes. The movement tion of a criminal. The word capitalcomes against the death penalty grew stronger after from the Latin word for head. In ancient World War II, especially in Europe, where times, capital punishment was often carried many were weary of so much killing during out by beheading. This method has never been the war. One by one all the Western European used in America. But criminals have been put nations and Canada did away with capital pun- to death by shooting, hanging, electrocution, ishment, until the United States was the last poison gas, and lethal injection. Today, the Western democracy that still executed crimi- most common method is lethal injection, fol- nals. Twelve American states, mainly clustered lowed by electrocution. Some states, however, in the Midwest and Northeast, have also allow one of these other methods asan option. banned executions. New York, which had Once a person is sentenced to death in banned the death penalty 30 years before, rein- America, most states follow a similarproce- stated it in 1995. dure. The sentenced criminal is normally held Public opinion on the death penalty has in a m. :imum-security prison's special section varied over time. In the 1930s, opinion polls known as death row. Usually, prisonerson showed strong support for capital punish- death row have little contact with other pris- ment. From that time, support gradually oners. Each occupies a small cell alone, and declined. By the mid-1960s, it had fallen to less each takes meals and exercises alone. This life than 50 percent. But then support started to may continue for years during appeals of the rise again. By the 1990s, following decades of sentence. An appeal hearing for a death sen- widespread anxiety over crime and violence, tenceis automatic in every state except some states such as California were showing Arkansas. almost 80 percent of the population in favor In the American colonies legal executions of executing criminals. Other polls showed took place as early as 1630. As in England, the that 62 percent of the population felt that the death penalty was imposed formany different death penalty deterred crime, and 51 percent crimes, even minor ones such as picking pock- said they would support it even if it did not ets or stealing a loaf of bread. During the 1800s deter crime. in England, for example, 270 different crimes In 1991, researcher Robert M. Bohm did an were capital offenses, or crimes punishable by analysis of 21 different polls on the death death. Thousands of people sometimes attend- penalty. He found that certain factorspeo- ed public hangings. Gradually, however, ple's religion, age, occupation, or size of the England and America reduced the number of city they lived inshowed little relation to capital offenses, until the main focuswas on their attitude on capital punishment. But first-degree murdermurders showing delibera- other factors did. Men were more likely to tion, willfulness, and premeditation. They also favor it than women. Whites supported it more moved executions within the walls of prisons than blacks. Republicans endorsed it more

-7 r- 212 CRIMINAL JUSTICE IN AMERICA 4 S "

e` A

1960 1970 1980 1990 -1998

Source: 'Capital Punishment 1998,- Bureau of JusticeStatistics (1999) than Democrats. The wealthy approved it more did not seem to be any consistency in who was than the poor. People from the South were given a death sentence and who was not. The more likely to oppose the deathpenalty than court suggested that new laws might be accept- people from other regions. able, if they provided clear standards for which criminals should be given death sentences. Recent Legal History of the Death Between 1972 and 1976, 35 states wrote new Penalty capital punishment laws to try to meet the Following public protest over capital pun- Supreme Court's suggestions. These new laws ishment in the 1950s and 1960s, the number of fell into two broad groups. One group, repre- executions in America gradually declined. In sented by laws in Georgia, Texas, and Florida, 1967, there were only two, and the following clearly described which capital crimes could be year the Supreme Courtstruck down death- punished by death. These laws also set up a penalty laws for crimes other than murder weighing system for deciding when the death crimes such as kidnaping, rape, and federal penalty should be applied. In a separate penal- bank robbery. That year also saw the beginning ty trial after a conviction forfirst-degree mur- of an unofficial moratorium on executions. der, a jury would consider mitigating circum- States waited to see how the Supreme Court stances that tended to excuse the crime orthe would rule on the constitutionality of capital criminal's behavior, and aggravating circum- punishment. No executions took place in the stances that made the crime seem worse.The United States from 1968 through 1976. court could only sentence someone todeath if In the 1972 case of Furman v. Georgia, the the aggravating circumstances outweighed any Supreme Court declared capital punishment mitigating circumstances. unconstitutional as it was then applied. The A second group of laws, represented by court said the death penalty was aviolation of statutes from North Carolina and Louisiana, the Eighth Amendment prohibition against sought to overcome the Supreme Court's cruel and unusual punishment because there objections in another way. These laws simply

Unit 4: Corrections 213 made the death penalty mandatory foranyone ficult. The justices have ruled that: convicted of a capital crime. Death-row inmates haveno right to free In 1976, the Supreme Court in Greggv. legal assistance afteran initial round of Georgia ruled that the first type of law, based appeals. Murray v. Giarratano (1989). on the act of balancing mitigating and aggra- Inmates may lose their right to appeal if vating circumstances,was constitutional. This they make proceduralerrors. Coleman v. upheld the Georgia, Texas, and Florida death Thompson (1991). penalties. The court, however, struck down the second type.It declared unconstitutional Inmates can't take advantage ofany rule North Carolina's and Louisiana's mandatory changes or precedents set after they have death sentences. Thecourt said a mandatory exhausted their appeals.Teague v. Lane sentence was unduly harsh and rigid and made (1989) and Butler v. McKellar (1990), and no allowance for the particular circumstances Safe v. Parks (1990). of each case. The death penalty can be applied tomen- Executions began again in 1977, though tally retarded criminals. Pent),v. Lynaugh many states still waited for a ruling on one fur- (1989). ther major issue: whether the death penalty The prosecution may introduce victim- was being applied equally. From 1977 through impact statements in penalty hearings. 1985, only 50 executions took place, though These statements may detail the pain and almost 2,000 prisoners waitedon death row. suffering of the victim. This decisionover- The test case came with the Georgiacase of turned several earlier rulings banning such McCleskey v. Kemp (1987). In it, lawyers for the statements because they tend to inflame condemned man submitteda careful study of juries against convicted murderers. Paynev. how the death penalty had been applied in Tennessee (1991). Georgia during the 1970s. Death-row inmates cannot geta federal The study, by University of Iowa Professor hearing on new-found evidence proving David Baldus, showed that blacks who had their innocence unless that evidence killed whites had been sentenced over- to die seven whelmingly proves their innocence. Herrera times more often than whites who had killed v. Collins (1993). blacks. Even after accounting for other vari- ables, such as the viciousness of the crime, In1996,CongresspassedtheAnti- blacks had been sentenced to diemore than Terrorism and Effective Death Penalty Act. four times as often as whites. Part of this act limited state prisoners' habeas In its decision, the U.S. Supreme Court corpus appeals in federal court. The writ of acknowledged that there seemed to besome habeas corpusisguaranteed by the U.S. statistical racial discrimination in Georgia's Constitution. The writ is an order to bringa application of the death penalty. But the jus- prisoner before a court to determine if the tices ruled by a 5-4 vote thata mere statistical prisoner is legally held. Many death penalty variation was not enough to invalidate the appealsarepetitions of habeascorpus. death penalty. To do that, the defendant would Supporters of the act say many prisonersare have to show that the state had somehow simply buying time by filing frivolous habeas encouraged the result or that therewas actual corpus petitions. Opponents of the law argued discrimination in a particularcase. Since the that capital cases should be carefully reviewed defendant had offeredno such proof, which and that the act prevents this. In Felkerv. would be difficult to acquire, thecourt upheld Turpin in 1996, the Supreme Court upheld this the death penalty. part of the act. In a series of decisions since McCleskey, the But in 2000, the Supreme Courtover- court has tended to support the prosecution turned two federal court decisions that had and make appeal of a death sentencemore dif- rejected state habeas corpus appeals because of

214 CRIMINAL JUSTICE IN :AMERICA 1 I( --Persons_Under.5entence_of.Death,1953-1998

3500

3000 In 1976,the court upheld revised ra state capital punishmentlaws. 2500 0

2000 In 1972, the Supreme Court ruled unconstitutional the death `,1500 penalty as then administered:-

:500

0 co 0 ITI :01 0 01

Year Source: "Capital Punishment 1998,`Bureau of Justice Statistics (1999) the 1996 act. The SupremeCourt said that the it harder to appeal, it still takes an average of 1996 act only banned unreasonable appeals. nine years for each prisoner to exhaust the When "clearly established" constitutional appeals process. And it costs a state from $2 to rights have been violated, the federal courts $3 million to process each case. may intervene. The two Virginia casesinvolved A study published in 2000 found that defendants with the same last name, but the most death-row appeals succeed. A Columbia defendants were not related. Law School professor surveyed the almost In Terry Williams v. Taylor, the court ruled 5,000 capital cases appealed in state and feder- 6-3 that the defendant had been deprived of al courts between 1973 and 1995. His study his right to effective counsel. The defense revealed that appeals courts found errors seri- attorney failed to mention at the sentencing ous enough to overturn convictionsin almost hearing that the defendant was borderline 70 percent of the cases. Three-fourths of those mentally retarded, he had been fed whiskey as with overturned convictions got a sentence less a child, and his parents hadbeen jailed for than death when the case was retried or plea child abuse and neglect. bargained. Seven percent were found not In Michael Wayne Williams v.Taylor, a guilty at their new trial. Eighteen percent were unanimous court ruled that the defendant did again sentenced to death, but many of these not receive a fair trial. The jury forewoman defendants had their cases overturned again failed to disclose that she was the ex-wife of the on appeal. sheriff and a former client of the prosecutor. Opponents of the death penalty argue that In recent years, about 70 prisoners have these statistics expose a deeply flawed system. been executed each year. More than 3,000 Supporters of the death penalty counter that it inmates wait on death row in prisons across reveals how carefully the system reviews each America. Much of this backlog is caused by case to make sure onlythose deserving the appeals. Even though recent rulings have made death penalty receive it.

BEST COPY AVAILABLE 4.r) 1V Unit 4 Corrections 215 For Discussion leniency, they should recommend 1. Why do you think prisonsseparate those life imprisonment. If they think the sentenced to death from other prisoners? case is particularly barbarous or sav- 2. Why do you think the United States is the age, they should recommend death. only Western democracy thatexecutes crim- The recommendation doesnot have inals? to be unanimous. Only a majority is required for a sentencing 3. What reason did the Supreme Court give in recommendation. Furman for saying that death penalty statutes were unconstitutional? How did d. Prepare to report to the class. One states change their statutes to make them student in each group shouldreport constitutional? Do you agree with thecourt the mitigating circumstances the that these statutes are constitutional? Why group considered. Another student or why not? should report the aggravating circumstances. A third student should 4. What did the court decide in the McCleskey report the sentence and the number case? Do you agree with its decision? Why of students who voted eachway. or why not? Capital Punishment Statute. After finding 5. Which of the decisions after McCleskey do a defendant guilty of murder in the first degree, you agree with? Disagree with? Why? the jury shall look at the circumstances of the 6. Some have argued that executions should crime and at the character of the individual be televised. Do you agree? Explain. defendant. If it finds the aggravating circumstances of the crime and the defendant outweigh the mitigating circumstances, it shall Class Activity: Lifeor return a recommendation of the death penal- Death ty. Otherwise, it shall recommend life imprisonment. In this activity, students role play sentenc- Case 1: Luby Waxton ing juries in capitalcases using a capital pun- Age: 22 ishment statute. The defendant in each case Sex: Male has already been convicted of first-degreemur- der. Each jury must determine the penalty. Luby has been in and out of jailever since he was ateenager. He was convicted of The only two choices availableare life imprisonment or death. shoplifting, burglary, and assault witha deadly weapon. He received 1.Divide the class into four juries. Review the a light sentence for each, because he has the mental capacity of Capital Punishment Statute, below. Assign an 8-year-old. each jury one of the fourcases on pages 216-217. On June 3 of thisyear, Waxton began drinking in the morning. He decidedto rob a 2. Members of each jury should: local grocery store to getsome money. That a. Make a list of the mitigating circum- afternoon, Waxton boughta small handgun. stances, those that seem to call for When he got to the market, he entered the mercy. store, bought some cigarettes, and then b. Make a list aggravating circumstances, announced a holdup. those that make the crime seemespe- Waxton went behind the counter andemp- cially violent or repulsive. tied the cash register. Heput his gun to the sales clerk's head and pulled the trigger. The c. Weigh the mitigating and theaggra- vating circumstances against each clerk, an old woman, died instantly. other. If they feel the case calls for Waxton was convicted of armed robbery and murder in the first degree. 216 CRIMINAL JUSTICE IN AMERICA 219 Case 2: James Woodson Phong Tran was convicted of first-degree Age: 24 murder. Sex: Male Case 4: Sonia Williams Woodson has no prior record of being Age: 27 arrested. Sex: Female Woodson has been active in the anti-abor- Williams has no prior record. tion movement. He believes that abortion is On September 10 of this year, Williams murder. After taking part in picketing an abor- called the police and reported that she had tion clinic, Woodson became frustrated that been raped by a man named Gregg. She was the clinic remained open. He believed that taken down to a hospital where a doctor exam- much stronger action was necessary, but knew ined her. He said he could find no evidence of his fellow picketers would not go along with rape. him. The police investigated her report and told So late on the night of July 17, he broke Williams they could not arrest Gregg. It was into the clinic. He poured gasoline throughout dark, they said, and so she could have been the first floor and put a match to it. The clin- mistaken about the identity of the attacker. ic burned tothe ground. Unknown to Besides, they said, Gregg had a perfect alibi for Woodson, a security guard was on the third the night in question. floor. The guard died in the fire. Williams decided to take matters into her Woodson was convicted of arson and first- own hands. She bought a gun and waited degree murder. around the corner where he allegedly first Case 3: Phong Tran attackedher. When Gregg and a friend Age: 18 approached, she told Gregg she had been look- Sex: Male ing for him and was glad to see him. She invit- Tran has a series of prior juvenile arrests ed the two men to go somewhere for a drink. for petty theft and assault. He has been They got into her car and drove to a secluded involved in gang activity for the past five years. spot, where she shot and killed both men. His family immigrated to the United Sonia Williams was convicted of first- States when he was 7 years old. His father degree murder. aband.ied the family shortly afterward, and Debriefing Questions his mother could not handle three children by 1. Do you think different juries would weigh herself. Placed in a foster home at age 13, he the aggravating and mitigating circum- ran away and took to the streets. stances differently? If so, is this fair? Why He found a new family in a local gang, or why not? headed by Tony Chin, age 35. Chin provided boys in the gang free housing, meals, movies, 2.If you were called to jury duty in a capital and video games. In return, they ran errands, case, could you vote for the death penalty protected Chin's businesses, and helped if circumstances warranted it? Why or why Chin's criminal enterprises. Tran looked on not? Chin as his father. 3 Assume for the moment that you approve On January 7 of this year, Chin handed of the death penalty. What crimes should it Tran a gun and told him that a "customer" apply to? Why? needed a new Mercedes. Tran went to a mini- mall and waited in the parking lot. When Sally Kim drove up in a new Mercedes, Tran ran up, pointed a gun at her, and demanded she get out. The car lurched and Tran shot Kim, killing her. r) V Unit 4: Corrections 217 Public Opinion on the For Discussion 1. What do you think accounts for the shift Death Penalty in public opinion favoring capital punishment? The public's attitude toward capital punishment has changed over the years. Polls show 2. What do you think accounts for the differ- that the American public today strongly sup- ence between the Harris and Gallup polls? ports the death penalty. This support has Which poll's question do you think is better? Why? grown much stronger since the 1960s. But polls also show that the strength of this support depends on how you ask the question. Note the differences between the Harris and Gallup Activity: Death Penalty polls. Poll The Harris Poll In this activity, students conduct a poll on "Do you believe in capital punishment, that the death penalty. is, the death penalty, or are you opposed to 1.Decide who you are going to poll. It can be it?" the community the school, or just one Believe Opposed Not Sure grade level. in It to lt 2. Decide on how to get a random sample of 0/0 the group you are polling. Determine how 1999 71 21 8 large a sample you will take. 1997 75 22 3 1983 68 27 5 3.Divide the class in two. One group should 1976 67 25 8 ask the Harris question; the other group, 1973 59 31 10 the Gallup question. 1970 47 42 11 4. Tabulate the results. 1969 48 38 14 1965 38 47 15 Debriefing Questions 1. How do your results compare with the offi- The Gallup Poll cial poll results? "What do you think should be the penalty for 2. How do you account for the similarities or murder: the death penalty or life imprison- differences? ment with absolutely no possibility of parole?" Death Life No Penalty ImprisonmentOpinon Recent Developments in Rio

2000 52 37 11 Capital Punishment 1999 56 38 6 As of 1998, more than 3,000 prisoners were 1997 61 29 10 on death row in the United States. California 1994 50 32 18 held the most (512), followed by Texas (451), 1993 59 29 12 Florida (372), and Pennsylvania (224). Despite 1992 50 37 13 these numbers, only about 60 are executed 1991 53 35 11 each year. Part of this can be explained by the long appeals process. But there also appears to be a social reluctance to begin executing massive numbers of prisoners. Between 1977 and 2000, fewer than 700 executions took place,

r, 218 CRIMINAL JUSTICE IN AMERICA A. most of them in the South. In fact, seven Southern states carried out three-fourths of all executions. The state of Texas by itself accounted for one-third of them. Most of the executions have provoked little protest within the United States. Overseas, many of the executions have drawn widespread attention and some massive protests. The only recent execution hotly debated in America was that of Karla Faye Tucker, the first woman to be executed in Texas since 1863. Karla Faye Tucker Tucker had been a heroin addict since the age of 10. By 13, she was traveling with a rock band. For many years, she worked as a prostitute. In 1983 at age 23, she and her 37-year-old boyfriend broke into a biker's apartment. TEXAS Intoxicated on drugs and alcohol, they intended to steal money that the biker owed them. EX , Her boyfriend attacked the biker with a ham- mer as he lay in bed. As the man lay uncon- Karla Faye Tucker, shown in a 1984 mugshot, was scious, he moaned. Tucker later testified she the first woman executed in Texas since 1863. found the moaning annoying and started striking him with a pickax. Her 28 blows killed him. Then she discovered that the biker was not alone bed. A woman crouched in the help save lives now," said Tucker. "I can be a corner. Tucker did not have enough energy left part of the solution." to attack her, so her boyfriend killed the She drew supporters from unlikely quar- woman. ters. The Rev. Jerry Falwell, a strong supporter Awaiting trialfor the brutal murders, of the death penalty, argued she should be Tucker started reading the Bible. She said she spared. The detective who arrested her and the soon realized the enormity of her crime. "At prosecutor in the case believed her change was the time, I didn't understand how the Holy genuine and hoped her sentence would be Spirit works," she said. "I just remember the commuted to life. Even the brother of the whole weight of everything I had done sud- woman she killed urged authorities not to exe- denly became a reality. Two precious lives were cute her. A poll of Texans, who overwhelming gone because of me." She agreed to testify support the death penalty, found less than half against her boyfriend with no promise of thought she should undergo it. In the two leniency. She thought she deserved the death months before the execution, about 25,000 let- penalty. ters, faxes and phone calls reached the gover- Both she and her boyfriend were convict- nor's office. They ran about 5 to 1 against ed and sentenced to death. During the 14 years killing her. she waited on death row, she became a born- The governor only had power to commute again Christian. In 1993, she married a prison her sentence to life if state Board of Pardons minister. She spent her days acting as a minis- and Paroles recommended it. The board voted ter and anti-drug counselor to prisoners. She unanimously against her, asit had in17 also changed her mind about the death penal- straight cases. On February 3, 1998, she was ty. "I can't take back the lives I took, but I can executed.

r.) Unit 4: Corrections 219 One reason Tucker's case drew so much resumed in 1977. But 13 have been released attention was that few women are executed. because they were innocent. One of the 13 was About one of every eight people arrested for two days away from being executed before his murder is a woman. But only one out of 50 execution was stayed. In November 1999, the people sentenced to death is a woman. One in Chicago Tribune ran a series of investigative arti- 70 people on death row is woman, but cles analyzing all 285 death penalty cases in only one other woman since 1977 had been Illinois since 1977. The Tribune found that 40 executed. percent of these cases had at least one of the But Tucker's supporters argued that they following elements: didn't champion her cause because she was a 1. The defendant had an attorney who had woman. Another woman was put to death in been disbarred or suspended, penalties Florida a few weeks after Tucker with little reserved for lawyers who are unethical or protest. They wanted Tucker saved because she incompetent. felt genuine remorse and had changed into a 2. The prosecution's case relied on a jailhouse new person. informant, who received lenient treatment Some who thought she should be executed for naming the defendant. Many consider did not believe she had really changed. Others, this type of evidence highly unreliable. however, did believe her. But they didn't think 3. The prosecution's case relied on testimony this should make a difference. She had com- from a crime lab technician who made a mitted a brutal crime, they argued, and she visual comparison of hairs. This is an out- deserved to pay for it with her life. "She's had moded practice that some states bar from her mercy," said Dianne Clements, president being used in court. of Justice for All, a Houston-based criminal justice reform organization. "She's had14 4. The defendant was black and the jury was years to put herself right by God." all white. In January 2000,Illinois Republican Are We Executing Innocent People? Governor George H. Ryan, a supporter of cap- Tucker never claimed to be innocent. But ital punishment, took the extraordinary step many on death row do. In fact, according to of placing a moratorium on all executions in the Death Penalty Information Center, an the state. He said he had "grave concerns about anti-capital punishment group, more than 80 ...[the] state's shameful record of convicting prisoners since 1977 have been released from innocent people and putting them on death death row because they were innocent. Many row." He called for an investigation of the were exonerated due to the efforts of the state's death penalty procedures. Some have Innocence Project. Led by Cardozo Law School criticized Ryan, saying that the state legislature professors Peter Neufeld and Barry C. Scheck, isalready investigating the problem. They the Innocence Project provides free legal assis- argue that blocking all executions is wrong tance to inmates who want to prove their inno- because most inmates on death row have been cence through DNA tests. The project is run by clearly proven to be guilty. volunteers, and inmates must pay for the In Congress in 2000, Democratic Senator DNA testing themselves. Because of budget Patrick Leahy of Vermont introduced the constraints, the project can only offer its serv- Innocence Protection Act. Among other ices to a select number of prisoners. Scheck has things, it would allow federal and state prison- argued that all states should authorize DNA ers easier access to DNA tests in cases where testing when the tests could prove a person's test results might exonerate them, ban the gov- innocence. Thus far, only two statesNew York ernment from destroying biological evidence and Illinoisprovide for such testing. used for DNA testing, and issue minimum In Illinois, 12 inmates on death row have standards for court-appointed defense attor- sincecapitalpunishment beenexecuted neys. If states did not comply with the act,

220 CRIMINAL JUSTICE IN AMERICA 22 3 they would be denied federal law-enforcement should be to the ends of the line. Those grants. unsure of their opinion belong in the mid- Opponents of the bill believe that states, dle. like Illinois, with some problems in death 2.Select the first person from each end of the penalty cases are already working to fix them. line. These people are advocatespro and The federal government, they argue, does-not confor argument number one on the need to intervene. They point out that the chart. Have them sit together at a table and appeals process already takes many years, and silently read and think about argument federal involvement would just lengthen it fur- one. The advocates' job is to present their ther. They emphasize that no innocent person assigned argument in their own words. has been executed in at least 50 years. 3.Select the second person from each end of Scheck supports Leahy's bill. He says: "The the line. These people are advocates for two states that have the most post-conviction argument number two. Have them sit exonerations [are] 13 in Illinois and 7 in New together at a different table and read argu- York. It's no coincidence." Scheck believes ment two. Continue through the line until many innocent people are on death row. you have tables with pro and con advocates Although he strongly advocates DNA testing, for all eight arguments. he says that it cannot solve all the problems in the criminal justice system, because biological 4. Assign the remaining students to sit as evidence is only available in about 60 percent arbiters at the tables. The arbiters' job is to of all violent crimes. evaluate the advocates' arguments. 5.Give the advocates 30 seconds each to make For Discussion their arguments to the arbiters at their 1. Do you think Karla Faye Tucker should table. have been executed? Explain. 6. After hearing the arguments, have the 2. Do you think Illinois Governor George H. arbiters form a new line showing how they Ryan was correct in suspending all execu- now feel about capital punishment. Like tions in the state? Why or why not? before, one end of the line should mark 3. Do you think thefederalInnocence absolute approval and the other end Protection Act is needed? Explain. absolute disapproval of the death penalty.

7. After forming a new line, let each pair of advocates make their arguments in turn to Class Activity: Taking a the standing arbiters. After each pair has Stand on Capital spoken, let the arbiters move on the line if Punishment they are swayed by the argument. Debriefing Questions In this activity, students take a stand on 1. Which arguments for and against the death the death penalty and reflect on arguments for penalty do you find most convincing? and against the death penalty. The chart on Least convincing? Why? page 222 summarizes some of these arguments. 1.Have the class form a line based on how 2. Can you think of other arguments for or each person feels about the death penalty. against the death penalty? Make one end of the room mark the spot for those who absolutely favor the death penalty. The other end marks the spot for those who are absolutely opposed to capital punishment. The stronger that people feel one way or the other, the closer they L.L.

Unit 4: Corrections 221 Death Penalty Arguments Pro Con 1.Capitalcasesarecarefullyreviewed. 1. Many innocent people have been released Mistakes are discovered. It has been more fromdeathrow.Many undoubtedly than 50 years since an innocent person has remain. Are we willing to risk executing been executed. innocent people? 2. Capital punishment keeps people from 2. There is no evidence that capital punish- committing serious crimes. It is difficult to ment has a deterrent effect. In states that find direct evidence of a deterrent effect, have abolished the death penalty, murder but itcertainly must deter people who rates have declined or remained the same. think about their crimeslike hired killers.

3.If a person takes a life, that person should 3.Killing a criminal is an evil on top of an pay by giving a life. "An eye for an eye and evil. All the Western democracies have abol- a tooth for a tooth." This is in accordance ished it, many religions oppose it, and it is with the punishment purpose of the crimi- abhorrent to most civilized people. nal justice system. 4. To receive capital punishment, a person 4.Itis almost impossible to apply capital must be convicted of committing a horri- punishment fairly.Evidence shows that ble crime. The jury is carefully instructed African-Americans and other minorities and appellate courts scrutinize the case. If are sentenced to death far out of propor- a defendant has been discriminated against, tion to others, especially when a white vic- the appellate court will overturn the con- tim is killed. Chance and arbitrary decision viction. The procedure meetsall"due making can affect the sentence in many process of law" standards. ways. Chance should not be a factor in a life-or-death decision.

5. Some criminals are so dangerous that they 5.Life imprisonment without the possibility must never be allowed to live in society. of parole is punishment enough, and it They cannot be rehabilitated. If allowed to keeps criminals off the streets just as well as live, they may escape or kill a guard or executing them. another prisoner. They should be executed to make sure make sure they never harm anyone again.

6.Capital punishment is specifically allowed 6. Customs and conditions have changed by the language of the Bill of Rights. The since the Constitution was written. Just as Fifth Amendment says that no person shall slavery is no longer acceptable, the death be deprived "of life,liberty or property penalty should be considered cruel and without due process of law." unusual punishment.

7. The public wants the death penalty. Polls in 7.Public opinion has gone up and down on some states run as high as 80 percent in the death penalty. No other Western favor of it. democracy executes criminals. We should join the ranks of these countries.

8.Capital punishment would be less expen- 8. Capital punishment costs more than life sive if frivolous appeals were eliminated. imprisonment. Atcurrentcosts,the But even if it is more expensive, it's worth appeals and hearings for a single death- the cost. penalty case cost the government between $2 and $3 million.

4 222 CRIMINAL JUSTICE IN AMERICA In 1716, Elizabeth Hickes of Huntington, England, was accused of witchcraft. Her neighbors reported that Hickes used dolls to cast evil spells and that she'd made several of her enemies very sick. After. hearing the evidence, a judge found Hickes guilty as charged, and she was burnat alive at the stake. Elizabeth Hickes was born in 1705. She was 11 years old. What if Eliiabeth had been an Arne-tic= born in 1900, 1950, or 1990? In the first place, times have :changed.. and PracticingWikhcraft is no longer a crime. But what if she were accused of a different crime? What would happen to the 11-year-old Elizabeth Hickes today? For one thing, she-wouldn't get a trial_ Shed have a hearing. It would take place in a special juvenile court.' Her artily hisiOry, school records, and other personal information would be closely examined: Even if the juvenile court judge decided something was wrong with Elizabeth, She wouldn't be pUnished.Tristead, the court would prescribe a special rehabilitation program designed to help .Elizabith adjust to society. Why are children treated so differently today? Nineteenth and early 20th century reforms produced two separate systems of justice in America, based on almost opposite philosophies. The adult criminal justice system applies to supposedly mature, responsible persons who have lived, depending on the state, at least 16 or 18 years. All those younger than the specified _ge fall under the jurisdiction of the juvenile justice system. This dual system has its critics. Many Americans believe that all persons in trouble with the law, no matter what their age, should have the benefit of the due process protections found in the adult system. Others argue that some juveniles should be processed according to the rules of the adult system not for their protection, but for society's protection. They feel that the juvenile justice system, with its emphasis on rehabilitation, puts too many young, hard-core criminals back on the streets.The fact that these criminals are only 14 or 15 doesn't prevent them from committing crimes and ruining other people's lives. Others have yet another perspective: Whether or not the theory behind our current juvenile system is correct, it just isn't working. Modifications must be made for the benefit of troubled young people and for the good of society. After exploring the history and philosophy of the juvenile justice system, this unit examines issues raised by its critics and supporters. Who ought to be there? What rights should young people have as protection againstthe system? Should the system focus on rehabilitation or punishment? Finally, statistics show that people under 18 are responsible for almost 20 percent of American crime. Many criminals start their life of crime as juveniles. To find solutions to our crime problem, we must examine howthe law currently treats juveniles and how that treatment can be improved.

Unit 5: Juvenile Justice 223 CHAPTER 17 From Criminal toDelinquent

The concept of intent changed how chil- History: Children and dren were treated under English common law. the Law Society now believed that children were naive and innocent. Though they might accidental- vn the Middle Ages, children took part in ly cause harm, children did not know enough 1 adult activities as soon as they could walk about right and wrong, or about the effects of and talk. They were working by the age of 5 their actions, to form criminal intent. Since or 6. Most families needed everyavailable pair they couldn't form intent, children couldn't of hands to grow enough food or weave commit crimes. enoughclothtosurvive.Shorterlife At what age could they form the intent expectancy also forced people into early necessary for committing crimes? The 18th adulthood. The average life span was only 40 century's answer to this question was based years. No one had time for aleisurely child- on traditional Christian beliefs, which held hood, much less an adolescence. that 7 was the "age of reason." After age 7, Children not only were expected to work according to the church, children knew the hard, they were also expected to obey adult difference between right and wrong and laws. Anyone old enough to commit a crime became responsible for their actions and was thought old enough to be punishedfor it. moral decisions. Painful forms of trial, like ordeal and combat, By the late 18th century, English common and harsh punishments, like being hanged or law had taken this rationale one step further. burned at the stake, fell on all criminals, no English judges usually dismissed cases against matter what their ages. defendants under age 7. In recognition of soci- In the 16th and 17th centuries, medieval ety's changing view about the length of child- attitudes began to soften. Though children hood, they also dismissed cases against per- were still thrust into adulthood atthe age of sons aged 7 to 14 unless the prosecution could 4 or 5, most of Europe began to think of prove that the child was capable of forming them as needing adult protection and guid- criminal intent. ance. In England, the common lawreflected The English criminal justice system treat- this change in attitude. The king or queen ed everyone over 14 years oldand everyone became the parens patriaethe parent of the between 7 and 14 proven capable of forming country. Representing the monarch, English criminal intentexactly alike. Officially, all courts actedas parens patriae to manage were tried in the same courts by the same orphans' estates, protect children's property rules. If convicted, all were locked up in the from wasteful parents, and provide for aban- same jails and subject to the same harsh doned young people. penalties. In actual practice, however, the system showed children and adolescents some The Age of Reason leniency. For example, although English About this same time, another important courts sentenced 103 persons age 8 and under concept worked its way into' English common to death between 1801 and 1836, not one of law: the idea of intent. To commit a crime, a these executions actually took place. Even so, person not only had toperform a forbidden the law allowed people of a very young age to action, the person also had to intend to com- be executed or imprisoned. mit that act.

22 '7 224 CRIMINAL JUSTICE IN AMERICA On the lower east side of New York City around 1900, children often took to the streets to escape theircramped living quarters

Colonists transplanted the English com- abandoned by their parents and turned to mon law, complete with the concepts of parens picking pockets, shoplifting, begging, and patriae, criminal intent, and the age of reason, looting for survival. to North American soil. The religious beliefs Often, young people banded together. As of many of these settlers emphasized training early as 1791, children's gangs were noted on children for obedient, religious, and produc- the streets of Philadelphia scaring horses with tive adult lives. firecrackers. During the 19th century, gangs turned from pranks to serious crime. By the Save the Children Civil War, youth gangs took part in arson and By the 19th century, America was rapidly mob violence, and regularly fought battles changing. Factories sprang up across the with the police. Northeast, and the nation's urban population Thoughcitizens'groupsinevery was growing faster than its rural population. American city expressed concern about these n 1820, 7 percent of America's people lived in wayward youngsters, people were unsure of cities. That proportion had risen to 15 percent what to do about them. If caught in a crime, by 1850 and 35 percent by 1890. children over 7 and under 14 faced prosecu- Many of the new city residents were tion in the adult criminal justice system and immigrants. Others were country people often ended up in adult prisons. Many people looking for greater opportunity and a path questionedthe wisdom of thisresult. out of the exhausting routines of rural life. Through contact with older criminals, chil- Survival in the city, however, was a full-time dren learned to perfect their skills at robbery, occupation. Crowded into small rooms with mayhem, and murder. Also, then as now, their struggling family, urban children often adults in prison regularly abused younger and escaped to the streets. Other children were weaker inmates. 0 4 0 Unit 5: Juvenile Justice 225 House of Refuge apply to juveniles taken to the House of Early in the 19th century, American cities Refuge. It only applied to people accused of began to provide alternatives to adult prisons crimes. Since Mary Annwas not accused of for children. In 1824, using parens patriae as its any crime, she had no right to a jury trial. rationale, the New York City government According to the court, Mary Annwas established the New York House of Refuge for institutionalized not because of criminal abandoned, deprived, and criminal children. guilt, but because her motherno longer want- Other state and local governmentssoon fol- ed to take responsibility for her upbringing. lowed suit. These institutions, whichcame to Citing the doctrine of parens patriae, thecourt be known as reform schools, opened in declared that the state, in this instancerepre- almost every large urban center. sented by the House of Refuge, hadevery The reform schools tried to break young- right to assume the parental role. As thecourt sters' bad habits by a combination of religion, concluded, Mary Ann "had been snatched education, and hard work. Run by private from a course which must have ended incon- organizations, many schools, however, began firmed depravity, and not only is the restraint to operate not for reform, but for profit. They of her person lawful, but it would bean act of glossed over moral and practical education. cruelty to release her from it." (Ex Parte Crouse, As headmasters pressed for greater 'productiv- 1838.) ity children spent more time in workshops and less in classrooms. For Discussion As living conditions deteriorated, many 1. What is the doctrine of parens patriae? Do you think it has validity today? Why or young people rebelled. In1859,15-year-old why not? Dan Crean setfireto the Massachusetts Reform School. Two years later, in another 2. At what age do you think children should part of the state, angry girls burned their be held criminally responsible for their school to the ground. Reform schools, like actions? prisons before them, came to be knownas 3. What were the negative effects of placing "universities of crime." juveniles in the adult criminal system? Stuck in the System 4. What arguments can you think of against Once in these schools, students could not keeping Mary Ann in the House of easily get out. In 1838, for example, a court Refuge? committed Mary Ann Crousetothe Philadelphia House of Refuge because her mother complained about her behavior. By the time her father found out, Mary Annwas already locked up. When the House of Refuge refused to release her to his custody, Mr. Crouse began a legal battle to get his daughter back. His battle eventually took him to the Supreme Court of Pennsylvania. He argued that the House of Refuge had violated his daughter's constitutional rights. Mary Ann had been lockedup without a jury trial, a right guaranteed to all Americans. After lengthy deliberation, the court ruled in favor of the House of Refuge. Thecourt stated that the right to a trial by jury didnot r; () 4. ;.) 226 CRIMINAL JUSTICE IN AMERICA From Criminal to Delinquent: A Time for Reform

American cities didn't rely entirely on reform schools to cope with young people in trouble. During the latter half of the 19th century, other innovative ideas developed as well. si Because contact between juveniles and adult criminals was seen as a major problem, many states began setting aside special times for juvenile trials, keeping juvenile records separate from adults, and sentencing juveniles to age-segregated prisons. Massachusetts began experimenting with probation as an alternative to imprisonment. But probation presented problems when applied to young urban criminals. Sending At New York's Randall Island Refirmatory about them back to their communities usually 1900, young men work in a shoe workshop. meant returning them to an environment that was the root of their problems. If a juvenile's family couldn't provide a good home, the courts sometimes tried to identify a rela- with no system for handling neglected or tive or family friend to take responsibility for criminal young people. the cP A's probation. The Chicago Women's Club stepped in to This led to the development of another fill the gap. It set up a school for young peo- innovation: the foster family. Recognizing ple serving time in the city's jails. It openeda that reform schools or problem families could city police station for women and children cause more harm than good, government offi- arrestees so they wouldn't have to mingle with cials compiled lists of trustworthy families hardened male criminals. and individuals who could provide tempo- Working with juveniles made club mem- rary care for children in trouble. Abandoned bers come to some radical conclusions. or neglected children were also placed in fos- Members felt that placing juveniles in the ter homes. adult criminal justice system made matters Though each of the experiments in juve- worse. Why not start over and build a separate nile reform was successful to some degree, by justice system, just for juveniles, based on the 1890s, it became obvious that more inven- principles related to the needs and problems tive methods were needed. of children? The situation in Chicago was especially In the first place, club members believed bad. Vice and crime plagued the Chicago that no rational adult could hold children Reform School. Judges preferred to send all responsible for their actions. Wayward, dis- but the most hardened juvenile offenders to obedient, and criminalbehaviors,they the adult jail. They felt the jail was safer. The believed, were diseases caused by poverty and school's reputation was so bad that when it neglect, circumstances over which a child had burned down in 1871, the government refused no control. One might as logically blame chil- to provide money to rebuildit. This left dren for catching the measles as blame them Chicago, one of the nation's largest cities, for running away from troubles at home or following bad examples set by friends. 0 0 t) V Unit 5: Juvenile Justice 227 Secondly, the concept of crimespecific young persons of their rights. Club members prohibited actswas too limited to help chil- retorted that children needed help, not rights. dren. Certainly, young people must be pre- In spite of the initial negative response, vented from robbing, raping, and murdering. the Women's Club proposal was widely dis- But they also must be protected from other, cussed. In 1898, the Illinois State Board of less well-defined actions, like associating with Charities asked the Chicago Bar Association immoral people, staying out too late at night, to draft legislation based on the club's plan. or disobeying authority. These actions greatly After hearings, the Illinois legislature passed damaged young people by encouraging bad the Juvenile Court Act. The nation's first juve- habits and leading to more destructive behav- nile court officially opened its doors on July ior. 1, 1899. Furthermore, it was unfair to label chil- Other states responded enthusiastically to dren as criminals. A new word for wrongdo- this new system. Within 25 years, all but ers was needed. The word "delinquent" Maine and Wyoming had passed laws based seemedmuch moreappropriate.The on the Illinois model. Over the years, court Women's Club also decided that children con- decisions and administrative policies have victed of crimes should not be punished. slightly modified the juvenile justice system. Instead, young persons who committed delin- But the current juvenile justice systems quent acts should be re-educated and rehabil- throughout the United States owe their roots itated so they would not repeat their offenses. to that first Chicago experiment. Moreover, young persons should not necessarily undergo the same rehabilitation pro- For Discussion grams. Some children would best benefit from 1. Do you agree with the reasoning advanced the harsh life of reform school. Others would by reformers in the Chicago Women's do better in the gender care of foster parents. Club? Why or why not? Still others could be returned to their families 2. Are young people incapable of forming on probation. Each child should receive indi- criminal intent? Should they be treated vidualized treatment. rather than punished when they harm Finally, since no one was being punished, others? there was no need for the carefully regulated 3.Should young people who commit crimes trial process of the adult courtroom. That betreateddifferentlyfromadults? process tended to intimidate children and Explain. might hinder rather than help, the Women's Club reasoned. To consider each child's best interests and deliver the personalized justice demanded by this new system, a judge needed more freedom than adult procedures permitted. Judges hearing juvenile cases should work in informal rooms, more like counseling offices than courtrooms. Questioning and decision making should also be flexible and informal. Only in sucha non-adversarial atmosphere could judges determine appropriate ways to help young people in trouble. When the Women's Club first raised these ideas in 1892, its own lawyers argued that the system was unconstitutional. Not only did it reverse or suspend the basic principles of American justice,itstripped the accused/1, 4, 4J 228 CRIMINAL JUSTICE IN AMERICA Case 2 Class Activity: Same or Cynthia, 35, finds out that her husband is Different? leaving her. At the height of an argument, she kills him. Should juveniles be treated the same as Mike, 8, is furious with his 4-year-old sister adults? In this activity, students evaluate situa- for ruining his favorite toy. He picks up his tions to determine whether the juvenile and father's shotgun and kills her. adult in each case should be treated the same or differently. Case 3 1.Divide into small groups. When the store clerk's back isturned, 2. Each group should: Connie, 23, slides an expensive scarf into her purse and walks out of the store. a. Examine each of the four pairs of Apprehended by store detectives on the cases listed below. In each, after con- sidewalk, she complains that she was tired sidering the individuals' intent and of paying exorbitant prices for everything. responsibility, decide whether the juvenile and adult should receive the Nancy, 14, steals a digital watch from a same treatment or punishment. department store display. Her only excuse, when she's caught, is that her friends dared b. Be prepared to explain the reasons her to do it. for each decision. 3.After the groups decide all the cases, they Case 4 should present their findings to the class Jim, 39, makes obscene phone callsto and compare their decisions with those women in his neighborhood. He enjoys made by-other groups. Conclude the activ- their confused and helpless reaction and ity with a discussion using the Debriefing likes to give them a good scare. Questions, below. Andy, 15, makes an obscene phone call to one of his teachers. He wants to see how Case 1 Jerry, 27, lives in an adult apartment com- she will react. plex. One of his neighbors regularly holds Debriefing Questions loud parties lasting long into the night. 1. Which cases were the most difficult to After a frustrating confrontation late one decide? Why? evening, Jerry picks up a rock and throws it through his neighbor's window. 2. Do you think the criminal justice system should treat children differently from A neighbor chases Harold, 10, and his adults? If so, at what age should they be friends from her yard and warns them not treated the same as adults? to play baseball on her property. In retaliation, Harold throws a rock through her window.

4r.) Unit 5: Juvenile Justice 229 Different Worlds Under current law, the treatment of juve-state to state, the chart notes many common nilesdiffers greatly from that of adults.differences in the juvenile and adult systems. Though the specifics of treatment vary from

Adult System Juvenile System Persons can be legally arrested if theyare Juveniles can be taken into custody if they suspected of committing a crime. are suspected of committing a delinquent act. The state files formal criminal charges in the The state files a petition with the juvenile form of an indictment, information,or court. complaint.

Persons may be released on bail or on their Juveniles may be released into the custody of own recognizance or may be held in jail their parents, held in custody untilan offi- until trial. cial hearing, or placed on probation without an official hearing.

Decisions are made by judges and juries. Decisions are made by hearing officers,com- missioners, and juvenile court judges.

A trial determines whether or notan An adjudicatory hearing determines the accused person is guilty beyond reasonable truth or falsity of the petition beyonda rea- doubt of a specific crime. sonable doubt. After a verdict of guilty, a sentencing hear- After a finding of delinquency, a disposi- ing is held to determine the sentence. tional hearing determines if the juvenile is in need of state supervision or care. A convicted person may be placedon pro-Juveniles judged in need of careare made bation, fined, or sentenced toa specified wards of the court. They may be placedon length of confinement in a jailor prison. probation, placed in a group or individual foster home, fined, or committed toan unspecified length of confinement ina reform school, state institution,or camp. Before the end of a prison term,a prisoner After release from confinement, juvenilesmay may be released and put on parole. be supervised in a program of aftercare. Proceedings and records are public. Proceedings and records are kept private. The main goal is punishment. The main goal is rehabilitation.

For Discussion 1. Which differences seem to be merely 2. What are the major differences between words? If some differences are just words, the two systems? Try to explainsome of does it make any sense to use different these important differences in light of the words? Why or why not? early 20th-century reforms. Inyour opinion are these differences justified? Explain.

230 CRIMINAL JUSTICE IN AMERICA 2 3 CHAPTER 18 The Problem of Delinquency

What Is Delinquency?

re definition of delinquency variesgreatly rom state to state. Specific acts andbehav- iors are often classified as delinquent for two general reasons. Such actions either: 1. would be termed criminal if committed by an adult, or 2. are thought harmful to young people because they might be dangerous or lead to criminal behavior. (These are often called statusoffenses because they only apply to those who have the status of juveniles.) Status offenses cover a wide variety of behaviorsrunning away from home, drinking alcohol, skipping school, disobeying parents, violatir7 curfews, etc. Some statesclassify youth who exhibit these behaviors as "wayward" or "incorrigible." Others term status offenders as CHINS, PINS, or MINSchil- An officer takes a young driver into custody. dren, persons, or minors in need of supervision. Other states simply lump all the behaviors together as delinquent. For Discussion Since states must define status offenses, 1. What is delinquency? the laws can be quite broad and even vague. 2. What are status offenses? Do you think California's old section 601 of its Welfare and they should be classified as delinquent Institutions Code was a good example: behavior? Any person under the age of 18 years who persistently or habitually refuses to obey 3. Why do you think California removed the the reasonable and proper orders or direc- words "who...is in danger of leading an idle, lewd, or immoral life" from its tions of his parents ... orschool authori- dissolute, code? ties,... orwho is habitually truant ... or

who...is in danger of leading an idle, dissolute, lewd, or immoral life, is within the jurisdiction of the juvenile court which may adjudge such person tobe a ward of the court. (Emphasis added.) California's code no longer contains the emphasized words. r`l

Unit 5: Juvenile Justice 231 Class Activity: AreYou o. Taking something that doesnot Now or Have You Ever belong to you p. Stav,i ng out past midnight Been? Debriefing Questions What isdelinquency? Which juveniles 1.Which' of these behaviors didmost groups should be processed through the juvenile jus- think were criminal? Delinquent? Neither? tice system? In this activity, students clarify 2. How would you definea juvenile delin- their opinions about these issues. quent? 1. Form small groups. 2. As a group, carefully read the list "Should It Be Classified as an Act of Delinquency?" A Tour of the System In many states, the actions described in Recent statistics indicate that this list will justify a finding of delinquen- more than 1 million American youth cy when committed by persons under 18. pass through the juvenile justice system each Discuss the items using these questions: year. The statistics overlook the many juveniles whonever enter Which are actually crimes? the system, but whoare referred to social wel- Of the remainder, which doyou fare agencies because of abuse, neglect,or sta- think are harmful toyoung people? tus offenses. Although the system still takes Why? status offenders in extreme cases, it handlesat Which of the actionson the list least seven times asmany delinquency cases. should not, in your opinion, be clas- The chart on page 233 shows what happensto sified as delinquent? those brought into thesystem for delinquency. 3. Have the groups report back theiranswers. Police bring most juveniles into thesystem. But 14 percent are brought in byparents, Should It Be Classifiedas an Act of school officials, and social welfare agencies. Delinquency? Slightly more than one-fifth of those a. Taking a car without the owner'sper- brought in are accused of violent crimesmur- mission der, rape, robbery,or assault. Over half are b. Disobeying your parents detained for property crimesvandalism,theft, c. Cutting school and burglary. Almost another one-fifthare d. Going into a buildingyou aren't taken into custody for public-order offenses, supposed to be in such as obstruction of justice, disorderlycon- e. Running away from home duct, weapons charges, and publicintoxica- 1. Taking something froma store with- tion. The remaining juvenilesabout10 per- out paying for it centare accused of drug offenses. g. Driving recklessly At the juvenile court,an intake worker, usually a probation officer h. Buying or drinking alcoholic bever- or a social worker, ages must decide what to do with these juveniles. The worker typically looks i. Using or selling marijuanaor drugs at the offense, the strength of the case, and the juvenile's history j. Smoking cigarettes at school or in and needs. After consulting with public a prosecutor, the worker may choosetofile k. Hitting a teacher apetition against the juvenile. This will leadto a hearing 1. Having sexual relations in juvenile court. m.Deliberately damaging schoolprop- But more than 40 percent of the juveniles erty are not petitioned. Of these juveniles, mostare n. Getting in a fight simply let go. The remainderagree to be

232 CRIMINAL JUSTICE IN AMERICA 4.J 41.4.X,550,41014 Juvenile Court Processing ofDelinciirericy4ta996

INTAKE DECISION INTAKE DISPOSITION JUDICIAL DECISIONS. JUDICIAL DISPOSITION

Waivec Placed 156,40028% Petitioned 10 000 1% 983.100 56% Probation Adjudicated 306,900 54% 56720058% J 1,757,600 Cases

Placed 9,500 2% Placed Probation 6.900 1% 81,100 20% Nonadjudicated Probation Other sanction Non et 246,10032% 405,900 41% 73,500 18% 774,500 44% Other sanction Dismissed 176,100 23% 241,800 60% Dismissed 345,50045%

Source: 'Offenders in Juvenile Court, 1996," OJJDP (1999) informally processed in the system, often with custody, fewer than 10 percent wind up placed the understanding that if they break the agree- outside their homes. The juvenile court system ment, a petition will be filed.About one-third relies on decision makers at each stage to act of those not petitioned are put on probation. "in the best interests of the child." Eachof The remainder pay fines or restitution, or are these decision makersfrom the policeofficer referred to social agencies. to the intake worker tothe juvenile court Those petitioned must appear at initial judgeis given wide discretion in resolving hearings. At these hearings, juvenile court delinquency problems. The system encourages judges examine the petitions. They decide to these decision makers to resolve the problems hold adjudicatory hearings for about 60 per- informally, if possible, instead of sending a cent of the petitions. Of the cases notheard, a juvenile deeper into the system. tiny percentage are waived to adult court. For Discussion offend- These cases represent the most serious 1. How do police officers, intakeworkers, and ers. Most juveniles nothaving adjudicatory juvenile court judges exercise discretion in hearings, however, are released. The rest are the juvenile justice system? Give some handled informally. About one-fifth are put examples. What are some advantages and on probation. And mostothers are referred to disadvantages of this discretion? Explain. social agencies. officials Finally, what happens to those having 2. Why do you think juvenile justice adjudicatory hearings? A very small percentage prefer to resolve delinquency problems informally? What are the advantages and are released or referred tosocial agencies. Most receive probation. Fewer than one-third are disadvantages? placed out of their homes into foster homes, 3. Look at the chart. At what stagedo juve- group homes, or securefacilities. niles have the best chance of gettingtheir As you can see on the chart, manyjuve- cases dismissed? Atwhat stage do they have niles are put outside the system, or diverted, at the worst chance? How do you accountfor each stage. Of the original juveniles taken into this?

BEST COPY AVAILABLE j Unit 5: Juvenile Justice 233 Class Activity: Who e. Ungovernability. Childrencannot be con- Should Be in the trolled by theirparents. System? f.Runaways. Children habituallyrun away from home. Who belongs in thejuvenile justice sys- Status offenses. Children tem? In this activity, studentsevaluate which, g. commit status offenses, such if any, governmentagency should be responsi- as curfew violations or truancy. ble for juveniles in differentsituations. 1.Break into pairs. h. Abuseofintoxicatingsubstances. 2. Each pair should: Children use drugsor alcohol. i.Misdemeanors. Children loiter, a. Discuss each of the situationsbelow. joy-ride, make obscene phone calls,etc. b. Decide which, ifany, government agency should be responsible for Victimless crimes. Childrencommit vic- juveniles in the situations described timless crimes suchas prostitution. below. (Do notanswer what agency k. Shoplifting. should deal with the adults in these 1.Major theft or otherproperty crimes. situations.) Decide whether thejuve- m. Violent crimes. nile in each situation shouldbe sent to: Debriefing Questions state or local service agencies, 1. Which actions should be juvenile courts, handled privately? Why? adult criminalcourts, or 2. Which actions deserve no government institution (the court involvement? matter should be handled pri- Why? How doyou determine whether juve- vately). nile or adult criminalcourts should handle the matters? c. Write the conclusionson a sheet of paper. 3. Which actions should behandled by social 3.Regroup the class and have studentscom- service agencies? Why? pare their answers. Debrief the activity 4. Which situations domost people agree using the questions below. about? Whichcause the most disagree- Situations ment? Why? a. Abuse or neglect. Childrenare poorly fed or clothed, beaten, sexually molested,or Initial Detentionof denied vital medicaltreatment by their parents. Juveniles b. Criminal influence. Children are exposed When first taken into custody, to or taught illegal behavior (e.g., drug juveniles go to a detention center, often called juvenile abuse, criminal acts) by theirparents. hall. Unlike adults, juvenilesmay be held in cus- c. Economic hardship. Children have par- tody until their hearingswithout any chance ents who cannot afford to takecare of them. of bail. At the option ofa probation officer, they may be released intotheir parents' cus- d. Unconventional homes. Children have tody before the hearing. If theprobation offi- parents who live according to moralstan- cer decides to keep a juvenile in custody,a,. dards different from those of thegeneral judge reviews this decision, community (e.g., unmarried usually within 48 or homosexu- hours. al parents, those with unusualreligious beliefs). In some jurisdictions,most juveniles spend at least one day incustody. From 1986 to 234 CRIMINAL JUSTICE IN AMERICA . San Francisco_Juvenile DetentionScreening Criteria

PFN ADMIT DATE NAME OF MINOR ADMIT TIME ARREST TIME MOST SERIOUS. INSTANT OFFENSE in spaces INSTRUCTIONS: Score minor for eachfactor below and enter the appropriate score provided in the right hand column. SCORE FACTOR 1. MOST SERIOUS INSTANTOFFENSE (Score one chargeonly) Serious Violent Offenses WIC. 707(b) offenses 10 Other listed violent offenses 7 Narcotici/Weapons Offenses Possession of firearms 10 ''.5ale.of narcotics/drugs liossesiiiin^bi narcotics/drugs for sale Felony possession of narcotics/drugs Misdemeanor possession of narcotics/drugs 3 Property. Offenses 5 Felonies Misdemeanors '3 A11.0ther Crimes or ProbationViolations 0 2. NUMBEkOF PRIOR ARRESTS,LAST 12 MONTHS :.PriOr felony arrest within the last 7days 6 or more total arrests, last 12months '.3 19,5 tOtal arrests, last 12 months to 3 total arrests, last 12months no arrests within thelast 12 months 0 '3. PROBATION/PETITION STATUS Active cases (select only one score) With petition now pending 6 With last adjudication within 90 days 4 With last adjudication more than 90days ago 2 Not an active case 0 4. SPECIAL DETENTION CASES(Check whichever applies) .Escapee Failed placement Transfer In Court Order .Arrest'Warr Bench Warr Other (describe) 10 0 Not Applicable

DETAINED. RELEASE DECISION SCALE TOTAL SCORE Score 0-9 = RELEASE Score 10+ =DETAIN

it 1990,surveys were taken ofpre-hearing deten- of all, it's expensive. San Francisco estimated house one juvenile per tioninthreeCaliforniacountiesSan cost more than $100 to Francisco, Los Angeles, and Santa Clara. The night, which amounted to more than$40,000 surveys revealed thatthree-fourths of all juve- per year. niles were held more than24hours regardless Second, it crowds together juveniles who shouldn't be together. In Los Angeles, juvenile of offense. also Aside from worsening overcrowding,such hall held those awaiting their hearings. It their detention creates several other problems.First held juveniles who had already had or .) ,d Unit 5: Juvenile Justice 235 hearings and either were waiting to be placed elsewhere or were serving their time in juvenile Class Activity: Detainor hall itself. Serious offenders stayed alongside Release lesser ones. Finally, pre-hearing detention creates risks - In this activity, students role play juvenile to inmate safety Not only do violent offend- probation officers in charge of intakeat a juve- ers present a threat to others, but troubled nile facility in a large city. youth in detention pose a high risk of suicide. 1.Break into pairs. Each pair will determine Santa Clara, San Francisco, and Los whether juveniles remain in detentionor Angeles counties decided to do something are released to their parents. about pre-hearing detention. Obviously, they 2. Each pair should: could not just release all the juveniles. Some Use the "San Francisco Juvenile posed a threat to the community. Others Detention Screening Criteria" on might not show up for their hearings. The page 235 to help make the decisions. counties had to find a solution that would sat- But regardless of the score, you make isfy the need for public safety. They needed a the final decision to release or detain way to identify youth in custody who could be the juvenile. safely released. They came up with a screening checklist Review the "Six Sample Cases"on pages 237-238. for each juvenile. A copy of San Francisco's is on page 235. Probation officers score each juve- Score each case on a sheet ofpaper. nile according to this checklist. Those scoring Make a recommendation to release 10 points or more are detained. Those scoring or detain. If your recommendation under 10 go home. But the probation officers goes against the Screening Criteria's have the right to override thescore. So whether recommendation, write an explana- a juvenile scores over or under 10 points, a pro- tion for your decision. If the two of bation officer still makes the final decisionon you cannot agree on a case, write whether to detain or release the juvenile. down both your decisions. The checklist has thus far provedsuccess- 3. Go over the cases with the whole class. ful. A 1990 study in San Francisco showed that Have students explain theirdecisions. 94 percent of the juveniles releasedwere not Debrief the activity using the questions rearrested before their hearings and 100per- below. cent showed up for the hearings. Plus the city reaped savings. In 1989, the juvenile hallaver- Debriefing Questions aged 123 juveniles per day. By 1990, theaverage 1. On which cases did most peopleagree with had dropped to 90. the screening criteria recommendation? Were there some cases that most people disagreed with its recommendation? Why? 2. Are there other criteria thatyou believe should be added? Some that should be changed? Why? 3. 'What sorts of juveniles, if any, should be held in custody before their hearings? Why?

236 CRIMINAL JUSTICE IN AMERICA :39 Case 2: Linda Dubrensky Age: 15 Murder Charge: Selling narcotics (felony) Arscr. of an inhabited buiidino Circumstances: Dubrensky's arrest came Armed robbery from police undercover work at a local com- Rape munity college where Dubrensky, a high Kidnaping school junior, was not enrolled. After selling Assault with a cieadiy weapon small amounts of heroin to police agents pos- Agaravated assault ing as students, Dubrensky volunteered to set for agents. In the mid- Discharging a firearm inan inhabited building up a major purchase dle of this $100,000 transaction, both Dubrensky and her 35-year-old supplier were Six Sample Cases arrested. Case 1: Tom Sugino Previous Record: Two recorded police con- Age: 16 tacts (one for curfew violation)in the last Charge: Motor vehicle theft (felony) year. One prior juvenileadjudication for pos- Circumstances: Late one Thursday night, session of heroin about eight months ago. Sugino and a 19-year-old friend hot-wired an Served one month in the County Home for expensive sports car parked in the garage of an Girls; six months participation in a diversion apartment complex where bothworkedas program for drugabusers. maintenance workers. They drove the car 120 Personal Background: School records indi- miles to an ocean-side resort. The theft was dis- cate a moderate rate of truancy, abright stu- covered approximately 48 hours later whenthe dent who does not work up to potential. No two young men were arrestedfor disorderly work record. Medical report indicates that conduct. Dubrensky is addicted to heroin. Family of Previous Record: Three recorded detentions two children, mother, stepfather.Mother by police, all within the last 12 months, two works as a tax accountant, stepfather is a cur- for curfew violations, one for underage drink- rently unemployed aerospace engineer, both ing. Released on summary probation, without are members ofAlcoholics Anonymous. formal adjudication, in all three instances. Case 3: Martin Robinson Personal Background: Junior in high school Age: 16 an average student with anaverageattendance Charge: Armed robbery, first-degree mur- record. Only child, father deceased, lives with der (felonies) mother who works nights as a waitress and his Circumstances: Robinson and three other elderly grandmother. Part-time work since age juveniles, two armed with handguns, robbed 14, fired from current job because of this inci- a local market. The owner, a66-year-old dent. One psychologist's report indicates nor- woman, pulled a gunand in the following mal profile. Another suggests serious emotion- shootout, was killed. Robinson was not al disturbance as a result of father's death. armed and did not shoot the woman, but he did most of the talking during the robbery. Robinson and two others, both 14, were apprehended shortly after the incident. The fourth suspect, a 15-year-old, is still at large. Previous Record: None Personal Background: School records indicate a high rate of truancy. Minimalwork

237 0 Unit 5: Juvenile Justice record, no steady job at time ofarrest. Case 5: Tom Kennedy Psychiatric report indicatessevere emotional Age: 16 disturbance. Family of three children, moth- Charge: Possession ofa concealed weapon er, grandmother. The mother works as a store (misdemeanor) clerk. Circumstances: Kennedy, nota gang mem- Case 4: Patricia Ann Warner ber, has to contend with two rival neighbor- Age: 15 hood gangs. Although he knows membersof Charge: Breaking and entering, burglary both and has been approachedto join, he has (felony) resisted. Three days ago,a rumor circulated Circumstances: Warner and her 20-year-old around the school that onegang was out to boyfriend broke through the back windows of "smoke" him. Fearing for his life, Tom took a local electronics shop after neutralizing the his father's unloaded revolver to school the alarm. Police on patrol detected the crime in next day. He let word out through his friends progress. Warner was apprehended carrying that he had a gun and that "nobody had bet- two video cassette recorders to the car. Her ter mess with me." Hearing about Tom's boyfriend was picked up several blocksaway threat, a security guard stopped Tom, frisked attempting to escape. In the car, police found him, and called the police. a home computer, portable stereo players, Previous Record: None. and other equipment withan estimated total value of more than $9,000. Personal Background: School records indicate a poor student, but teachers consider Previous Record: Two prior detentions for him bright. No work record. Family of four questioning by police. One resulted when children, three younger sisters. Bothparents Warner and a 32-year-old female companion present in home. Father unemployed and has were picked up for selling dinnerware from drinking problem. Mother supports familyas the back of a van. Neither female hada bill a cashier in a supermarket. of sale for the merchandise. Because of her youth, Warner was released without charge. Case 6: Roger Duncan Her companion was cited for peddling with- Age: 16 out a license, a misdemeanor. One juvenile Charge: Arson (felony) adjudication for marijuana possession about Circumstances: Roger and a 20-year-old nine months ago. Spent 10 weeks enrolled in friend set fire to an apartment building a diversion program. under construction in their neighborhood. Personal Background: School records indi- Roger's mother had been served withan evic- cate a high rate of truancy; poor scholastic tion notice earlier in the week. The landlord achievement probably caused bya minor also owned the burned building. A neighbor learning disability. No work record. saw the two boys fleeing the scene. They were Psychological reports indicate emotional taken into custody the following day. instability and suggest the possibility of child Previous Record: Three prior detentions in abuse in the Warner home. She is the oldest the last year. One month agowas put on proof four children; both parents presentlyare bation for shoplifting. employed at blue collar jobs. Personal Background: School records indicate a moderate rate of truancy and low scholastic achievement. No work record. Family of five children, two of whomare in jail. Mother present in home. Father's whereabouts unknown.

238 CRIMINAL JUSTICE IN AMERICA 2 4 CHAPTER 19 Children and theConstitution

Again, no records were kept. When it was over, The Rights of Juveniles the juvenile court judge committedGerald Gault, a juvenile delinquent, to the Arizona treatment," 7-rens patriae, "individualized State Industrial School until he reached age 21. and "the best interests of the child" are the In other words, Gerry received a six-year sen- cornerstones of the juvenile justice system. tence. The maximum adultpunishment for Children are delinquents not criminals; they his alleged crime was a $50 fine and two detained. This are not imprisoned; they are months in jail. special treatment is often necessary and bene- The Gaults immediately filed a petition of ficial. It can also raise serious constitutional habeas corpus on Gerry's behalf, arguing that ofthe questions. What provisions their son had been denied his due process Constitution and Bill of Rights apply to juve- rights. The Arizona state courts, however, niles? Which do not? The Supreme Court has denied the petition. Because the adult and faced these problems many times. Consider juvenile systems had different aims, explained the following landmark case. the Arizona Supreme Court, they required dif- Sorry, Wrong Number ferent definitions of due process. If the state On the evening of June 8, 1964, Mr. and applied strict adult regulations to juvenile Mrs. Gault of Maricopa County, Arizona, cases, it could not providethe individualized returned from work and couldn't find their justice that was the heart of the juvenile sys- 15-ye:-,old son, Gerry. He wasn't at school.He tem. Though Gerry's treatmentdid not meet wasn't with any of his friends. After a frantic adult due process requirements, the boy had search, they finally found out police had taken not been treated differentlyfrom other juve- their son to the Children's Detention Home. niles. Arizona agencies had followed their nor- Gerry had been arrested that afternoonfor mal procedures, and the decision' to confine allegedly making an obscene phone call to a the boy was therefore upheld. neighbor. Unconvinced, the Gaults appealed to the The Gaults rushed to get their son, but the U.S. Supreme Court. In 196Z the high court Detention Home would not release him. responded, shaking the foundation of the Instead, the family was told there would be a American juvenile justice system. A majority hearing about Gerry's case the next day. On of five justices reversed the Arizona ruling and June 9, an Arizona probation officer filed a granted the Gaults' habeas corpus petition. petition with the juvenile court. It stated that In Re Gault (1967) Gerry was a delinquent minor, but it con- Prior to Gault, U.S. courts had upheld the tained no details about his alleged crime. idea that young people had a right "not to lib- Gerry and his parents were not told he could erty, but to custody." In otherwords, their consult an attorney or refuse to answer ques- right to protection outweighed their right to tions. The offended neighbor wasn't even pres- independence. In the Gault decision, the Gerry was ent at the hearing. After it was over, Supreme Court held that juveniles, just like sent back to the Detention Home. adults, have a vested interest in not getting When Gerry was released a few days later, locked up. It makes no difference whether the his mother received a notice of anotherhear- is called a reform school, a detention absent. jail ing on June 15. Again, the neighbor was home, or a prison. Any juvenile proceeding

r1 #4.e tee Unit 5 Juvenile Justice 239 Percent of Arrests Involving Juveniles Juveniles accounted for 18% of all arrests. For only one crime (arson), juveniles made up a majority of those arrested.

All arrests 18%

Arson 52% Vandalism 42% Motor vehicle theft 36% Burglary 35% Larceny-theft 32% Robbery 27% Disorderly conduct 26% Liquor laws 25% Stolen property 25% Weapons 24% Other assault i18% Forcible rape 17% Sex offenses 17% Aggravated assault Drug abuse Murder Vagrancy Offenses against the family Drunkenness Driving under the influence Prostitution

Source: 'Juvenile Arrests 1998,* OJJDP (1999) that could lead to confinementmust follow legal fees. In theory, the hearing and probation minimum standards of fairness and due officers were supposed to be lookingout for process. the young people's best interest. But sincecon- The majority opinion explicitly stated finement is so much like punishment, the what some of these standardswere. court decided that young people needed legal 1. Defendants must be informed of the counsel. Attorneys would also helpyoung peo- charges against them. Notice of the charges is ple better understand whatwas happening to an essential element of a fair trial. Until he them in thejuvenile justiceprocess. found himself in a hearingroom, neither 3. Before questioning at hearings, juvenile Gerry nor his parents knew the charges against court judges must inform young persons of him. The official petition, which the Gaults their right to remain silent. In addition, ifa did not see prior to the hearing, said only that young person refuses to answer questions, that Gerry was "in need of protection of this refusal cannot be used asan indication of Honorable Court." The Supreme Courtwas guilt. Under oath during the habeascorpus not satisfied with this general charge. Detained proceedings, Gerry's hearing officer testified juveniles and their parents must be told specif- that at both hearings the boy had confessedto ically what conduct is under question and why making the offensive phone call. Also under a hearing is being held. Moreover, this infor- oath, Gerry's mother, whowas present at both mation must be provided well in advance of hearings, denied this claim. She asserted that the hearing so the accusedcan prepare a her son only confessed to dialing the phone, response. but that another boy had done all the talking. 2. All young people subject to confinement The Supreme Court announced that thecon- have a right toan attorney and must be flicting testimony was irrelevant because nei- informed of this right. Thestate must pro- ther Gerry nor his family had been informed vide attorneys for those toopoor to afford of the boy's right to remain silent. The

240 CRIMINAL JUSTICE IN AMERICA 2 4 3 Constitution protected juveniles as well as For Discussion adults from self-incrimination. 1. Why do you think Gerry Gault's hearing officer decided that the 15-year-old was 4. Juveniles have the right to cross-examine delinquent and in need of the state's pro- their accusers. The neighbor who accused tection? Do you think Gerry could be Gerry Gault never appeared at a hearing to defined as delinquent? Why or why not? confirm her accusation or explain why she blamed Gerry for the phone call. The Supreme 2. What rights did the Supreme Court guar- Court decided that was not fair. Confronting antee juveniles in the Gault decision? What and questioning witnesses is an important part rights were not guaranteed? of determining the validity of evidence. 3.It has been said that In Re Gault "shook the Though it marked the first big step in American juvenile justice system toits asserting juveniles' rights, the Gault decision foundations." How did it contradict the was also significant because ofthe rights it did philosophy behind our juvenile justice sys- not guarantee. The court refused to apply its tem? due process requirements to cases where the 4. Do you agree with the court in Schall that detained juvenile was sent to a foster home or locking Martin up before his hearing was in other ways "set free." Nor did it insist that not meant as punishment? Why or why juveniles receive all the constitutional protec- not? tions available to adults. Gault left questions about whether other constitutionalissues, such as the exclusionary rule, Miranda warn- Class Activity: The Court ings, and the rights to speedy, public, and jury Decides trials, applied to juveniles. In aseries of cases in the 1970s, the In the years since Gerry Gault's release, the Supreme Court ruled on some of these consti- Supreme Court has been asked to answer some tutional issues. But in 1984 in Schall v. Martin, of the questions raised by the Gault decision. a more conservative SupremeCourt reaf- The facts and arguments of four of these firmed the basic principle of the juvenile jus- important cases are noted below. In this activ- tice systemparens patriae. In that case, New ity, students role play Supreme Court justices York authorities had charged Gregory Martin and decide these cases. with robbery, assault, and possession of a 1. Form courts consisting of an odd number weapon. They held him in custodyuntil his of students (three or five is preferable). adjudicatory hearing under the New York 2. Appoint one member of each court chief Family Court Act. The act allowed detaining juveniles who might commit further crimes justice to lead the discussions. before their hearing. In upholding this act, the 3. Assign each court one of the Four court recognized that juveniles have an interest Important Juvenile Justice Cases (pages in liberty. "But," stated the court, "that inter- 242-245), making sure that each case is est must be qualified by the recognition that heard by at least one court. juveniles, unlike adults, are always in some Each court should: form of custody....They are assumed to be a. Read and discuss the facts and argu- subject to the control of their parents, and if ments of its case. parental control falters, the State must play its b. Have the chief justice poll the jus- part as parens patriae." In this role, the state was tices one at a time to express an not punishing Martin by locking him up opinion on the issues of the case prior to his hearing, but, according to the (majority wins). court, merely acting to protecthim from fur- c. Have one representative report its ther wrongdoing. decision and the reason behind it to

Unit 5: Juvenile Justice 241 6. Why should double jeopardy protection attach to juvenile hearings? Why should it not? Four Important Juvenile Justice Cases Case #1: A Standard of Proof In Re Winship (1970) Adults can be convicted of crimes only if their guiltis proved beyond a reasonable doubt. In non-criminal cases, the standard of proof is different. To win a civil suit, parties normally only have to have the greater ari-lount of evidencethe "preponderance of evidence," as it is known. Since New York considered juvenile proceedings to be civil,itslegislature passed a law stating that delinquency didnot have to be proved beyond a reasonable doubt. Juvenile courts could declare a youngperson delinquent based on a preponderance of the evidence. the class as a whole. If some mem- Samuel Winship was 12 years old when bers of the group disagree with the brought before a New York juvenilecourt for decision, have a second representa- allegedly stealing $112 from a woman'spurse. tive report the minority opinion. Based on a preponderance of the evidence, the 4. Debrief the activity using the questions judge found Samuel delinquent and commit- below. ted him to a training school until he reached age 18. After state courts upheld the commit- Debriefing Questions ment, Samuel appealed his casetothe 1. What decision did each student court Supreme Court. reach? Compare your decisions with those made by the U.S. Supreme Court, noted in On appeal, Samuel's attorneys argued that: the teacher's guide. Winship's commitment was, in effect,punishment for stealing the $112. 2. What are some of the advantages of applying the reasonable-doubt standard of proof Winship was being punished unfairly in juvenile cases? What are some of the dis- because his guilt had not been proved advantages? beyond a reasonable doubt. 3. How might making juvenile hearings pub- The reasonable-doubt standard isan inte- lic help society? Help accused individuals? gral part of due process guaranteed by the Why might this be harmful to society? 14th Amendment. 4.If you were accused of an unlawful act, Attorneys for the state on appeal claimed that: would you prefer a jury trial or a delin- Winship's commitment was not punish- quency hearing? Why? Would you want ment. The court made no determination proceedings at your trial made public? about his guilt. Juvenile courts do not 5.If juveniles were given jury trials, who determine guilt because it does not fit the should serve on the jury? The juvenile's purpose of the juvenile justice system. peers? Adults? A mixture of both groups? Ifforced to applythe stricter Why? reasonable-doubt standard, juvenile courts

242 CRIMINAL JUSTICE IN AMERICA would lose their informality and personal- The findings of delinquency were, in effect, ized justice, which are why these courts convictions. exist. The Sixth Amendment guarantees The reasonable-doubt standard comes from Americans a public trial by jury prior to English common law. It is not expressly conviction of a criminal offense. required by the Constitution or the 14th Barbara and her friends experienced pre- Amendment. cisely the kind of treatment the Sixth Each state legislature has the right to deter- Amendment guarantee of a public jury mine the standard of proof most appropri- trial was meant to prohibit. The young peo- ate to its own citizens. ple were convicted and sentenced for activities that were at heart political. Had the Issue for Decision: case been heard in public before a jury,this Does due process as guaranteed by the abuse of judicial power probably would not Constitution and its 14th Amendment require have occurred. that juvenile courts apply the reasonable-doubt standard? Opposing attorneys on appeal argued that: The findings of delinquency were not con- Case #2: Trial By Jury victions and that the young people were In Re Burrus (1971) never accused of crimes. Suchaccusations Barbara Burrus and several of her friends, do not fit the spirit of juvenile justice. ranging in age from 11 to 15, strongly disagreed with decisions made by their principal and The Sixth Amendment mandates a jury trial only in criminal prosecutions. Trial by schoolboardinHyde County,North Carolina. After organizing a series of demon- jury therefore was not required by the strations, they were arrested and turned over to Constitution. juvenile authorities. If the offenders had been Requiring that states give juveniles jury tri- adult., their activities would, at most, have als would turn such proceedings into an resulted in misdemeanor charges. adversary process. This would result in delays and formalities which contradict the Attorneys for the young people requested that: juvenile system's idealistic goals. (1) their juvenile hearings be opened to the general public, and Privacy in juvenile proceedings protect the reputations of the young people involved. (2) they be given jury trials. The issue of whether to give people public The hearing officer denied the request for or jury trials should be decided bythe indi- trial by jury and excluded the general public vidual states. from the hearings. After the hearings, he declared the young people juvenile delinquents Issue for Decision: and committed them to an institution until Under the Sixth Amendment of the they reached the age of majority. He then sus- Constitution, are juveniles entitled to a public, pended all these commitments and placed all jury trial in juvenile court? the offenders on probation. Case #3: Trial By Jury An appeal to the North Carolina Supreme McKeiver v. Pennsylvania (1971) Court successfully reversed the commitments, McKeiver, 15, had never been in trouble but that court upheld the delinquency find- before. He joined a group of about 25 young ings and ruled that a juvenile was not guaran- friends as they chased three younger teenagers teed trial by jury under the Constitution. down the street. When the group caught up Lawyers for Burrus and her friends appealed with their victims, they threatened the young- the case to the U.S. Supreme Court. sters and took 25 cents from oneboy. On appeal, Burrus' attorneys argued that: McKeiver and a 16-year-old friend were caught

4.°, 4 k.5% Unit 5: Juvenile Justice 243 and charged with theft and assault. Both boys Issue for Decision: requested to have their cases tried bya jury, Under the Sixth and 14th amendments to and in each instance, the requestwas denied. the Constitution, are juveniles entitled toa At their juvenile hearings, both teenagerswere jury trial in juvenile court? found to be delinquent. McKeiverwas put on Case #4: Protection Against Double probation. His friend was committed toan Jeopardy institution. Ultimately, the case was appealed Breed v. Jones (1975) to the Supreme Court. The Fifth Amendment states that noper- On appeal, McKeiver's attorneys claimed that: son shall "be subject for the same offense to be The State of Pennsylvania had interfered twice put in jeopardy...." Simply put, this with both defendants' rights under the means that no person can be tried twice for Sixth and 14th amendments by denying the same crime. them trials by jury. But there are instances where deferidants Juvenile court proceedings are so similar to are put on trial twice, which are not Consid- criminal trials that defendants' due process ered double jeopardy. Consider the following rights must be protected. examples: Trial by jury is one of the most fundamen- A jury is unable to reach a verdict in tal of all American due process rights. George's murder trial. The judge declaresa mistrial. George may be tried again. If accused of McKeiver's alleged offense,an adult would have been given a jury trial. It George is found guilty of murder. On appeal, an appellate court overturns his was unfairtodiscriminateagainst McKeiver and his friend merely on the conviction because the prosecution intro- basis of their ages. duced illegally obtained evidence at the trial. George may be retried without the ille- Attorneys for the state of Pennsylvania on gal evidence. appeal argued that: But the following are clear examples of double The Constitution only mandates trials by jeopardy: jury in criminal cases. State X tries George for murder. A jury No matter how many similar features the finds him not guilty. State X may not try two processes share, a juvenile proceeding is George again for the same murder. not a criminal prosecution. A juvenile hear- State X tries George for murder. A jury ing differs both in philosophy and inprac- tice from a criminal prosecution. finds him guilty and sentences him to 20 years in prison. State X may not try George A judge or hearing officer is just as compe- again for the same murder when he gets tent to determine facts as a jury would be. out of prison. Giving juveniles jury trials would destroy Jones, 17, allegedly committed an armed the system's design as a protective mecha- robbery. Taken to Los Angeles County Juvenile nism for handling young people in trouble. Court, he was detained until a petition against Government studies have recommended him was heard. At the adjudicatory hearing, against using jury trials for juveniles. two prosecution witnesses testified and Jones Each state should be allowed to decide testified in his own defense. The juvenile court whether it wishes to extend the right toa judge found him delinquent. At the disposi- jury trial to young people in its own juris- tional hearing two weeks later, the juvenile diction. court judge found that Jones did not belong in the juvenile system. The judge ruled that Jones should be tried as an adult. Over objections by Jones' attorney that Jones had already been

244 CRIMINAL JUSTICE IN AMERICA,-; 4I tried, Jones was transferred for trial. In adult Attorneys for the state of California on appeal court, he was tried, convicted,and sentenced argued that: for armed robbery. The Constitution only protects against double jeopardy in criminal prosecutions. On appeal, Jones' attorneys claimed that: Because Jones had already been tried in Juvenile court hearings are not criminal juvenile court for armed robbery, his trial proceedings. The juvenile system tries to in adult court violated his right against rehabilitate delinquents. All the court did double jeopardy guaranteed by the Fifth was determine that Jonesdid not belong in Amendment. the juvenile system. Juvenile court hearings are essentially crim- Even if double jeopardy applies to juvenile inal hearings. They determine whether the proceedings, the adult court proceedings juvenile committed an offense and they were merely part of the same process asthe juvenile court proceedings. Jones was only may take away the juvenile'sliberty. going to be punished once for his offense. Applying double jeopardy protection to Therefore his trial in adult court did not juvenile court proceedings will help adjudi- amount to double jeopardy. catory hearings. Juveniles willbe more cooperative if they know what they say will Juvenile court proceedings are informal not be held against them in adult court. and need to be flexible to best treat juveniles' interests. If juveniles are to be transferred to adult court, this must be done before anyadju- Issue for Decision: dication in juvenile court. Under the Fifth and 14th amendments to the Constitution, does an adjudicatory hearing in juvenile court and a subsequent trial in adult court for the same offense amount to double jeopardy?

248 Unit 5: Juvenile Justice 245 School Searches there is no reason to deny students an ,expectation of privacy in these items. Does the Fourth Amendment But the court also recognized that schools Protect High School Students From need to maintain discipline. To determine Searches by School Officials? whether the search was reasonable and consti- SinceitsGault decision, the Supreme tutional, the court balanced the student's Court has ruled several times on the rights of expectation of privacy against the-,school's juveniles.Ithasheldthatthe Fourth need for discipline. In doing so, it madetwo Amendment applies to juvenilesas well as important decisions about school searches: adults. But does it apply to students in school? School officials do not need warrants. Does it restrict searches by school officials? Or Requiring warrants would disrupt the are these officials merely filling a parental role informal discipline procedures necessary to and, acting as parents, can they conduct run a school. All the members of the court searches without restrictions from the Fourth agreed with this conclusion. Amendment? In New Jersey v. TLO. (1985), the School officials do not need probable court decided how the Fourth Amendment cause. All searches, whether with or with- applied to high school students. out a warrant, traditionally require proba- In this case, a high school teacher caught ble cause. Probable cause means that the T.L.O. smoking in the girl's bathroom. (The facts leading up to the search must be court used the student's initials in accordance strong enough that an independent, cau- with New Jersey's practice for juveniles.) When tious person would have good reason to taken to the vice principal, T.L.O. denied believe that the person committed a crime smoking. The vice principal took T.L.O.'s (or school infraction). Again, because of purse and searched it. Finding cigarettes and the school setting, the court felt school rolling paper, he kept searching. He found officials needed a lesser standard. The court marijuana, plastic bags, a roll of dollar bills, settled on "reasonableness" as the new stan- and a customer list. So he called the police. dard for school searches. Two justices dis- Charged with possession of marijuana sented from the court's decision to aban- with intent to sell, T.L.O. was found delin- don the traditional, well-defined probable quent by a juvenile court. T.L.O. appealed the cause standard. finding, arguing that the search of her purse Since T.L.O. had denied the teacher's violated her Fourth Amendment rights. The accusation of smoking, the court found itrea- case ultimately went to the U.S. Supreme sonable for the vice principal to search her Court. purse for cigarettes. Once he found the rolling The state of New Jersey argued that the paper, the court believed it was reasonable for Fourth Amendment only applied to police him to continue searching the purse. So the searches, not to searches by school officials. court found the search constitutional. The dis- The Supreme Court rejected this argument. senters believed that the principal had proba- The amendment covered searches by allgov- ble cause to search the purse for cigarettes, but ernment officials. once finding them, had no probable cause to The court similarly rejected New Jersey's continue rummaging through her purse. claim that because school officials must close- For Discussion ly supervise students, students have noreason- 1. Do you think school officials should have able expectation of privacy "in articles ofper- probable cause to conduct a search? Or do sonal property 'unnecessarily' carried into a you think the new reasonableness standard school." The court stated that students rou- is better suited for schools? Explain. tinely bring legitimate personal items to schoolkeys, money, pictures, diariesand 2. What effects might this decision have on schools and students?

246 CRIMINAL JUSTICE IN AMERICA 249 CHAPTER 20 Juvenile Corrections Wilderness programs. In rigorous out- Options for Placing door settings, these programs try to build Juvenile Offenders self-esteem and teamwork in troubled youth. After finding juveniles delinquent, juvenile Group homes. Often called halfway hous- court judges must decide what to do with es, these facilities typicallyhouse about 20 the young offenders. This is called making a young people. Juveniles living inthese disposition. As with adult court judges, they homes often attend school, hold jobs, and have a number of options. Judges try to choose move about the community. Butthey must the option that has the best chance of rehabil- obey house rules. Most group homes also itatingtheparticulardelinquent youth. provide counseling. Depending on the jurisdiction, judges must Substance-abuse treatment centers. These choose among: Juvenile detention centers. These are facil- residences focus on treating drug and alco- ities where juveniles are first brought. Many hol abuse. Like halfway houses, they nor- await their hearing here. Others await place- mally hold about 20 juveniles. But these ment following disposition. But juveniles facilities often limit residents' contact with may also be confined in these centers, usu- the community during treatment. ally for short terms, following a finding of Foster homes. Screened by the state, fami- delinquency. lies take juveniles into their homes. States Trz'--ling schools. Often located in rural set standards about food, clothing, and settings, these large, state-run institutions other treatment, and they limit the number typically hold from 100 to 1,000 juveniles. of children a foster family may care for. In They are meant for the most serious return,foster families receive a certain amount of money for each child's upkeep. offenders. In-home placement. Under this disposi- Small,secureresidentialfacilities. Holding only 10 to 15 juveniles and an tion, juveniles return to their homes. equal number of staff, these facilities con- When judges choose in-home placement fine serious, violent offenders. They may be or foster homes, they may haveseveral more run by the state, but often smallnon-prof- options to choose from: it groups operate them. Diversion to day treatment programs. Camps and ranches. Located in rural These programs differ greatly. Some are all areas,thesesecurefacilitiesnormally day, every day. Others meet after school or accommodate about 100 juveniles. They on weekends. Some replace school.Others emphasize discipline and school work. teach about the legal system or the effects Most offer counseling. of substance abuse. Others provide supervised recreational activities. Juveniles divert- Boot camps. Run like Army basic training, ed to these programs must attend for a spe- these camps subject juveniles to shaven cific length of time. heads, physical training, and strict discipline. Known as shock incarceration, boot Intensive or highly intensive probation. camps take juveniles forshort terms and Working with few juveniles, probation offi- try to shock them intochanging their cers meet often with them. In intensive probation, they meet every day. In highly behavior. 25 Unit 5: Juvenile Justice 247 Offense Profile of Juveniles Which Options Do Judges Choose? in Residential Placements (by most serious offense) In most jurisdictions, judges do not have this vast array of choices. Thus they frequently either place juveniles on probation or send them to secure facilities, usually juvenile deten- PropertyPerson 33% tion centers or training schools. Community 30%. placements and intensive probation are often not available. Public Order Their unavailability is ironic. The juvenile Status 7%, 21% 'v.'s"-Drug 9% justice system has always encouraged community-based treatments for young people in Person offenses include murder, rape,robbery, trouble. Such programs can often more easily assault, etc. adapt to the needs of individual juveniles than Property offenses include burglary, theft, arson, institutional programs. But in the late 1970s, a etc. public backlash against community programs Drug offenses include trafficking and possession. arose after juvenile court judges began assign- Public order offenses include weapon, alcohol, and ing violent offenders to programs designed for other offenses. non-violent offenders. Today, many communi- Status offenses include running away, truancy, cur- ties have mixed attitudes about both the safety few, underage drinking, etc. and the effectiveness of rehabilitating delinquents in non-institutional settings. Source: Juvenile Offenders and Victims: 1999, This backlash arose at the same time that National Report, OJJDP (1999) the rate of juvenile violent crime started declining. From 1980 to 1986 the rate of violent vic- intensive probation, they meet several timizations per 100,000 juvenilesfell from times a day. about 3,200 to 2,500. The relative number of Probation. Juveniles are released under fair- juveniles in society declined during this same ly strict conditions. They may, for example, period. But the victimization rate starting ris- be required to: ing again dramatically. It soared to about 4,200 in 1993. Then it started dropping sharply. By report often to a probation officer, 1997, it had almost reached 2,500 again even stop associating with certain friends, though the number of juveniles was increasing. submit to home or body searches on It had started increasing in the 1990s and is request, and projected to continue rising. By 2007, the num- take a weekly urine test (if they have ber of 15-, 16-, and 17-year-olds will reach the been detained on a drug charge). same level as in the mid-1970s. This is the age Juveniles who break the terms of their pro- group accounting for two-thirds of all juvenile bation can be returned to court for an arrests. Many had predicted the volume of alternative disposition. juvenile crime would climb sharply. Thus far it hasn't occurred. Summary probation. After assuring States have reacted with different programs the authorities that they will not to treat juvenile offenders. The urge to get misbehave, juveniles are released tough on young lawbreakers has taken control under parental or adult supervision. in many states. Responding to public demand, If they break their promise, the juve- legislators have written statutes curbing judges' niles return to court forstricter discretion in sentencing and mandating long treatment and supervision. periods of detention. They have turned away from the traditional model of rehabilitation to one of punishment. Other states, keeping

41 248 CRIMINAL JUSTICE IN AMERICA 4.) rehabilitation as a model, have tried to insti- one of the most radical reforms in the history tute more community programs. The states of of juvenile corrections: He closed down all the California and Massachusetts illustrate two training schools in the state. diametrically opposed approaches. Taking the money saved from closing the expensive-to-run training schools, he invested Locking Them Up in California it in small, secure units for the most dangerous California has 10 percent of the juvenile offenders. These sites sheltered no more than population in the United States. Yet it houses 15 juveniles each. While costing even more to about 20 percent of all the juveniles in custody run per juvenile than the training schools, in the United States. This high percentage they cost less overall because they housed reflects California's get-tough-on-crime policy fewer individuals. The remaining juveniles, he of the 1980s and 1990s. The state built more sent into community-based programs, run by prisons, sentenced prisoners to longer sen- non-profit agencies. tences, and limited criminal defendants' Today, long after Miller's departure, his rights. This policy also resulted in more juve- departmentstilloperates without training niles in secure facilities for longer periods. schools. It assigns a caseworker for each juve- The California Youth Authority takes nile put in its care. The caseworker develops a charge of the most serious youth offenders in treatment plan for each juvenile and oversees California. It runs 11 large institutions, which itsimplementation. Massachusetts' out-of- average 600 beds each, but which are alarm- home placements consist of ingly overcrowded. These institutions serve as 13 small secure units (for the most the places of last resort for serious juvenile serious offenders) offenders. Once locked up by the Youth 16 small detention centers (for juve- Authority, offenders often serve far more time than adults convicted of similar offenses in niles awaiting hearings) California. 30 groups homes The Youth Authority's institutions share 1 forestry camp the problems of alllarge training schools. 7 foster care agencies Violence threatens juveniles and officials alike. The remaining juveniles under the depart- Gang culture predominates. Drugs somehow ment's supervision are at home. They either make their way in. Suicides occur. The most attend day treatment centers or are supervised that can be said of them is that they keep by probation officers. Only the most serious offenders off the streets. Although almost all offenders, about 10 percent of the juveniles, training schools make efforts at rehabilitation, remain in the system for long. Placed in secure these efforts usually fail in such an atmos- units for about a year, they move to group phere. In fact, 70 percent of the juveniles homes and then to highly supervised proba- released from the California Youth Authority tion. If they fail at any step, they return to are rearrested within one year; 85 percent are secure units. rearrested within five years. Which Works Better? Putting Them in the Community in Differences in geography, size, and popu- Massachusetts lationsmakeitdifficulttocompare JeromeMillerbecamedirectorof California's and Massachusetts' juvenile cor- Massachusetts' Department of Youth Services rections.Critics of the California ,Youth in 1970. At first, he tried to reform the large Authority point toitsfailuretoisolate trainingschoolsthatheldmostof hard-core, violent offenders from mere repeat Massachusetts' juvenile detainees. He wanted offenders. They claim these training schools the schools to become centers of rehabilita- are training grounds for crime, and its stu- tion. He soon gave up. In 1972, he instituted dentsareanoverwhelminglyminority

J Unit 5: Juvenile Justice 249 Rates of Juveniles in Custody For Discussion

Custody rate (per 100,000 juveniles) 1. What arethebenefits andcostsof Massachusetts'approachtojuvenile National average 368 offenders? What are the benefits and costs 10 Highest States of California's? Which do you think is Louisiana 582 South Dakota 556 most effective? California 549 2. Which of the placement options described Wyoming 511 above sounds least effective for juvenile Connecticut 508 Georgia 480 offenders? Why? Nevada 460 3. Are any of the options better suited to par- South Carolina 427 ticular problems? Explain. Alaska 418 Rhode Island 412 10 Lowest States Problems With Locking Mississippi 218 West Virginia ,. 200 Up Juveniles Arkansas 198 Oklahoma 196 In May 1982, Christopher Peterman, 17, North Carolina 196 found himself in the juvenile section of the Massachusetts 194 New Hampshire 154 Ada County Jail in Boise, Idaho. He had been Idaho 145 picked up because he had failed to pay $73 in Hawaii 106 traffic tickets. Instead of sending him to the Vermont 70 juvenile detention center, authorities sent him Source: Juvenile Offenders and Victims: 1999 National Report, to the jail to teach him a lesson. Housed with OJJDP (1999) him were other juveniles sent over from the population. Critics of Massachusetts' Youth center because they were too violent or diffi- Services claim that the state is releasing dan- cult to handle. Five of these juveniles attacked gerous juveniles back into the community Christopher in his cell. For four-and-one-half where they commit more crimes. hours, they took turns burning, gouging, and An early study by Harvard's Center for kicking him. Christopher died from his Criminal Justice came to the startling conclu- injuries. sion that Massachusetts had fewer repeat Christopher's case is a horror story about offenders befire Miller's reforms. It found pro- what can happen when violent and non-vio- grams in some parts of the state were not struc- lent juveniles are locked up together. Not sur- tured to meet the needs of the juveniles. It prisingly, the results of incarcerating-'nem-vio- reported far fewer repeat offenses in other lent juveniles with violent adults can be equal- parts of the state where the programs were ly as tragic. Rape is a common occurrence. The offering more options to juveniles. suicide rate of young people in adult jail is More recent studies by the National seven times greater than those incarcerated with Council on Crime and Delinquency found other juveniles. In adult institutions, young repeat offenses far lower since the reforms. Two people can receive the same rough treatment studies even tried to compare California's and meted out to adult inmates. Even if the juve- Massachusetts' rate of repeat offenses. They niles survive physically, they are likely to carry both found serious offenders passing through psychological scars. Massachusetts' system had a lower rate of In the mid-1970s, almost 500,000 juveniles repeat offenses than those passing through the were locked up in adult jails. In 1974, Congress California Youth Authority. This was true even passed the Juvenile Justice and Delinquency though the average length of confinement was Prevention Act. This law declared that no state far shorter in Massachusetts. could receive federal grants unless it separated

250 CRIMINAL JUSTICE IN AMERICA2 5 3 adults from juveniles in jails. Congress amend- people are going to need help. The following ed the act in 1980 mandating that adults and are descriptions of three innovative programs juveniles be kept in completelyseparate facili- designed for young offendersat home or in ties. foster homes. By 1997, fewer than 10,000 remained in adult jails. Almost all of themwere allowed to Day Treatment Program: Associated be held under exceptions created by federalreg- Marine Institutes, Inc. ulations to the act. Regulations permitjail Based in Florida, this privately operated organization runs 48 programs in confinement of juveniles convictedor awaiting seven states. trials as adult offenders. More than three- The programs focuson improving juveniles' fourths of the 10,000 fit thiscategory. The self-esteem and respect for others by building remainder fell under regulations allowing teamwork and academic skills. Attending classes in a marine environment, juveniles learn adult jails to hold alleged delinquents forsix hours before and after initialcourt appear- about boating, scuba diving, and sailing. Each ances until other arrangements can be made. student receives an individual education plan The 1974 act also orderedstates to remove and takes academic classes. Studentsearn status offenders from locked facilities. In 1975, points, which allow themgreater privileges status offenders made up about 40 percent of and advancement in theprograms. Limited to those held in secure juvenile facilities. By 1996, fewer than 50 juveniles atany time, programs last 150 to 170 days. Students fewer than 10 percent remained. Regulationsto return home each the act allow accused status offendersto be night. With one staff member forevery seven locked up for a maximum of 24 hours follow- juveniles, staff can give individualsa lot of ing their first contact with policeor juvenile attention. The juveniles in theprograms range in age from 14 to 18 and include moderate court. Most of the status offenders lockedup to probably fall under this exception. serious offenders. Most have eightto12 offenses. Most studentsare far below grade For D:::ussion level in school on entering theprograms. A 1. What does the 1974 Juvenile Justice and remarkably low 21 percent of those completing Delinquency Prevention Act compelstates theprogramscommitoffensesagain. to do? How is the act enforced? Compared to residentialcare programs, these 2. Do you agree with thepurposes of the act? programs cost very little. Why or why not? Highly Intensive Probation: KEY 3. The reading mentions three regulationsto Outreach and Tracking Program the act. What are they? Doyou agree with Begun in 1972 after Massachusetts closed them? Explain. its training schools, KEYcontracts with the state to provide close supervision of juveniles released to their homesor to foster homes. At Home Plus KEY may serve as the final step ina juvenile's treatment program or it may be the only step. Sending juvenile offenders back home has To start a KEYcase, a caseworker meets with serious risks. The juveniles will likelyact as the juvenile and the juvenile's family, and they always have. Why should they change? together they drawup a behavior contract. Nothing in their environment has changed. Each caseworker only has eight juvenilesto Many juveniles got in trouble in the first place supervise and meets with each juvenile several because of problems with family, friends,or times a day. Thecontacts range from mere school. Sending them backto these problems checkups to counselingto finding jobs and risks further problems. Yet sending juveniles community services for the juvenile. Thepro- back to their homescan help juveniles deal gram normally lasts 90 days. KEY costsvery lit- with their problems headon. But the young tle compared tosecure facilities.

j4 Unit 5: Juvenile Justice 251 Juvenile Alternative Work Service bers, then each member is responsi- At dispositional hearings, Los Angeles ble for two cases.) County judges sentence juveniles who have b. Write a treatment plan for each case broken probation to short juvenile-hall time, using what they have learned about normally about 20 days. But this disposition various dispositional options for may be put on hold if a juvenile agrees to take juveniles. The treatment plan should part in JAWS, a county-run program. Instead include variousplacements,the of spending the 20 days in juvenile hall, the length of stay in each, and what juvenile works for 20 Saturdays or Sundays on behavior would allow the juvenile to JAWS work crews. Los Angeles sends out about progress from one placement to 25 of these crews each weekend. With about 10 another. to 12 members each, the crews do manual, out- c. When finished with the plans, dis- door labor, usually painting and cleaning. If cuss the cases with the other mem- the juvenile forgets to show up or acts up on bers and explain the reasoning the job, then the court imposes the original behind your decisions. sentence in juvenile hall. But most are happy 4. Go over each case and compare the differ- to take care of their sentences outside juvenile ent approaches that members of the class hall. And the county is pleased because it proposed. Debrief the activity using the receives money from cities and school districts questions below. that contract to have the work done. The money pays for over half the cost of the pro- Debriefing Questions gram, which makes it far cheaper than sending 1. Which cases were the easiest to decide? The juveniles to juvenile hall. most difficult? Why? For Discussion 2. Did you choose relatively costly or inex- 1. What are the main benefits of all these pro- pensive treatment plans? grams? 3. Which of the options you chose are avail- 2. Which program do you think would be able for juveniles in your area? most effective in preventing juveniles from committing another offense? Least effec- The Question of Waiver tive? Why? Does the program you consider least effective have any value? John S., 15, has been charged with murder while attempting to rob a gas station, Class Activity: Individual Mary B., 16, has been charged with prosti- Treatment Plan tution, her fiftharrest on this charge. Living by herself on and off since she was In this activity, students prepare individual 14, she has run away from two foster homes treatment plans for juvenile offenders. and one halfway house. 1.Divide the class into groups of three. What do these two offenders have in com- 2. Members of each group role play case work- mon? Both may be subject to waivertransfer ers. They are assigned six cases to provide to the adult criminal courts. In certain cases, a individualtreatmentplans(the"Six motion may be filed in juvenile court asking Sample Cases" on page 237-238). Each case that it waive its jurisdiction and transfer the has been found delinquent. matter to a regular adult court. If this motion 3. Members of each group should: is granted, the juvenile is then treated just as an adult offender would be. The issue of waiving a. Divide the cases equally among the juvenile jurisdiction with certaintypes of group. (If the group has three mem-

252 CRIMINAL JUSTICE IN AMERICA f) Jt: Jr- files. In addition, the hearing officer must state the reasons for the decision in writing so that Percent of all juveniles the decision can be reviewed. Characteristic who are tried as adults The Supreme Court also issued guidelines Age for making waiver decisions. Before sending a 14 oryounger 8 young person through the adult courts, a hear- 15 24 16 27 ing officer should consider: 17 40 1. How serious was the crime? Does the community need to be protected from the Sex Male 92 offender? Female 8 2. Was the crime committed in a violent or Race aggressive manner? Was it premeditated? White 31 3. Was it a crime against persons or against Black 67 Other race 2 property? Offense 4. Will the adult court prosecute the case? Murder 11 5.Are the co-defendants, if any, adult? If so, Rape 3 should all the defendants be tried together? Robbery 34 Assault 15 6. How sophisticated and mature is the juve- Burglary 6 nile? (This is to be determined by examin- Theft 8 ing the youth's home life, emotional stabil- Drug 14 ity, and lifestyle.) Public order 3 7. What is the juvenile's prior court record Detail in eachcharacteristicmay not total100% and history of contact with law enforce- because of rounding. ment? Source: JuvenileOffenders and Victims: 1999 Nationai Report, 011DP (1999) 8. Can the juvenile be rehabilitated through normal .juvenile procedures? If so, can the young offenders has been hotlydebated in public be protected during the juvenile's recent years. treatment? Legal Standards for Waiver Every state now has a method for treating In1966, a year before Gault, the U.S. minors as adults in certain cases. In fact, states Supreme Court in Kent v. U.S. made a signifi- may have a combination of methods, depend- cant ruling on waiving jurisdiction to adult ing on the crime charged and the age of the courts. In this case, a juvenile had confessed to juvenile. The methods fall into three cate- serious crimes. His attorney, fearing the juve- gories: nile would be transferred to adult court, filed Judicial Waiver. The judge, at a fitness hear- a motion requesting a hearing on this issue. ing, decides whether the juvenile should be The juvenile court judge did not rule on the tried in adult court. For example, Alabama motion, but simply waived jurisdiction to and Florida allow judges to waive juveniles to adult court, stating he had made a "full inves- adult courtfor any offenseatage14. tigation" of the case. The Supreme Court ruled California sets the age at 16 for most offenses that this did not meet due process standards. and at 14 for murder and some other serious The court held that juvenile courts waiving crimes. Under judicial waiver, the judge must jurisdiction must hold a special hearingoften comply with the standards set forth in Kent called a fitness hearing. At that hearing, the and appeals courts may review the decision. accused juvenile must be represented by an Almost every state uses judicial waiver for cer- attorney who has access to all relevant court tain crimes. 17, s..) Unit 5: Juvenile Justice 253 -01,01V1,111trtii re/ JUT,' //,' 11.31p.1?1,r,ttr.Scar.10/,,Yea$11,,

Prosecutorial Discretion or Direct File. The longer in adult prisons than in juvenile facili- prosecutor decides whether to file the case in ties.(The California Youth Authority,for juvenile or adult court. For example, Vermont example, may only hold juvenile offenders allows prosecutors to file cases in adult court until age 25.) They emphasize that those for any offense at age 16. Florida allows it at locked up will not be committing crimes. age 16 for some crimes and at age 14 for mur- Furthermore, they believe that getting tough der and a few other serious crimes. Unlike will deter other juveniles from committing judicial waiver, the prosecutor has complete crimes. discretion and the decision cannot be over- Many juvenile justice experts doubt that turned on appeal. More than a dozen states treating more juveniles as adults will reduce allow prosecutorial discretion in some cases. the crime problem. They think that putting juveniles in adult prisons means we are giving Legislative Exclusion. In more than half the up on them. They explain that adult prisons states, the legislature mandates that certain have abandoned rehabilitation. When these crimes be prosecuted in adult court. For exam- inmates get out, they argue, they will be hard- ple, Arizona excludes juveniles over 15 from ened criminals. Others point out that we are being tried in juvenile court if they are charged not just sending away violent predators. Many with murder, specified felonies, or any felony waiver provisions allow non-violent offenders if they have previously been charged with a as well as violent offenders to be tried as felony. adults. Vermont and Kansas allow juveniles to be tried as adults at the youngest age-10. More For Discussion than 20 states set no minimum age. Sixteen 1. Do you think waiving jurisdiction of some states set the minimum age at 14. Moreover, juvenile offenders is a good idea? Why or most states have adopted the rule of "once an why not? adult, always an adult." This means that if con- 2.If you think waiver is a good idea, what victed as an adult, a juvenile will be tried as an offenders should be transferred to adult adult for any subsequent offense. courts? Should it be done through judicial Those who favor treating more juveniles as waiver, prosecutorial discretion, or legisla- adults believe that juveniles who commit hor- tive exclusion? Explain. rible crimes must pay for them. They also think the policy serves two other purposes 3. Would you add any additional guidelines incapacitation and deterrence. The young peo- for determining judicial waiver? Describe ple, they point out, will be locked up far them.

254 CRIMINAL JUSTICE IN AMERICA 257 Class Activity: A Waiver Wayne Thompson and Hearing the Death Penalty

In this activity, students role play juvenile Thesixthof eightchildren, Wayne judges in a waiver hearing. Divide the class Thompson grew up in Chickasha, Oklahoma, into groups of three. Each group should: a small town about 30 miles southwest of 1.Take the role of a juvenile court judge in a Oklahoma City. He also grew up in the shad- state allowing waiver of jurisdiction when ow of his brother-in-law Charles Keene's vio- the juvenile is over 14 and accused of a lent rages. He saw his sister Vicky beaten by felony. Keene. Sniffing paint, Keene often grew vio- 2. Apply the eight general guidelines on page lent and spared no one. He beat Wayne repeat- 253 to the "Six Sample Cases" beginning on edly. He struck Wayne's mother, other sisters, page 237. Discuss each case. and even his older brothers. Keene once even 3.Decide which (if any) of the young people carried his infant son to the top of his trailer should be tried as juveniles and which (if and threatened to drop him off. any) should be tried as adults. When Vicky finally divorced Keene, the 4. In accordance with the Supreme Court rul- family thought their long nightmare was over. ing, write a statement of the reasons for But Keene kept returning, threatening and your decisions. abusing Vicky. Finally, Wayne decided to put a stop to Keene's abuse once and forall. Debriefing Questions 1. Compare your decisions with those of your Together with his adult, older brother Tony classmates. Is there a general agreement and two of Tony's adult friends, 15-year-old about the reasons for these decisions? Wayne Thompson set out to kill Keene. Before dawn on January 23, 1983, they found Keene at 2. Based on their alleged crimes, which juveniles represent the clearest threat to the his home in Amber, Oklahoma. They kid- community? Which are least harmful? naped him, beat him, cut open his stomach, chest, and throat, and shot him twice. Before 3.Based on prior records and personal back- heaving his body in a river, they chained it to grOunds, which juveniles are most poten- tially harmful? a cement block. Twenty-six days later, it surfaced. At the fit- 4. Of these two factors, crime and back- ness hearing shortly after his arrest, Wayne was ground, which was most important to your decisions? certified to stand trial as an adult. Charged with first-degree murder, he was found guilty. 5. Whidh of these juveniles do you think During the trial, the prosecution had intro- should be punished? Which could be reha- duced three color pictures of Keene's body. bilitated? Which seem most, and least, likely to be rehabilitated by the juvenile justice The prosecution introduced the same pictures system? at the sentencing hearing. The jury found the murder to have the aggravating circumstance 6. In adult court, these cases will be tried by juries unless the defendants waive their of being "especially heinous, atrocious, or rights to a jury trial. Do you think any of cruel." It returned a sentence of death for these juveniles would benefit by a jury trial? Wayne. Why or why not? On appeal, Wayne's attorney argued that the pictures should not have been allowed into 7. What do you think should be the youngest age that juveniles should be waived from evidence at trial or at the sentencing hearing. juvenile court jurisdiction? Why? Further,hearguedthatsentencinga 15-year-old boy to death violated the Eighth 8. Are there any circumstances under which juvenile courts should not be allowed to Amendment's ban against cruel and unusual waive jurisdiction? punishment.

253 Unit 5 : Juvenile Justice 255 The Oklahoma Court of Criminal Appeals Why or why not? Is it relevant that only a upheld the conviction. It did, however, agree few nations in the world allow such pun- with the defense on one point: The pictures ishment? should not have been allowed in evidence at 4. Do you think that executing juveniles the trial. But the court said this error was not under 16 is cruel and unusual punishment? sufficient to overturn Wayne's conviction Explain. because of the overwhelming evidence of his guilt. Otherwise the court sided with the prose- Thompson v. Oklahoma cution. The sentencing judge did not err in (1988) admitting the pictures because they helped prove the aggravating circumstance of the In its Thompson v. Oklahoma decision, the murder. The sentence did not violate the Supreme Court voted 5 to 3 to throw out Eighth Amendment. Wayne had been certified Wayne's death sentence. Four of the justices in to be tried as an adult, so he should be sen- the majority thought that executing juveniles tenced as an adult. Wayne's lawyer appealed to under 16 violated the Eighth Amendment. But the Supreme Court. the fifth justice in the majority, Sandra Day Wayne waited on death row in a cell next O'Connor, did not agree. She stated in a con- to his brother. In separate trials,all three curring opinion that there probably was a adultshadalsobeen foundguilty of national consensus against executing juveniles first-degree murder and sentenced to death. under 16. But she voted with the majority only One of the men was killed in a jail-yard fight because Oklahoma's death penalty statute had shortly after his trial. Another's conviction no minimum age. Because Oklahoma may was reversed on appeal because of trial court have enacted its death penalty without consid- error, and at his second trial, he was found not ering whether juveniles under 16 should be exe- guilty. cuted, she sided with the majority. For Discussion Although five justices voted to stop the 1.Since the pictures could have proved sever- execution, only four justices agreed with the al relevant facts at Wayne's trial (e.g., that opinion of the court. This made Thompson a Keene was dead, how he died, etc.), why do "plurality opinion," which holds less weight you think the appeals court ruled they than an opinion joined by five or more jus- should not have been allowed in evidence? tices. 2. When a trial court's error is not important The following year, the Supreme Court enough to overturn a conviction,itis considered whether juveniles under 18 could be known as "harmless error." Do you think executed. Two similar cases presented them- introducing the pictures at the trial was a selves to the court. One involved a 17-year-old harmless error? Do you think the doctrine (Stanford v. Kentucky) and the other a 16-year- of harmless error should apply to murder old (Wilkins v. Missouri). Both had brutally trials? Explain. murdered victims of their crimes because they 3. At the time of Wayne's sentence, 13 states wanted to leave no witnesses. did not allow the death penalty. Of the This time the Supreme Court upheld both remaining 37 states, 18 states set the mini- convictions in5-to-4votes. The majority, mum age for execution at 16. The other 19 including Justice O'Connor, argued that the states had not set a minimum age. Are nation had not reached a consensus against thesestatisticsrelevant in determining executing16- or17-year-olds. So executing whether the death penalty for juveniles them did not constitute cruel and unusual under 16 is cruel and unusual punishment? punishment. In a separate concurring opin-

256 CRIMINAL JUSTICE IN AMERICA'472 5 9 ion, O'Connor stated this lack of a national juveniles convicted of murder. The other consensus made it irrelevant that Missouridid end marks the spot for those who believe not have a minimum age for executions. the death penalty is absolutely wrong for The four dissenting justices in an opinion juveniles. The stronger that people feel one by Justice Brennan made two basic arguments. way or the other, the closer they should be First, a majority of states and the federal gov- to the ends of the line. Those unsure of ernment banned executions of those under 18 their opinion belong in the middle. In a and most juries refuse to sentence those under class of 26 students, for example, the line 18 to death. This should add up to a national could look like this: consensus against executing those under 18. absolutely wrong absolutely right Second, the death penalty is too severe for juvenilesit servesneither retribution nor AB CDEFGHIJKLMNOPQRSTUVWXYZ deterrence. 2. While they are standing in line, ask students to pair up with a person next to them For Discussion in line and share three reasons for their 1. Do you agree with the Supreme Court's opinions. decision in Wayne Thompson's case? Why or why not? 3. As indicated by the diagram below, divide the line in half and move students on one 2. Do you agree with its decisions in Wilkins half of the line so that they face students and Stanford? Why or why not? on the other half of the line. In this man- 3. Justice O'Connor cast the crucial swing ner, students with strong positions (A B C, vote in all three cases. What do you think X Y Z) should be facing students with mod- of her reasoning in these cases? erate positions (K L M, N 0 P). 4. Wayne Thompson was not set free by the A BCDEFGHI J K LM Supreme Court's decision. He will now NOP QRSTUVWXYZ probably serve a life sentence in prison. Many argue that a life sentence is worse 4. With the lines parallel, each student now than the death penalty. Do you agree? Do faces a partner with a vastly different opin- you think courts should be allowed tosend ion, e.g., A-N. Partners are to exchange ju-,niles to prison for life? Explain. opinions with each other. One partner starts speaking. When the first one finishes, the other partner must paraphrase what the Class Activity: Should speaker said. If the paraphrase is not right, then the speaker should explain again until Juveniles Convicted of the partner gets it right. Then the other Murder Be Executed? partner may speak. The partners can go back and forth, but each time they must In this activity, students literally take a correctly paraphrase what the other said stand on the execution of juveniles and discuss before they respond. their stand with others. 1.Have students form a single line in the Debriefing Questions room according to how they feel aboutthis 1.Did you find it difficult to paraphrase the question: Should juveniles convicted of other person's opinions? Why or why not? murder be executed? Make one end of the 2. Which reasons did you find most persua- room mark the spot for thosewho believe sive? Least persuasive? Why? the death penalty is absolutely right for

vn Unit 5: Juvenile Justice 257 International Challenges to the Death Penalty

Half the states currently allow capitalpun- ishment for murderers who kill atage 16 or 17. Since 1985, nine juvenile offenders have been executed in the United States. Although all nine were 17 years old at the time of their offenses, they were well into adulthood by the time they were executed. The nine executions account formore than half of all juvenile executions worldwide. Only six countries in the worldcarry out such sentences:Iran,Nigeria,Pakistan,Saudi Arabia, the United States, and Yemen. The U.N. Convention on the Rights of the Child In January 2000, an Italian groupprotests the bars both capital punishment and life impris- death penalty. In the background is the Colosseum onment without the possibility of release for in Roma It is illuminated with golden light for 48 crimes committed by juveniles under 18years hours whenever someone in the world is spared of age. from execution. Only two members of the United Nations have failed to ratify this internationaltreaty the death penalty. By 2000, this number had Somalia and the United States. Many nations risen to 73. More than 35 other nations have are urging the United States to ratify this and severely restricted capital punishment: They other treaties against capital punishment. If either limit it to wartime crimesor have not the U.S. government ratifiedany treaty ban- used it for 10 years or more. The United States ning capital punishment, it would bindevery and 87 other countries currently stilluse it. state. Article VI of the U.S. Constitution says In 1998, governments in 40 countriesexe- that all ratified treaties "shall be thesupreme cuted slightly more than 2,000 prisoners, Law of the Land; and the judges inevery state according to Amnesty International,an inter- shall be bound thereby,any Thing in the national human rights organization. More Constitution or Laws of any State to thecon- than 80 percent of these executions took place trary Notwithstanding." in only four countries: 1,067 in China,66 in Supporters of the death penalty strongly Iran, more than 100 in Democratic Republic oppose any treaty that forbids capital punish- of Congo, and 68 in the United States. It is ment. They view this penalty as a fitting one believed that Iraq executed hundreds of politi- for murder and a sensibleresponse to the still- cal prisoners, but these are unconfirmed. high (though declining) murder rate in the In May 1998,the British House of United States. They see these treatiesas threats Commons voted to adopt the European to the democratic right of any state to impose Convention for the Protection of Human capital punishment. Rights and Fundamental Freedoms. Along International Trend Against Capital with other things, this human rights declara- Punishment tion requires those who sign it to abolish the America's strong support of the death death penalty for all civilian crimes. Among penalty contrasts with international trends. the major European nations today, only Russia The use of the death penalty is declining refuses to abolish its death penalty, mainly because of a severe crime problem that began around the world. In 1981, 27 countries banned after the breakup of the Soviet Union.

thES f COPYAVAILABLE 258 CRIMINAL JUSTICE IN AMERICA Regional and international declarations Death Penalty contends, "When we as a socie- against the death penalty obligate nations who ty sentence a child to death ... wesurrender agree to them. Thirty-two nations havesigned to the misguided notion that some children and ratified one of these documentsthe are beyond redemption." International Covenant on Civil and Political For Discussion Rights. The covenant protects fundamental 1. Do you think international opinion on the rights and specifically forbids the death penal- death penalty should affect U.S. policy on tyforjuvenileoffenders.In1992,the it? Explain. U.S. Senate ratified this covenant, but only after reserving the right to execute juvenile 2. Why did the U.N. Commission on Human offenders. Rights denounce the United States for signing the International Covenant on Civil Criticism of the U.S. and Political Rights and reserving the right The United States has long championed to execute juvenile offenders? Do you agree human rights.Butin1998,the U.N. with its criticism? Explain. Commission on Human Rights issued a sting- 3. The appeals process in death penalty cases ing report. It criticized the United States for its averages about eight years in theUnited recent increase in death sentences and execu- States. China sometimes executes prisoners tions. It especially condemned the execution of the day after they are sentenced. Which sys- women, mentally impaired persons, and juve- tem comes closest to your view of how nile offenders. The report denounced the death-penalty appeals should be handled? United States for signing the International Why? Covenant on Civil and Political Rights and reserving the right to execute juvenile offenders. This reservation, itstated, violated the Class Activity: Senate purpose of the treaty. Also, according to the Hearing report, -.Thal punishment in the United States is applied unfairly to disproportionate The United States has signed, but the U.S. numbers of minorities and the poor who Senate hasneverratified,theU.N. often fail to receive adequate legal representa- Convention on the Rights of the Child. The tion. treaty contains this language: "Neither capital U.S.officialsquickly calledthe U.N. punishment nor life imprisonment without report inaccurate and unfair because it "fails possibility of release shall be imposed for to recognize properly our extensive safeguards offenses committed by persons below eighteen and strict adherence to due process." They years of age ...." argued that the Commission on Human In this activity, students role play a hearing Rights should spend more of its efforts inves- of the Senate Foreign Relations Committee on tigating countries like China, which common- ratification of the convention. ly violates basic due process of law and gives 1.Divide the class into the fiverole groups those sentenced to death little, if any, time to listed below. appeal. 2. Each group should read its role and use the Capital punishment for those who com- reading and other sources to prepare for mit horrible crimes asjuvenilesprovokes the simulated hearing. Groups will testify strong opposing opinions. Miriam Shehane, before the committee and they should pre- president of Victims of Crime and Leniency, pare arguments in favor of their position. argues, "If someone does an adult crime, they 3. When ready, the chairperson should call are acting as adults, and they have to take the hearing to order and invitethe responsibility." On the other side of the individual groups to testify. The members debate, the National Coalition to Abolish the of the committee should ask questions.

U Unit 5: Juvenile Justice 259 Minimum Death Penalty Ages(by American. Jurisdiction)

A.e 18 A. e 17 A.e 16 California* New Ivlextco* Georgia * Alabama* Montana" Colorado* New York' New Hampshire' Arizona** Nevada* Connecticut* Ohio * North Carolina* Arkansas** Oklahoma* Illinois* Oregon* Texas* Delaware** Pennsylvania * * Kansas* Tennessee' Florida' South Maryland* Washington' Idaho** Caroiina** Nebraska* Federal' Indiana' South New Jersey* Kentucky' Dakota * * Louisiana* Utah" Virginia* * Mississippi** Missouri * Wyoming*

* Express minimumage in statute "Minimum age required by U.S. Constitution Per U.S. Supreme Court in Thompsonv. Oklahoma (1938)

Source: "Juveniles, Capital Punishment, and Sentencrig.' Coordinating Councii or. Juvenile Justiceand Delinquency Prevention (1999)

4. After the testimony, the committeeshould Victims of Crimes and Leniency: discuss the arguments and The con- then vote vention should not be ratifiedbecause some whether to recommend ratification by the juvenile offendersare so dangerous and lack- fullSenate.If ratified, the convention ing in remorse that they shouldbe treated as would become the law throughoutthe adults. United States. SenateForeign 5. After thevote, RelationsCommittee: each member should Members should explain his or hervote. prepare questions to ask the groups appearing before them. They should 6. Debrief the activity using thequestions on also select a chairpersonto run the hearing. this page. Debriefing Questions Group Roles 1. What were the best arguments?What were the weakest? U.N. CommissiononHuman Rights: The convention should be ratified, thusenabling 2. Do you think the U.S. Senateshould ratify the United States to complywith internation- this treaty? Whyor why not? al law, which condemnssentencing juveniles to death or life in prison withoutpossibility of release. Current Trends and State of Texas: The conventionshould not be Controversies ratified since eachstate and its people should Over the years, reformers have democratically decide whetheror not to have focused on capital punishment. different issues in the juvenilejustice system. During the 1960s and early1970s, advocates National Coalitionto Abolish the Death pushed for due-process rightsfor juveniles. Penalty: The convention shouldbe ratified The U.S. Supreme Court respondedwith its since juvenile offendersare not as responsible Gault decision, which declaredjuveniles did as adults for their criminal acts. have these rights. Subsequentcourt decisions and much statelegislationhave further defined juveniles' rights.

260 CRIMINAL JUSTICE IN AMERICA 263 Beginning in the mid-1970s, reformers fact, minority youth make up almost 70 per- turned their focus on detention issues, partic- cent of those in secure detention. ularly on restricting who could be in secure So the controversy arises: Does the juvenile lockups. The Juvenile Justice and Delinquency justice system unfairly discriminate against Act of 1974 and its subsequent amendments minorities,particularly African-American achieved two major reforms of detention. It youths? outlawed placing status offenders in secure Many experts believe that racial discrimi- detention, and it mandated separate facilities nation does not cause black youth to remain for adults and juveniles. longer in the system. They point to two sepa- From the late 1970s to the present, the pub- rate studies which have shownthat black lic in many states has called for getting tough judges are more likely than white judges to on juvenile offenders. Somejurisdictions have keep a black juvenile in custody. They believe resisted. Many states, however, have locked up that social class rather than race explains why juveniles in record numbers. Even in periods blacks stay in the system. Most of the blacks when the juvenile arrest rate for violent crimes caught inthe system come from poor dropped, the incarceration rate climbed. In the inner-city neighborhoods. Most of the whites wake of highly publicized, violent juvenile come from a middle-classbackground. If a crimes, many have called for even harsher sen- middle-class white juvenile gets into trouble, tences on juveniles. PrincetonProfessor John the parents may get a lawyer and a psychologist Dilluio once warned of a "rising wave of to help. They will come to courtwith a plan of superpredators," caused by the growing teen action. On the other hand, an inner-city juve- population. Shay Bilchik, former head of the nile may only have an overworked public Office of Juvenile Justice and Delinquency defender, who probably will meet the juvenile Prevention, dismissed the idea of a growing just before the hearing. This juvenile has limit- number of superpredators. "For starters, only ed access to social services, community agen- about one-half of 1 percent of juveniles ages 10 cies, or psychologists. And the juvenile's neigh- to 17 were arrested for a violent crimelast year, borhood may be filled with gangs and drug and of all juvenile offenders, just 6 to 8 per- traffickers. What is the best interest of each cent are .serious, violent, or chronicoffenders. child? Given each juvenile's resources, a judge So to talk of a generation of superpredators is might find it better to let the middle-class juve- not only false but unfair." Bilchikand others nile stay at home and better to send the believe that getting tough has not and will not inner-city offender to a detention facility that prevent violent crimes. They urge a return to offers some social services. So social class the traditional model of rehabilitation for rather than race may explain the different juvenile offenders. treatment of whites and blacks. The high detention rates have given rise to Other experts disagree. They say that while another controversy. Today, the overwhelming class may account for some of the disparity, majority of juveniles in detention are minori- racism also plays a role. The juvenile justice sys- ties. Although African-Americans constitute tem allows decision makers widediscretion at only 15 percent of juveniles aged 10-17, they every stage of the juvenilejustice process. make up about 40 percent of the juveniles in Racism, they argue, can easily creep into such custody. Only 37 percent of those in custody a system. are white. Blacks do not commit morecrimes The Officeof JuvenileJusticeand than whites. The number of whites arrested far Delinquency Prevention commissioned a proj- surpasses the number of blacksarrested. But as ect to examine all the existing researchabout they make their way through the juvenile jus- race in the juvenile justice system.In 1992, the tice system, blacks tend to stay in the system project issued a report concluding that "there and end up in custody. Whites tend to get out is substantial support for the statement that of the system and not be placed in custody. In there are race effects in operation within the 2&4 Unit 5: Juvenile Justice 261 Black Juvenile Representation in the Juvenile Justice System Black juveniles are overrepresentedat all stages of the juvenile justice system compared with their proportion.in. the population. . .. Percent black juveniles

U.S. population ages 10-17 15% Violent juvenile offenders reported by victims. 39% All juvenile arrests. 26% Juvenile arrests for Violent Crime Index offenses 49% Delinquency cases in court 32% Delinquency cases involving detention 41% Petitioned delinquency cases. 37% Adjudicated delinquency cases 36% Cases judicially waived to criminal court 52% Delinquency cases resulting in residential placement 43% Juveniles in residential placement 46%

Source: Juvenile Offenders and Victims: 1999 National Report 011DP (1999)

juvenile justice system, both direct and indirect For Discussion in nature." By "race.effects," the projectmeant 1. Do you think the juvenile justice system that race explains why blacks remain in the should focus on rehabilitation or punish- system. ment? Why? In 1989, Congress amended the Juvenile 2. How do you account for the great number Justice and Delinquency Act. It required states of minority youth in detention? What do to examine why so many minorities were in you think can be done about it? Explain. their lockups. States must justifyany over-representation of minorities at every stage of their 3.Should status offenders be treatedas juvenile justice systems. In 1992, Congress fur- offenders or as cases of abuse and neglect? ther amended the act tying funding tocom- Why? pliance. Since then, about 40 states have started intervention and preventionprograms aimed at helping youth who are at risk of Class Activity: What engaging in crime. Should Be Done? One final controversy should be mentioned. It's one that has plagued the system Write a brief essay either supportingor from its beginning: What should be done with opposing the following statement: Instead of status offenders? Although status offenders trying to rehabilitate serious offenders the juvenile have been removed from lockedfacilities, justice rystem should impose longer sentences to keep some still pass through the juvenile justice sys- them off the streets. tem along with more seriousoffenders. Current debate arises over whether status offenders belong in the juvenile justice system at all. Many experts believe status offenders should be treated as cases of abuse or neglect not as offenders. They argue that the court should turn its control of status offendersover to welfare agencies, private charities, and counseling centers.

U 262 CRIMINAL JUSTICE IN AMERICA Unit Six: Solutions

Crime iffeCts all of us. Even if we aren't touched directly, we pay extrafor msurance;we worry about the, safety of ourfamily and friends, and we worry abOutwhere we can walk safely. Arnericans regularly list crime as one of their topconcerns.Billions of-dollars* lostevery year to criminals, andbillions more are spent in the fight, against crime. Onelnajor 'ptioblem in finding:Xtilutians to crime comesfrom basic dis- agreerneni over its causes.Socioiciists;ri;ninologists, politicians, and ordinary-citizens..offen.debate..theissue:webegin this unit with an examination of some of the-debates about the -causesiif We then, turn to an examination of therole government plays in combating crime. You have already seen examplesof the direct role played by the police, prosecutors, -courts; and:correctional systems in dealing with criminals. We will examine our government's crucial rolein determining policies to reduce crime. We will take a look at the executive,legislative, and judicial branches throughout our federal system. In our examination, wewill discuss the debate over whether ourcriminal justice system, in its battle against crime, discriminates against minority groups. Finally, we will address the role ordinary citizens canplay in fighting crime. We will explore both negative and positiveactions citizens have taken to guard their communitiesfrom vigilanteaction to neighborhood watch groups. Then youwill get a chance to form a citizen task force and make practical proposals for reducing crime. The problem of crime is complex. Everytheory and every proposed solution raises fundamental ethical, political, andeconomic questions. These questions must be squarely faced if America is tomake any progress in its battle against crime.

4pagt.4..01., . 2136 Unit 6: Solutions 263

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Others have insistedthatit comes from Theories and poverty, discrimination, lack of hope, or the Approaches breakdown of family values. Still others have contended that crime comes from personali- America has a serious crime problem. The ties warped by drugs, disease, or childhood rate of propertycrimes, such as theft abuse. The list of possible causes can go on and burglary, are actually on levels similar to and on. or even below othercountries. But the rate of While few people today would argue violent crime isanother matter. Statistics crime has but one cause, people still empha- show that the U.S.'s rate of violent crimefar size one factor over another. And they debate surpasses that of anyWestern democracy. The whether one factor is a cause or effect of city of New York during the 1990s cutits another. The diagram below charts some of number of murders in half. But the city, with the most commonly cited causes of crime. For a population about 9million, still had half as convenience, we have put them into two many murders each year asthe entire nation groups(1) social and cultural factors and of Italy, population 58 million. Homicideis (2) individual and situational factors. the second leading cause of deathfor Americans age 15 to 30 and the leading cause of death for African Americans in that age Social and Cultural bracket. Factors Looking at these statistics, doctors at the U.S. Centers for Disease Control havecalled Social problemssuch as poverty, unem- violent crime an epidemic in theUnited ployment, racial discrimination, and child States. Along with many others,they seek abuseandculturalinfluencessuchas measures to deal withthis problem. By exam- American values and violence on televi- ining the causes of crime and violence,they sionare often mentioned as causes of crime. believe individuals, communities, and the They do not cause crime in any direct sense. nation can take action to stem the tideof vio- The vast majority of poor people, for exam- lence in our society. ple, remain law-abiding all their lives. But What then are the causes of crime? There these factors may make it more likely that is no easy answer. Some people haveargued some people turn to crime. that all crime comes from inborntraits.

Social & Cultural Individual.&.Situational

POVERTY BIOLOGY UNEMPLOYMENT RATIONAL CHOICE RACIAL DISCRIMINATION GUNS ABUSE ALCOHOL .AMERICAN VALUES DRUGS VIOLENCE IN THE MEDIA

264 CRIMINAL JUSTICE IN AMERICA2 6 7 group entered the population.This isthe 7,4LscLuTiv4 PrscrIs most crime-prone age and many expertshad predicted rising crime rates. Some experts attribute the fall in crime to the booming economy. They argue thatunlike the 1960s when the economy also boomed, this economy provided more jobs forthe poor. Some social scientists have found a direct relationship between joblessness and crime and othersocialproblems. A detailed .64-CALSL. long-term study by Dr. Harvey Brenner of Johns Hopkins University found thatfor every 1 percent increasein the unemployment Poverty, Unemployment, and Racial rate, the United States sees: Discrimination 650 extra homicides, Many people believe that poverty con- 3,300 extra state prison admissions, tributes to the crime rate. Statistics do show 920 extra suicides, and much higher rates of crime in poor commu- 500 extra deaths from alcoholism. nities. You only have to drive through a Other studies have been less conclusive. A high-poverty area and look at the barred win- review of 30 studies on whether joblessness dows and security doors to know that the peo- leads to crime found insufficient evidence ple who live there worry about crime. proving or disproving the connection. A study using data from Columbus, Ohio, showed that neighborhoods withthe Child Abuse and Neglect most poverty had the highest ratesof crime. The family is usually the greatest single Neighborhoods with poverty rates above 40 influence on a person's life. In a family, we percent had crime ratesthree times higher learn how to behave, how to treat other peo- than neighborhoods with poverty ratesunder ple, and how to view ourselves. Children can 20 percent. be very sensitive to cruelty or lack of affec- Poverty and unemployment is highestin tion, which can create anti-social habits or minoritycommunitiesandparticularly serious mental problems. Some problems may amongyoungAfrican-Americansand not even show up until muchlater, as the Latinos. Almost a third of all blackand child grows. Many sociologists believethat Latino children grow up below the poverty parents who abuse their children start acycle line, compared to 14 percent of whitechil- of abuse from generation to generation. dren. Despair and hopelessness gives rise to Abused children often grow up to abuse their crime in these communities. Blackmales children. between the ages 15 and 19 are nine times In a study reported in Science magazine, more likely to die fromhomicide than white sociologists found that neglected children males the same age. Inner-city residents, most- were one and one-half moretimes as likely to ly minorities, get arrested and jailed athigh commit violent crimes later in lifethan rates. non-neglected children. Abused children were One of the great causes of poverty,of twice as likely to become violent criminals. course, is lack of jobs. In1992, the crime rate Abused children are also six times as likely to washighandsowas unemployment. abuse their own children. The study conclud- Throughout the rest of the 1990s, unemployed that the abusive family was one place where ment dropped rapidlyand so did the crime society should try to break the cycle of vio- rate. This decline in crime wentagainst expec- lence. Neglect and abuse within a family can tations because more people inthe 15-24 age lay the roots for a life of violent crime.

263 Unit 6 Solutions 265 Almost 1 million childrenwere reported Homicide Rates of Major Developed as victims of abuse or neglect in 1996. This Nations (per 100,000 population) represented about a fifth more than in 1990. England/Wales 0.55 Some of this increase may havecome from renewed attention to the problem and better Japan 0.62 reporting. But many cases of abuse undoubt- France NI 1.12 edly never get reported. Germany se 1.17 Juvenile crime statistics show thatteenage Switzerland am 1.32 boys who were abused as childrenare two to three times more likely to turn to crime than Canada Ems 2.16 other boys of the same age. Some social sci- Italy 2:25 entists insist that almost all career criminals, United States 9.91 particularly those involved in crimes of violence, were abused as children. Values That Make Crime More Rates are for one year between 1990 and 1995.

Acceptable Source: international Journal of Epidemiology. vol. 27 (1998) Many people believe that Americans hold certain values or beliefs that may encourage criminal conduct. One such value might be the rise of permissiveness and the break- our love of material goods. Judging by our down of religion.Permissiveness means mass media, our society seems to place a high being tolerant of a wide range of behavior, value on owning new things. In fact, the especially among children, and of avoiding cumulative message of most advertising is judgment about the acceptability of others' that happiness comes from having things. behavior. Some people believe that permis- Wealth and material possessions translate into siveness may encourage toleration of any status or position in society. Thus people behavior, even criminal behavior. often want things they cannot afford to buy, The Media and some people may steal and rob for this reason. The American Psychological Association Another value or belief that some claim says that by the seventh grade, the average affects America's crime rate is the idea that American will have watched on television violence is acceptable and even admirable. 8,000 murders, plus another 100,000 acts of Part of American folklore is the hero who violence. Does watching this much violence fights criminals. Our movies and television make Americans more prone to violence? In programs often show sheriffs, police officers, 1972, the U.S. surgeon general, the highest and cowboys using guns and violence to medical officer in the federal government, combat the violence of criminals. Similarly, announced that "televised violence, indeed, such programs may show people committing does have an adverse effect on certain members of our society." violent acts. This does not mean that individual Americans favor the use of violence. In the years that followed, the National Rather, it means that Americans may view Institute of Mental Health, the Department violence as a normal part of life. Some people of Justice,the American Academy of believe that this idea may encourage criminal Pediatrics, and numerous scientific studies behavior. have backed up the words of the surgeongen- Finally, some people have connected our eral. Many social scientists have concluded crime problem to the decline of traditional that televised violence can contribute to anti- family values. They argue that many of our social behavior in children. This is particular- social problems, including crime, stem from ly true when the children come from violent

266 CRIMINAL JUSTICE IN AMERICA homes or neighborhoods. It adds to the cul- 2. Which factorsare mostdifficultto ture of violence surrounding them.After a change? Which are the easiest? five-year study, the American Psychological 3.If all murderers drank milk as children, Association reported in February 1992 that does this prove drinking milk leads to "TV violence can cause aggressive behavior murder? Explain. and can cultivate values favoring the use of aggression to resolve conflicts." Critics complain that violence has crept Individual and into all the medianetwork television, cable Situational Factors television, movies, videos, video games, music lyrics, and the Internet. They believe the Another approach to studying crime is to media are creating a culture of violence. focus on the individual and on situational But defenders of the media believe that it factors. Crimes, after all, are committed by is far too simple-minded to blame violence on particular individuals in particular situations. the media. Millions of people, they point out, Are some individuals more likely to commit view violence in the media. Only a few com- crimes? Do crimes arise more often in certain mit acts of violence. According to them, the situations? Scientists looking at individuals reasons some peoplecommit violence are have looked at many possible causes of crime, complex and rooted in various social prob- including such diverse causes as biology and lems such as increasing poverty and unem- rational choice. Other scientists looking for ployment. Violence in entertainment, as they situational factors in crime have studied guns, see it, is being made a scapegoatfor society's alcohol, and drugs. problems. They contend that television simply reflects the level of violence in society. It Biology does nothing to cause the violence. Some modern researchers believe that A recent study published in Pediatrics lent biological traits may predispose some people some support to this viewpoint.The study, by to crime. Professors Richard J.Herrnstein and Mark Singer of Case WesternReserve James Q Wilson in Crime and Human Nature University in Cleveland, examined more than cite various studies. Studies of twins show 2,000 third to eighth grade students. It found that identical twins are much more likely "disturbingly high" levels of violence among than fraternal twins to have the same crimi- the students. But the study found only a small nal records. Unlike fraternal twins, identical link between this violence and watching twins share the same genetic makeup. So these heavy doses of television violence. Instead, the studies seem to indicate biology plays a role study mainly linked the violence to students in criminality. witnessing or being a victim of real-life vio- Even more startling is a study comparing lence at home, in the community, or at two groups of adopted boys.The first group school. contained boys raised by non-criminal adopt- The question of violence in the media has ed parents but whose natural parents were become a battleground between those who criminals. The second group had boys raised insist on First Amendment free-speech rights by criminal adopted parents but whose natu- and those who insist the question is really one ral parents were not criminals. Most people of corporate responsibility. would think that the boys in the second groupraised by criminal parentswould be For Discussion more likely to commit crimes.But the studies 1. Which do you think are the mostimpor- found otherwise. The boys in the first group tant cultural or social factorsthat con- were more likely to have criminalrecords. tribute to crime? Which are the least Herrnstein and Wilson point out several important? Why? biological traits that predispose a person to

Unit 6: Solutions 267- 2 7 0 crime. The first is simply being male. In all report drinking alcohol every day. This com- known societies, young males account for pares with 10 percent of the general popula- almost all violent crimes. Experiments have tion. shown male sex hormones increase aggres- The connection between crime and alco- sion. Young males often have some trouble hol has long been noted. What to do about it adjusting to the hormones. Many engage in is another question. Reformers at the turn of rowdy behavior. Some commit crimes. the 20th century managed to pass the 18th A second biological trait, according to Amendment to the Constitution. Effective in Herrnstein and Wilson,isintelligence. January 1920, it banned the sale and distribu- Studies have shown that criminals generally tion of alcohol. But this amendment and laws sore low on intelligence tests. It isn't really supporting it were vastly unpopular. People known why low intelligence and crimeare flaunted the law and continued drinking. related. One theory is that people with low Gangsters grew rich smuggling and distribut- intelligence may get frustrated with school, ing alcohol. In 1933, the 21st Amendment grow angry and resentful, and start commit- repealed the ill-fated 18th, and alcohol has ting delinquent acts. remained legal in most of the countryever Another biologicaltrait,according to since. Herrnstein and Wilson, is temperament. They point out that high-rate offenders typically Guns are impulsive, rebelliousthrill-seekers. To In the United States each year, handguns some extent,these characteristics may be are used in about 35 percent of all robberies inherited. and in about half of all homicides. Some These studies provoke much controversy. criminologists tie the easy access to guns,par- Critics cast doubt on the twin and adoption ticularly handguns, to America's high rate of studies. They criticize classifying intelligence violent crime. and temperament as biological traits. But the Guns and gun ownership are common in critics are far less harsh on Herrnstein and the United Statesfar more so than in other Wilson's prescription for change: democracies, which have strictergun laws. "We know that a very small fraction of all Historically, Americans needed guns tosur- young males commit so large a fraction of vive on the frontier. In more recentyears, serious street crime that we can properly incidents of violent crime, especially in urban blame these chronic offenders for most such areas, have caused millions of Americans to crime. We also know that chronic offenders believe that they cannot rely on policepro- typically begin their misconduct at an early tection alone. Experts claim 13,500 ofevery age. Early family and preschool programs may 100,000 Americans own handguns. Asa com- be far better repositories for the crime-preven- parison, the rate per 100,000 in Canada is tion dollar than rehabilitation programs 3,000 and in England, under 500.(In aimedusually futilelyat the 19-or 20-year- England, even the police do not normally -old veteran offender." carry guns.) In 1998, the U.S. Centers for Disease Drugs and Alcohol Control conducted a survey of 36 developed More than 30 percent of state prison countries. It found that the United States had inmates report that they were under the influ- the highest rate of gun-inflicted homicides. ence of drugs when they committed their The U.S. rate of 12.95 gun homicidesper crimes. Over half admit to using drugs during 100,000 contrasted sharply with England's the month prior to their offense. But drugs rate of .41 and South Korea's rate of .12. are not the only substance linked to crime. Other studies in the United States have linked Half of all murders involve people who have the availability of handguns ina community been drinking. And 30 percent of all inmates to its rate of gun injury and homicide.

268 CRIMINAL JUSTICE IN AMERICA271 SixteenTechniques of SituationalCrime revention REDUCE THE REWARDS REMOVE THE EXCUSES INCREASE THE EFFORT INCREASE THE RISKS Remove targets ,Set rules Harden targets Screen entrances and removable car radios hotel registration steering locks exits customsdeclaration anti-robbery screens electronic merchandise .women's refuges tags tamper proof seals phone cards codes of conduct bagoade screening ticket (lees . Identify property Alert conscience Control access Formal surveillance vehicle licensing roadside speedometers entry phones security cameras property marking "idiots drink-and-drive° PIN numbers security guards signs car-parts marking fenced yards burglar alarms "shoplifting is stealing" . ..:...... signs ...... Control disinhibitors Deflect offenders Surveillance by Reduce temptation employees rapid repair of drinking-age laws streetclosings attendants vandalism car ignition breathalyser separation of rival fans Park concierges off-street parking V-chip in TV busstopplacement CCTV systems gender- neutral listings Assist compliance Control facilitators Natural surveillance .Deny benefits ink merchandise tags litter bins.. .. creditcard photos streetlighting PIN for car radios public lavatories caller ID low hedges graffiti cleaning easy library check-out gun controls defensible space

Prevention: Successful Case Studies. SecondEdition. Albany, NY: Harrow & Heston (1997) Source: Clarke, Ronald. V. Ed.). Situational Crime

Several studies have questioned the link that people choose to become criminals. between guns and violent crime. Although People make some sort of cost-benefit analysis many criminals use guns,these studies have before committing crimes. They calculate the found no evidence that decreasing the avail- benefitsthese could be economic gain, the ability of guns would lower homicide rates. thrill of committing the crime, or any pleasure This debate on the link between gunsand they could derive from the crime. They weigh violence often arises over the issue of gun con- the benefits against the costs. These could be trol. This is one of the most hotly debated top- the risk of getting caught, the harshness of ics in America. One side argues that"guns punishment, pangs of conscience, or any pain don't kill people; people kill people."People they could receive from the criminal act. If the on this side believe that to stopviolent crime, benefits outweigh the costs, then they will we must focus oncriminals, not guns. The commit the crime. other side argues that "people with gunskill After making a cost-benefit analysis, cer- people." Those on this side believeviolent tain people would be more likely to choose to crime can be lowered by making gunsless commit crimes. Poor people would have more available in society. to gain than rich people.Psychopathspeople without conscienceswould feel freer to com- Rational Choice mit crimes than most people. Many peoplebelievecrimeinvolves Another form of rational-choice theory rational choice on the part of criminals.This does not attempt to explain why people theory takes various forms. become criminals. It simply notes that crimi- In its simplest form, thistheory means nals act rationally in at least one sense: Most do

Unit 6: Solutions 269 _ not want to get caught. This means that criminals will most often take the easiest path to Class Activity: The commit a crime and may be deterred if some- Causes of Crime thing stands in their way. Thus car thieves prefer an unlocked car to a locked car,a car with- In this activity, students develop solutions out an alarm to one with an alarm, and an to the problem of crime. empty car to one with a person in it. This logic 1.Divide the class into groups of fourmem- applies to many crimes. Robbers, for example, bers each. Each group should: seem to prefer lone victims. The risk of being a. Discuss the various causes of crime robbed increases tenfold when a person is and select the one cause it considers alone. most important. According to this theory, the way to cut b. Brainstormsolutionstocrime, crime is to make it more difficult,more risky, based on the cause it has chosen. and less rewarding for the criminal. Thiscan c. Discuss the solutions itcomes up be done in many waysstrongerlocks, with and choose its best solution. increased police patrols, fewer people carrying d. cash, etc. The chart on the previouspage lists Discuss the costs and benefits of this quite a few techniques. solution. The questionis: Do these techniques e. Prepare a brief presentation for the reduce crime or do they merely displace it? class on the solution. What happens, for example, if we makecars 2. Reconvene as a class. Have eachgroup difficult to steal by equipping them with make a brief presentation supporting its anti-theft devices? Will car thieves, frustrated solution. List the solutionson the board. with not being able to break intocars, turn to Hold a debriefing discussion. Conclude by the violent crime of carjackingstealingcars at taking a class vote on which solution is gunpoint? Or, will they turn toa different best. kind of stealing, suchas committing daytime burglaries? Or, will they stop committing Debriefing Questions crimes? Researchers have not conclusively 1. Which causes seemed easier to find solu- answered these questions. tions for? Why? 2. Which solutions would be easiest toput For Discussion into effect? Why? 1. Which do you think are the most important individual or situational factors that 3. Which solutions do you think would work contribute to crime? Which are the least best? Why? important? Why? 2. Which factors are most difficult to change? Which are the easiest? 3. Which of all the theories discussed doyou think is most important? Which is least important? Why? 4. What additional factors doyou think contribute to crime? 5.White-collar crimes are often committed by employed, well-educated people from good family backgrounds. If they don't need money, why would such people commit fraud or embezzlement? 2 3 270 CRIMINAL JUSTICE IN AMERICA CHAPTER 22 Crime and the Government The Role of Government

Americans often look to government to solve problems, and the problem of crime is no exception. Politicians, from presidents to mayors, are elected, evaluated, and replaced on the basis of how well they meet our expectations.Political campaigns often center on promises or proposals for reducing crime, yet the problem remains. What can government do to help solve America's crime problem? Crime and the Federal Government

The U.S. Constitution divides the power of government into three distinct branches Although states and local governments handle most the executive,legislative, and judicial. The crime, the federal government plays an important Cor..,..A.tution then lays out the responsibilities role in addressing the crime problem. and powers of each branch. All three branches have responsibilities in addressing the crime In addition to the big five, many other fed- problem. eralagencies conduct investigations:the The Executive Branch Customs Service, Internal Revenue Service, As head of the executive branch, the presi- Food and Drug Administration, Immigration dent is responsible for enforcing federal laws. and Naturalization Service, and Securities and Article II, Section 3 of the Constitution holds Exchange Commission. Most of these agencies that the president "shall take care that the laws can investigate lawbreaking, collect evidence, be faithfully executed." One way that the pres- make arrests, and present cases to federal pros- ident exercises this power is by supervising ecutors. executive agencies and departments, particu- Federalcasesareprosecutedby the larly the Department of Justice, headed by the Department of Justice and its U.S. attorneys attorney general. throughout the country. U.S. attorneys are Five main agencies handle most federal appointed by the president. investigations: The Legislative Branch The Federal Bureau of Investigation The Constitution outlines the powers of The Drug Enforcement Administration the U.S. Congress. In the area of criminal jus- The Secret Service tice, Congress makes laws that define federal The Postal Inspection Service crimes and set punishments. Some of these laws were made to meet the specific require- The Bureau of Alcohol, Tobacco, and ments of Section 8 of the Constitution, which Firearms.

i4 Unit 6: Solutions 271 - says that Congress must control America's grams to reduce juvenile delinquency and postal services, mints, revenues, and taxes. To exploitation of children. carry out these responsibilities, Congress has passed laws against tampering with the mail, The Judicial Branch counterfeiting coins, or smuggling. Congress The Constitution places thepower of the has also passed statutes that outlaw spying and judicial branch in the hands of "one Supreme espionage against the United States. And Court and in such inferiorcourtsthe Congress has used its powers over commerce Congress may from time to time ordain and to make laws against carrying stolen goods establish." Today, the federal courtsystem con- across state lines or kidnaping. These are all sists of three basic levelsthe districtcourts, federal crimes. which handle trials; circuit courts of appeals; Congress also makes laws for those parts and the U.S. Supreme Court. of the country that do not fall under the juris- Courts at all levels, state and federal,must diction of a state government. Some of these interpret the meaning of laws. Even trialcourts are the District of Columbia, federal forests, must construe the meaning of statutes. military bases, post offices, federal courts, and Consider the following criminalstatute, ships at sea or airplanes in the air. In most passed by the California State Legislature in areas, however, the bulk of the criminal laws 1901: are made by state and local legislatures, Every person who maliciously, forciblyor because the framers of the Constitution did fraudulently takes or enticesaway any not want all lawmaking power centralized. minor child with intent to detain andcon- Whether a specific act falls under federal ceal such child from its parent, guardianor or state law depends on the act and on where other person having the lawful charge of it is committed. For example, if John Deadly such child, is punishable by imprisonment shoots and kills a man ona street in Wichita, in the state prison not exceedingtwenty he has committed murder and would be tried years. under the Kansas State Penal Code. On the California State Penal Code, Section 278 other hand, if John Deadly killsa letter carrier who is out delivering mail in Wichita, he has Now imagine that a woman takes her not only committed a murder, punishable by 14-year-old niece on a two-week trip to Hawaii against the wishes of the child's parents. The the state of Kansas, he has also committed the parents are furious and have the woman arrest- federal crime of assaultinga federal employee. ed for violating this law. But thewoman argues If he's caught, John can be tried understate at her trial that she didn't fraudulently take or law for the murder and under federal law for the assault. entice the child to go. A California judge must interpret the law. But the situationisdifferentif John In this case, the judge might decide that the Deadly shoots and kills the letter carrier inside woman did entice the child. Though she did the post office. Even though it is in Kansas, not drag her niece onto the airplane forcibly, the post office is considered federal territory. If she knew that the idea of the vacation would John is caught, he can be tried accordingto federal murder statutes. be too good for the teenager to resist and she was taken fraudulently. Congress does not merely define crimes. It The judge's decision does much also passes legislation andcreates agencies to more than resolve this one case. It sets study and reduce crime. The Office of Juvenile a precedentor a general rule to follow. The next timesomeone Justice and Delinquency Prevention ( OJJDP) is is charged with child stealing in the an example of one such agency. Under con- same way, the prosecutor can refer to this judgment and gressional mandate to "improve the quality of ask that the new case be decided according juvenile justice in the United States," OJJDP to the precedent. If the precedent is upheld by allocates federal funds and coordinatespro-

272 CRIMINAL JUSTICE IN AMERICA 4. i j higher courts, the judge's decisions canalter crime. In 1985, the federal government alone the law, just as surely as if the legislaturehad seized $27 million in assets. Each year the made a new statute to include psychological as amount has increased. Recently, ithas averaged well as physical force. nearly $500 million in assets each year. The assets included cash, real estate, motorvehi- For Discussion cles, boats, and airplanes. The forfeited assets 1.For what part of the American criminal were then either used bythe law enforcement legal process is the legislative branch of the agency itself or sold andthe proceeds turned federal government responsible? The execu- over to the Departmentof Justice's Asset tive branch? The judicial branch? Forfeiture Fund. The fund is used for law 2. Describe two crimes that fall underthe enforcement purposes. jurisdiction of federal rather than state law. There are two types of forfeiture laws: 3. How do courts set precedents? How can criminal and civil. Criminal forfeiture laws precedents change the law? Do you think apply to criminals convicted of crimes. As part courts should followprecedents? Why or of the sentence, the judge confiscates the criminal's assets that were used in the crime or that why not? were derived from it. Theselaws have caused far less controversy than civil forfeiture laws. Federal Policy: Civil Civil forfeiture laws work differently. If Forfeiture law enforcement officers have probable cause been used Under state and federal forfeiture statutes, to believe that particular assets have law enforcement officers can seize andconfis- in a crime, they can seize them under civil forfeiture laws. The laws are written so that the cate assets used in illegalactivity or derived government is taking action againstthings, fromit. An old procedure adoptedfrom English common law, forfeiture historically not people. Bizarre case namesresult: U.S. v. played little role in fighting crime in America. One 56-Foot Motor Yacht Named Tahuna (1983) or But forfeiture has become an important part U.S. v. One Parcel of Land ...Commonly Known Matteson, IL (1985) or US. of our nation's war on drugs. Since drugdeal- as 4204 Cedarwood, ing depends on high profits to survive,forfei- v. $321,470 in U.S.Currency (1987). If no one claims the assets, they are for- ture laws take aim at these profits. feited to the government. If someone does Forexample,Congresspassedthe Comprehensive Drug Abuse Preventionand claim them, there will be a civil trial over one Control Act of 1970. As amended, it now pro- issue: Are the assets connected to illegal activity? If so, the property is forfeited to the gov- vides for the civil forfeiture of ernment. Because the actionis supposedly (1)illegal drugs. against the property and not against persons, (2) material and equipment for illegaldrug many statutes do notallow claimants to argue manufacturing. that they knew nothing of the illegal activity. (3) containers for illegal drugs. Unlike a criminal trial, in civil forfeiture (4) vehicles for transporting illegal drugs. cases the government does nothave to prove (5) books and records of illegal drugs. its case beyond a reasonable doubt. Instead, the person claiming the property must prove illegal (6) anything of value exchanged for by a preponderance of evidence that the assets drugs, including money or anything trace- are not connected withillegal activity. This able to the exchange. means that a defendant couldbe acquitted of (7) all .real property used to facilitate adrug a criminal charge but loseseized property in a offense. civilforfeituretrial.(SeeU.S.v.One 1977 Law enforcement has increasinglyturned Lincoln Mark V, 1988.) to statutes such asthis in its fight against

e-% 4. Unit 6: Solutions 273 Forfeiture laws havecome under harsh attack. Since law enforcement agencies often get to keep the assets they seize, they have sometimes been accused of acting overzealous- ly. In 1992, for example, Los Angeles County Sheriff deputies shot and killed Malibu mil- lionaire Donald Scott ina drug raid on his 200-acre ranch. A federal agent, who had flown over the ranch at 1,000 feet, had thought he observed marijuana plants growing. Deputies obtained a warrant and raided the ranch. A thorough search of the ranch turnedup no trace of drugs. The ensuing five-month district attorney investigation concluded that the raid amounted to a fine. The court ordered lower was illegal and that one reason deputies rushed courts to decide if Austin's fine was excessive. to raid the ranch was because they wereanx- The second major casewasU.S.v. ious to confiscate the high-priced land. In Bajakajian, decided in 1998. This wasa crimi- January 2000, Los Angeles County and the fed- nal,ratherthancivil,forfeiturecase. eral government agreed topay Scott's family Bajakajian and his family were in Los Angeles $5 million to settlea lawsuit. ready to board a plane for Syria, his place of Civil forfeiture laws also raise majorcon- birth. In his suitcase, Bajakajian carriedmore stitutional issues. In a series ofcases, the than $300,000 in cash. He had earned the Supreme Court has dealt with challenges based money legally and intended to use it to repay on the Fifth, Eighth, and 14th amendments. family and friends who had loaned him The Eighth Amendment bans thegovern- moneyyearsbefore. Customsagents ment from imposing "excessive fines." If John approached members of the family and smokes a marijuana cigarette at home,can law informed them that they mustreport any enforcement confiscate the home? Or would amount more than $10,000 being taken out of this be an excessive fine? The Supreme Court the country. Bajakajian lied and said he had has dealt with this issue in two majorcases. nothing to report. The agents then searched The first was Austin v. U.S., decided in 1993. his luggage and found the cash. Bajakajian In June 1990, an undercover agent entered pleaded guilty to failing to report themoney. Austin's automobile body shop in Sioux Falls, The reporting law authorized forfeiture of South Dakota, and asked for drugs. Austin "any property, real or personal, involved in agreed to sell him some. Austin left his body such offense." The prosecutor asked for this shop, went to his mobile home, andcame back penalty, but the judge limited the forfeitureto with two grams of cocaine. Convicted ofpos- $15,000. The prosecution appealed, asking the session of cocaine with intent to distribute, court to impose a forfeiture of all the money. Austin was sentenced to sevenyears in state The U.S. Supreme Court ruled 5-4 that sucha prison. Federal agents seized his body shop forfeiture would amount toan excessive fine in and mobile home in a civil forfeiture action. violation of the Eighth Amendment. The Appealing the forfeiture all theway to the U.S. court majority stressed that Bajakajian pos- Supreme Court, Austin argued that this seizure sessed the money legally. His "violationwas amounted to an excessive fine. Thegovern- unrelated to any other illegal activities.... ment countered that the Eighth Amendment [He] does not fit into the class ofpersons for did not apply to civil actions, only criminal whom the statute was principally designed: He actions. A unanimous Supreme Court held is not a money launderer,a drug trafficker, or that the Eighth Amendment appliesto any a tax evader." His "crime was solely a reporting finecivil or criminaland that the forfeiture offense....Had his crimegone undetected,

!- p", 274 CRIMINAL JUSTICE IN AMERICA the government would have been deprived ings clause declares that the government can- only of the information that $357,144 hadleft not take a person's property"without just the country." The court held that a forfeiture compensation." of this amount "would be grossly dispropor- In 1996 in Bennis v. Michigan, the U.S. tional to the gravity of his offense." The dis- Supreme Court upheld the Michigan law by a senters disagreed, arguing thatsmuggling 5-4 vote. The court majority again cited"a money was a serious crime and thatforfeiting long and unbroken line of cases [holding] that all the money was perfectly proportional to an owner's interest in property maybe forfeit- the crime. ed by reason of the use to which the property The court has also dealt with two other is put even though the owner did not know major constitutional issues on forfeiture. One that it was to be put to such use." The court case involved doublejeopardy, whichis pointed out that forfeiture laws deter illegal banned by the Fifth Amendment. Double uses of property andthat they are not unique jeopardy means punishing a person twice for in this respect. "Michigan also deters danger- the same crime. If the government in a civil ous driving by making a motorvehicle owner forfeiture takes a person's property because it liable for the negligent operation of the vehi- was involved in a crime, canthe government cle by a driver who had the owner's consent to then file criminal charges against the person use it ...." The dissenters believed forfeiture for the same crime? Or would this be double laws must distinguish between three categories illegal jeopardy? of property(1) contraband (such as In 1996 in U.S.v.Ursery, the Supreme drugs), (2) proceeds from criminal activities, Court ruled 8-1 that this is not double jeop- and (3) items used by a criminal (car, house, ardy. The court noted that "in a long line of ship, hotel). According to the dissenters,the cases, this Court has consideredthe applica- first two categories of property would not tion of the Double Jeopardy Clause to civil for- require an innocent-owner defense, because nobody is entitled to this property. But, said feitur-, consistently concluding that the Clause does not apply to such actions because the dissenters, due process requires aninno- they do not impose punishment." cent-owner defense for thethird category of The other case involved both the Fifth and property, because peoplelegally own it. 14th amendments. A Michigan woman and In 2000, Congress passed the Civil Asset her husband jointly owned a family car. Her Forfeiture Reform Act. It makes federal civil husband had taken the car, picked up a pros- forfeitures more difficult. To seize property, titute, had sex with her in the car, and got prosecutors must prove that the property was caught by police. The police confiscated the involved in criminal activity by a preponder- car under a Michigan forfeiturelaw. The wife ance of the evidence.The old law required only appealed the forfeiture because she owned half probable cause, a much easier standard of the car and had known nothing about her hus- proof. Prosecutors must also notify property band'sactions.Federalstatutesallowa owners of any forfeitureaction. If owners so-called "innocent owner" defense. If the own- claim they knew nothing of the illegal activity, ers of property can provethey knew nothing prosecutors must prove thisfalse by a prepon- of the illegal activity, they won't lose the prop- derance of the evidence. The new lawalso erty. But Michigan's and many otherstates' makes the government pay for the owners' laws do not provide an innocent-owner lawyers if the owners are indigent or if they defense. The wife argued that Michigan's law win the property back. violated the 14th Amendment's due process Civil libertarians say that this new law clause and the Fifth Amendment's takings helps, but is not enough. They want Congress clause. The due process clause says that no to ban civil forfeitures. The government,they guilty state shall "deprive any person of ... property argue, should have to prove a person beyond a reasonable doubt before forfeiting ...without due process of law ...." The tak-

c) Unit 6: Solutions 275 al 0 the person's property. As it standsnow, prosecutors do not file criminal charges in many Class Activity: A Model civilforfeiturecases. When they do file Forfeiture Statute charges, prosecutors still most often seek civil forfeitures instead of criminal forfeitures. Civil asset forfeiture continues to be debat- The government adamantly supports civil ed. Some push for its elimination; others fora forfeitures. Officials believe the new law offers return to how it was before Congress reformed more than adequate safeguards. They point it in 2000. In this activity, students role playa out that no one even contests forfeitures in congressional subcommittee recommending eight out of 10 cases. Cary Copeland, director elements of a new civilforfeiture statute, cf the Justice Department's Office for Asset which will also serve as a model forstate legis- Forfeiture, argues that in most cases "the cir- latures to adopt. cumstances are so incriminating that nobody 1. Divide the class into smallgroups. Each wants to challenge us. With all that crime out group will role play a congressional sub- there we don't have time to run around and committee. take property from innocent people." 2. Each group should discuss and decideon the following questions: For Discussion 1. What is the difference between civil and a. What standard of proof shouldpros- criminal forfeiture? ecutors have to prove before seizing assetsprobable cause, preponder- 2. Why do you think prosecutors most often ance of the evidence, clear and con- file civil forfeiture actions instead of crimi- vincing evidence, or proof beyond nal ones? a reasonable doubt? Why? 3. How are the three branches of govern- b. Should there be an innocent-owner mentexecutive, legislative, and judicial defense? If so, who should have the involved in setting federal civil forfeiture burden of proving that the owner policy? did or did not know about the ille- 4. What did the court decide in Bennisv. galitythe owner or the prosecutor? Michigan? Do you agree with this decision? What should the standard of proof Why or why not? be? Explain all your answers. 5. The Supreme Court ruled in Austin that the c. Who should get the proceeds from excessive fines clause applies to civil forfei- the forfeited propertythe police tures. It then sent the Austin case back to agency that conducted the seizure, lower courts to decide whether the forfei- the law-enforcement budget,or the ture was, in fact, excessive. Do you think it whole government's budget? Why? was? Why or why not? d. Should the government have to 6. What did the court decide inU.S.v. return property forfeited in a civil Bajakajian? Do you agree with the court? actionif the property owner is Explain. acquittedatacriminaltrial? Explain. 7.What are the benefits of civil forfeiture? The costs? 3.Each group should report back itsanswers and the class should hold a discussion. Debriefing Questions 1. What were the easiest issues to decide? The hardest? Why? 2. Do you think civil forfeiture isa good idea? Why or why not?

276 CRIMINAL JUSTICE IN AMERICA Federal Policy: Gun National Poll on Gun Control Measures -Gun control measures percent supporting Control the measure ti4andatoryregistration of Americans possess more than 200 million handguns 85:3% firearms. Each year about 640,000 violent Keep handguns from criminals, crimes, including 16,000 murders are commit- even if harder for law-abiding ted with guns, mostly handguns. Some people -citizens to purchase 75.3% believe gun-control laws, which restrict gun Mandatory registration of rifles ownership, can reduce the bloodshed. These and shotguns 72.3% laws range from gun registration, to bans on :Ban posiession of handguns, certain types of ammunition, to complete bans except by police or other on handguns and military-assault weapons. 4uthorized persons . Can gun-control laws stop this violence? Total ban on handgunS 15:6% Americans have highly conflicting views on .:Source: Sou:rebook of Criminal Astice Siatistics 1998, Table 2.67, gun control. According to recentopinion :Bureau of Justice Statistics (1999) polls, about 70 percent favor various gun-control measures. But a similar percent oppose an outright ban on handguns. Other polls indi- facture of certain military assault weapons. A cate that the American public isevenly split 1996 law banned anyone convicted of a domestic violence offense from owning or using a on whether stricter guncontrol will reduce violent crime. gun. Gun control faces stiff opposition in the Other proposed laws include: United States. Millions of Americans believe Sharply increasing taxes on the sale of guns that gun ownership is a right and that guns and bullets. Supporters say this will increase serve a legitimate purposein society. They their cost and make them lessavailable. the problem. Rather argue that guns are not Opponents say these laws will only affect law- than penalizing law-abiding gun owners, they abiding citizens who already pay high taxes on favor punishing more harshly those who use firearms. guns to commit crimes. The opposition is led by the National Rifle Requiring gun owners to register firearms Association (NRA) and the gun industry. The and to have a state firearms license. NRA represents about 3-million hunters and Supporters say that just as the state registers gun enthusiasts. The gunindustry, made up of cars and licenses people whodrive, the state manufacturers and retailers, earns more than should also license gun owners and register $2 billion annually. Together they form a pow- guns. They think such a systemwould help erful opposition to legislation imposing con- keep guns out of the wrong hands. Opponents t:ols on guns. believe this is the first step to outlawing guns, Over the years, however, the federal gov- which will only keep guns away from law-abid- ernment has enacted five majornationwide ing people. They also say the car comparison gun laws. In 1934, itprohibited the possession is faulty. Cars, they say, cause many more of machine guns, sawed-off shotguns, and deaths than guns and, unlike gun ownership, silencers. The Gun Control Act of 1968 limited car ownership is a privilege not aright. the importation and sale of cheap handguns, Compel gun manufacturers to install safety known as Saturday Night Specials, and pro- devices. Proposals include requiring built-in hibited the interstate sale of handguns. The locks and eventually "smart guns," which can Brady Act, passed in 1993, requires a five-day be operated only by thelawfulowner. waiting period for all handgun purchases. The Supporters believe these will prevent others 1994 crime bill banned the import and manu-

280 Unit 6: Solutions 277 Arguments onHandgun Control

Against Handgun Control For Handgun Control Gun control impinges on a basic right of all The Second Amendment does not give an iriCk. Americans the right to protect themselves. vidual a right to own a gun. It guarantees'a.. This right is ..so. important that the Second state's right to maintain a militia. The Suprerite Amendment to the Constitution guarantees the Court and federal appeals courts have never, right to bear arms. overturnedagun-control law on Second Amendment grounds. Guns are far more likely to harm members Of With our society's high rate of violence and lack the owner's househOld than offer proteCtiori of adequate policing, guns offer citizens pro- against criminal& tection. "'',:-. :

. ..,. Guns make bad situations worse. Our murde( :,Guns don't:Ilk:people.. People kill. people." Switerland,. which has a low rate of murder, rateis higher than other countries because:. requiret most adultadult males. to keep automatic handguns are so readily available: ''': weapons at home for the army. "When guns are outlawed, only outlaws will Most of the crimes committed with guns in have guns." Criminals will always find ways of Washington, D.C., are committed with guns getting guns .or other weapons. Washington, bought in nearby states with lax gun laws. D.C., and other jurisdictions with strong gun-control laws have the worst murder rates in the country. :Instead of penalizing ordinary citizens, the We already impose mandatory sentences on --proper way to keep criminals from using guns is criminals using guns. to impose harsher penalties on criminals who use them.

Our country has too many guns in circulation Canada had similar laws to ours until the 1920s. for gun-control laws to be effective. Gun control has worked there. Even if gun control laws did reduce the use of Guns are more fatal than other weapons. A per- handguns, criminals would simply shift to other son shot with a aun is five times more likely to weapons. die than a person stabbed with a knife. fromusing the gun. Opponents believe these Ban handgun ownership. Under thispropos- devices increase the costs andmay cause the al, only police and armed forces would be weapons to misfire. allowed to own handguns. Supporters think it Limit gun purchases toone a month per is the only way to reduce handgun violence. person. Much of the illegal gun trade is car- Opponents believe it is an extrememeasure ried on by middlemen who buyguns from that violates people's rights. dealers in bulk and sell themto juveniles and Supporters and opponents have long criminals. Supporterssay this law will stop the debated the merits ofgun control.(See middlemen from buyingguns. Opponents "Arguments on Handgun Control" forsome think criminalscan easily get around this law of the most common arguments.) Both sides by using groups of peopleto buy guns. Again, cite studies and cases to bolster theirargu- they say, only the law-abiding will beprevent- ments. ed from buyingguns. Supporters of gun control pointto other Western democracies, suchas Canada, which

278 CRIMINAL JUSTICE IN AMERICA '2 S have strict gun-control laws and far lower rates upheld the federal government's 1934 gun law. of violent crime. They cite a 1988 study in the Federal appeals courts have never overturned a New England Journal of Medicine comparing a gun-control law on Second Amendment Canadian city, Vancouver, with an American grounds. In 1997 in Printz v. U.S., the Supreme city, Seattle, which are about 100 miles apart. Court overturned portions of the Brady Act The risk of being murdered by a handgun was for other reasons. Justice Clarence Thomas in about five time higher in Seattle. And a person a concurring opinion noted thatthe law had assaulted in Seattle was twice as likely to die as not been challenged on Second Amendment a person assaulted in Vancouver. Supporters of grounds. He expressed hope that the court gun control argue that strict gun-control laws would someday be asked to make a definitive will reduce violent crime in America. ruling on this amendment. Opponents of gun control question the For Discussion link between guns and violent crime. They cite youthinktheSecond countries, such asSwitzerland and Israel, 1. Whatdo Amendment means? which mandate citizen-soldiers to keep guns at home andyethave low murderrates. 2. Do you think gun control can reduce vio- Opponents say that gun-control laws have no lent crime? Why or why not? effectoncriminals.Theypointto 3. Which of the gun-control policies men- Washington, D.C. It has in effect banned tioned seems the best? The worst? Why? handguns and still has one of the worst murder rates in the country. Gun-control laws, they say, only make it more difficult for law- Class Activity: Gun- abiding citizens to buy firearms, which they believeisa citizen'srightunderthe Control Policies Constitution. T" Second Amendmentto the In this activity, students debate the merits Constitution reads as follows: of different gun-control policies. A well regulated Militia, being necessary to 1. Ask each student to read and decide which the security of a free State, the right of the one of the following seven policies he or people to keep and bear Arms, shall not be she thinks is the best: infringed. a. Get rid of all federal gun-control Opponents of gun control argue that this laws. amendment gives individuals the right to own b. Enforce the laws we have. They are firearms. They explain that this was considered enough. a basic right when the Bill of Rights was writ- c. Require gun manufacturers to install ten. Every able-bodied adult male citizen was safety devices. part of the state militia and was expected to have his own gun. d. Limit gun purchases to one a month Supporters of gun control read the amend- per person. ment differently. They say the amendment e. Sharply increase taxes on the sale of only gives states the right to keep armed citi- guns and bullets. zen militias. It does not, they say, give individ- f. Register guns and license gun own- ual citizens a right to own guns that are not ers. necessary for a state militia. According to sup- g. Ban handgun ownership. porters of gun control, this means that gov- 2. Have students meet in groups according to ernment can regulate private gun ownership. the policy they favor most. All who think The Supreme Court has made only one policy "a" is best meet together, and so on ruling on the Second Amendment in the last for each policy. 100 years. In 1939 in US. v. Miller, the court r) Unit 6 Solutions 279 3.Each group should: final word in interpreting state law and the a. Create arguments favoring their pol- state constitution. Defendants can appeal to icy. the U.S. Supreme Court only on issues of U.S. constitutional law. b. Develop a one-minute presentation to make to the class to convince For Discussion others to favor the policy. 1. Why do you think controlling violent 4. Regroup and have the groups make their crime is primarily the responsibility of the presentations. Conclude by taking a class states? vote on each policy. 2. Under what circumstances could the U.S. Supreme Court overturn astatelaw? An Attack on Crime: The Explain. State Level Class Activity: A State Senate Committee We must bear in mind that under our federal rys- Passing anti-crime legislation is not as sim- tern of government, the states have primary author- ple as learning the facts and holding a debate. ity.kr dealing with most crimes committed within In this activity, students learn some of the ins their border, and that includes the vast major:. ty of and outs of state legislation. They will take violent crimes. part in a role play based on a fictional state's William French Smith, former U.S. attorney attack on its crime problem. In the role play, general students serve on a state senate committee dis- Like the federal government, state govern- cussingproposedSenateBill 1715, an ments are divided into three branchesexecu- anti-crime bill. tive, legislative, and judicial. State legislatures 1.As a class, read the background informa- define crimes and pass other crime bills, which tion on "The Fictional State of Columbia," the governor signs into law. State codes define plus the description of the anti-crime bill all felony offenses and many lesser offenses, ("Senate Bill 1715") and the "Description of but local governments enact some misde- the State Districts." In the role play, each meanors and local ordinances. student represents one of the districts In turn,state,county, and municipal described. police departments enforce these laws. The 2. Hold a discussion using the discussion most visible of the state police agencies is usu- questions on page 284. ally the highway patrol, but the state also has 3.Break the class into committees of five or narcotics, investigative, and otherunits. 10 persons each. Almost every county has a sheriff's department run by an elected sheriff. By far the 4. Each committee should: largest law enforcement agencies are the local a. Count off and assign either one or police, which account for more than three- two persons (depending on the fourths of all those employed as police at all number of people on the commit- levels of government. tee) to represent one of the five dis- People accused of violating state or local tricts. crimes appear beforestate criminaltrial b. Select a chairperson. courts. If convicted, they serve sentences in local jails or state prisons. They may also If the committee has an even number of members, the chairperson appeal their convictions in appellate courts. should be a non-voting member of The highest appellate court in the state isusu- the committee. ally called the state supreme court. It has the :7)3 280 CRIMINAL JUSTICE IN AMERICA amendments to the provision. Members discuss any amendments and vote on them. Fourth step. Chairperson has the committee vote on the provision, including any amendments the committee has added. There are three votes possible: Pass, which will send the bill to the full senate with a recommendation to pass it. Defeat, which will send the bill to the full senate with a recommendation to defeat it. Table, which will delay consideration of the bill to a later date. Fifth step. The committee repeats the steps for all three provisions of the bill and then Police question young people hanging out on a street writes a brief report on the committee's rec- corner at night. ommendations. (Break up the report so that different people on the committee work on different parts of the report.) 5.Each person should reread his or her dis- 8. Reconvene the whole class as the full sen- trict's description (on pages 282-284). ate, and have each committee readits 6. Before beginning committee deliberations, report. The whole class will vote on any redivide the class into district caucuses for amendments offered, and will then vote preliminary discussions. This means all the whether to pass or defeat the bill. Debrief members representing a particular district, theactivityusingthequestionson such as district 1, should meet in one group page 284. to discuss the district's reaction toward the three provisions of the bill (on page 282). The Fictional State of Columbia Go over which sections the district favors, Columbia is a picturesque mountain and which it opposes, and discuss changes the prairie state in the middle of the country far district would like in the bill. away from the coasts. It has almost 4 million residents, about half of whom live in rural 7. Have students return to the senate and areas on farms or in small towns. Columbia meet with their senate committee. The has many dairy farms and egg ranches. It also committees should now carefully review all has a few large agricultural corporations that three provisions of SB 1715, discuss, and raise hogs, cattle, corn, and wheat. vote on the measure by following these Two million Columbians live in cities, steps: almost a million in the biggest city, Athena. First step. Committee chairperson or a des- Industries in the Athena area mainly make tex- ignated member reads aloud the text of the tiles, clothing, and computer hardware. There first provision of SB 1715. is one auto assembly plant. A particularly Second step. Chairperson calls on members rugged mountain range passes through the to discuss this provision and how their dis- western part of the state, and tourists flock to tricts feel about it. the mountains summer and winter. Tourists Third step. Chairperson calls for amend- also come to see Gold Canyon near the moun- ments. Committee members can propose tains, which is the site of the White Water

t,) Unit 6 Solutions 281 mining district with many ghost towns and upon a finding of justifiable homicide by a abandoned mines. Many Europeanscome to duly constituted coroner's jury. see the mining areas and stay in one of the spas in the foothills. Tourism has become an Provision 3: The legislature hereby appropri- ates $40 million from the general fund for use important addition to a weakeconomy. Although crime has fallenslightly in by county, municipal, or townshipgovern- ments for either of the following purposes: recent years, Columbia still has a major crime a. The hiring, training, and mainte- problem. It got national publicity lastyear when the daughter of the Danish ambassador nance of additional police officers. was accidentally killedin a mini-market b. The renovation of jails or thecon- holdup. The crime problemgrew serious in struction of additional cells in exist- Athena when drugs were first imported bya ing jails. West Coast gang 20 yearsago. Since then, the This fund shall be administered and dis- problem has spread to most of the smaller tributed by the state attorney general's office cities in the state. upon application by local governments. Senate Bill 1715 Description of the State Districts State Senator Alan Parsons introduceda In the role play that follows, you willrep- bill designed to solve Columbia's crime prob- resent one of the following districts in the lem. He incorporatedmany sweeping changes state of Columbia. It will help you in the role into his bill, which was assigned the number play to be familiar with all the districts. SB 1715, which stands for Senate Bill 1715. This District 1 is the bill: Most of the district is made up of the rich- Preamble: er suburbs of Athena. There are two large mod- We, the people of Columbia, declare that it ern malls to serve them and the state's only is our inalienable right to live ina society free theme park, Prairieland. A lot of the residents from the fear and threat of criminal attack are newly wealthy and have moved here to upon our property and persons. We declare escape the troubles of the inner city. The state that the men and women who commit crimes capital buildings in Athena are justacross the are the enemies of our state, our society, and district line, and many of the higher level state our general welfare. For this reason, we amend administrators live here. the Columbia Constitution and Penal Codeto The areas of district 1 nearest the cityare include the following provisions: often targeted for burglaries and there have been several brutal muggings andrapes on Provision 1: Any person who has already been local streets. Recently there has beena number convicted of two felonies shall,upon convic- of carjackings, with new models taken from tion of a third and separate felony, besen- their owners at gunpoint. tenced to serve 25 years in state prison. This The people in district 1 wantsomeone to penalty is mandatory for all felonsupon their take action against crime immediately. Many third conviction and is to be served without of them, however, are against taxation and possibility of parole. they are worried about the budget impact of Provision 2: Any citizen who wounds, dis- new anti-crime measures. Also, several impor- ables, or apprehendsa person committing or tant people in district 1 have expressed con- attempting to commit a robberyor burglary cerns about the first provision of the bill. They within the jurisdiction of this state shall be do not want the bill tocover "victimless" entitled to $4,000 upon the capture andcon- crimes, such as drug useor gambling, and viction of said felon. In the event of the death they don't want any attention given to white- of said felon, an award of $4,000 shall be made collar crime, such as embezzlementor corporate fraud.

282 CRIMINAL JUSTICE IN AMERICA 4'j Rate of Violent Crime in Each State District 2 District2is onthe opposite side of Athena Rate per 100,000 popuiation from district 1, and it includes most of the blue-collar suburbs and the industries. Itis Alabama 554.5 mostly white, though some African Americans Alaska 701.1 and Latinos have moved into the edge of the Arizona 523.7 Arkansas 526.9 district. A recent recession and the closing of California 798.3 two electronics plants has hit district 2 hard. Colorado 363.2 Almost 10 percent of the work force is unem- Connecticut 390.9 Delaware 677.9 ployed. Even the auto assembly plant has cut Florida 1023.6 production and laid off a quarter of its Georgia 606.6 employees. Hawaii 2779 In the past, the main problems in the dis- Idaho poloio 256.8 Illinois 861.4 trict were juvenile delinquency and fights out- Indiana 514.6 side several notorious bars. Now, however, the Iowa 310.0 number of muggings and street robberies is ris- Kansas 409.2 ing. Also, the biggest industries report a num- Kentucky 316.9 Louisiana 855.9 ber of suspicious fires and acts of sabotage. Maine 120.8 Gang graffiti has begun to appear on walls Maryland 846.6 everywhere. Massachuetts 644.2 People in district 2 are very angry, but they Michigan. 590.0 Minnesota r 337.8 are not sure what to do. Many of them talk Mississippi. Imm 469.0 about getting tougher on the criminals, and Missouri 577.4 they blame the police. They feel that richer Montana 132.1 Nebraska 438.4 areas like district 1 get much better policing Nevada 798.7 than they do. New Jolley. 492.6 District 3 -New Ha Mo.: 1E102 District 3 is in the northwest part of the New Mexico is853.3 New York 688.6 state. It includes Gold Canyon and was once North Carolina 607.0 the Whitewater Mining district. The minerals North Dakota 87.2 were played out long ago, and it is now main- Ohio 435A Oklahoma 559.5 ly a picturesque tourist area in the foothills. ....Oregon 444.4 The district features many resorts and spas. ::Pennsylvania 442:1 The biggest town is College Park, which con- :.*hode.Istand 3333 tains Columbia State University, and most of South Carolina 990.3 'South DakPta '1974 the faculty and students live here. 789.7 Crime has decreased most in this district. Ittias 602.5: The campus police have the university area :Utah 334.0 under control, and a few extra units of the Vermont 119.7 Virginia 345.2 state police have managed to stop victimiza- Washington 440.7 tion of tourists. 'West Virginia 6. 218.7 People in the Whitewater area are worried Wisconsin 270.6 "Wyoming 255:2 that publicity about crime willscare off tourists.Theywant a well-publicized 'Violent crime indudes murder and non - negligent anti-crime campaign that will reassure poten- manslaughter, forcible rape, robbery, and aggravat- tial tourists. Many other voters in the district, ed.assault. Based on FBI's Uniform Crime Reporting "Program:. however, are opposed to what they see as repressive legislation like SB 1715. Source:Sourcebook of Criminal Justice Statistics 1998, Table 3.119. Bureau of Justice Statistics (1999). r).1 BEST COPY AVAILABLE 4 0 0 Unit 6: Solutions 283 The people near the university are largely extra money proposed in the bill would be bet- opposed to handguns. They passed a local ter spent combating poverty. They feel that is ordinance to require a long waiting period the way to fight crime. before purchasing any firearm. They would Urbanresidentsfeeltheirneighbor- strongly oppose any state law that would hood-watch and jobs programs are working, encourage people to buy handguns. and they would like to see these expanded and reproduced in other population centers in the District 4 state. They want more money devoted to social This district is in the center of the state welfare and anti-poverty programs. And they and largely agricultural. The largest town, Lone feel the second provision of the bill would just Pine, has just over 1,000 people and serves the increase the level of violence and encourage surrounding farms. Three very large agricul- dangerous vigilante action. tural corporations employ hundreds of field hands and some administrators. People in the For Discussion smaller towns run cafes and gas stations that 1. The preamble to SB 1715 declares that crim- are dependent on the tourists passing through inals are "enemies of the state." Are all to the mountains in the west. criminals enemies of the state? 'What might A few years ago there was hardly any crime be some problems with such an attitude? at all in district 4, except an occasional gas sta- 2. Reread the provisions of SB 1715 one at a tion holdup and a rare murder. Recently, gangs time. Answer the following, questions for from the cities have made raids on the larger each: farms or on businesses on payroll day. There have even been a few midnight assaults and What are some possible consequences if this proposition were rapes in the small towns. enacted into law? Explain. Many district residents blame Athena for the crime and they feel no one in the big city Which of these would have a posi- takes them seriously. Some are talking about tive impact on society? Which would taking the law into their own hands and form- have a negative impact? Explain. ing vigilante posses. Debriefing Questions District 5 1. How does Columbia differ from your District 5 includes all of the central city of state? Which district described is closest to Athena. The residents are mostly poor and the one you live in? Why? many work at service industries inthe city 2. Would the people of your state support core that pay minimum wage. Thosewho do such a crime bill? Why or why not? have jobs in the industries in the suburbs have tocommutelongdistances.African 3. Do you think this exercise was a realistic Americans are about a third of the population, representation of how your state senate Latinos are another third, and the rest is made would deal with a crime bill? Why or why up of relatively new Asianimmigrants and not? poor whites. Crime rates have traditionally been high in district 5, but over the last two years they have actually dropped a little. Many people feel this is because of an active neighborhood-watch program and a well-fundedfederal jobs program for city youth. Most urban residents oppose SB1715. There have been many state cutbacks on welfare programs, and Athenians feel that the

284 CRIMINAL JUSTICE IN AMERICA The New Role of State Supreme Courts

As the Supreme Court in recent years has restricted the rights of criminal defendants, defendants have increasingly looked to state supreme courts to protect their rights. How can a state court offer more protection than the U.S. Supreme Court? The U.S. Supreme Court, after all, makes the final decision on matters of U.S. constitutional law. It decides whether the Constitution guarantees certain rights, and it determines the extent of these rights. A state supreme court could not, for example, declare that the U.S. Constitution gives people a right to privacy in the items they put out for trash collection, because the U.S. Supreme Court in California v. Greenwood (1988) has already ruled the U.S. Constitution grants no such right. The U.S. Supreme Court Utah Supreme Court Justice Christine Durham would reverse any contrary decision by a state poses outside the state capitol in Salt Lake City. court. But a state supreme court could declare that its state constitution granted that right. dants under the California Constitution to The New Jersey Supreme Court did exactly this those granted under the U.S. Constitution. in its 1990 State v. Hempele decision. It ruled For Discussion that under the New Jersey Constitution, resi- 1. On what basis can state courts grant greater dents have a right to privacy in items put in protections for criminal defendants than the trash. This right is protected independent- those guaranteed by the U.S. Constitution? ly by the state constitution. The U.S. Supreme 2. Do you think state courts should do this? Court cannot overrule this decision, because Why or why not? state supreme courts are the final judges of the meaning of their constitutions. 3.Could a state court restrict or deny rights These constitutions can grant more rights guaranteed by theU.S.Constitution? than the U.S. Constitution. Thus criminal Explain. defendants appealing their convictions often ask state courts to find their rights have been violated under the state constitution. In many The Color of Justice cases in the last 30 years, state supreme courts have ruled that their constitutions granted In 1991 in Los Angeles, a bystander video- more protections than the U.S. Constitution. taped police officers beating Rodney King, a black man. People in the African-American If the U.S. Supreme Court continues to restrict community had long complained of cases of the rights of criminal defendants, more defen- police brutality. At long last, they had clear evi- dants will look to their state constitutions for protection. But one state, California, has put a dencea videotape. But at the trial in state stop to this practice. In 1982, the voters of court, the jury acquitted the four officers of California passed the Victims' Bill of Rights, using excessive force. A major riot erupted fol- which limited the rights of criminal defen- lowing the verdict.

88 Unit 6: Solutions 285 Although two of the officers were subse- tem. He said the legal system was madeby quently convicted in federal court, many in white men to protect white interests and keep the African-American and in other minority blacks down. Staples charged that the system communities argue that this case shows how was characterized bysecond-rate legal help for difficult it is for people of color to get justice black defendants, biased jurors, and judges from the criminal justice system. Racial dis- who discriminate in sentencing. crimination, they say, permeates the system. A dozen years later, sociologist William Critics who claim that racism taints the Wilbanks rejected the discrimination argu- system have cited its treatmentof ment. In his book, The Myth of aRacist African-American males. For example, statis- Criminal Justice System, Wilbanks reviewed tics show that more than one-fourth of all scores of studiesthat showed statistical black males and 16 percent of Latinos can inequalities between whites and blacks in arrest expect to spend time in prison during their rates, imprisonment, and other areasof crimi- lifetime, while only 4 percent of white males nal justice. He found that the inequalities ever go to prison. African-Americansmake up came from factors other thanracial discrimi- 12 percent of the U.S. population, but they nation, such as poverty and the defendant's compose about half of all prisoninmates and prior record. 40 percent of those sentenced to death. Even Other sociologists, too, have suggested more startling, a third of allAfrican-American that the apparent inequalities have more to do males aged 20-29 are right now either locked with poverty than race. Street crimes such as up, on probation, or on parole. robbery and assault, prominent in the statis- The question remains whether these statistics, are usually committed by people from tics come from racism in the criminal justice poor backgrounds. Today, eventhough signifi- system or from other causes.Social scientists cant improvements were madeduring the and politicians have argued about this ques- 1990s in minority employment, about one tion for decades. quarter of all African Americans and Latinos In a controversial1975article,titled live below the official poverty line. This com- "White Racism, Black Crime, and American pares to only 10 percent of allwhites. Justice," criminologist Robert Staples argued The connection between poverty and that discrimination pervades the justice sys- crime has long been noted. During the 1930s, r'89 286 CRIMINAL JUSTICE IN .AMERICA a much larger part of the white population was Plea Bargaining poor, and whites committed a greater percent- More than 90 percent of all criminal cases age of street crime. Whites then accounted for never go to trial. The defendant pleads guilty, nearly 80 percent of those in prison compared often after the prosecutor and defense attor- to 45 percent today. The question of poverty ney negotiate. A 1990 study of about 1,000 alone may well account for many of the appar- cases by the U.S. Sentencing Commission ent inequalities in the system. found that whites did better in plea bargains. A RAND Corporation study in 1983, how- Twenty-five percent of whites, 18 percent of ever, unearthed some disturbing data. RAND blacks, and 12 percent of Latinos got their sen- compared the treatment of whites and blacks tences reduced through bargaining. The reason at key decision points in the criminal justice for the disparity was not determined. system. The researchers found that black The San Jose Mercury News conducted a defendants seemed to be treated more harshly massive study of 700,000 California legal cases at key points such as sentencing. But the over a 10-year period. The paper reported in researchers did not identify a cause for these December 1991 that a third of the white adults inequalities. Later studies have provided more who were arrested, but had no prior record, insight into this troubling data. were able to get felony charges against them Arrest reduced. Only a quarter of the African-Americans and Latinos with no priors African Americans account for about 40 were as successful in plea bargaining. percent of the arrests for violent crimes. This The Mercury News study did not blame far surpasses their numbers in the population. intentional racism for these inequalities. It did, Does this disparity come from racial discrimi- however, suggest that subtle cultural fears and nation? Those who say "no" point out that insensitivity contributed to the problem. The this percentage corresponds to reports from study noted that more than 80 percent of all the National Crime Victimization Survey. This California prosecutors and judges are white, survey interviews thousands of victims of while more than 60 percent of those arrested crime each year. The percentage of victims are non-white. who say their perpetrator was black closely Constance Rice, a lawyer for the NAACP matches the percentage of African Americans Legal Defense Fund in Los Angeles, explained arrested. A survey of arrest studies concluded, that when prosecutors and judges use their however, that "police are involved in at least discretion, "we have always found evidence to some discrimination against members of racial support the notion that race plays a role." and ethnic minorities." In many jurisdictions, more blacks than Jury Verdicts whites are released after arrest. This is particu- In 1985, Cornell law professor Sheri Lynn larly true for less serious offenses such as pros- Johnson reviewed a dozen mock-jury studies. titution, gambling, and public drunkenness. She concluded that the "race of the defendant What this means is unclear. Some say it means significantly and directly affects the determi- that police and prosecutors are more likely to nation of guilt." In these studies, identical tri- treat African Americans leniently. Others say it als were simulated, sometimes with white means that blacks are more likely to be arrest- defendants and sometimes with African ed on insufficient evidence or harassed by Americans. Professor Johnson discovered that police. white jurors were more likely to find a black The release rate also varies according to defendant guilty than a white defendant, even neighborhood. If blacks are arrested in largely though the mock trials were based on the same minority neighborhoods, they are more likely crime and the same evidence. to be released than whites. But there is no dif- And Professor Johnson found that black ference in integrated neighborhoods. jurors behaved with the reverse bias. They

290 Unit 6: Solutions 287 found white defendants guilty more often Poll on Confidence in the Justice System than black defendants. Furthermore, the race of the victim in the case affected both groups. "Please tell me how much.COnfidence you, yourself, If the victim was black, white jurors tended to :have in :the criminal justice, system." find a white defendant less blameworthy. In Blacks Whites the same way, if the victim was white, black Very little :,48% 28% jurors found black defendants less blamewor- Some 22 ...39 thy. Quite a lot 8 17 According to these mock-jury experi- A great deal 17 11 ments, both white and black jurors seem to iiscriminate. Professor Johnson did not, how- 'ource: Gallup Organization / CNN / USA Today (1998) ever, think the juror bias was intentional. "Because the process of attributing guilt on Unintended discrimination can occur at the basis of race appears to be subconscious," many points in the legal process. Probation Johnson says, "jurors are unlikely either to be officers often prepare pre-sentencing reports aware of or to be able to control that process." for a judge. The judge uses the reports to help The mock trials did have one encouraging make sentencing decisions. Reports include result. When white and black mock jurors met information on the criminal's prior record, together, as many real juries do, the effect of family background, education, marital status, race tended to disappear. This result seems to and employment history. Many African- indicate that the best way to eliminate racial Americans convicted of crimes come from bias in verdicts is to select racially mixed juries. deprived backgrounds. They may have things The U.S. Supreme Court has moved in this intheir recordunemployment, trouble in direction by prohibiting both prosecutors and school, family problemsthat judges, who defense lawyers from eliminating prospective largely come from middle-class backgrounds, jurors solely because of race. (See Batson v. cannot relate to. This may sway some judges to Kentucky, 1986, and Georgia v. McCollum, 1992.) treat them more harshly in sentencing. An earlier study, however, pointed to less In a 1999 survey of studies on discrimina- clear conclusions. Psychologist J.L. Bernard of tioninthejusticesystem,researcher Memphis State University examined a jury of Christopher Stone found that much of the dis- six blacks and six whites deadlocked along parity in sentencing could be traced to differ- racial lines over the guilt of a black defendant. ences in arrest charges and prior records of According to Bernard, "black jurors as a whole those convicted. He concluded: "There is no may be more likely to acquit a defendant, evidence of disparity that stretches across the regardless of race," because they are more sus- justice system as a whole ....But studies of picious of police motives and witnesses. individual jurisdictions and specific parts of the court process do find some evidence of Sentencing race bias in a significant number of cases." The 1983 RAND Corporation study found Stone considered drug offences separately. that convicted African-Americans were more Some federal mandatory sentences have come likely than whites to go to prison. And their under fire for discriminating against minori- sentences were longer. "This disparity," the ties. Critics point to different sentences man- study concluded, "suggests that probation offi- dated for crack cocaine, a drug popular in cers, judges, and parole boards are exercising poor minority communities, and powder discretion in sentencing or release decisions in cocaine, a drug used in wealthier communities. ways that result in de facto discrimination Under federal law, dealing five grams of crack against blacks." De facto means the discrimi- cocaine gets a first offender a mandatory min- nation exists in fact, but without legal author- imum sentence of five years. To receive a simi- ity. It may not be intentional. lar mandatory minimum sentence for traffick-

288 CRIMINAL JUSTICE IN AMERICA2 ing in powder cocaine, an offender must pos- Critics of the system, however, insist that sess 500 grams. Stone stated: "Whatever one inequalities, regardless of their basis, should believes about the rationality of the decision to not be swept under the rug. They must be paid createspecial,harsher penaltiesfor crack attention to and any discrimination found cocaine, the concentration of these sentences must be eliminated. Many critics believe that on black defendants is striking." the disparities in the system would be easier to States often have similar disparities in accept as unbiased if more decision makers drug sentencing laws. In a1996 study of police, prosecutors, judges, and jurieswere California drug sentencing laws, researchers people of color. found that possession of crack cocaine and heroin, more commonly used by minorities, For Discussion 1. What are the disparities between white and carriedstiffer penalties than possession of methamphetamines, more commonly used by black defendants at each of the following key decision points: arrest, plea bargaining, whites. jury verdicts,sentencing, and capital Death Penalty punishment. A study was made of 2,000 murder cases 2. What do you think accounts for these dis- prosecuted by the state of Georgia during the parities? Explain. 1970s. It showed that defendants convicted of killing whites were more than four times as 3.According to Andrew Hacker, author of likely to receive the death penalty than those Two Nations, Black and White,Separate, convicted of murdering blacks. The study also Hostile, Unequal, "The feeling persists that a revealed that black defendants who murdered black man who rapes or robs a white per- whites had by far the greatest chance of being son has inflicted more harm than black or sentenced to death. white criminals who prey on victims of A Georgia black man who had been sen- their own race." Do you agree with this tenced to death for killing a white police offi- statement? Why or why not? cer used this study in his appeal to the U.S. Supreme Court. He claimed the study proved Class Activity: Toward a that Georgia's jurors and judges discriminated against African-American defendants. In a 5-4 Colorblind Justice decision, the Supreme Court accepted the System results of the study, but ruled that it did not prove discrimination. Writing for the majority, Various proposals have been put forward Justice Lewis F. Powell concluded that the to prevent discrimination in arrests, plea bar- study failed to "demonstrate a constitutionally gaining, jury verdicts, sentencing, and the significant risk of racial bias affecting the death penalty. In this activity, students evaluate Georgia capital sentencing process." (McCleskey a few of these and come up with suggestions of v. Kemp, 1987.) their own. Studies confirm that racial disparities exist 1.Break into small groups. Assign each group in the American criminal justice system, but one of the four policy areas below. they differ over the cause. Supreme Court deci- 2. Each group should: sions since 1960 have rooted out many overtly racist practices, such as in jury selection, but it a. Readitspolicy,evaluateit,and is more difficultto address unintentional report back to the class. racist factors. Because these factors come from b. To evaluate the policy, answer the subtle assumptions and fears deeply ingrained following questions: in the wider society, only when society changes (1)What problem isthe policy will they disappear. designed to address? Does it

CI 9 Unit 6: Solutions 289 address the problem? Why or Cons: It is already illegal to exclude jurors on why not? account of race. Doing away with peremptory (2) Who might support the policy? challenges is too extreme. These challenges Who might oppose it? Why? help both the prosecution and defense exclude jurors who they feel might not be impartial. (3)What benefitsmight come from the policy? W. Sentencing (4)What costs might result from Policy: Federal law should not make first-time the policy? drug offenders face mandatory sentences. (5)What otherpoliciesmight Judges should be allowed more discretion in address the problem? Are they sentencing these drug offenders. better? Why? Pros: Mandatory-minimum sentences cause (6)What policy should be adopt- first-time offenders, mostly minorities, to go ed? Why? into an already overcrowded prison system. 3. Have the groups report back. Conclude the activity withadiscussionusingthe Cons: Mandatory-minimum sentences are Debriefing Questions on this page. needed to show we are serious in our war on drugs. I. Arrests V. Death Penalty Policy: Police should collect data on the race Policy: Congress should reverse the decision in and release records of every person they arrest. McCleskey. If statistical studies show racial dis- Pros: This will enable departments to track parities in a state's imposition of the death officers who arrest minorities without suffi- penalty, then minority defendants should not cient cause. be sentenced to death in that state. Cons: Police have too much paperwork already Pros: Race should play no role in whether or and the statistics collected will be meaningless. not a person receives the death penalty. The II. Plea Bargaining death penalty should be limited to aggravated cases where whites and blacks receive the same Policy: Plea bargaining should be abolished. treatment. Pros: It will do away with an informal process Cons: Mere discrepancies in statistics should subject to abuse because the courts do not not invalidate the death penalty. A defendant review it. It will ensure that all defendants have should have to show discrimination in the par- their day in court. ticular case or that the state intended to dis- Cons: Doing away with plea bargaining will criminate. clog the courts with cases awaiting trial, result- Debriefing Questions ing in increased court costs. 1. Which policies garnered the most support? III. Jury Verdicts The least support? Why? Policy: Peremptory challenges should be abol- 2. What other policies did you think of that ished. (Peremptory challenges allow attorneys could prevent racial discrimination in the to exclude a limited number of prospective criminal justice system? Do you think they jurors for any reason except race and gender.) would work? Why or why not? Pros: Even though they are not supposed to, 3. Why is it important that the criminal jus- attorneys still use peremptory challenges to tice system not be perceived as racially exclude jurors on account of race. This will biased? end the practice.

290 CRIMINAL JUSTICE IN AMERICA CHAPTER 23 Crime and the Citizen Getting Involved in and rules. Before illegally punishing their suspects, they often held some sort of trial. But Fighting Crime the accused usually had little chance for a real defense. [I]n Japan, you can walk into a park at midnight Before1900, vigilantism was relatively and sit on a bench and nothing will happen to you. common in the United States. Episodes of vig- You're completely safe, day or night. You can go any- ilante justice occurred all over the country. where. You won't be robbed or beaten or killed. Historians know of well over 300 vigilante You're not always looking behind you, not always movements in American history. Their size worrying You don't need walls or bodyguards. ... varied from small groups of about a dozen You're free. It's a wonderful feeling. Here, everybody people to large organizations including thou- has to lock themselves up. Lock the door. Lock the sands of citizens. Most numbered several hun- car. People who spend their whole lives locked up are dred. Vigilante groups went by various names, in prison. including regulators, slickers, stranglers, committees of safety, and vigilance committees. Michael Crichton, Rising Sun Vigilanteorganizationswereusually formed for some specific purpose. Once the Americans fear crime. Almost every year for job was done, the vigilantes disbanded. Most the last 20 years, a majority of Americans operated for less than a year. have responded "more" to the Gallup Poll's In the early years of our country, vigilantes quest :::1, "Is there more crime in your area ordinarily whipped, beat, or tarred and feath- than there was a year ago, or less?" ered those they believed guilty. But by the The fear of crime has spurred people into 1850s, hanging had become widespread. Those taking individual action against crime. They not hanged were usually forced to leave the have built walls, bought guns, and installed area. Few escaped punishment. security systems. A whole new security indus- Most vigilante groups were composed of try has blossomed. There are now more private normally law-abiding merchants, ranchers, security guards than police in the United and other prominent citizens. Their leaders States. But today and throughout our history were usually the wealthiest and most impor- ordinary citizens have banded together to fight tant people in the area. Why did these kinds of crimesometimes legally and other times ille- people resort to an illegal and often violent gally. method of handling criminals? There are several reasons. Vigilantes in American The most important reason was that the frontier lacked police, courts, and jails. Until History 1900, many people lived in isolated frontier Violence and crime have been a major part settlements far from established law and order. of American history from the beginning. Faced with doing nothing about rampaging Vigilantes have been with us almost as long. outlaws or taking the law into their own Repeatedly, groups of citizens have banded hands, respectable people chose the vigilante together to take the law into their own hands solution. Frontier Americans were used to and punish suspected criminals. These groups relying on themselves to solve problems. were usually well organized and had leaders

Unit 6: Solutions 291 Another reason for vigilantism had to do horse and cattle thieves, murderers, robbers, with the determination of businessmen and and others. Texas holds the record for the most the wealthy to maintain political control over vigilante killings with 140. But one Montana the lower classes. When crime, violence, or vigilante group in 1884 carried out 35 execu- political corruption seemed to tip the balance tions. Theodore Roosevelt, working as a cow- of power in a community toward the lower boy in Montana at this time, wanted to join classes, a vigilante movement, led by mer- the vigilantes but never got the chance. chants, bankers, or large landowners, was Some historians have attempted to classify often organized. vigilante movements as constructive and destruc- In some cases, the reason for vigilance tive. According to this viewpoint, constructive committees was simply to keep taxes low. It vigilante groups got rid of the criminal ele- was much cheaper to take care of criminals by ment quickly, restored order, and then dis- hauling them before a group of vigilantes than banded. These groups usually had widespread paying sheriffs, judges, prosecutors, and jailers public support. Destructive vigilante move- to do the job. ments were often divided from within and frequently led to chaos and violence. The Earliest Vigilantes A good example of a destructive type of The first vigilante movement in America vigilantemovement wastheRegulator- was formed in the South Carolina backwoods Moderator War of Shelby County, Texas. In in the 1760s. A newly settled frontier area, it 1840, when Texas was an independent country, had just undergone a costly Indian war with a group of Regulators formed to get rid of a the Cherokees. Orphaned and homeless young corrupt ring of county officials. The county people drifted into outlaw bands. These bands had attracted thieves, counterfeiters, and mur- stole horses, kidnaped, raped, and robbed. derers. Since the area had no sheriffs and courts, The Regulator leader was killed and a group known as the Regulators was organ- replaced by a man who took his role so seri- ized in 1767. Composed of up to 6,000 nor- ously that he wore a military uniform. Soon mally law-abidingsettlers,the Regulators an opposing group of vigilantes calling them- attacked and broke up the outlaw gangs. The selves the Moderators banded together. But lawbreakers were given trials, whipped, driven criminals infiltrated both groups. Violence, out of the area, or forced to work on farms. revenge, and feuds erupted. The original rea- Sixteen were killed. son for the formation of the vigilante move- The Regulators disbanded in 1769 when ment was forgotten. An all-out battle broke out courts and sheriffs were established. But this between the Regulators and Moderators in group of vigilantes provided a model that 1844involving hundreds of men. Sam many other vigilance movements throughout Houston and the Lone Star Republic militia the country would later copy. finally stopped the violence. Vigilante movements were set up again The Johnson County Invasion is an exam- and again before the Civil War to deal with ple of what has been called constructive vigi- horse thieves, counterfeiters, gamblers, and lantism. Some Wyoming big cattle ranchers, bands of robbers. Vigilantes were particularly used to grazing their large herds on open range active in Alabama, Mississippi, Louisiana, land, took exception when homesteaders Iowa, Indiana, and Illinois. began to fence off land. At first, the cattle Vigilantes from the West barons accused the homesteaders of rustling. A Vigilante groups were more numerous and few homesteaders were murdered, but no one generally more deadly in the West. Between was ever convicted of the killings. In April 1850 and 1900, about 200 vigilante movements 1892, the large cattle ranchers brought in a were set up. They executed over 500 accused trainload of heavily armed gunfighters supposedly to go after rustlers. In reality, they were r 292 CRIMINAL JUSTICE IN AMERICA4. J The San Francisco Committee of Vigilance prepares to execute one of its prisoners in front of its headquarters. The committee was organized to respond to lawlessness in- the city during the 1850s. hired to force out the homesteaders. The gun- carelessness or corruption of the police, or a men quickly went to work and killed two set- laxity of those who pretend to administer jus- tlers. Enraged, the homesteaders formed a vig- tice." Clearly, these San Francisco vigilantes ilante group, rounded up the invaders, and had a low opinion of those responsible for law held them untilfederaltroopsarrived. and order in the city. Unfortunately, after being bailed out of jail by Before the year ended, the committee had the cattle barons, the gunslingers disappeared. whipped one accused criminal, hanged four So they were never put on trial. others, forced 15 to leave the city, and handed over another 15 to legal authorities. After The San Francisco Vigilance cleaning up the city, the committee disbanded. Committees But five years later, San Francisco was in Two of the most famous examples of vigi- worse shape than before. Murders and other lantism in American history occurred in San crimes were rampant. Even more frightening Francisco in 1851 and 1856. to San Francisco business leaders was the cor- In 1851, with the Gold Rush at its peak, San rupt political machine that ran the city gov- Francisco was wide open, rough, and danger- ernment. David C. Broderick, the Democratic ous. Its police could do little to stop a wave of Party leader of San Francisco, controlled the crimes. A Committee of Vigilance was formed city.Keptinpowerbythevotesof composed of over 500leadingcitizens. Irish-Catholic workers, Broderick stuffed his William T. Coleman, a young merchant, led pockets and those of his friends with public the committee. funds. Businessmen resented that their tax The Committee of Vigilance announced dollars financed Broderick and his friends. By that "no thief, burglar, incendiary, or assassin 1856, San Francisco was facing bankruptcy. shall escape punishment, either by the quib- Businessmen in the city, who depended on bles of the law, the insecurity of prisons, the credit from Eastern banks, were worried.

Unit 6: Solutions 293

n4, lance committee disbanded on August 18 with a parade through the city. But the vigilance committee formed a political organization, thePeople'sParty,thatcontrolledSan Francisco's city government for the next 10 years. The San Francisco vigilance committees of 1851 and 1856 were widely publicized and copied throughout the West. Sometimes, however,it was difficult to tell the difference between a vigilance committee and a lynch mob. On July 4, 1851, for example, a bunch of drunken miners smashed into the shack of a Mexican woman in Downieville, California. Thousands of San Franciscans joined the Committee Thinking she was being attacked, the woman of Vigilance during its brief existence. Many other stabbed one of the miners, who later died. The places in the West followed San Francisco's example. woman was quickly tried by a vigilante jury and sentenced to death. She was hanged from James King, editor of the San Francisco a wooden bridge over the Yuba River. Daily Evening Bulletin, wrote editorials attacking the crime problem and the corruption of Was Vigilantism Ever Justified? the Broderick political machine. King, who There seems to be a vigilante strain that had been a vigilante in 1851, also began to has repeatedly surfaced in American history. revive talk of vigilante justice. On May 14, Was vigilante justice ever warranted? One for- 1856, he was shot to death on a San Francisco mer Colorado vigilante thought vigilante jus- street. tice worked better than legalprocedures. The following day, William T: Coleman, "There were no appeals in those days," he said; leader of the vigilantes in 1851, formed a new "no writs of errors, no attorney's fees, no par- vigilance committee. Within a few days, the don in six months. Punishment was swift, vigilancecommitteearrested,tried,and sure, and certain." On the other hand, a New hanged one of Broderick's political flunkies York City newspaper editorial criticizing the for the shooting. San Francisco vigilance committee of 1856 stat- During the next few months, perhaps as ed: "Better to endure the evil of escape of many as 8,000 San Franciscans joined the vig- criminals than to inaugurate a reign of terror ilantes. Most were merchants and skilled work- which today may punish one guilty head, and ers. Few were Irish. Coleman held almost dic- tomorrow wreak its mistaken vengeance on tatorial powers. With an executive committee many innocent lives." of business men, he drew up a list of suspects. For Discussion People were arrested and tried at vigilante 1. Why didnormallylaw-abidingand headquarters,which was called Fort well-to-do citizens turn to illegal vigilante Gunnybags becauseit was protected with methods? Do you think that people today sandbags. In all, the committee executed four could turn to vigilantism? Explain. accused criminals. It put Broderick's hench- 2. How are vigilante groups and lynch mobs men on ships headed for Eastern and foreign different? How are they similar? ports and told them never to come back to the city. It called Broderick himself before the vig- 3. Do you think vigilantism was ever justified ilance committee. When he was released, he in American history? Do you thinkit left town. would ever be justified today? Why or why In operation only three months, the vigi- not?

rl 1 294 CRIMINAL JUSTICE IN AMERICA 4 1 turned into a gun battle. In New York City Crime in Schools schools during the 1992 school year alone, five Crime and violence in schoolsisfar teachers, one policeman, two parents, and 16 greater today than the 1950s. A teacher from students were shot. that decade would be astonished to enter some By the late 1990s, crime had decreased in of our urban schools today and find police in American society and in schools as well. In the halls and metal detectors at the doors to 1992, there were almost 150 crimes at school keep out guns and knives. But the problems do per 1,000 students. By 1997, this number had not just belong to urban schools. The worst dropped to 100. Violent crimes had decreased school shootings in recent years have taken as well but not as dramatically. The reason may place at rural and suburban schools. be that the percentage of students reporting The NationalCenterforEducation gangs at their school doubled from 1989 to Statistics reports almost 3 million crimes a 1995. Gangs are closely linked to school vio- year on school grounds. More than 200,000 of lence. these crimes are serious violent crimes (rape, In the late 1990s, a series of shootings took robbery, and aggravated assault). Almost 10 place at non-urban schools. Out of the way percent of high school students reported car- places, such as Moses Lake, Washington; rying a weapon such as a gun, knife, or club to Bethel, Alaska; Pearl, Mississippi; Springfield, school. One in 20 reported being a victim of a Oregon; and West Paducah, Kentucky experi- violent crime at school or on the way to enced school shootings and killings. school. And each year about 16,000 teachers In two instances, boys planned their fall victim to serious violent crimes. shootings together.In1998, two students Schools have not always been so haz- openedfire on students gathered outside ardous. From the 1950s through the middle. because of a false fire alarm at a middle school 1960s, the main school problems were pranks, in Jonesboro, Arkansas, killing four girls and some ethnic rivalry, isolated fistfights, and a teacher, In 1999 in Littleton, Colorado, two occasional vandalism. For a brief time from students went on a rampage killing 13 others about 1968 through the early 1970s, the massive and themselves at a high school. college anti-war movement spilled over into These shooting shocked the nation.It the high schools. Demonstrations took place seemed to many that if shootings could take against the war and over local issues, such as place in these schools, they could happen any- integration or local school rules. But by the where. One parent summed up the fears of early 1970s, much more serious problems were many: "It scares me to death that I'm sending occurring. Schoolsstartedtoexperience my child to a school ...and in light of get- crimes of violence, drug offenses, rape, and ting an education, I may end up burying her." even shootings. Some commentators think these fears are overblown. They point out that lightning kills Schools and Gangs twice as many people each year as are killed in Schools, of course, reflect the communi- schools. They see no growing trend in school ties they serve. In the early 1980s, crack cocaine killings. They explain that school killings and heavily armed drug-dealing gangs overran account for a small percentage of the homi- many urban communities. Gang members and cides involving juveniles. gang "wanna-bes" adopted symbols such as Even so, parents and students want schools colored head scarves and football team jackets. as safe and orderly as possible. Schools in cri- In some places, drug dealing and gang rivalries sis cannot educate effectively. Disruptions and spilled over into the schools. Increased levels a sense of fear distract students and teachers of violence in society as a whole affected the from education. schools. Personal feuds over a girlfriend or an Educators and schools across the nation insult that would once have ended in a fistfight are trying various measures to improve school

Unit 6: Solutions 295 29.8 safety. Although the goal of each school is the Measuresto Limit Violence on Campus same, the problem varies from school to A:1996.random survey of school administrators school. Some schools are safe and want to .asked them to identify measures their schools had remain so. Others are plagued with problems iMplemented to reduce violence.. and need to restore order. Different strategies Measure % of administrators are being tried. Among them are: surveyed Increasing school security. Most schools now Taken by a majority of the schools require visitors to sign in before entering the Automatic suspensions for weapons violations 96 school, and about half monitor access to their Revised. disciplinary codes buildings. Four-fifths of all high schools main- Designation of school as a °drug-free' zone tain "closed campuses," barring students from :Conflict resolution and. mediation. leaving for lunch. Almost nine out of 10 high Designation of school as a .agun-freen zone schools have police stationed or readily avail- Dress codes able on the campus. About 20 percent report Multicultural sensitivity training running drug sweeps. A few schools have tacker searches resorted to metal detectors, but only 1 percent Taken by fewer than a nsajority of the schools use them daily. Some schools have removed Non-police monitors in hallways or lockers to eliminate hiding places for guns or on school grounds 40 drugs. A few have done away with teachers' Photo IDs for staff and students 33 bathrooms, so that teachers have to visit the Video monitoring of school buses 31 students' bathrooms regularly to discourage Police on campus illegal activities. .Extra police patrols around school property 21 Police in school hallWays 515 T Adopting "zero tolerance" policies. These policies mandate tough action, from suspen- Rarely taken by the schools Video monitoringofhallways sion to expulsion, for certain offenses. More ID checks at school entrances than 90 percent of schools have zero-tolerance Metal detectorsatschool entrances policies for guns or other weapons. In the Video monitoring of classrooms 1996-97 school year, about one out of 20 Mandatory "see through° book bags 0 schools reported expelling or suspending a student for having a gun. About four-fifths of all Source: 'Controlling Violence: What.Schools Are. Doing," schools also have zero-tolerance policies for Preventing School Violence,National Institute of Justice (2000). alcohol, drugs, violence, and tobacco. prompted when students wear designer cloth- Running violence-preventionprograms. ing and expensive sneakers. They also prevent More than three-fourths of all schools operate some type of violence-prevention program. gang members from wearing colors and Most of these programs are ongoing, but insignia and help school officials recognize intruders on the campus. Although many about a tenth of all schools have one-day programs only. The programs vary. Some offer schools have adopted dress codes, only 3 percent of all schools have adopted uniforms conflict and peer mediation. Others are part of the curriculum. Service learning links class- almost none at the high school level. room learning to activities in the community. Making schools less impersonal. Many large Law-related education helps students under- schools are trying to break down their cold, stand thelegal system and socialissues impersonal atmosphere by creating "schools throughinteractiveclassroom lessons. within schools." Some are hiring more teach- Character education teaches basic values. ers to minimize school violence associated Mandating dress codes or school uniforms. with classroom overcrowding. Some schools These policies aim to deter property crimes are offering specialized vocational training,

BEST COPY AVAILABLE 296 CRIMINAL JUSTICE IN AMERICA 2 3 which young people can recognize as impor- c. Student representative, elected by the tant. The National School Safety Center student body encourages schools to set up student commit- d. Student body president tees to study school safety and even hold court e. Parent on violators. 3.Before the School Problems Committees Schools across the country have set up meet, have students get together with the committees to work on improving school safe- other students who play the same role. For ty They are considering proposals such as example, all the students assigned to be the these and others. school principal should get together. In For Discussion these role groups, students should discuss 1.Describe how school conditions differed in how a person in that role would respond to each of the following periods: 1950-1968, the issue. How would that person view 1968-1971, and 1972-present. gangs in the school? What special interest would that person have in the problem? 2. Does your school look different from a school of the 1950s? What is different and 4. Now regroup and form School Problems why? Committees. The principal should act as the chairperson. 3. Does your school have a crime problem? If so, what do you think are the primary caus- 5.Eachcommitteeshoulddiscussthe es of crime in your school? Explain. What Coolidge High problems and the propos- do you think can be done about the prob- als. Before deciding on its recommenda- lem? tions, the committee should discuss the following questions: What are the most serious problems Class Activity: Trouble facing Coolidge High? at Ce%olidge High Which proposals in the school plan will be effective in dealing with the What can be done about violenceat problems? Which will be ineffective? school? One approach has been to ask mem- Why? bers of the school community to find solu- What proposals should be adopted tions to the problem. In the activity that fol- to form the school plan? Why? lows, students role play members of a School 6. After each committee has decided what Problems Committee. should be done, the principals should 1. As a class, read and briefly discuss "A Case report to the class on each committee's Study" on page 298. decisions. As a class, discuss the plans that 2. Divide the class into groups of five stu- the committees developed using the follow- dents.Each groupwillroleplaya ing questions: five-member School Problems Committee. a. What are the strengths and weak- The committee willdiscuss and decide nesses of the various plans? Which upon the various proposals to dealwith the one is most likely to be successful? gang problem, including theproposal from Would you liketo see a School Mr. Martinez. Assign each group member Problems Committee formed in one of the following roles (if a grouphas your school? Why or why not? more than five, assign the extrastudent a c. How should committee members be role as teacher): selected? a. School principal d. How much authority should they b. Teacher have?

300 Unit 6: Solutions 297 e. Do students in your school needa a social studies teacher who has worked well place to register complaints? with all three gangs in the school. They respect 1. Are there better ways to deal with him. He has given them special tutoring and schoolcrimeandgangsthan helped them develop recreationprograms. through this kind of committee? If This is his proposal: so, what are they? Mr. Martinez: "I believe the members of 7.Ask students to makea list of issues they the Dukes, the Rolling Nineties, and 35th would take before a committee atyour Street are now ready to signa formal truce. school. In a class discussion, decide which Their leaders have told me they realize they of these issues are the most important. have to live together here at Coolidge. They have offered to declare the schoola safe zone, A Case Study to leave their weapons home, and to set up a Coolidge High School is an old inner-city weekend patrol to guard the school fromany school. It has had trouble withgangs for many outside gangs. In return, they would likea few years. Three main gangs rival one another at designated areas on campus to paint theirgang schoolthe Dukes, the Rolling Nineties, and graffiti. They promise the graffiti will contain 35th Street. Most gang violence takes place off no threats or challenges. And they also want campusat night and during weekends. But permission to wear their gang caps,and jackets the school has suffered extensive vandalism, at school. I believe this could be an important which appears to be gang-related. Gangnames opportunity, and I decided to bring this offer and symbols have been paintedon the walls to you for discussion." and carved on desks. Threats and challenges appear on the walls of the school entrance. A few fights have broken out, butno one has Activity: What. Are been seriously hurt yet. Communities Doing Students are frisked for weapons at the About Crime in Schools? school entrances, and the administration has tried to guard the halls to preventmore graffi- At your school or community libraryor ti or fighting. Nothing has helped much, and on the Internet,research about crime in school morale is low. schools. Choose one of the following problem The following steps are being proposed to areas: vandalism, burglaries, robberies, assaults the School Problems Committee: on teachers and students, confiscations of 1.Teachers should periodically check class- weapons, rapes, or murders. Research to find room furniture and ask students to report the following: any new marks. 1. What are schools across the country doing 2. Felt pens and magic markers should be to attack the problem? banned from school. 2. What are the lateit statistics on this problem 3.Vandals who are caught should join work in schools? teams to clean or repair school property. Report your findings to the class. 4. Parents should be told that they are liable for property destroyed by their children. 5. Teachers and administrators should frequently lecture students about vandalism. 6. The school should set up a school pride campaign. There is one further proposal,a surprise that came at the last moment. Mr. Martinez is (.72 I 44.! td

298 CRIMINAL JUSTICE IN AMERICA communities have hired private security com- Burglary Prevention panies to patrol their neighborhoods continu- A burglary is an unlawful entry into a ously. Other have turned themselves into gated communities, behind high walls and drive-in building or car with the intent to commit a crime, usually theft. It is the most common gates with 24-hour security guards. One interesting experiment, modeled on major felony in America. There are more than the "Broken Windows" theory, was tried out in 2 million burglaries reported every year, and the 1980s in Virginia. In a high-burglary area, law enforcement experts believe an amount the community carted away trash and aban- equal to that go unreported. That works out to filledin potholes, swept the more than 10,000 burglaries every day. The doned cars, streets, and painted out graffiti. Theburglary reported losses amount to a little more than $3 rate dropped immediately by 35 percent. The billion. To get an idea of how much money people who ran the experiment argued that that is, imagine earning $1,000 a day. At that broken windows and other signs of urban rate, it would take you more than 8,000 years to earn $3 billion. Only about 14 percent of decay "create fear in citizens and attract predators." They showed that simple attention to these burglaries are ever cleared up by the the look of an area can dramatically reduce police. Burglary is a crime of opportunity. In crime. Another response to the burglary problem about a third of all burglaries, force isn't used has been the development of neighborhood and nothing is broken. Many people fail to watch groups or block associations. Police lock their doors or windows, and many, others have often urged citizens to create neighbor- use inadequate locks. This makes the burglar's hood watch groups, especially in cities where job easier. In many cases, it's just as easy for a community-policing programs are being set burglar to pick a lock or break it as it is to up. Neighborhood watch groupstryto open a door and walk in. re-establish a sense of community. Members Perhaps more than anything else, burglars meet to discuss ways to make their areasafer. benefit when neighbors do not know each They get to know one another, watch over one other. A neighbor is literally someone who another's homes, and sometimes even clean up lives nearby, but the word has come to suggest unsightly areas. much more in our culture. Neighbors are sup- watchprogramshave posed to be friendly and helpful. Before this Neighborhood proven successful in reducingcrime, according century,neighborstraditionallybanded to careful studies conducted inSeattle, San together to help each other build houses and Diego, and Detroit. In one Detroit neighbor- barns, sow and harvest crops, and protect their hood, burglaries were reduced by 62 percent. communities. But in our modern society, such The idea of neighborhood associations has tasks are taken care of by professionals, and even moved to the suburbs. people move so often that neighborly communities rarely develop. Because of the growing crime problem, many residents are afraid of talking to strangersincluding their own Ask an Expert neighbors. These circumstances have made the bur- You can make a difference infighting burglary glars' task much easier. A stranger can often in your own community. Mostpolice depart- units. Invite an enter a community without being noticed and ments have burglary-prevention can go right up to a house withoutneighbors officer from one of these units to come to your problem in your becoming suspicious. class and discuss the burglary Neighborhoods have responded in several community and practical steps forburglary pre- ways to prevent burglaries.Some wealthier vention.

302 Unit6:Solutions 299 The Tierra Bonita Neighborhood Poll on .Measures People Take .to Protect -Against _Crime in the Home Association "In the past 12 months, have you doneany of Tierra Bonita is an upper-middle-class hill- these things to protect yourtelf from crimein the side suburb on the West Coast. Because its home..!.. houses are set back from the road, isolated by Measure Percent You go to neighborhood watch meetings. shrubbery and trees, burglarswere having a 11 field day there. In particular, burglarswere You and your neighbors have agreed to watch out for each other's safety. breaking into homes when the residents went 61 You've installed a security system .for away on vacation. The police did what they your home. 18 could to increase patrolling, but only three You've asked the police department to officers were available at any one time tocover do a home security check. 5 the whole area. The problem only gotworse. You have guard dogs at home. 15 In' desperation, a few energetic residents You've engraved security identification', took the lead and called a meeting. More than numbers on all your belongings. 17 1,600 residents formed the Tierra Bonita You've installed extra locks on windows and/or doors. 41 Association of Neighborhoods. The associa- You keep weapons inside the home.: 14 tion took on many tasks, but its top priority You've added outside automatic was an anti-burglary program. It formed an lighting (e.g. timers). 33 anti-burglary committee and invited the police You've taken other precautions. 18 to a public meeting to discuss the problem. The police opened the meeting witha Repondents from 12 U.S. Cities: Chicago, IL; KansasCity, MO; Knoxville, TN; Los Angeles, CA; Madison, %V;New video that showed how burglars break in. It York, NY; San Diego, CA; Savannah, GA; Spokane,WA; Springfield, MA; Tucson, AZ; and Washington.DC. recommended some simple stepsresidents Responses of "don't known and refusals toanswer are could take to safeguard their homes. The resi- excluded from the analysis. Totals exceed 100%due to multiple responses. dents then set up a neighborhood-watch plan. Source: Sourcebook of Criminal Justice Statistics 1998, Table 2.41, Each block elected a coordinator, who was to Bureau of Jug''; ,-e Statistics (1999) be the primary contact with the police department. Block coordinators collected names and In the first full year of operation, the bur- addresses so they knew who lived in their glary rate in Tierra Bonita dropped 54 percent. neighborhood. If anything suspicious happened, people could report it to the coordina- For Discussion tor. And if someone went away on vacation, 1. Why do you think it's so difficult for the the coordinator could arrange to check the police to catch burglars without citizen house periodically. help? The association posted signs at every road 2. What are some easy ways to reduce burgla- leading into the area saying, "Tierra Bonita is ry rates? What can homeowners do indi- a Neighborhood Watch Community." It set up vidually and with others? a buddy system, so neighbors could watch one 3. How much responsibility should neighbors another's homes. Buddies also helped each have for each other? Could neighborhood other upgrade their locks and window latches. watches lead to an invasion of people's pri- If one family in a buddy group went on vaca- vacy? How could such problems be avoid- tion, the other could bring in the newspaper, ed? Explain. open and close the drapes, and make the house look lived in. Finally, the association 4. Have you ever seen someone suspicious agreed to hold regular meetings to keep com- hanging around a neighbor's house? Did munity spirit alive and to introduce new resi- you call the police? Would you if it hap- dents to the program. pened again? Why? 5.Is there a neighborhood-watch plan in your area? How is it working?

300 CRIMINAL JUSTICE IN AMERICA make louvered windows completely secure. Activity: A Home Burglars can often slide the glass panes right Security Check out of their frames. On mostlouvered windows, the operating lever provides some lock- Walk through your own home and check ing protection if it is closed all the way. Make how secure it is. While the following precau- sure you cannot rotate the panesby hand tions will not guarantee protection from bur- when the lever is closed. glary, they will help deter it. Window bars and grilles. If the house has Door locks. A standard door lock has a slant- window grilles, make sure they can be opened ed tongue only about a half inch long. It can from inside in case of fire. be forced open easily by most burglars. The best protection for a door is a deadbolt. The Shrubbery and lights outside. Shrubbery out- bolt should extend at least an inch from the side the windows should be trimmed so it does door, and it should have a hardened steel not give burglars a place to hide while they are insert. Deadbolts with twist handles should trying to break in. Night lights should illumi- nate any dark areas where a burglar mightlurk. not be within easy reach of a glass window. Valuables. You should have a' list (or photos) Doors. A lock does little good if the door can be broken down easily. All outside doors of all the valuable items in the house and their serial numbers. Keep the list in a safe place, so should be at least 13/4 inches thick and made of it could be used later to help reclaim any metal or solid hardwood. The frames should stolen items or to catch a burglar or a dealer in be equally strong and fit the doors snugly. stolen goods. As additional protection, you Sliding glass doors. Burglars often enter can engrave your name or SocialSecurity num- houses through one of these doors. They sim- ber on all valuable items and then post a ply lift the door out of its track. To prevent notice prominently in a window that all valu- this, bolts or pins should be fitted into holes able items in the house are marked. Most drilled through the track into the door frame. police departments will lend an engraving tool The bolt or pin can be easily removed from to local residents. the inside when you want to use the door. A Alarm system. If your home has an alarm sys- broomstick lying in the track provides some tem, test it to make sure it works. Testthe win- protection, but is much less effective. dow sensors or motion detectors to make sure Sash windows. For wooden sash windows, a they all work. bolt or pin should secure the two sashes to each other. For aluminum sash windows, buy a track lock that preventsthe window from Activity: Organizing a opening. Neighborhood Meeting Sliding windows. Sliding windows can be As you have learned, neighborhood coop- secured in a similar way to sliding glass doors. eration is the real key to cutting down on bur- A pin mechanism can be attached to the slid- glaries. If your neighborhood does not already ing window so it slides into a hole in the have a neighborhood watch or similar group, frame. Track locks are available, but many of you can help organize one.People of all ages these can be pushed aside with enough force who live in the same neighborhood can work track lock or a on the window. If you use a together to organize a meeting. You can also stick in the track, you should also fit a device use this activity toplan a presentation to your it being lift- on top of the window to prevent local PTA or a community service club such as ed out of its track. the Lions or Rotary. Use the following steps as Louvered windows. There are no easy ways to a guide.

304 Unit 6: Solutions 301 6. Write a one-page notice announcing the meeting. Be sure to indicate clearly the purpose of the meeting and who is spon- soring it. Include the time, date, and location. A map or careful directions should be part of the notice. Make enough copies for the area and distribute them to residents in the area. 7. Hold the meeting. Be sure to arrive early to move chairs and to set up any displays and refreshments. Greet those arriving and make them feel welcome. For the firstmeet- ing, it is often best to waitan extra 15 minutes for latecomers. Don't be discouraged if the turnout is small. Evena few people can start a program. More will join later. The moderator shouldopen the meeting, explain its purpose, and then introduce the 1.Organize yourselves into teams of fouror presenters. five students. It is helpful if all teammem- Before adjourning, some concrete plan bers live in the same general vicinity. should be made and people should take 2. Find a location for the meeting. Thiscan specific responsibilities. It isa common be someone's home, a clubhouse ina park, failing of new groups to decide that certain a multipurpose room in a library, a ban- steps should be taken, but no one takes quet room at a local restaurant, or a room responsibility for them. At a minimum, at school. you should have a phone list of those pres- 3. Schedule a specific time and date. ent for further contacts. Evenings or weekend morningsare usually Remember that one of the mainpurposes best. of a neighborhood program like this isto get 4. Plan a program for the meeting. For help- neighbors better acquainted withone another. ful hints, review the Tierra Bonita group's This will help them watch out forone anoth- meeting. Contact your local police depart- er and develop a sense of community. Allow ment to see if it can send a burglary expert some time at the meeting or after it for social- with a presentation. Some hardwarestores izing. and security firms are willing to send.sorne- one to demonstrate various locking devices and alarms. Prepare any visual aidsyou think might be helpful, suchas charts of local burglary rates, localmaps, or lists of burglary prevention steps.Prepare any handouts, such as maps and phone lists, and prepare name tags for peopleat the meeting. It can be a nice touch to plan simple refreshments, such as coffee and lemon- ade. 305 5. Select a moderator for the meeting. This can be one of your group or a community member who is willing to help.

302 CRIMINAL JUSTICE IN AMERICA most effective for the least amount of Class Activity: A Citizen money. Task Force e. Read and follow its group's instruc- In this simulation, students take the role tions (See "Task Force Instructions, of citizens of Athena, a city plagued by an Part 1" or "Instructions for Comm- upsurge in crime. The city has just received unity Organization" on page 305). special federal funds to help solve its crime 4. Hold the reception. problem. A decision must be made about how 5.After the reception, the task force should the funds are to be used. The city council has meet in front of the whole class todiscuss created a special fund in the mayor's budget, the proposals and make its recommenda- and made the mayor responsible for distribution to the mayor. The task force should tion. The mayor has created a citizen task force read and follow "Task Force Instructions, to make recommendations on how the money Part 2," on page 307. should be spent. Many community members and organizations have a great interest in the 6. When the task force has reached a decision discuss the task force's decision and some ideas on what on the allocation of the funds, decision as a class using the Debriefing should be recommended. The simulation has two parts. In part 1, Questions on page 307. members of community organizations attend The Mayor's Speech a reception and try to persuadetask force A few days ago, Athena's mayor made the members to fund their programs. In part 2, following remarksatameeting of the the task force members decide how the funds Chamber of Commerce. The remarks were should be allocated in a public meeting. printed in their entirety in the Athena Daily. 1. As a class, read and discuss "The Mayor's News. The speech has aroused a great deal of Speech." discussion, particularly about how the funds 2. Break into seven groups. One group will be should be spent. The text of the mayor's the task force and should have six to 10 speech follows. Read it and think about rec- members. The restwill be community ommendations you might make. organizations, which should have three to * * * live students each. Assign each community Good afternoon. I'm pleased to report group an organization to role play (e.g., today that Athena is bustling. Our population Athena Police Department, Athena is growing, our standard of living is increasing, Chamber of Commerce, etc.). and in the last year alone three major new 3. Each group should: industries relocated here. These are high-tech a. Appoint a chairperson. corporations, and they brought in new jobs b. Review the mayor's speech briefly and created business for local suppliers. While and then read the six proposals for I would like to take full credit for these devel- 108F grants on pages 306-307. opments, I know many of you havealso worked hard to revitalize Athena. All of us c. Rank the six proposals in order of which would be the most effective. here today deserve a warm round of applause Which proposal do you think would for what we have done for our city. really help stop Athena's crime prob- But let's remember that Athena still faces particular lem? Write a list with the most effec- many challenges. One problem in tive on top and the least effective on stands out. Because of this problem, we have the bottom. faced deeply personal losses, even deaths of loved ones. Some of us can no longer afford Rank the six proposals again, this d. insurance for our businesses or homes. Some time in order of which would be the of us have given up going out in the evening.

(Thr's U D Unit 6: Solutions 303 I am speaking, of course, of the upsurge in recommendations to me. I remind you that crime here in Athena. Before I address this Athenans have solved many problems in the issue, I want to make one thing perfectly clear. past by working together. If we stick together We do not believe the crime problem has been and share our wisdom with one another,we caused by weak laws, lenient courts, or poor can take a major stride toward licking this police work. We have the best criminal justice problem, too. system in the world. It is not my intention * * * here today to try to fix blame for our problems or find a scapegoat. Our task is to find solu- An announcement of the new funds for tions. Athena was made several weeks before the Athena is not alone. Some communities mayor's speech to the Chamber of Commerce. throughout the state, indeed some communi- Community groups that thought they hada ties across the nation, are experiencing the chance to obtain some of the funds began same increase in crime. The need to find solu- preparing proposals for programs to be fund- tions has been noted in the press and in ed by the money. As soon as the mayor let it numerous government studies. The federal be known that proposals were requested,sever- government has heard the cries for help. It has al organizations were ready to deliver them. created a pilot anti-crime program that will Within a few days, six proposals arrived at the make some funds available to the cities. These mayor's office. funds are to be used at our discretion in Not every proposal could be fully funded. attacking the crime problem. Under section Eitherall would be funded forlessthan 108F of the program we areentitledto requested or some would not be funded at all. $300,000 a year. At today's costs, that is not a Consequently, representatives of eachsponsor- very large amount, but it is a start and we must ing group were eager to influence those who use it well. would make the final decision. Because of previous commitments to our This evening, the mayor is holding arecep- Victim's Assistance Program, $120,000 of this tion in honor of the Anti-Crime Task Force. money must be earmarked for crime victims. The mayor, staff, and the members of the task It will be used to cover the medical bills of vic- force as well as representatives of community tims, funeral expenses for their families, and organizations will be there. to provide psychological counseling to those Those attending the reception understand left disturbed and frightened. These are the that this social event is an importantoppor- forgotten men, women, and children who have tunity for exchanging views informally, off the suffered most from the rise in crime. It is alto- record. Both the members of the committee gether fitting that a share of the 108F funds be and the representatives of various community committed to them. organizations know that the decision on who For the remaining $180,000, the money is will receive the funds could be influenced by to be spent at our discretion, as long as it is talking to the right people. 'targeting crime control. Today I would like to solicit your opinions and suggestions for the For Discussion use of these 108F funds. How should this 1. What is Athena's current problem? Why money be spent? What programs would you has the task force been called together? like to see put into effect? To help make these 2. What is the mayor's plan for $120,000 of decisions, I am going to appoint a citizens' the 108F funding? Do you agree with this task force. The task force will be made up of commitment of part of the funds? Athenans from all walks of life. It will review suggestions that have already been made by various city departments and citizens' groups, and members of the task force will make their r' C. 7 304 CRIMINAL JUSTICE IN AMERICA Do solutions to crime have to impinge on liberty?

Task Force Instructions, Part 1 Instructions for Community As a member of this task force, your job is Organizations to consider the issues carefully andhelp the You want to assure that your organiza- mayor decide on the best way toallocate the tion's proposal is fully understood by as many 108F funds. The mayor wants the task force to members of the task force as possible. Your developconsensus on its views beforemak- goal at the reception is to convince them that ing its recommendations. your proposal should be fullyfunded. When You know that citizen activists will be at talking with task force members, review the the reception and that they will want to talk to list of proposals and concentrate on the pro- you about the fundingrecommendations you posal for your organization. will soon make. So at the reception, be sure to: Present your best arguments. Give feedback. Inform citizens of your con- Stress the strengths of your organization. cerns about their proposals.Ask them to Explain why the proposal a good idea for respond to these concerns by giving you argu- solving the crime problem in Athena. ments to take to the meeting.How they Keep your presentation brief and to the respond can help give you information to point. make a decision. Ask for a firm commitment in support of Speak to people from as many groups as your proposal. possible. Those vying for your attention may Plan your strategy. Time at the reception is resent your spending too muchtime with any limited. Before it begins, consider the follow- one person or group. ing: Remember your political role. Be polite, lis- Should you concentrate on presenting the ten carefully, but don't make anypromises you reasons why your proposal isbest? Or on can't keep. If you back out of a commitment, pointing out weaknesses in the other the committee and the mayor will look approaches and proposals? You may want foolish. to make use of your rankings of all the proposals.

3U('S Unit 6: Solutions 305 Should everyone in the group talk withas Proposal 3: Self-Defense Classes many committee members as they can? Or Sponsor: Urban Youth Association should each group member focus ona dif- Cost: $45,000 ferent person? Should you try to convince This year-round program wouldcover the other groups to join with your group? fees for basic self-defense classes forup to a Write a slogan for your group. total of 500 Athenans. The basiccourse lasts four days a week for three weeks. Columbia Remember, thisisasocialoccasion. Inappropriate behavior may prejudice Self-Defense normally charges $450 for this course, but by offering it for a large group, it members of the committee againstyou. Avoid arguing or interrupting conversa- will be charging the city only $81 perperson. tions. See how subtle you can be. The Urban Youth Association has agreedto publicize the course and help select partici- Proposals for 108F Grants pants. Priority will go to low-income and elderly persons. Proposal 1: Police Aides Sponsor: Athena Police Department Proposal 4: Crime Prevention Seminars Cost: $108,000 Sponsor: Athena Police Protective League This is a six-month program to provide Cost: $67,500 each of the 14 two-officer patrols in the down- This is a year-round program that would town area with one half-time aide. These aides provide four two-hour discussion seminarsa would be students studying police scienceor week for one year. The seminars would be public administration. They would takeover taught by police officers and would focuson clerical duties and allow officers to spend ways private citizens and neighborhood-watch more time on patrol. The budget would pay groups can help prevent crime. The budget for fourteen aides, at $15 an hour, for 20 hours would cover officer salaries, publicityexpens- per week. The program would last six months, es, and money for preparing pamphlets and providing an additional 7,000 hours of police visual aids for the seminars. patrol time. Proposal 5: Citizenswatch Patrols Proposal 2: Force One Security Patrol Sponsor: Citizens for Public Safety Sponsor: Athena Chamber of Commerce Cost: $33,000 Cost: $144,000 This year-round program would help fund This six-month program would providea Citizenswatch patrols by business people and two-person privatesecurity patrolfor the others. The patrols wouldcover the downtown downtown area, during non-business hours. and high-income residentialareas. The patrol The patrol would function from 5 p.m. to 8 group is already formed and has made 46 citi- a.m. weekdays and round the clock on week- zen'sarrestsoverthelastsixmonths. ends. The private agency would hire, train, and Unfortunately, only half those caughtwere equip the patrol. The budget covers salaries, brought to trial. In manycases, the untrained expenses, and transportation costs for six patrollers collected evidence incorrectlyor vio- months. lated the rights of those they detained. The budget will buy 40 citizen-bandcar radios and 20 hand-held walkie-talkies to improvecom- munications with the police. Leaders of the group hope getting officers to the scene sooner will improve the conviction rate.

,309r. 306 CRIMINAL JUS77CE IN AMERICA Proposal 6: Crimescope Hotline The chairperson should run the meeting. Sponsor: Channel 14 Television This is an open meeting. The entire class will Cost: $75,000 observe your deliberations. Write the following This year-round program would provide a information on the board. Remember the 24-hour telephone line, plus $70,000 in reward committee cannot spend more than $180,000. money to secret witnesses. Channel 14has Request Award offered to raise half the reward money from private sources. Informants would be given 1. Police Aides $108,000 code numbers, and their information would 2. Force One be passed on to the police. If the information Security Patrol $144,000 resulted in a conviction, the informant would be paid a reward. 3. Self-Defense Classes $ 45,000 Task Force Instructions, Part 2 4. Crime These are the instructions for the task Prevention force to use after the reception. The task force Seminars $67,500 should meet in front of the whole class to discuss the proposals and make its recommenda- 5. Citizenswatch tion to the mayor. The committee should Patrols $ 33,000 review and modify, if necessary, its previous 6. Crimescope rankings. The committee must now decide on Hotline $ 75.000 how to spend the $180,000. Before convening their meeting, commit- TOTAL $ 472,500 $180,000 tee members should think about the following questions: Discuss each of the proposals and then decide Should the committee fund one or two of how much to spend on each. the programs it feels is most effective? Debriefing Questions Should it partially fund several programs? 1. Which proposals seemed weakest? Which Should it fund the least expensive pro- seemed strongest? Why? grams? Will the proposals rated highly 2. After hearing the task force's discussion, serve a broad range of communityinter- did you change your mind on any of the ests? proposals? Why? Will the proposals you fund serve more 3. What seemed to make some groups more than one segment of the population? successful in persuading the task force? 4. What additional proposals can you think of that would help solve Athena's crime problems? Describe and summarize them on the board. What are the strengths of each? What are the weaknesses? Would any of these be better than those proposed to the mayor? Why? To conclude the discussion, you may wish to conduct a class vote to find out which proposal discussed the class thinks would be the most effective. 3/0

Unit 6: Solutions 307 Conclusion on Crime Crime Prevention Programs A 1997 report to Congress reviewedmore than 500. The units in this book have covered crime, Crime prevention programs. Basedon scientifit". police, the criminal case, corrections, juvenile studies,the report concluded that many prograrns justice, and solutions. The book has revealed worked to prevent crime, many others didn't work; and still others looked promisingbut needed More many debates over issues, but a few things are Siiidy. Here area few of the findings. clear. America still has a significant crime What Works? problem. It also has a sophisticated criminal In!communitiesnoneasyet proved effective. justice system. In.schools Other things aren't quite so clear. Just how Clear,.consistent rules.. Life Skills Training. seriousis America's crime problem?Is Training in thinking skillOcii:.highliik yo America's criminal justice system working In places. and, if so, how well? What should bepre-. Nuisance abatement. served? What should be changed? Americans By police experts and non-experts alikeare divided on Extra police patrols in high,crime hOt spots.' the answers to these questions. Differences of Units that monitor high-risk repeat offenders.;: Ariestingdoniestic.abuSerS Who are employed:S.. opinion on the exclusionary rule, tougher By criminal justice agencies afterarrest criminal laws, harsher sentencing, the death Incarceration of offenders who will continueto penalty, handguns, and the causes of crime commit crimes. often reflect and fuel the debates. Rehabilitation programs for adult and juvenile offenders that focus on, their risk factors. Public Perceptions Drug;treatment in Prison. One thing seems more clear. Scientifically Source: "Preventing Crime: What Works, What Doesn't, What's Proinising," National institute of Justice (1998) conducted polls indicate that people often believe the problem of crime is gettingworse, even in times when the crime rate is dropping. remained far above rates in other developed countries. Almost everyone has some direct Public attitudes also tend to favor harsherpun- ishment for criminals, less judicial discretion experience of crimeas a victim, friend ofa in sentencing, and the death penalty as meth- victim, or even as someone who just has to pay ods for reducing crime. high insurance rates. Under such conditions, The news and entertainment media may what should be done? be contributing to the perception that crime is Hardline Answers out of control. Crime makes a good story. Much of the public seems to favor getting Newspapers and news broadcasts devote signif- tougher on criminals. Responding to this pub- icant coverage to crime and criminal-justice lic demand, politicians over the years have issues. Much of the coverage is balanced and made various proposals, such as: factual. Other times it borders on the sensa- Build more prisons. tional. Make prison sentences longer. Many movie and television dramas also focus on crimes and criminals for their stories. Institute and carry out the death penalty. By the early '90s, television had even devel- Restrict bail for dangerous suspects and for convicted persons waiting on appeals. oped several "reality shows" that follow real Abolish parole. police officers on their patrols. Theaverage Give judges less discretion in sentencing. viewer sees several murders a week onscreen, plus dozens of other acts of violence. Make prison sentences mandatory for many crimes. Although the media seems to feed the pub- Restrict the use of the insanity defense. lic's fear of crime, much of that fear is based Transfer more juveniles to adult courts. on reality. Despite declines in crime in the Hire more police. 1990s,America'srateof violentcrime States and the federal government have

it 308 CRIMINAL JUSTICE IN AMERICA already enacted many of these get-tough pro- Crime Prevention Programs posals. Some people believe that their imple- What Doesn't Work? mentation caused the crime rate to drop in the In communities 1990s. They think that crime would drop even Gun buyback programs. further if more states adopted them all. In schools Individual counseling. and peer counseling. Although many Americans favor get-tough Drug Abuse Resistance Education (DARE)._ measures, others disagree.Critics of the In placesnone yet proved to be ineffective get-tough approach claim it doesn't work and By police itcosts too much. They argue that crime Arrests of juveniles for minor offenses. dropped in the 1990s because the economy Increased arrests or raids: on drug markets. Storefront police.Offices.,, boomed and the crack cocaine epidemic By criminal justice agencies after arrest endednot because of the get-tough measures. Boot camps. They warn that the number of 15-24 year-olds "Scared Straight7,prograrns. in the population is increasing. This is the age RehabilitationpiograrnS that.do not focus.on the offender's rOk,factori. group most likely to commitviolent crimes. Source: "Preventing pin*: What Works, What. Doesn't, Critics also note that each year half a million What's Promiiing," National Institute of JUstice (1998) prisoners go back into society. They worry that we may find our streetsdominated by masses America is by taking the actions necessary to of hardened criminals as more and more pris- improve the conditions of family and commu- oners are released. nity life for all who live in our cities, and espe- The critics say that get-tough policies offer cially the poor who are concentrated in the only a short-term answer to violent crime. In ghetto slums." fact, they see the entire criminal justice sys- In1990,the MiltonS.Eisenhower tempolice, courts, prisonsas incapable of Foundation, a non-profit created to follow up affecting violent crime in the long run. The on the commission's work on violence,issued crimir ;1 justice system, they explain, reacts to a report. It called for the federal government violent crime after it has occurred. Locking up spend $10 billion a year to provide more early prisoners may prevent them from committing childhoodeducation,reforminner-city more crimes while they areimprisoned. But schooling, create a youth investment corpora- according to critics, it would be far better to tion to assist inner-city youth, reform school- prevent violent crime from occurring inthe to-work programs, help repair urban areas, first place. One researcher has compared the provide jobs for high-risk youth, and change criminal justice system to "operating an expen- the focus of the drug war to prevention and sive ambulance service at the bottom of a treatment. cliff." In his view, it would be far more effec- In 1992, the RAND Corporation issued a tive and cheaper to prevent people from falling report on the problems of urban America, in the first place. including an in-depth focus on crime.Its This is not a new idea. Many experts have report stated that "the impact of tougher sen- long believed the solution to violent crime is tences (particularly prison sentences) oncrime to attack its rootspoverty, racialdiscrimina- rates is weak at best." It recommendedfocus- tion, unemployment, lack of education, trou- ing on imprisoning the most likely repeat bled families, and other social problems. offenders and diverting resources to non-penal Searching for an answer to the violent strategies for crime prevention. The report crime of the1960s,President Lyndon B. concluded: "When the public debate focuses so Johnson established the National Commission heavily on punishment,itcreatesafalse on the Causes and Preventionof Violence. In dichotomy between tough law enforcement its final report in 1969, the commission stated and 'soft on crime' social programs. The that "the way in which we can make the great- choice is not one or the otherit must be est progress toward reducingviolence in 312 Unit6:Solutions 309 both....Our expectations of what justice Crime Prevention Programs agencies can do should be lowered, andour What's Promising? expectations of what social programs must do ;In communities should rise." Gang monitoring by probation and police. Mentoring by Big Brothers/Big Sisters. With the current emphasison deficit After-school recreation programs. reduction and ending the "era of biggovern- In schools ment," social programs have fallen out of "Schools within schools." favor. Opponents tar them as "1960spro- Improved teaching and discipline techniques. grams" and "budget busters." Manyargue that In places Adding a second derk in already robbedcon- it's impossible to identify who will bea violent venience stores. criminal or who won't. According to them, Redesigning retail stores to reduce shoplifting.. this means that preventionprograms must tar- improving training and management of bar staff. get large segments of the population, wasting Street closures, barricades, and rerouting money on programs for people who don't traffic. need them. By police Further, critics say that violencepreven- Proactive arrests for concealed weapons. tion programs do not work. Assumingwe Higher numbers of police. officers in cities. could identify future violent criminals, they By criminal justice agencies after arrest argue, violence prevention programs cannot Drug courts that order and monitor rehabilitation and drug treatment. guarantee success. People can go through them Intensive supervision of juvenile offenders. and still commit violent acts. They conclude Fines in combination with other penalties. that the community cannot gamble its safety Source: "Preventing Crime: What Works. What Doesn't on violence prevention programs. What's Promising." National Institute of Justice (1998) The root causes of violent crime, theycon- tend, lie in the family. Government programs, "even at its best, the justice system cannot they insist, cannot affect family life. Ifany- cost-effectively detect, arrest, convict, sanction, thing, they say, social spending over the last and supervise more than a small fraction of all decades made people dependent on welfare and criminals, adult and juvenile, suspected and weakened families, causing more crime and adjudicated." violence, not less. For Discussion In 1996, the Council on Crime in America, 1.After studying the issues, has your opinion a non-partisan conservative group, published about America's crime problem changed? its first report on crime in America. It strong- If so, how? ly backed get-tough measures, arguing, for example, that "Prisons do cut crime." But its 2. What do you think should be done about second report published in 1997 surprised crime in the United States? many people. It advocated prevention programs to "monitor, mentor, and minister" to Class Activity: What youth at risk of committing crimes. It favored non-profit and faith-based programs overgov- Should Be Done? ernment programs. It cited Big Brothers/Big Pretend you are a researcher draftinga Sisters and other church-based and volunteer study on crime in America. Prepare thecon- programs as examples of programs that help cluding section of the report, "Recommenda- prevent crime. These programs get caring, tions on the Crime Problem." Use whatyou responsible adults involved in the lives of have learned from this book, class discussions, youth atrisk.Professor John Dilulio, the outside resources, and your own research. State author of both reports, emphasized that the your own ideas, opinions, and reasons. Prepare criminal justice system alone cannot improve a presentation of your conclusion for the class. America's crime problem. He explained that

310 CRIMINAL JUSTICE IN AMERICA 3 3 Excerpts From the U.S. Constitution Selected Sections of the U.S. Constitution, Ratified 1788

Preamble States, and of the Militia of the several States, We, the People of the United States, in Order when called into the actual Service of the to form a more perfect Union, establish United States; he may require the Opinion, in Justice, insure domestic Tranquility, provide writing, of the principal Officer in each of the for the common defence, promote the general executive Departments, upon any Subject Welfare, and secure the Blessings of Liberty to relating tothe Duties of their respective ourselves and our Posterity, do ordain and Offices, and he shall have Power to grant establish this Constitution for the United Reprieves and Pardons for Offences against States of America. theUnitedStates,exceptinCasesof Impeachment. Article I He shall have Power, by and with the Advice Section 1. All legislative Powers herein granted and Consent of the Senate to make Treaties, shall be vested in a Congress of the United provided two-thirds of the Senators present States, which shall consist of a Senate and concur; and he shall nominate and by and House of Representatives. ... with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Section 8. The Congress shall have Power ... Ministers and Consuls, Judges of the supreme To provide for the Punishment of counterfeit- Court, and all other Officers of the United ing the Securities and Coin of the United States, whose Appointments are not herein States...To constitute tribunals inferior to otherwise provided for, and which shall be the supreme Court; To define and punish established by Law: but the Congress may by Piracies and Felonies committed on the high Law vest the Appointment of such inferior Seas, and Offenses against the Law of Nations Officers, as they think proper, in the President ...To make all Laws which shall be necessary alone, in the Courts of Law, or in the Heads of and proper for carrying into Execution the Departments. foregu'ing Powers, and all other Powers vested by this Constitution in the Government of the Section 3....He shall take Care that the Laws .... United States.... be faithfully executed Section 4. The President, Vice-President and Section 9. . . .The Privilege of the Writ of Habeas Corpus shall not be suspended, unless all Civil Officers of the United States, shall be when in cases of Rebellion or Invasion the removed from Office on Impeachment for, public safety may require it. and Conviction of, Treason, Bribery, or other No Bill of Attainder or ex post facto Law shall high Crimes and Misdemeanors. be passed. Article Ill Article II Section 1. The judicial Power of the United Section 1. The executive Power shall be vested States, shall be vested in one supreme Court, in a President of the United States of America. and in such inferior Courts as the Congress He shall hold his Office during the Term of may from time to time ordain and establish. four Years, and, together with the Vice The Judges, both of the supreme and inferior President, chosen for the same Term, be elect- Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive ed as follows.... for their Services, a Compensation, which Section 2. The President shall be Commander shallnotbediminishedduringtheir in Chief of the Army and Navy of the United Continuance in Office.

3 14 Unit 6: Solutions 311 Section 2. The judicial Power shall extend to Article IV all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, Section 1. Full faith and Credit shall be given and Treaties made, or which shall be made in each State to the public Acts, Records, and under their Authority;to all Cases affecting judicial Proceedings of every other State. And Ambassadors, other public Ministers and the Congress may by general Laws prescribe Consuls;to all Cases of admiralty and mar- the Manner in which such Acts, Records and itime Jurisdiction;to Controversies to which Proceedings shall be proved, and the Effect thereof. the UnitedStatesshallbe aParty;to Controversies between two or more States; Section 2. The Citizens of each State shall be between aState and Citizens of another entitled to all Privileges and Immunities of State;between Citizens of different States; Citizens in the several States. between Citizens of the same State claiming A Person charged in any State with Treason, Lands under Grants of different States, and Felony or other Crime, who shall flee from between a State, or the Citizens thereof, and Justice, and be found in another State, shall, foreign States, Citizens or Subjects. on Demand of the executive Authority of the In all Cases affecting Ambassadors, other State from which he fled, be delivered up, to be public Ministers and Consuls, and those in removed to the State having Jurisdiction of the which a State shall be Party; the supreme Crime.... Court shall have original Jurisdiction. In all Section4.The United States shall guarantee to theother Casesbeforementioned,the every State in this Union a Republican Form supreme Court shall have appellate of Government, and shall protect each of them Jurisdiction, both as to Law and Fact, with against Invasion; and on Application of the such Exceptions, and under such Regulations Legislature, or of the Executive (when the as the Congress shall make. Legislature cannot be convened) against The Trial of all Crimes, except in Cases of domestic Violence. Impeachment, shall be by Jury, and such Trial shall be held in the State where the said Crimes Article VI shall have been committed; but when not This Constitution, and the Laws of the United committed within any State, the Trial shall be States which shall be made in Pursuance there- at such Place or Places as the Congress may by of; and allTreaties made, or which shall Law have directed. be made, under the Authority of the United Section 3. Treason against the United States States, shall be the supreme Law of the Land; shall consist only in levying War against them, and the Judges in every State shall be bound or in adhering to their Enemies, giving them thereby, any Thing in the Constitution or Aid and Comfort. No Person shall be convict- Laws of any State to the Contrary notwith- ed of Treason unless on the Testimony of two standing.... Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

312 CRIMINAL JUSTICE IN AMERICA Selected Amendments from the Bill Seventh Amendment. In Suits at common of Rights, Ratified 1791 law, where the value in controversy shall exceed twenty dollars, the right of trial by jury First Amendment. Congress shall make no shall be preserved, and no fact tried by a jury, law respecting an establishment of religion, or shall be otherwise re-examined in any Court of prohibiting the free exercise thereof; or abridg- the United States, than according to the rules ing the freedom of speech, or of the press; or of the common law. the right of the people peaceably to assemble, and to petition the Government for a redress Eighth Amendment. Excessive bail shall not of grievances. be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Second Amendment. A well regulated Militia, being necessary to the security of a free State, Ninth Amendment. The enumeration in the the right of the people to keep and bear Arms, Constitution, of certain rights, shall not be shall not be infringed. construed to deny or disparage others retained by the people. Fourth Amendment. The right of the people to be secure in their persons, houses, papers, 10th Amendment. The powers not delegated and effects, against unreasonable searches and to the United States by the Constitution, nor seizures,shallnot be violated, and no prohibited by it to the States, are reserved to Warrants shall issue, but upon probable cause, the States respectively, or to the people. supported by Oath er affirmation, and partic- Selected Later Amendments ularly describing the place to be searched, and the persons or things to be seized. 13th Amendment, Ratified 1865. Neither slavery nor involuntary servitude, except as a Fifth Amendment. No person shall be held to punishment for crime whereof the party shall answer for a capital, or otherwise infamous have been duly convicted, shall exist within the crime, unless on a presentment or indictment United States, or any place subject to their of a Grand Jury, except in cases arising in the jurisdiction. land or naval forces, or in the Militia, when in actual service in time of War or public danger; 14th Amendment, Ratified 1868. All persons nor shall any person be subject of the same born or naturalized in the United States, and offence to be twice put in jeopardy of life or subject to the jurisdiction thereof, are citizens limb; nor shall be compelled in any criminal of the United States and of the State wherein case to be a witness against himself, nor be they reside. No State shall make or enforce any deprived of life, liberty, or property, without law which shall abridge the privileges or due process of law; nor shall private property immunities of citizens of the United States; be taken for public use, without just compen- nor shall any State deprive any person of life, sation. liberty, of property, without due process of the law; nor deny to any person within its juris- Sixth Amendment. In all criminal prosecu- diction the equal protection of the laws. tions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

316 Unit 6: Solutions 313 Glossary acquit To find not guilty. booking The official process of recording the affidavit A written statement made under oath. arrest, which may include taking fingerprints affirmative defense A defense such as insanity, and photographs of the accused. self-defense, and entrapment. If proved by the Bureau of Justice Statistics An agency of the defendant, it makes the defendant not guilty of Department of Justice that collects crime-relat- the crime even if the prosecution can prove the ed statistics. elements of the crime. burden of proof The responsibility of proving age of majority The age a person is considered an facts in a case. In a criminal trial, the prosecu- adult for legal purposes. tion has the burden of proving its case beyond aggravated assault According to the UCR, an a reasonable doubt. unlawful attack by one person upon another capital crime A crime punishable by death or life for the purpose of inflicting severe or aggravat- imprisonment. ed bodily injury. Normally committed with a capital punishment The death penalty. weapon. case in chief One side's trial evidence. In a crimi- appeal a request that an appellate court review a nal trial, the prosecution presents its evidence decision of a lower court. first. After it rests its case, the defense presents appellate court A court that hears appeals; it is its evidence. not a trial court. An appeals court. case law Law made by judges interpreting constitu- attorney A lawyer; legal counsel; attorney at law. A tions, statutes, and other case law. person authorized to practice law. citizen review boards An official group, staffed by arraignment A court hearing in which the defen- ordinary citizens, authorized to review com- dant must enter a plea, e.g., guilty or not plaints of police misconduct. guilty civil case A lawsuit between individuals or organi- arrest To take a person into custody for the pur- zations, which normally seeks monetary compose of charging the person with a crime. pensation for damages. arrestee The person arrested. civil court A court that handles civil cases. arson According to the UCR, any willful or mali- civilian review boards See citizen review boards. cious burning of another's property. commissioner An attorney who acts as a judge. assault Technically, the immediate threat of attack- common law 1. the unwritten law in England that ing someone, but usually it means a physical evolved over centuries and is the basis for U.S. attack on another person. See battery. law. 2. Case law in the United States as opposed assault with a deadly weapon The crime of attack- to statutory law. ing someone with a weapon that could cause crime An illegal act punishable upon conviction fatal injuries. See aggravated assault. in a court. bailiff A police officer assigned to the courtroom crime rate The amount of crime per so many peo- to keep order. ple in the population. battery The illegal touching of another person, criminal procedure The rules for processing some- usually an attack. When used in "assault and one through the criminal justice system. battery," the assault is the threat of attack and criminology The study of crime. the battery the physical attack itself. cross-examination The questioning of an oppo- bench The judge's desk in the courtroom. nent's witnesses at trial. bench trial A trial held before a judge alone with- deadly force Force that poses a high risk of death

out a jury. . or serious injury to its human target. bill of attainder A legislative enactment that pun- death row A separate section of a prison reserved ishes a person in place of a trial. Banned by the for inmates awaiting execution. U.S. Constitution. defendant The accused in a criminal trial. Bill of Rights The first 10 amendments to the U.S. determinate sentence A prison sentence for a spe- Constitution, which describe the rights and cific length of time, e.g., five years. A fixed protections guaranteed to each citizen. sentence.

314 CRIMINAL JUSTICE IN AMERICA 3 17 direct examination An attorney's initial question- incorrigible Juveniles who cannot be controlled by ing of his or her own witness. their parents. discretion The power to choose. indeterminate sentence A prison sentence of an discretionary jurisdiction The power of some indefinite period of time, for example "one appeals courts, such as the U.S. Supreme year to 30 years." Under this sentence, prisoners Court, to accept or refuse to hear particular are released when the parole board determines appeals. See writ of certiorari. they are rehabilitated. due process In the Fifth and 14th amendments, interrogation Questioning. the basic requirement that no person can be jurisdiction 1. the geographical area over which deprived of life, liberty, or property without a particular courts have power; 2. state and feder- fair trial. This means both fair laws and fair al government. procedures must be used. jurisprudence The philosophy of law, or the sci- en banc The full bench of justices. Each federal cir- ence that studies the principles of law. cuit court has from six to 27 justices, but for lawyer See attorney. most cases the justices hear cases in panels of magistrate A court officer who issues warrants; three. When all the justices in a circuit hear a normally a lower-court judge who handles pre- case together, they hear it en banc. trial proceedings or presides over misdemeanor evidence The means of determining facts in a trial. trials. Testimony, physical objects, and exhibits are marshal A law-enforcement officer who normally examples of evidence. performs duties connected with a court. exclusionary rule A judicial rule that prevents the mayhem The crime of mutilating or cutting off a government from introducing illegally obtained part of someone's body. evidence at a criminal trial. mens rea Guilty mind; the state of mind require- fact finder The one responsible for deciding the ment for crimes. facts of a particular case and coming to a ver- Miranda warning A advisory statement about the dict; either a judge or jury. rights of suspects that police must read to sus- false imprisonment The crime of making a false pects in custody before questioning them. The arrest or unlawfully taking someone into cus- Supreme Court first required this statement in tody. its Miranda v. Arizona decision in 1966. felony A serious crime usually punished by one or misdemeanor A crime less serious than a felony, more years of imprisonment in a state or federj usually punished by a fine or imprisonment up al penitentiary. to one year in a local jail. felony murder The rule that if any person is killed mitigate To make less serious. Mitigating circum- during a felony, the criminal can be charged stances are circumstances surrounding a crime with murder. that tend to make it less serious. fixed sentence See determinate sentence. Model Penal Code A criminal code composed by forfeiture The confiscation of assets either used in legal experts at the American Law Institute as a or derived from illegal activity. standard that legislatures may want to adopt. forgery The crime of falsely signing a document Unless sections of it are adopted by jurisdic- with the intent to defraud. tions, it has no legal authority. fraud The crime of obtaining another's property motion A formal request made to a court. through lies and deceit. motion to suppress A request that the court habeas corpus, writ of A court order requiring exclude particular evidence from the trial authorities to release a prisoner because the because it was illegally obtained. court has found that the prisoner is being ille- National Institute of Justice The research agency gally detained. of the U.S. Department of Justice. hearing Any court proceeding, such as a trial. nolo contendere plea A plea of no contest. (Latin homicide Literally, human killing. The crimes of for "I will not contest it.") It has the same homicide range from different degrees of mur- effect as a guilty plea except that the person. der to different kinds of manslaughter. does not admit guilt. Thus if someone files a hypothetical A made-up example. lawsuit against the person, the person has not incarceration rate The number of prisoners per admitted guilt. 100,000 population.

318 Glossary 315 organized crime A group that uses a business-like search In Katz v. United States (1967), the Supreme structure, with a boss and subordinates, to Court defined a search as any governmental carry out crime on an ongoing basis. intrusion into something in which a person pardon An act by the governor or president that has a reasonable expectation of privacy. forgives all or part of a prisoner's sentence. seizure Any taking into possession, custody, or paretsi patriae The idea that the state takes the role control. Property may be seized, but so may of parents to protect juveniles. people. An arrest is one form of seizure.. parole The conditional release of a prisoner before sentence A punishment for a crime. the end of a prison term. sheriff A county law-enforcement officer. parole board A board appointed by the governor sodomy Homosexual or oral copulation. that determines when prisoners may be released status offense An offense, such as truancy or run- on parole. ning away from home, that would not be a penal Subject to punishment. A penal code is a crime if committed by an adult. list of laws defining crimes. statute A written law; a law enacted by the legisla- penitentiary A state or federal maximum-security ture. prison. statutory law See statute. plaintiff The party in a lawsuit who sues the other sting operation Undercover police work that sets party. up a situation to catch criminals in the act. peremptory challenge During jury selection, an street crime A class of crimes usually involving attorney's rejection of a prospective juror that force or violence, such as murder, assault, robbery, requires no reason be given to the court. Each or rape. side has a limited number of these challenges. testify To make statements as a witness under oath. perjury The crime of lying while testifying under testimony Statements made by witnesses under oath. oath. precedent An issue of law previously decided by a UCR Uniform Crime Reporting program. A court that other courts follow. nationwide program headed by the FBI that col- probable cause Evidence that an independent, cau- lects police reports of crime. tious person would have good reason to vandalism The crime of intentionally defacing or believe. destroying another person's property. probation An alternative to prison. This sentence venue The location of a trial. requires the offender to follow certain condi- verdict The decision of guilty or not guilty made tions, usually under the supervision of a proba- by the jury or judge. tion officer. victimless crimes Crimes, such as prostitution and prosecute To try someone for a crime. possession of illegal drugs, in which everyone prosecution The government's side in a criminal involved chooses to be involved. case. voir dire During jury selection, the questioning of prosecutor The government's attorney who pres- prospective jurors. ents the case against a criminal defendant. warrant A court order issued by a judge authoriz- prosecutorial discretion The prosecutor's authori- ing a search, an arrest, or a seizure of evidence of a ty to decide what charges to bring and how to crime. pursue a criminal case. white-collar crime A class of property crimes that prostitution Crime of engaging in a sexual act are usually job-related, such as embezzlement, with another in exchange for money or other bribery, and consumer fraud. compensation. writ A written court order. rape According to the UCR, the carnal knowledge writ of certiorari An order from an appeals court of a female forcibly and against her will. stating that the court will hear a case. These writs recidivism The committing of further crimes by are granted by appeals courts that have discre- offenders after they have been punished for tionary jurisdiction. previous convictions. redirect examination An attorney's requestioning of his or her own witness after cross-examination. relevant Pertinent, appropriate, related to the subject at hand. 319 316 CRIMINAL JUSTICE IN AMERICA Table of Cases

Below are the titles of cases cited in the book followedby the legal citation, year, and the pages the cases are found in Criminal Justice in America.

Argersinger v. Hamlin, 407 U.S. 25 (1972), 77, 118 Illinois v. Perkins, 496 U.S. 292 (1990), 93 Arizona v. Evans, 514 U.S. 1 (1995), 96 Illinois v. Wardlow, U.S. (2000), 83 Arizona v. Hicks, 480 U.S. 321 (1987), 81 In Re Burrus, 403 U.S. 528 (1971), 243 Arizona v. Mauro, 481 U.S. 520 (1987), 93 In Re Gault, 387 U.S. 1 (1967), 239-241, 246, 253 Ashcraft v. Tennessee, 322 U.S. 143 (1944), 88 In re Oliver, 333 U.S. 257 (1948), 77 Austin v. U.S., 509 U.S. 602 (1993), 274 In Re Winship, 397 U.S. 358 (1970), 242 Batson v. Kentucky, 476 U.S. 79 (1986), 146, 248 Jacobson v. US, 503 U.S. 540 (1992), 54 Beckwith v. U.S., 425 U.S. 341 (1976), 93 James v. Illinois, 493 U.S. 307 (1990), 96 Bennis v. Michigan, 517 U.S. 1163 (1996), 275 J.E.B. v. Alabama ex rel TB., 511 U.S. 127 (1994), 146 Benton v. Maryland, 395 U.S. 784 (1969), 77 Johnson v. Zerbst, 304 U.S. 458 (1938), 118 Berkemer v. McCarty, 468 U.S. 420 (1984), 90 Katz v. US., 389 U.S. 347 (1967), 79, 81 Bond v. US, U.S. (2000), 81 Kent v. U.S., 383 U.S. 541 (1966), 253 Booth v. Maryland, 482 U.S. 496 (1987), 17 Kirby v. Illinois, 406 U.S. 682 (1972), 72 Breed v. Jones, 421 U.S. 519 (1975), 244-245 Klopfer v. North Carolina, 386 U.S. 213 (1967), 77 Brown v. Mississippi, 297 U.S. 278 (1936), 88 Leyra v. Denno, 347 U.S. 556 (1954), 89 Butler v. McKellar, 494 U.S. 407 (1990), 214 Lynum v. Illinois, 372 U.S. 528 (1963), 89 California v. Ciraolo, 476 U.S. 207 (1986), 81 Madrid v. Gomez, 889 F. Supp. 1146 (1995), 202 California v. Greenwood, 486 U.S. 35 (1988), 81, 285 Malinski v. New York, 325 U.S 401 (1945), 89 Chicago v. Morales, U.S. (1999), 29 Malloy v. Hogan, 378 U.S. 1 (1964), 77, 89 Chimel v. California, 395 U.S. 752 (1969), 85 Manson v. Brathwaite, 432 U.S. 98 (1977), 74 Coleman v. Thompson, 501 U.S. 722 (1991), 214 Mapp v. Ohio, 367 U.S. 643 (1961), 77, 95-97 DeJonge v. Oregon, 299 U.S. 353 (1937), 77 Massiah v. US, 377 U.S. 201 (1964), 73 Duckworth v. Eagan, 492 U.S. 195 (1989), 93 McCleskey v. Kemp, 481 U.S. 279 (1987), 214, 289 Duncan v. Louisiana, 391 U.S. 145(1968), 77 McKeiver v Pennsylvania, 403 U.S. 528 (1971), 243-244 Durham v. U.S., 214 F.2d 862 (1954), 52 Michigan v. Harvey, 494 U.S. 344 (1990), 96 Escobedo v. Illinois, 378 U.S. 478 (1964), 118 Miranda v. Arizona, 384 U.S. 436 (1966), 89-94 Estelle v. Gamble, 429 U.S. 97 (1976), 203 M'Naghten Case, 8. Eng. Re. 718 (1843), 52 Everson v. Board of Education, 330 U.S. 1 (1947), 77 Murray v. Giarratano, 492 U.S. 1 (1989), 214 Ex Parte Crouse, 4 Wharton PA 9 (1838), 226 Murray v. U.S., 487 U.S. 533 (1988), 95 Fare v. Michael C., 442 U.S. 707 (1979), 93 Neil v. Biggers, 409 U.S. 188 (1972), 72 Felker v. Turpin, 518 U. S. 651 (1996), 214 New Jersey v. TLO., 469 U.S. 325 (1985), 246 Florida v. J.L, U.S. (2000), 85-86 New York v. Quarles, 467 U.S. 649 (1984), 90 Florida v. Riley, 488 U.S. 445 (1989), 81 Nix v. Whiteside, 475 U.S. 157 (1986), 119 Florida v. Royer, 460 U.S. 491 (1983), 83 Nix v. Williams, 467 U.S. 431 (1984), 95 Foster v. California, 394 U.S. 440 (1969), 74 North Carolina v. Alford, 400 U.S. 25 (1970), 136 Furman v. Georgia, 408 U.S. 238 (1972), 213 Oliver v. U.S., 466 U.S. 170 (1984), 81 Gallo v. Acuna, 14 Ca1.4th 1090 (1997), 30 Oregon v. Math:* ason, 429 U.S. 492 (1977), 93 Georgia v. McCollum, 505 U.S. 42 (1992), 146, 288 Palko v. Connecticut, 302 U.S. 319 (1937), 77 Gideon v. Wainwright, 372 U.S. 335 (1963), 77, 118 Parker v. Gladden, 385 U.S. 363 (1966), 77 Gitlow v. New York, 268 U.S. 652 (1925), 77 Parsons v. State, 2 So. 854 (1887), 52 Gregg v. Georgia, 428 U.S. 153 (1976), 214 Payne v. Tennessee, 501 U.S. 808 (1991), 18, 214 Hamilton v. Regents of UC., 293 U.S. 245 (1934), 77 Penry v. Lynaugh, 492 U.S. 302 (1989), 214 Harris v. New York, 401 U.S. 222 (1971), 96 People v. Gilmore, 203 Cal. App. 3rd 612 (1988), 104 Harmelin v. Michigan, 495 U.S. 956 (1991), 183 Pointer v. Texas, 380 U.S. 400 (1965), 77 Herrera v. Collins, 506 U.S. 390 (1993), 214 Powell v. Alabama, 287 U.S. 45 (1932), 77, 118 Hutto v. Finney, 437 U.S. 678 (1978), 202 Printz v. U.S., 521 U.S. 98 (1997), 279 Illinois v. Gates, 462 U.S. 213 (1983), 73 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), 45

3140 Table of Cases 317 Robinson v. CalOrnia, 370 U.S. 660 (1962), 77 Rhode Island v. Innis, 446 U.S. 291 (1980); 90 Credits Rhodes v. Chapman, 452 U.S. 337 (1981), 203 All photographs, cartoons, and opinion polls are Safe v. Parks, 494 U.S. 484 (1990), 214 reprinted with the permission of the folloWing: Santobello v. New York, 404 U.S. 257 (1971), 136 Schall v. Martin, 467 U.S. 253 (1984), 241 Lalo Alcaraz, L.A. Weekly, p. 99 Segura v. U.S., 468 U.S. 796 (1984), 95 Kirk Anderson, St. Paul Pioneer Press, pp. 18, 265 Silverthorne Lumber Co. v. U.S., 251 U.S. 385 (1920), 95 AP/Wide World Photos, p. 33, 53, 116, 136, 196, Simmons v. U.S., 390 U.S. 377 (1968), 72 198, 219, 258, 285 Smith v. Maryland, 422 U.S. 735 (1979), 81 Chuck Any, Creators Syndicate, p. 50 Sokm v. Helm, 463 U.S. 277 (1983), 183, 187 Spano v. New York, 360 U.S. 315 (1959), 89 Chuck Asay, 192 Stanford v. Kentucky, 492 U.S. 397 (1989), 256-257 Jim Borgman, King Features Syndicate, p. 16 State v. Hempele, 576 Aid 793 (1990), 285 Steve Breen, Copley News Service, p. 245 State v. Russell, 481 NW2d 148 (1991), 186 Andrew Costly, CRF, pp. 91, 133, 271, cover (3) Stovall v. Denno, 388 U.S. 293 (1967), 73 Calif. Department of Corrections, cover (4) Tate v. Short, 401 U.S. 395 (1971), 188 Teague v. Lane, 489 U.S. 288 (1989), 214 Chris Britt, Copley News Service, p. 286 Tennessee v. Garner, 471 U.S. 1 (1985), 103-104 Callahan, Levin Presents, p. 139 Terry v. Ohio, 392 U.S. 1 (1968), 83, 85 Paul Conrad, Los Angeles Times, p. 106 Thompson v. Oklahoma, 487 U.S. 815 (1988), 255-257 Corbis, p. 28, 54, 89 U.S. v. Armstrong, 517 U.S. 456 (1996), 187 CRF, 302, cover (6) US. v. Bajakajian, 524 U.S. 321 (1998), 274 US. v. Dickerson, U.S. (2000), 90-91 Culver Pictures, pp. 60, 170, 225, 227, 293, 294 U.S. v. Frazier, 981 F.2d 92 (3rd Cir. 1992), 187 John Deering, The Arkansas Democrat-Gazette, u Leon, 468 U.S. 897 (1984), 96 p. 49 US. v. Lopez, 514 U.S. 549 (1995), 48 Feature Photo Service, Microsoft Corp., cover (5) U.S. v. Morrison, U.S. (2000), 48 The Gallup Organization, 46, 93, 218, 288 U.S. u One 56-Foot Motor Yacht Named Tahuna, 702 Herman®, © Jim Unger 2000 / Laughingstock F.2d 1276 (9th Cir. 1983), 273 Licensing, Inc., Ottawa, Canada, p. 119 U.S. v. One 1977 Lincoln Mark V, 453 F. Supp. 1388 (D.C. N.Y. 1978), 274 Mark Ide, pp. 41, 58, 65, 70, 79, 82, 84, 94, 102, 154, 156, 168, 231, 242, 281, cover (1 & 2) U.S. v. One Parcel of Land ...Commonly Known as 4204 Cedarwood, Matteson, IL, 614 F. Supp. 183 Gary Markstein, Copley News Service, p. 254 (D.C. 111.1985), 273 National Park Service, p. 202 U.S. v. Ross, 456 U.S. 798 (1982), 82, 84 Mike Peters, Tribune Media Services, p. 305 U.S. v. $321,470 in U.S. Currency, 662 F. Supp. 904 Bruce Plante, Courtesy of The Chattanooga (M.D. La. 1987), 273 Times, p. 206 U.S. v. Ursery, 518 U.S. 267 (1996), 275 U.S. v. Wade, 388 U.S. 218 (1967), 72, 118 Michael Ramirez, Copley News Service, p. 183 Ward v. Texas, 316 U.S. 547 (1942), 88 Rob Rogers, United Features Syndicate, Inc., Washington v. Texas, 388 U.S. 14 (1967), 77 p. 274 Whitman v. Superior Court, 54 Cal.3d 1063 (1991), 17 Tom Ryan, King Features Syndicate, pp. 43, 162 Whren v. U.S., 517 U.S. 806 (1996), 98 Steve Sack, Minneapolis Star-Tribune, p. 45 Wilkins v. Missouri, 492 U.S. 397 (1989), 256-257 Walt Stewart, pp. 151, 152, 159 Williams, Michael Wayne v. Taylor, U.S. (2000), 215 Signe Wilkinson, Washington Post Writers Group, p. 185 Williams, Terry v. Taylor, U.S. (2000), 215 Wisconsin v. Mitchell, 508 U.S. 47 (1993), 46 Wong Sun v. US., 371 U.S. 471 (1963), 95

n (1 A

318 CRIMINAL JUSTICE IN AMERICA Index

A D G adversary system, 120-121 death penalty, see capital punishment gag order, 139-140 arraignment, 138-139 defendant, 142 gangs, 20-21, 27-32 arrest, 124, 287 defense attorneys, 118, 142 suppression, 29-31 alcohol and crime, 268 determinate sentences, 174 in schools, 295 deterrence, 168-169 general intent, 39 B DNA, 75, 76, 220-221 grand jury, 137-138 guns, bail, 129-130 document analysis, 74 as a cause of crime, 268-269 bailiff, 142 domestic violence, 9-11, 265-266 control of, 277-280 Billy the Kid, 21 double jeopardy, 244-245, 275 biological cause of crime, 267-268 drugs and crime, 268 Boston's Operation Ceasefire, 30-31 drug war, 184-187, 273 H "broken windows," 69, 299 Hardin, John Wesley, 21 burglary, 11-12, 42 E halfway houses, 197-200 prevention, 299-302 Eighth Amendment, 17, 183-184, hate crimes, 45-48 186-187, 203, 213-214, 222, 274-275 homicide, C electronic house arrest, 190 degrees of, 40-42, 126 embezzlement, 43 rates, 25 capital punishment, 212-222 entrapment, 53-54 history of, 212-216 exclusionary rule, 94-97 innocent people and, 220-221 international challenges to, evidence, 121, 141 identity theft, 12-13 direct and circumstantial, 258-260 incapacitation, 168 juveniles and, 255-260 152-153 indeterminate sentences, 173-174 rules of, 153-157 public opinion of, 212, 218 informants, 72-73 extortion, 43 recent cases on, 213-215 injunctions against gangs, 30 eyewitness identification, 72 Tucker, Karla Faye, 219-220 insanity defense, 52-53 chain of custody, 71 Internet Chicago gang loitering F fraud, 36, 50-51 ordinance, 29-30 federal government, role in crime, hacking, 49-50 child abuse, 265-266 271-273 interrogation, 88-94 closing arguments, 141, 162 felony, defined, 37 investigations, 71-73 common law, 37 Fifth Amendment, 88-94, 186, 222, community corrections, 197-200 244-245, 275 JK community service, 196-197 fines, 188-189 judges, 115-117, 142 complaint, 138 fingerprints, 75-76 jury, 143 confessions, see interrogration firearms identification, 74-75 deliberations, 141-142 con games, 34-36 First Amendment, 30, 46, 47, 51, instructions, 141, 163-165 court clerk, 142 140 selection, 141, 145-149 court reporter, 142 forfeiture, 273-276 verdicts, 287-288 court system, 114-115 Fourteenth Amendment, 75, 188, juvenile justice, 223-263 corruption by police, 100-102 242-243, 244, 275 capital punishment, 255-260 crack cocaine, 22-23, 28-29, 184-187, rights incorporated by, 77 delinquent acts, 228, 230, 288-289, 295 Fourth Amendment, 78-88, 103-104, 231-232 crime, defined, 39 246 detention, 234-238, 247-252, crime labs, 74-76 fraud, 43, see also Internet fraud 260-262 crimes against the person, defined, 8 fruit of the poisonous tree, 95 history of, 224-228 criminal procedure, 5, 77-78 rights, 226, 239-246 waiver, 252-255 Keating, Charles, 33-34 Kennedy, Randall, 99

322 Index 319 L QR UV larceny,seetheft race, UCR, 24-26 lawyers, 117-119 arrest and, 287 victims of crime, 8-19 lineups, 72 capital punishment and, 214,289 age of victims, 9 lynching, 21 discrimination as cause of compensation of, 13-16 crime, 265 vigilantes, 291-294 MN drug war and, 184-187 rights of, 16-19 jury verdicts, 287-288 violent crime, 8-11 mandatory sentences, 174, 180, 183 justice system and, 285-289 causes of, 264-270 manslaughter,seehomicide juvenile justice system and, history of, 19-24 media and violence, 266-267 261-262 schools and, 295-297 misdemeanor, defined, 37 plea bargains and, 287 solutions to, 308-310 murder,seehomicide profiling, 98-100 see alsogangs sentencing and, 288-289 NO rational choice and crime, WXYZ NCVS, 24-26 269-270 warrant, 72-73, 81-82 negligence, 39 receiving stolen property 43 exceptions to, 84-86 nuisance, 30 rehabilitation, 168, 182 witness, 142-143 opening statements, 141, 151 restitution, 168 writ of certiorari, 115 retribution, 169 writ of habeas corpus, 214 P robbery,9, 42-43 parole, 180, 208-211 plea bargaining, 135-137, 287 S police, San Francisco Vigilance Committee, attitudes, 58-59 293-294 code of silence, 102, 110 search and seizure, 78-88 community, 68-71 checklist, 87 corruption, 100-102 Second Amendment, 279 history of, 60-62 self-defense, 53 minorities and, 58, 67 sentencing, 172-178 policing of, 106-111 factors in, 173 Special Thanks to: units of local police, 65-66 guidelines, 174-175 use of force, 103-105 truth in, 180 women, 67-68 race as a factor, 288-289 Cristy Lytal, proofreading and work, 66-67 see alsomandatory sentences, CJA Links poverty and crime, 265, 286-287 determinate sentences, preliminary hearing, 137 indeterminate sentences Esther Grassian, UCLA reference pre-release programs, 198 school, librarian prison, 201-208 crime in, 295-297 Charles Degelman, proofreading security levels, 201-202 searches, 246 conditions, 202-203 Silberman, Charles, 27 Tina Esposito, proofreading private, 203-204 Sixth Amendment, 114, 118, 243 revolts, 205-208 specific intent, 39 Katie Moore, proofreading probation, 189-191 strict liability, 39 revoking of, 192-195 Supreme Court, Prohibition, 22 state level, 285 property crimes, defined, 11 prosecutor, 118, 142 T discretion of, 131-133 theft, 42-44 public defender, 119, 127 three strikes, 137, 180 punishment, trace evidence, 74 history of, 170-172 purpose of, 168 Tucker, Karla Faye, 219-220

4 J 320 CRIMINAL JUSTICE IN AMERICA CRIMINAL JUSTICE. IN AMERICA THIRD EDITION

Criminal Justice in America is the most 'comprehensive and, interactive' text available on criminal justice.. It consists of six units::

Crimecovers victimsrights, gangs, violent crime, white-collar crime elements of crimes, legal defenses, methods for measuring crime, hate crime, computer crime, and a history of crime in America.

Policeexploreslocalpolice,attitudes- toward police, community policing, criminal investigations,search and seizure, Miranda, the exclusionary rule, racial profiling, corruption- use of force, policing the police, and a history of law enforcement. The Criminal Caseexamines courts, judges, and lawyers and explores a

hypothetical criminal case from arrest through trial. - Corrections looks into sentencing, prisons, alternatives to prison, capital punishment, theories of punishment, the history of corrections, and debates such as those over mandatory-minimums and the high number persons behind bars. Juvenile Justiceexplores the separate system for juveniles and examines delinquency, status offenses, steps in a juvenile case, rights of juveniles, juvenile corrections, waiver to adult court, the death penalty, how the system developed, and, current controversies. Solutionslooks at debates over the causes of crime, racism in the justice system, crime in schools, vigilantism, policy options to reduce crime and to make the system fairer, and options for individual citizens.

In addition, our web site, which is constantly updated, offers links to more readings, the latest statistics; almost every case mentioned. in the text,. and much more. Go to www.crf- usa.org,click on Links, and click on Criminal Justice in America Links.

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