Please see attached the assignment details/rubric and course materials. The assignment MUST be at least 5 pages (1 page per question), APA format, and MUST use the attached course materials. THIS IS DUE SATURDAY! Please do not accept this assignment if you cannot meet this short time constraint.
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A little background: As you have learned, Criminal Justice is a system comprised of
police, courts and corrections. As such, decisions made by one person/group of people
in one part of the system affects the others. It is important to understand the various
components of the system to be able to analyze the impact that their interactions and
inter- relatedness have on the administration of justice. The study of Criminal Justice
involves cumulative learning and thought. At this point, you have learned about the
different systems and now it is time to apply what you have learned!
Directions: For this assignment you are to reflect upon the course material that you
read. Please answer each of the following questions as thoroughly as possible and be
sure to back up your answers with scholarly resources.
1. What are the main components of the Criminal Justice system?
2. How are these components interrelated?
3. How might these components conflict?
4. Based off of your answers in questions 1-3; describe the steps of the criminal
justice process and the role that each component plays within each step.
Specifically describe the decision making points that influence the next step in the
process. (hint: be sure to look at the chart of the steps of Criminal justice
contained in the week 1 readings).
5. In your opinion, how does the interrelatedness and interactions between the
components affect the administration of justice?
Paper must be double spaced, 11 or 12 pt font and 1”margins all around.
All APA 7th edition format requirements must be followed (cover page, in text
citations, reference page). Refer to APA/UMGC – learning resources found in the
content page of this course.
You must have resources to support your thoughts/opinions/information. These
must be cited both in text as well as at the end of the document. Your paper
should not contain direct quotes, sourced material must be paraphrased.
Questions should be answered in 1, 2, 3, 4, 5 format
While there is not a firm page requirement, it is expected that to thoroughly
answer these questions, your assignment will likely be a minimum of 2 pages and
a maximum of 5
100 Assignment #4 Rubric
Course: CCJS 100 6980 Introduction to Criminal Justice (2215)
Content 20 points
the CJ system
Student used at
least 3 resources
to describe the
Student gave 3
examples of how
described 2 or
making points in
each step of the
CJ process and
and fully listed
the CJ system
Student used at
least 2 resources
to describe the
Student gave 2
examples of how
described 2 or
making points in
each step of the
CJ process and
point affects the
is lacking or
Student used 1
Student did not
not give specific
Student gave 1
example of how
may conflict; did
not discuss each
Student did not
Student did not
fulfill one or
point affects the
at least two ways
in which the
affected by the
command of CJ
at least one way
in which the
affected by the
of CJ process;
its effect on next
Student did not
provide ways in
affected by the
command of CJ
Total / 30
page, in text
Student had no
more than 1
used APA format
does have one or
(Cover page, in
has 1 or more
Student did not
and has two or
(Cover page, in
has 2 or more
time or within 2
days of deadline
Did not fulfill
past due date
Equivalent to an A
27 points minimum
Equivalent to an B
24 points minimum
Equivalent to an C
21 points minimum
Below Expectations –
Equivalent to a D or
0 points minimum
Section 4.1: Early History of Policing
Prepared by Adam J. McKee
The legal system of the United States traces its roots back to the common law
The enforcement of those ancient laws was the responsibility of a criminal
justice system that grew and evolved over a protracted period.
The protections against the abuse of police power that Americans enjoy today
have their roots in English constitutional documents such as the Magna Carta .
Important features of modern American policing attributable to its English
1. Legally limited police authority
2. Decentralized organizational structure
Historians and anthropologists regard the earliest system of law enforcement
as kin policing .
In this primitive system, members of a clan or tribe banded together to
enforce the rules of the group on rogue members.
The essence of kin policing was the idea that an attack on one member of the
group was tantamount to an attack on the entire group.
Formal v. Informal
Note that this method was extremely informal: there were no courts or
written system of laws.
Behavioral expectations were derived from group norms and customs.
When formal, written laws emerged, the need to enforce those laws emerged
King Hammurabi of Babylon is credited with the first written criminal code.
The Code of Hammurabi was carved in large stones in the tenth century B.C.
The codes of ancient Greece and Rome have had an influence on Western law,
as has the Mosaic Code .
The Mutual Pledge System
Among the earliest documented Western systems of law and law enforcement
was the mutual pledge system .
The mutual pledge system consisted of groups of ten families bound to
uphold the law, bring violators to court, and keep the peace.
These groups of ten families were known as tithings .
Each tithing was governed by a tithingman .
How The System Worked
All men over the age of twelve were required to raise the hue and cry when a
crime was detected, and pursue the criminal with all of the men of the tithing.
A group of ten tithings was called the hundred , and the office of constable
developed out of this organizational unit.
If a criminal could not be produced in court, then the Crown could fine the
In other words, every man was responsible for the conduct of every other
Hundreds were combined into administrative units known as Shires (or
Counties), under the jurisdiction of the shire -reeve .
The shire -reeve, whose job it was to maintain the King’s peace in the Shire,
was later shortened to the modern term sheriff.
Th e s h e riff h a s t h e p o we r t o ra is e a ll a b le -b o d ie d m e n in t h e co u n t y t o p u rs u e
a crim in a l.
Th is p o we r wa s kn o wn b y t h e La t in p h ra s e p o s s e co m it a t u s .
The Norman Era
In 1066, the Normans invaded England and seized the throne.
The Norman King, William the Conqueror, quickly modified the mutual pledge
system to aid in the consolidation of his power.
The modified system —known as the frankpledge system —was a tightening of
the system then Normans found in place.
The Constable System
By the end of the thirteenth century, the constable system had developed into
the system of rural law enforcement common to all of England.
The office of constable was filled by yearly elections within each parish (a
religious division similar to a County).
The constable had the same responsibility as the tithingman, with the
additional duties of being a royal officer.
In urban areas, the watch and ward system developed along similar lines.
Officers of the watch would guard the town gates at night, conduct patrols to
prevent burglary, arrest strangers appearing at night, and put out fires.
By the 1361 A.D., the old system had given way to constables working under
justices of the peace.
This system would remain in place until the industrial revolution.
When the early colonists set up a system of laws and law enforcement in
America, they brought the common law system of England with them.
In this early system, the county sheriff was the most important law
The duties of the sheriff in those times were far more expansive than they are
Then the sheriff collected taxes, supervised elections, and so forth.
As far as law enforcement goes, the role of the sheriff in colonial America was
If a citizen complained, the sheriff would investigate the matter.
If evidence could be collected, an arrest would be made.
There were no preventive efforts, and preventive patrol was not conducted.
The United States has followed a different path than many other countries.
Whereas many western nations have national police forces, the United States
is still very fragmented.
Policing is done mostly on the local level.
One term for this decentralized .
Criticisms of Decentralization
While there are some rather abstract political advantages to a decentralized
system of law enforcement, it is not without cost.
Many critics call for the amalgamation and centralization of police forces,
citing a wide variety of reasons such as preventing wasted effort and wasted
The decentralized nature of modern American policing stems from its roots in
the English past.
In 1829, Home Secretary Robert Peel convinced the Parliament in England to
pass the Metropolitan Police Act.
The primary purpose of the Act was to do away with the ineffectual
patchwork of policing measures then practiced in London, and establish an
around the clock, uniformed police force charged with preventing disorder
Peel is credited with many innovations that became standard police practice
around the world.
A major shift was an effort at crime prevention rather than “raising the hue
and cry” after a crime was committed.
In other words, the focus of policing efforts shifted from reactive to proactive .
This shift meant that the new police force was tasked with preventing crime
before it occurred rather than responding to it after the fact.
A key element of this proactive strategy was preventive patrol .
Police constables became known as “Bobbies” after Robert Peel.
The city of London was divided up into beats, and the Bobbies were ordered
to patrol their beats on foot.
The idea was that the presence of these uniformed officers on the streets
would deter crime.
The militaristic nature of most modern police forces was also one of Peel’s
He used a military -style organizational structure, complete with ranks like
sergeant, lieutenant, and captain.
While commonplace now, military -style uniforms were an innovation.
Command and discipline were also conducted along military lines.
Why We Didn’t Nationalize
It was not long before the value of such police forces was noted by America’s
largest cities and the idea was selectively imported.
The main element of the British model that Americans rejected was the
nationalization of police services.
Americans at the time were still fearful of strong central authority, and
elected to establish police forces on a local level.
While arguably more democratic, decentralized police forces organized on the
local level were not nearly as well insulated from local politics as their British
Political leaders were able to exert a large amount of influence over police
hiring, policy making, and field practices.
Policing in America
There is some debate amongst the concerned departments as to whether
Boston or New York City was the first modern police force in the United
Boston’s day watch was established in 1838, and many credit this as the first
modern police force.
New York City formed its police force in 1844.
Most other large cities soon followed suit, and full -time, salaried officers
became the norm.
Early police forces were highly political.
Graft and corruption were rampant.
Police ranks were filled with officers of particular ethnic groups to garner
votes for particular politicians.
Criminals paying off the police to ignore vice crimes was also common.
Policing was more about political advantage than protecting public safety in
The Political Era
Efforts to eliminate corruption were doomed from the start because the very
politicians that had the power to end it benefited from it.
This period from approximately 1940 to 1920 has become known as the
political era of policing due to these political ties.
The Reform Era
The end of the 19 th century saw progressive thinkers attempt to reform the
Progressivism was a broadly focused political and social movement of the day,
and the police were swept up in this wave of progress, improvement, and
The status quo of policing would not withstand its momentum.
A primary objective of the police reformers of this era was to reduce
substantially the power of local politicians over the police.
An important reform was the institution of civil service .
The aim of civil service was to make selection and promotion decisions based
on merit and testing rather than by the corrupt system of political patronage
of the previous era.
Within police circles, the progressive movement spawned an interest in the
professionalization of policing.
Model professional police departments would be highly efficient, separated
from political influence, and staffed by experts.
Section 4.2: The Structure and Nature of Policing
Prepared by Adam J. McKee
Perhaps the most enduring myth of criminal justice is the actual role of the
police officer in our society.
From early television programs such as Dragnet u p t o t o d a y’s m o s t co m p e llin g
crim e d ra m a s , co p s live a life fu ll o f d a n ge r, a lwa ys e n co u n t e rin g d a n ge ro u s
fu git ive s , s e ria l kille rs , a n d o t h e r villa in s t h a t m u s t b e o u t wit t e d , o u t fo u gh t ,
a n d o u t gu n n e d .
Of course, danger is part of the police job.
It is a mistake to assume that this is the only job that the police do.
Most of what the police do on a daily basis is to deal with what Herman
Goldstein (1990) called “the residual problems of society.”
Movies and television have defined the role of the police in the popular
imagination as that of “crime fighter.”
In reality, catching “bad guys” and investigating crimes is only a small fraction
of what the police are called upon to do every day.
Calls for social services order maintenance tasks are far more common.
A large fraction of the average police officer’s shift is spent helping people
with problems that have nothing to do with apprehending felons.
People get hurt in automobile accidents, and police officers are there to
People lose things ranging from cell phones to children, and expect the police
to help find them.
The Average Day
Some authors estimate that well over fifty percent of calls for police services
involve these kinds of social service tasks.
By comparison, these same authors estimate that only about 20% of calls for
police services relate to crime.
Arrests & Order Maintenance
Many law enforcement activities have to do with keeping society running
These things —such as traffic control, crowd control, and moving prostitutes
off the streets —are frequently referred to as “order maintenance” activities.
A key difference between law enforcement and order maintenance is that
order maintenance activities are not generally concerned with the letter of the
law, but rather keeping the peace.
Arrest is always an option when an officer is trying to preserve the peace, but
less formal solutions are far more commonly employed.
For example, when the driver of a stopped car that is blocking traffic complies
with an officer’s request to move along, no citation is issued.
The American Bar Association (1986), in a document called Standards Relating
to the Urban Police Function, lists 11 responsibilities of the police:
(a) identify criminal offenders and criminal activity and, where appropriate, to
apprehend offenders and participate in subsequent court proceedings;
(b) reduce the opportunities for the commission of some crimes through
preventive patrol and other measures;
(c) aid individuals who are in danger of physical harm;
Police Functions (Cont.)
(d) protect constitutional guarantees;
(e) facilitate the movement of people and vehicles;
(f) assist those who cannot care for themselves;
(g) resolve conflict;
(h) identify problems that are potentially serious law enforcement or
Police Functions (Cont.)
(i) create and maintain a feeling of security in the community;
(j) promote and preserve civil order; and
(k) provide other services on an emergency basis.
The last element in this list provides the primary reason why the police are
called upon to deal with the “residual problems” of society :
There is no one else available twenty -four hours a day, seven days a week .
Police and the Use of Force
Another key factor that makes the police unique is what some authors have
referred to as a “monopoly on the use of force.”
The authorization to use force means that the police hold a position of great
power within our society, and this translates into a great responsibility to use
that force ethically.
Despite all of that power, there is a trend among policing experts to call for
broad discretion for police officers.
Officers who have their hands bound by excessive policies and procedures
cannot solve community problems.
Officers must have the authority to identify community problems, tailor
solutions to those problems, and implement those solutions.
Even in departments where community policing is not the dominant
p a ra d igm , o ffice rs s t ill h a ve a gre a t d e a l o f d is cre t io n .
Fo r e xa m p le , o ffice rs d e cid e
● wh o ge t s a wa rn in g
● wh o ge t s a cit a t io n
● wh o is a rre s t e d
Office rs d e cid e wh e n fo rce is n e ce s s a ry.
The Decision to Arrest
Some obvious factors are used by officers when making a discretionary
The seriousness of a crime and the strength of evidence are factors in the
decision to make or not make an arrest.
Personal factors also come into play; researchers discovered long ago that the
demeanor of the suspect plays an important role in the decision to arrest.
Respectful and deferential citizens are less likely to be arrested than rude or
The Structure of Policing
Local police departments make up more than two -thirds of the 18,000 state
and local law enforcement agencies in the United States.
BJS defines a local police department is a general purpose law enforcement
agency, other than a sheriff’s office, that is operated by a unit of local
government such as a town, city, township, or county.
Tribal police are classified as local police BJS statistics.
Local Law Enforcement
In 2008, local police departments had about 593,000 full -time employees,
including 461,000 sworn officers.
About 60% of all state and local sworn personnel were local police officers.
The Federal Bureau of Investigation (FBI): The FBI is housed within the United
States Department of Justice.
The FBI is rather unique in that it has both law enforcement and national
security concerns as part of its mission.
As the FBI’s Mission Statement puts it, they are a “… national security
organization with both intelligence and law enforcement responsibilities…”
The Bureau of Alcohol, Tobacco, and Firearms (ATF)
The ATF has a reputation for dealing with illegal firearms.
Its mission is rather broader in reality.
Housed within the United States Department of Justice, the ATF protects
American communities from violent criminals, criminal organizations, the
illegal use and trafficking of firearms, the illegal use and storage of explosives,
acts of arson and bombings, acts of terrorism, and the illegal diversion of
alcohol and tobacco products .
The Drug Enforcement Administration
“The mission of the Drug Enforcement Administration (DEA) is to enforce the
controlled substances laws and regulations of the United States and bring to
the criminal and civil justice system of the United States, or any other
competent jurisdiction, those organizations and principal members of
organizations, involved in the growing, manufacture, or distribution of
controlled substances appearing in or destined for illicit traffic in the United
States; and to recommend and support non -enforcement programs aimed at
reducing the availability of illicit controlled substances on the domestic and
The U.S. Marshals Service
The U.S. Marshals Service (USMS) is the nation’s oldest and most versatile
federal law enforcement agency.
Federal Marshals have served the country since 1789, often times in unseen
but critical ways.
The USMS is the enforcement arm of the federal courts, and as such, it is
involved in virtually every federal law enforcement initiative.
Presidentially appointed U.S. Marshals direct the activities of 94 districts —
one for each federal judicial district.
The Secret Service
: The United States Secret Service began as an agency dedicated to the
investigation of crimes related to the Treasury, and then evolved into the
United States’ most recognized protection agency.
The Secret Service was a part of the Department of the Treasury until March 1,
2003, when it became a part of the Department of Homeland Security.
The Secret Service Mission
“The mission of the United States Secret Service is to safeguard the nation’s
financial infrastructure and payment systems to preserve the integrity of the
economy, and to protect national leaders, visiting heads of state and
government, designated sites and National Special Security Events.”
The Citizenship and Immigration Service (USCIS)
U.S. Citizenship and Immigration Services is the government agency that
oversees lawful immigration to the United States.
USCIS will secure America’s promise as a nation of immigrants by providing
accurate and useful information to our customers, granting immigration and
citizenship benefits, promoting an awareness and understanding of
citizenship, and ensuring the integrity of our immigration system.
The agency is composed of over 19,000 government employees and
contractors of USCIS working at 223 offices across the world.
Transportation Security Administration (TSA)
The primary mission of the TSA is to protect travelers and interstate
TSA uses a risk -based strategy and works closely with transportation, law
enforcement, and intelligence communities to set the standard for excellence
in transportation security .
State Law Enforcement
Every state in the United States has a state -level police force with the
exception of Hawaii.
The largest of these state -level agencies is the California Highway Patrol.
One of the major purposes of the state police in most jurisdictions is to
provide patrol services, especially on remote highways where local law
enforcement is sparse.
State Police Roles
State police are often called upon to aid local law enforcement in criminal
investigations that are complex or cross local jurisdictional lines.
Often they are responsible for maintaining centralized criminal records for the
state, operating crime labs, and training local officers.
Policing in America
In the United States today, there is a Hollywood generated myth that the
federal government does major fraction of the law enforcement workload.
This is not true.
The vast majority of criminal cases are generated by local agencies such as
sheriffs’ departments and local police departments.
An estimated 3,012 sheriff’s’ offices performing law enforcement functions in
the United States employed 369,084 sworn and civilian personnel.
Sheriffs’ offices represented approximately a fifth of the estimated 15,600
general -purpose law enforcement agencies operating in the United States.
Although sheriff’s’ offices may have countywide responsibilities related to jail
operation, process serving, and court security, their law enforcement
jurisdictions typically exclude county areas served by a local police
Local Police Departments
About half of local police departments employed fewer than 10 sworn
personnel, and about three -fourths served a population of less than 10,000.
In 2007, about 1 in 8 local police officers were women, compared to 1 in 13 in
About 1 in 4 officers were members of a racial or ethnic minority in 2007,
compared to 1 in 6 officers in 1987.
Wilson’s Police Management Styles
James Wilson (not to be confused with O. W. Wilson), identified three police
The watchman style of management focuses on order maintenance.
Officers often ignore minor violations of the law, unless the violation
constitutes a breach of the peace.
Minor violations and disputes between citizens are largely handled in an
The Legalistic Style
The legalistic style tends to handle matters formally.
In other words, policing is done “by the book.”
The administrative emphasis is on reducing line officer discretion and
effecting unvarying, impartial arrests for all violations.
The Service Style
The service style emphasizes community service above enforcing the law.
Arrest is often seen as a last resort, used only when referrals to social service
organizations and agencies will be ineffectual.
As one of Peel’s major innovations, the organization of police agencies along
military lines has withstood the test of time.
Police officers in most jurisdictions still wear uniforms, carry weapons, and
have military ranks.
These ranks suggest a military style, authoritarian command structure where
orders come down from the top.
Section 4.3: Police Methods
Prepared by Adam J. McKee
Traditional Police Methods
For most of its history in America, the work of the patrol officer and the
investigator constituted the vast majority of police work .
Uniformed officers patrolled the streets of America’s cities, serving as a highly
visible deterrent to crime and attempting to catch criminals in the act.
If patrol failed, the investigator’s job was to follow up, solving crimes by
questioning victims, witnesses, and suspects .
The Proactive Shift
Only since the 1960s has empirical research highlighted the limits of both
preventive patrol and criminal investigations in dealing with America’s crime
It was not until the early 1990s that this research spawned a new wave of
police reform aimed at proactive policing strategies.
These proactive strategies meant that police efforts would shift (at least to
some degree) from responding to calls for service to initiating action.
Patrol is often called the “backbone” of the police department, and for good
Patrol consumes most of the average police department’s resources.
The basic philosophy and strategy of preventive patrol has not changed from
Peel’s time: the patrol officer makes circuits through a specified area, often
called a beat.
During Peel’s time, most patrols were done on foot, with the occasional horse
Technology and Change
Technology ushered in the automobile, and modern police forces take full
advantage of the benefits offered by cars.
The most important of these advantages is the area that a single officer can
Automobile patrol officers can cover much wider beat areas than officers on
The bottom line is that because an officer in a car can cover a much wider
geographic area, departments need fewer officers.
This translates into huge savings.
Automobile patrol is much cheaper than foot patrol.
The effectiveness of patrol operations within a department is usually judged by
three major functions.
1. answering calls for service
2. deterring crime by a highly visible police presence
3. investigating suspicious circumstances
Of these three major functions of patrol, crime deterrence is the most
Does Patrol Deter Crime?
The historical assumption, stemming from Peel’s day, was that a highly visible
officer patrolling a beat would serve as a deterrent to would -be criminals.
Research evidence since the 1970s has supported the idea that random
preventive patrol has very little if any impact on crime.
The Kansas City Preventive Patrol Experiment
In the 1970s, criminal justice researchers began to question the underlying
assumption of preventive patrol.
They designed an experiment to find out of preventive patrol reduced crime
and made citizens feel safe from crime.
They also wondered about patrol strength.
Did the number of officers on patrol in a given area have an impact on both
actual crime and citizens’ perceptions of crime?
What the researchers found staggered the world of policing: There was
almost no difference in actual crime or citizens fear of crime.
Citizen’s opinions about how good a job the police were doing did not change.
It seemed that law -abiding citizens and criminals alike simply did not notice
As one would expect, this caused a flurry of opinions to come out regarding
the interpretation of these findings.
Some argued that the findings must be wrong, and that preventive patrol
was and always had been a good thing.
Others argued that patrol was just a bad idea and that the police should
focus on different things.
Many stood the middle ground, focusing on making patrol more effective by
changing the way it was done.
One of the few things that almost all commentators agreed on was that just
pouring more officers out on the street would have little impact on crime.
The Nature of the Paradigm Shift
Proactive patrol operations shift from random to targeted.
Specifico ffe n d e rs , specific p la ce s , a n d specific t yp e s o f vict im s a re co n s id e re d .
Myria d t a ct ics fa ll u n d e r t h is ge n e ra l p h ilo s o p h y:
● u n d e rco ve r o p e ra t io n s
● t h e u s e o f in fo rm a n t s
● u s in g d e co ys
● s a t u ra t in g p ro b le m a re a s
● fre q u e n t p a t ro ls o f “h o t s p o t s ”
It’s Not a Random Problem
An important argument in how to better utilize patrol is that random patrols
do not work well because crime is not a random phenomenon.
While it may seem fair, giving every neighborhood in a city an equal amount of
police time and resources is horribly inefficient.
A smarter use of resources is to concentrate police resources in high crime
areas, and limit resources in areas that experience very little crime.
The Research Findings
Research evidence suggests that this strategy does indeed have a positive
impact on crime.
Researchers found that the 911 system received a heavy amount of calls for
service from a small number of locations.
Brief periods of intensive patrolling in those high crime areas effectively
reduced robberies and other crimes.
Other strategies, such as those used in the San Diego Field Interrogation
Study, have shown that aggressively interrogating suspicious persons can
lead to a reduction in both violent crime and disorder.
The New York City Street Crimes Unit has had success using decoys to
apprehend repeat offenders.
By having an undercover officer play a “perfect victim,” officers were able to
increase dramatically arrests of muggers.
Problem Oriented Policing
The traditional model of policing in the United States was decidedly reactive in
The primary methods used by police were preventive patrols and retroactive
Early efforts at innovation were designed to be proactive, but they focused on
the deterrence of crime through a limited “toolbox” of arrests, summons, and
Section 5.1: State and Federal Courts
Prepared by Adam J. McKee
A Complex System
The U.S. court system is very complex due to dual federalism .
Ea ch le ve l o f go ve rn m e n t —s t a t e , lo ca l, a n d fe d e ra l—h a s it s o wn co u rt s .
Pe rh a p s t h e e a s ie s t crim in a l co u rt s ys t e m t o u n d e rs t a n d is t h e fe d e ra l s ys t e m .
Who Hears a Case?
When an act violates a federal criminal law, the suspect is tried in federal
When a suspect violates a state law, it can be tried at the local or state level,
depending on the state.
Many Courts, Many Differences
No two of the fifty state courts are exactly alike.
The federal government operates courts within each of the fifty states.
The vast majority of criminal cases are tried in state courts.
Most state court systems and the federal court system can be described as
hierarchical or “pyramid shaped.”
At the bottom of the court hierarchy are the lower courts .
Th e m a jo rit y o f ca s e s h e a rd b y t h e s e co u rt s a re t ra ffic vio la t io n s a n d
m is d e m e a n o r ca s e s .
Th e n a m e s va ry wid e ly, d e p e n d in g o n t h e s t a t e : Mu n icip a l co u rt s , p o lice
co u rt s , a n d t ra ffic co u rt s a re co m m o n e xa m p le s .
Th e re a re a ls o m a n y s p e cia lize d co u rt s a t t h is le ve l: Ju ve n ile co u rt s o ft e n e xis t
a t t h is le ve l.
Duties of the Lower Courts
These courts tend to hear relatively minor matters.
Many can, however, sentence violators to jail and impose large fines.
Some of these courts also deal with preliminary matters in criminal cases,
such as conducting arraignments and preliminary hearings.
These felony cases are subsequently transferred to a higher court for trial.
Many people —especially those appearing in them —are critical of the
“assembly line” justice offered by many municipal courts.
Courts of General Jurisdiction
While the lower courts can only hear nonserious matters, this level of the
court system can hear felony cases.
Courts of general jurisdiction a re t h e t ria l co u rt s o f re co rd o f t h e s t a t e
co u rt s ys t e m s .
Ge n e ra lly, t h e s e co u rt s o p e ra t e m o re fo rm a lly a n d p ro fe s s io n a lly t h a n t h e
lo we r co u rt s .
Th e re a re fe we r o f t h e m .
What Are They Called?
The name varies depending on the state; in some states, they are called
district courts, and in others, they are called circuit courts.
This can be very confusing in states that are the reverse of the federal system
(where district courts are trial courts and circuit courts are appellate courts).
Only a small fraction of cases filed by prosecutors ever go to full trial in these
The vast majority end in a plea bargain.
Courts of Appellate Jurisdiction
When a party is dissatisfied with the results of a trial, then they can appeal to
a higher court.
Appellate courts m o s t ly h e a r a p p e a ls ca s e s , a n d a re h igh e r u p in t h e co u rt
h ie ra rch y.
Th e n u m b e r o f le ve ls o f a p p e a ls co u rt s d e p e n d s la rge ly o n t h e p o p u la t io n o f
t h e s t a t e .
State to State Differences
In states with relatively small populations, the losing party at trial can appeal
directly to the state’s highest court, the state supreme court .
In larger states, there is usually an intermediate appeals court that lightens
the workload of the state supreme court .
The supreme courts usually have a broad discretion in deciding whether to
hear a case or not .
The judges are free in many circumstances to decide what cases are
important, and to only hear those .
The Federal Court System
Federal courts are organized along very similar lines to state courts, although
the more general subject matter jurisdiction of federal courts makes them
more streamlined that many state systems .
U.S. District Courts
In the hierarchy of courts, the trial courts of general jurisdiction are always
near the bottom.
At the federal level, these workhorses of the court system are the 94 U.S.
District Courts .
Eve ry s t a t e in t h e Un it e d St a t e s h a s a t le a s t o n e d is t rict co u rt , a n d s o m e s t a t e s
h a ve s e ve ra l.
U.S. Courts of Appeals
Above the federal district courts in the federal court hierarchy are the U.S.
Courts of Appeal .
Th e y s e rve m o s t ly t o h e a r a p p e a ls fro m t h e d is t rict co u rt s .
Ap p e a ls ju d ge s d o n o t s it a lo n e wh e n d e cid in g ca s e s , b u t ra t h e r s it in p a n e ls
o f t h re e ju d ge s .
Ra r e a n d im p o rt a n t ca s e s a re s o m e t im e s h e a rd en banc , m e a n in g a ll o f t h e
ju d ge s in th a t cir cu it h e a r th e ca s e to ge t h e r .
U.S. Supreme Court
The U.S. Supreme Court crowns the hierarchy of United States Courts.
It hears appeals that come out of both federal and state courts.
Considering there are only nine justices, the workload of the Supreme Court is
What Cases are Heard?
The Supreme Court is different than lower level courts in that they exercise
Th is m e a n s t h a t t h e ju s t ice s ge t t o d e cid e wh ich ca s e s t o re vie w a n d wh ich t o
p a s s o ve r.
Th e ca s e s t h a t t h e y d o s e le ct t e n d t o h a ve ve ry b ro a d n a t io n a l im p lica t io n s .
Be ca u s e t h e Su p re m e Co u r t fu n ct io n s m o s t ly a s a co u rt o f a p p e a ls , m o s t o f
t h e ca s e s t h e y d e cid e re s u lt in a lo we r co u rt ’s d e cis io n e it h e r b e in g affirmed
o r reversed .
Problems with the Courts
One of the biggest problems facing the courts today is the high volume of
For example, in 2013, combined filings for civil cases and criminal defendants
in the U.S. district courts totaled 363,914.
According to the Court Statistics Project, o ve r 10.6 m illio n ca s e s we re p ro ce s s e d
in s t a t e t ria l co u rt s in 2009 (t h e la s t ye a r fo r wh ich d a t a is a va ila b le ).
The Impact of “Get Tough” Laws
The tough drug sanctions of the recent past caused a steadily increasing
caseload for the courts .
A majority of state courts are perpetually behind on hearing cases.
Accordingly, there has been an increasing interest on both the state and
federal level with how to reduce caseloads and speed up the flow of cases.
Perhaps t h e m o s t p o p u la r e ffo rt t o re d u ce ca s e lo a d s h a s b e e n t h e a d ve n t o f
drug courts .
A b ig d iffe r e n ce b e t we e n d ru g co u rt s a n d re gu la r co u rt s is t h a t d ru g co u rt s
t e n d to s e n t e n ce n o n vio le n t , firs t -tim e o ffe n d e rs t o d ru g t re a t m e n t ra t h e r
t h a n p ro b a t io n o r p ris o n .
Th e m a in p u rp o s e s o f d ru g co u rt s a re t o re d u ce re cid ivis m a n d re d u ce th e
ca s e lo a d o f t h e re gu la r co u rt s .
Th e e m p irica l re s e a rch s u gge s t s t h a t d ru g co u r t s a re m o r e e ffe ct ive a t
r e d u cin g r e cid ivis m t h a n t ra d it io n a l p ro b a t io n o r p r is o n .
Speeding Up the Courts
When there are too many cases being processed by the courts, the speed at
which cases can be processes slows down, sometimes dramatically .
This is especially problematic in criminal courts where defendants have a
constitutional guarantee of a speedy trial .
For this and other reasons, the public is dissatisfied when case resolution
becomes a long, drawn -out process .
The Speedy Trial Act of 1974
At the federal level, there has been legislation to force the courts to run
The Speedy Trial Act of 1974 sets time standards for two different stages in
the federal progression .
The law stipulates that the prosecutor has a maximum of thirty days from
the time of arrest to arraign a suspect, and an additional seventy days from
the indictment to the trial .
Every state has followed the federal example by enacting some form of
speedy trial law . 21
The Role of Judges
The many responsibilities of the trial court judge extend throughout the entire
criminal court process .
From the time of an arrest, judges make critical decisions that have a deep
impact on the cases and lives of those accused of crimes .
Because they must evaluate probable cause and issue search and arrest
warrants, judges are often involved in criminal cases before an arrest takes
Functions of Trial Judges
Once the offender is arrested, the judge must decide if bail is to be granted,
the amount of bail, rule on pretrial motions made by both the prosecution
and the defense, hear pleas, referee trials, and pass sentences .
At all stages of the process, the judge must perform a balancing act,
protecting the rights of the accused while also protecting the best interest of
the public .
Functions of Appellate Judges
Appeals court judges have different responsibilities than trial judges .
While trial judges are mostly referees in the adversarial battle between
prosecution and defense, appeals court judges serve as legal scholars by
researching, clarifying, and writing opinions on legal issues.
Federal judges tend to be the cream of the crop .
They tend to come from families with a long history of public service and
attend the finest law schools in the world .
Some critics argue that those families are also wealthy, and that federal
judges are selected from the social and cultural elite and that the process is
State Judges and Politics
State level judges tend to be drawn heavily from whichever political party
dominates that particular state .
There are a variety of ways that judges are selected, depending on state law .
Some states have partisan elections, meaning that candidates for judgeships
run under the banner of a particular political party .
Other Methods of Selecting Judges
In other states, judges are elected, but they run as nonpartisan candidates,
meaning that they state no allegiance to a particular political party.
Some states use an appointment system, where the governor of the state
Still other states select judges by legislative appointment.
Some states, such as Missouri, use a merit system.
Judicial Decision Making
The very nature of being a judge requires making important decisions .
Judges make decisions that have an enormous impact on the lives of
Trial court judges are often called upon to make decisions in an instant, while
appeals court judges have more time to ponder weighty issues and seek input
from colleagues and staff .
Because of the doctrine of stare decisis , t h e d e cis io n s o f ju d ge s a r e t e m p e r e d
b y t h e e xis t in g le ga l la n d s ca p e .
Th a t is , m o s t ju d ge s fo llo w p re ce d e n t wh e n it is a va ila b le , a n d t ry t o u s e th e
le ga l lo gic o f p a s t ca s e s t o gu id e t h e m wh e n n o ve l le ga l q u e s t io n s a ris e .
Po litica l va lu e s o ft e n co m e in t o p la y, a lth o u gh t h e s e a r e n o t a s re a d ily
re co gn ize d a s is le ga l t ra d it io n .
Judges have an awesome amount of power, and this power sometimes
Judges, like other criminal justice professionals, sometimes act in unethical
and illegal ways.
These inappropriate activities undermine the public confidence in the
judiciary and create injustice .
Each state has some sort of mechanism in place to deal with unethical
conduct by judges .
At the federal level, judges can only be removed by impeachment by the
The founding fathers decided early on that the courts should be independent
of the other branches of government .
There are several reasons for this separation of powers . Perhaps the most
important reason for judicial independence is that it allows judges to preside
over cases in a just and impartial way.
Another important reason is that the courts serve as a check on the power of
the executive and legislative branches .
Influence on the Judiciary
It is a mistake, however, to view the judiciary as completely independent.
The other branches of government have the ability to influence the judiciary.
The executive often has the power of appointment over judges.
The legislative branch has the power of the purse, controlling the budget of
These powers, while significant, are limited.
Federal judges, for example, are appointed for life tenure .
That means that once appointed by the executive, they cannot be fired .
The founding fathers formed government in this way because they
understood that a judge fearful of losing his job could not be a neutral and
detached magistrate that is willing to rule against the legislative or the
Juveniles and the Courts
Just as with the adult criminal justice system, the courts powerfully influence
the juvenile justice system.
This is true at both the juvenile court level, and at the appellate level.
Perhaps the most important member of the juvenile justice system is the
juvenile court judge .
Juvenile judges have the role of a traditional judge, but this role is greatly
expanded when a judge presides over a juvenile court .
In many jurisdictions, the juvenile judge oversees not only the operations of
the juvenile court, but juvenile probation departments as well .
In many small jurisdictions, juvenile court judges are responsible for the
fiscal management of the courts as well as probation departments .
The beliefs, attitudes, and behaviors of juvenile judges can have an incredible
impact on other criminal justice agencies in particular, and the entire
community in general .
For example, judges that do a poor job of dealing with juvenile delinquency in
the schools runs the risk of creating a disruptive and lawless learning
At the other end of the spectrum, judges that are overly punitive in their
decisions run the risk of violating the doctrine of parens patriae .
Much of what juvenile court judges do can be described as a balancing act.
Juvenile judges must ensure that all processes and decisionmaking are carried
out in a fair and unbiased manner .
They must make sure that all decisions balance the best interests of the
juvenile with the best interests of the victim and community .
In addition, they must ensure that the constitutional rights of all parties are
The Supreme Court and Juveniles
Historically, juvenile proceedings rarely made it to the U.S. Supreme Court.
Starting with the Warren court in the 1960s, however, the Supreme Court
handed down several cases that dramatically altered the structure and
function of the juvenile justice system.
Kent v. United States(1966)
Held that juveniles must be afforded due process rights in court proceedings.
In re Gault (1967)
Held that juveniles accused of crimes must be afforded many of the same due
process rights as adults.
Breed v. Jones(1975)
Held that finding a child delinquent in a juvenile court then trying the child in
adult court amounts to double jeopardy.
Schall v. Martin(1984)
Held that the preventive detention of a juvenile does not necessarily violate
Doe v. Renfrow(1981)
Upheld a lower court decision that a search of schoolchildren for narcotics by
a drug dog is not rights violation.
New Jersey v. TLO(1985)
Set the evidentiary standard for searches of students by school officials at
Qutb v. Strauss (1993)
Held that curfew laws were constitutional because they are designed to
protect the community.
Section 5.2: The Prosecution and Defense
Prepared by Adam J. McKee
An Adversarial Process
Recall that the United States has an adversarial legal system .
This means that all criminal matters decided by the courts are a contest
between a lawyer for the state and (in most cases) a lawyer for the defense .
These “adversaries” are ethically required to do their utmost to prevail in
Prosecutors at the federal level prosecute different types of crimes than their
state court counterparts.
Regardless of the level of government, it is the prosecutor’s job to present the
government’s case against criminal defendants.
The purpose of this is to demonstrate guilt to the finder of fact.
Prosecutors often work with law enforcement personnel to ensure that
evidence is in order prior to launching criminal proceedings .
It is also among the duties of the prosecutor to see that justice is done ; this
can mean sharing evidence that tends to prove the defendant’s guilt .
In federal courts, prosecutors are known as United States Attorneys .
All 94 fe d e ra l co u rt d is t rict s in t h e Un it e d St a t e s h a ve a U.S. At t o rn e y.
Th e y a re a p p o in t e d b y t h e Pre s id e n t , a n d fu n ct io n m a in ly a s a d m in is t ra t o rs .
Assistant U.S. Attorneys u s u a lly co n d u ct a ct u a l p ro s e cu t io n s .
What They Go After
The almost 2,000 assistant federal prosecutors investigate violations of federal
laws, focusing on matters beyond the scope of local law enforcement
operations, such as
● public corruption
● large scale drug trafficking
● white collar crime
At the state and local level of government, prosecutors are usually called
District Attorneys (D.A.).
So m e ju ris d ict io n s , s u ch a s Illin o is , ca ll t h e s e go ve r n m e n t la wye r s St a te ‘s
At t o rn e ys .
Dis t rict At t o rn e ys h a ve a la rge a m o u n t o f d is cre t io n .
Officia l a ct io n fo r p ro s e cu t o ria l m is co n d u ct is ra re , a n d d iffe r e n t ju ris d ict io n s
d e a l wit h it in d iffe r e n t wa ys .
Some jurisdictions allow for the prosecution of violations and some
misdemeanors at the local level.
These City Attorneys prosecute minor offenses that often only result in fines
such as traffic offenses, nuisance offenses, and violations involving alcohol .
Some jurisdictions allow these attorneys to prosecute misdemeanor cases
that can result in jail time .
Independent counsels are lawyers that serve as prosecutors in cases where
high -level government officials are charged with misconduct .
The reason they exist is to prevent the abuse of government power .
The U.S. attorney general has the power to appoint an independent counsel
when he or she determines that there is sufficient evidence to warrant the
investigation of high -ranking government officials, including members of the
United States Congress.
Prosecutors arguably have the most discretion of any actor in the criminal
justice system .
They make decisions as to who to charge, what to charge them with, when
charges should be dropped, and whether or not to plea bargain .
While the discretion of prosecutors is nearly unfettered, it is most commonly
used in three main areas: the discretionary decisions to file charges, dismiss
charges, and offer plea bargains .
While police initially inform criminal defendants of the charges against them,
it is up to the prosecutor to decide what the exact formal charges will be.
First, however, the prosecutor must make the decision to prosecute persons
accused by the police, or to not prosecute them.
The decision to prosecute is linked to several factors.
Perhaps the most important factor is the strength of the evidence against the
Ob vio u s ly, p ro s e cu t o rs d o n o t like t o m o ve fo rwa rd wit h ca s e s t h e y ca n n o t
win . 11
The seriousness of the offense is another important factor .
Offenses that are more serious are more likely to be prosecuted .
Other factors are resource based .
The prosecutor must consider both prosecutorial resources and the size of
the court’s docket .
Community resources are also important : Prosecutors can only seek
alternatives to prosecution and prison when those resources are available .
The characteristics of the defendant are important as well .
The defendant’s degree of culpability and criminal history factor into the
equation, influencing the prosecutor to prosecute more aggressively and to
seek harsher punishments .
Cooperation with the police and a willingness to help prosecute others
influence the prosecutor to seek lighter sentences .
Once charges are filed by a prosecutor, there is still a wide discretion as to
how to move the case forward .
The prosecutor can decide to go forward to trial with the case.
An alternative is to make a plea bargain where the defendant is offered a
lighter sentence for a guilty plea .
The prosecutor can also enter a nolle prosequi .
A n o lle p ro s e q u i is a fo rm a l s t a t e m e n t b y a p ro s e cu t o r s t a t in g t h a t a ca s e will
b e d ro p p e d .
Pro s e cu t o r s ca n e n t e r a n o lle p ro s e q u i (o ft e n a b b re via t e d a s nol. pros.) wh e n
t h e ca s e is d e e m e d t rivia l, e vid e n ce is d e t e rm in e d b y t h e co u rt t o b e
in a d m is s ib le , t h e r e is in s u fficie n t e vid e n ce , a n d wh e n it is d is co ve re d th a t fa ls e
a ccu s a t io n s we re m a d e .
Prosecutors have a great deal of discretion when negotiating plea bargains
wit h t h e d e fe n s e .
A p le a b a rga in is a n a gre e m e n t in wh ich t h e p ro s e cu t o r p e rm it s t h e d e fe n d a n t
t o p le a d gu ilt y in e xch a n ge fo r co n ce s s io n s s u ch a s re d u ce d ch a rge s o r le n ie n t
s e n t e n ce re co m m e n d a t io n s .
Bo t h t h e p ro s e cu t io n a n d t h e d e fe n s e ca n b e n e fit fro m p le a b a rga in s .
Plea Bargain Benefits
For the defense, the obvious benefit is a reduced sentence .
For the prosecution, plea bargaining is a matter of conserving resources, both
the prosecutor’s resources and the courts .
If plea bargaining did not occur, the work of the courts would slowly stop .
The role of the defense attorney is to champion the defense at every stage
adversarial legal process .
This role is critical to maintaining fairness in the criminal justice system .
Many different tasks are the responsibility of the defense attorney .
Defense attorneys protect the rights of the accused in pretrial processes such
as police interrogations and lineups .
Defense Attorney Roles
Defense attorneys must work with prosecutors and determine the strength of
the cases against their clients .
They must represent their clients at bail hearings, suppression hearings, and
other pretrial matters .
Defense attorneys must devise a defense strategy that can include plea
bargaining or going on to trial .
When cases do go on to trial, defense attorneys represent their clients in
When clients are found guilty, defense attorneys represent their clients at
sentencing hearings, arguing against the measures proposed by the
Defense attorneys also represent their clients in appeals when the results of a
trial are unfavorable .
Types of Defense
While there are a staggering number of variations when specific details are
examined, there are three basic ways that criminal defendants can defend
themselves in court :
1. hire their own private attorney
2. utilize legal services provided by the government for the poor
3. represent themselves
Because self-representation is a notoriously bad idea, most criminal
defendants choose one of the first two options .
Legal Services for the Indigent
In the criminal justice system, most criminal defendants cannot afford to hire
a private lawyer to represent them.
Historically, this meant that only the wealthy could have lawyers to represent
them in many state courts.
In 1963, this situation changed.
It was in this year that the Supreme Court handed down the famous Gideon v.
Wainwright d e cis io n .
Gideon v. Wainwright
In this case, the court held that an indigent defendant charged in state courts
with a felony offense had a due process right to be represented by counsel .
Later, in a 1972 case styled Argersinger v. Hamlin , th e co u rt r e fin e d t h is ru le
b y e xt e n d in g t h e righ t t o co u rt-a p p o in t e d co u n s e l wh e n e ve r t h e re wa s a
d a n ge r o f t h e d e fe n d a n t b e in g s e n t e n ce d t o p ris o n .
Th is re m a in s t h e s t a n d a rd t o d a y.
Th o s e a ccu s e d o f m in o r o ffe n s e s t h a t re s u lt o n ly in a fin e , s u ch a s t ra ffic
vio la t io n s , a re n o t e n t it le d t o s t a t e -fu n d e d a t t o rn e ys .
What Does “Indigent” Mean?
The term indigent can be misleading .
The term poor u s u a lly d e fin e it , b u t m o s t s t a t e s d o n o t re q u ir e t h a t a
d e fe n d a n t b e wit h o u t a n y m e a n s a t a ll t o q u a lify fo r a p p o in t e d co u n s e l.
It is h a rd t o b e s p e cific a b o u t th e s e re q u ir e m e n t s b e ca u s e e ve r y s t a t e m a ke s
it s o wn ru le s .
Th e q u a lifica t io n s a re s u fficie n tly b ro a d in s co p e t h a t m o r e t h a n 80% o f
crim in a l d e fe n d a n t s a ccu s e d o f a fe lo n y u s e a p p o in t e d co u n s e l fo r t h e ir
d e fe n s e .
Many advocates believe that free legal defense services are underfunded in
the United States because the concept of providing tax -funded legal services
to “criminals” is politically unpopular .
Many believe that this state of affairs causes unacceptably high caseloads,
which forces attorneys to recommend actions that are not in the best interest
of the client, such as accepting plea bargains .
The typical private defense attorney has several years’ experience working
with criminal cases as a government employee, such as with a prosecutor’s
office or a public defender’s office .
Veteran criminal defense attorneys can set very high fees.
The amount of fees charged is also related to the complexity of the case and
whether the attorney has to appear at trial .
There is an old adage in the legal community that “a lawyer that represents
himself in court has a fool for a client .”
The very nature of our adversarial system makes it very difficult to mount an
effective legal defense for one’s self.
It is nearly impossible, for example, to cross-examine yourself without looking
If this is true for legal professionals, then it is even more so for non -lawyers .
Faretta v. California
Despite the lack of efficacy, the Supreme Court determined in Faretta v.
California (1975) t h a t t h e p e o p le h a ve a righ t t o s e lf-re p re s e n t a t io n in crim in a l
ca s e s .
Th e re a re a fe w re s t rict io n s p la ce d o n t h e s e in d ivid u a ls .
Th e ke y le ga l re q u ire m e n t is t h a t t h e d e fe n d a n t s knowingly and voluntarily
wa ive t h e righ t t o co u n s e l.
Woven into the very fabric of our legal system is the idea that the process
should be fair to everyone .
Fairness often means that the legal system has to treat every individual the
same way, regardless of race, creed, religion, sex, and so forth .
This idea that everybody has to be treated by the government in the same,
fair way is summed up in the term procedural due process .
Th is id e a is e n s h rin e d in th e Bill o f Righ t s , a n d ca n b e fo u n d in b o t h t h e Fift h
a n d t h e Fo u rt e e n t h Am e n d m e n t s .
Criticisms of Defendant’s Rights
Some critics argue that these measures serve to protect criminals and should
accordingly be done away with.
This is not a very carefully considered position.
Un d e r o u r le ga l s ys t e m , t h o s e a ccu s e d o f crim e s a re a s s u m e d in n o ce n t u n t il
p ro ve n gu ilt y in a co u rt o f la w.
The Price of Freedom?
Most American’s are not willing to accept such blatant abuses of human rights,
and so our constitution protects us from them by design.
There is just no way to protect the rights of everyday citizens without
protecting the rights of criminals along with them until the criminals can be
convicted in a court of law.
Why We Need These Rights
If these rights were not protected for all people , then every citizen, regardless
of any wrongdoing, would be subject to searches of their persons, vehicles,
and houses .
They would be subject to arrest, confinement, and questioning under duress
or even torture .
Section 5.3: Pretrial Process
Prepared by Adam J. McKee
Television legal dramas have trained the American people to …
Section 3.1: Sources of Criminal Law
Prepared by Adam J. McKee
Clearing Up Some Confusion
The term criminal law ca n b e co n fu s in g.
Th is is b e ca u s e s o m e s o u rce s u s e it in a ve r y ge n e ra l wa y t o d e s crib e t h e
e n t ire s p e ct r u m o f la ws d e a lin g wit h th e crim in a l ju s t ice s ys t e m ; o th e r s u s e it
a s a s h o rt h a n d wa y o f re fe r rin g t o wh a t is a ls o kn o wn a s t h e substantive
criminal law .
How the Text Does It
The text follows the latter approach by using the heading criminal law to refer
to the substantive criminal law , wh ich is t h e p a rt o f th e la w t h a t d e s crib e s
wh a t a ct s a re p ro h ib it e d a n d wh a t p u n is h m e n t s a re a s s o cia t e d wit h th o s e
a ct s .
Als o in clu d e d a re legal defenses (s u ch a s t h e in s a n ity d e fe n s e ) t h a t a p p ly in
crim in a l ca s e s .
Felonies and Misdemeanors
This distinction depend largely on the seriousness of the offense and the type
of punishment associated with the offense .
Things like petty thefts, simple assault, disorderly conduct, and public
drunkenness are relatively nonserious crimes classified as misdemeanors .
Mis d e m e a n o r s a r e u s u a lly o n ly p u n is h a b le b y fin e a n d im p ris o n m e n t in a
lo ca l ja il fo r a p e rio d le s s t h a n a ye a r.
Felonies are serious crimes (e.g., rape, murder, burglary, kidnapping) where
the punishment can be death or a long period (at least a year) of incarceration
in a state -run prison .
Note that this distinction depends on the sentence ; some convicts go to prison
for less than a year because of early release programs such as “good time”
and parole .
Illegal v. Evil
There is also a distinction between types of criminal law based in the
inherent evil of the act.
If the act is “wrong in itself,” it is considered a mala in se o ffe n s e .
If a n a ct is n o t n e ce s s a rily e vil a n d is o n ly co n s id e r e d crim in a l b e ca u s e it is
p ro h ib it e d b y t h e go ve rn m e n t , it is co n s id e re d a mala prohibita o ffe n s e .
Mo s t s o -ca lle d “vict im le s s crim e s ” a re m a la p ro h ib it a o ffe n s e s .
Be ca u s e p e o p le ‘s vie ws va r y s o wid e ly a s t o t h e in h e r e n t wro n gn e s s o f a n
a ct , t h e re is n o a b s o lu t e s t a n d a rd fo r cla s s ifica t io n .
Criminal acts that are highly visible to the public are often referred to as
visible crime , ordinary crime , o r street crime .
Th e o ve rt n a tu re o f s u ch cr im e s m a ke s n o t ice b y p o lice m o r e like ly, a n d t h u s
p ro s e cu t io n m o re like ly.
Mu rd e r is a co m m o n e xa m p le : Mo s t m u rd e r s co m e t o t h e a t t e n t io n o f t h e
p o lice , a n d p ro s e cu t io n is m o re like ly t h a n fo r m o s t o t h e r o ffe n s e s .
Occupational crimes are less obvious.
These are crimes that a particular job provides the criminal opportunity.
The most common example is embezzlement .
Crimes committed by groups with a discernable organization structure are
classified as organized crime .
Organized crime is considered especially heinous because groups can cause
more criminal damage, and the groups make for more difficult investigations
and prosecutions .
A large swath of criminal offenses involving computers and related
technologies are collectively known as cybercrime.
Cybercrime in vo lve s d is p a ra t e a ct s s u ch a s d is t rib u tin g ch ild p o rn o gra p h y,
s e n d in g o u t m a s s e m a ils in a n a t t e m p t t o o b t a in id e n tifyin g in fo rm a t io n
(p h is h in g), d is t rib u tin g viru s e s d e s ign e d t o d a m a ge co m p u te r s ys t e m s ,
h a ckin g in t o b u s in e s s co m p u t e rs t o s t e a l m o n e y, a n d s o fo rt h .
Crimes that are motivated by bias toward a particular race, religion, ethnicity,
or sexuality are known as hate crimes .
At civil law, a wrong done to another person is called a tort .
Wh e n a h a rm e d in d ivid u a l (t h e p la in t iff) win s a t o rt ca s e in civil co u rt , t h e y
m a y a ls o win a m o n e y a wa rd re fe rre d t o a s damages .
In o t h e r wo rd s , t o rt s a re p riva t e wro n gs .
Criminal Law Theory
A criminal prosecution operates under a different legal theory .
A crime, the theory holds, may harm the individual, but it also harms all of
Since the people are represented by the state, all criminal prosecutions are
brought forward in the name of the state .
Who Brings Criminal Charges?
What the “state” calls itself can vary from state to state ; some prosecutions are
done in the name of the people, and some are done in the name of the
Regardless of how the case is named, a prosecutor working for the
government on behalf of society brings it forward .
Criminal and Civil Interaction
It is important to note that the criminal system and the civil system sometimes
A person can be found guilty of a crime in criminal court, and found liable for
a tort for the exact same behavior .
In addition, individuals that have suffered losses due to criminal actions can
sometimes use the civil courts to recoup their losses.
A Matter of Statute
While the United States is a common law country, most criminal laws are a
matter of statutes today .
An essential difference between a state criminal statute and a federal criminal
statute is that federal laws will usually contain a jurisdictional element .
Because of the constitutional limits placed on the authority of Congress to
make criminal laws, federal criminal statutes must be tailored to a particular
power delegated to Congress, such as the power to regulate interstate
Most criminal laws exist on the state level because of this limitation .
When a particular act is criminal on both the state and federal level, there is
overlapping jurisdiction in the case.
As a matter of constitutional law, the person could be prosecuted on both
the state and federal level.
In practice, this rarely happens .
In a few high -profile cases, federal prosecutors have taken up a case when
the public widely perceived that justice was not done in state courts (e.g., the
Rodney King police brutality case).
The Common Law
The term common law ca n b e d is t u rb in gly va gu e fo r t h e s t u d e n t .
Th a t is b e ca u s e d iffe re n t s o u rce s u s e it in s e ve ra l d iffe re n t wa ys wit h s u b t le
d iffe re n ce s in m e a n in g.
Th e b e s t wa y t o ge t a gra s p o n th e t e r m ’s m e a n in g is to u n d e r s t a n d a lit t le o f
t h e h is t o ry o f t h e Am e rica n le ga l s ys t e m .
Co m m o n la w, wh ich s o m e s o u rce s r e fe r t o a s “ju d ge -m a d e ” la w, firs t
a p p e a r e d wh e n ju d ge s d e cid e d ca s e s b a s e d o n t h e le ga l cu s t o m s o f
m e d ie va l En gla n d a t t h e t im e .
An Oral Tradition
It may be hard for us to imagine today, but in the early days of English
common law, the law was a matter of oral tradition.
That is, the definitions of crimes and associated punishments were not written
down in a way that gave them binding authority.
By the end of the medieval period, some of these cases were recorded in
written form .
Over a period, imported judicial decisions became recorded on a regular basis
and collected into books called reporters .
The English-speaking world is forever indebted to Sir William Blackstone, an
English legal scholar, for collecting much of the common law tradition of
England and committing it to paper in an organized way.
His four -volume set, Commentaries on the Laws of England , wa s ta ke n to t h e
co lo n ie s b y t h e fo u n d in g fa t h e rs .
Th e fo u n d in g fa th e r s in co r p o ra t e d t h e co m m o n la w o f En gla n d in to t h e la ws
o f t h e Co lo n ie s , a n d u lt im a t e ly in t o t h e la ws o f t h e Un it e d St a t e s .
The Modern Link to Common Law
In modern America, most crimes are defined by statute.
These statutory definitions use ideas and terms that come from the common
When judges take on the task of interpreting a statute, they still use common
law principles for guidance.
The definitions of many crimes, such as murder and arson, have not
deviated much from their common law origin.
Other crimes, such as rape, have seen sweeping changes.
The Doctrine of Precedent
One of the primary characteristics of the common law tradition is the
importance of precedent .
Known by the legal Latin phrase stare decisis , th e d o ct rin e o f p re ce d e n ce
m e a n s t h a t o n ce a co u r t m a ke s a d e cis io n o n a p a rt icu la r m a t t e r, t h e y a re
b o u n d t o ru le t h e s a m e wa y in fu t u re ca s e s t h a t h a ve t h e s a m e le ga l is s u e .
Th is is im p o rt a n t b e ca u s e a co n s is t e n t ru lin g in id e n t ica l fa ct u a l s it u a tio n s
m e a n s t h a t e ve ryo n e ge t s t h e s a m e t re a t m e n t b y t h e co u rt s .
Th e d o ct rin e o f stare decisis e n s u re s e q u a l t re a t m e n t u n d e r t h e la w.
When the founding fathers signed the Constitution, they all agreed that it
would be the supreme law of the land ; the Framers stated this profoundly
important agreement in Article VI.
Aft e r t h e la n d m a rk ca s e o f Marbury v. Madison (1803), t h e Su p re m e Co u rt
h a s h a d t h e p o we r t o s t rike d o wn a n y la w o r a n y go ve rn m e n t a ct io n th a t
vio la t e s co n s t it u t io n a l p rin cip le s .
Th is p re ce d e n t m e a n s t h a t a n y la w m a d e b y t h e Co n gr e s s o f t h e Un ite d
St a t e s o r t h e le gis la t ive a s s e m b ly o f a n y s t a t e t h a t d o e s n o t m e e t
co n s t it u t io n a l s t a n d a rd s is s u b je ct t o n u llifica t io n b y t h e Su p re m e Co u rt o f
t h e Un it e d St a t e s . 25
Every state adopted this idea of constitutional supremacy when creating their
All state laws are subject to review by the high courts of those states .
If a state law or government practice (e.g., police, courts, or corrections)
violates the constitutional law of that state, then it will be struck down by that
state’s high court .
Local laws are subject to similar scrutiny .
Statutes are written laws passed by legislative assemblies .
Modern criminal laws tend to be a matter of statutory law .
In other words, most states and the federal government have moved away
from the common -law definitions of crimes and established their own
versions through the legislative process .
Thus, most of the criminal law today is made by state legislatures, with the
federal criminal law being made by Congress.
Legislative assemblies tend to consider legislation as it is presented, not in
This chronological ordering makes finding the law concerning a particular
matter very difficult.
To simplify finding the law, most all statutes are organized by subject in a set
of books called a code.
Th e b o d y o f s t a t u t e s t h a t co m p ris e s t h e crim in a l la w is o ft e n re fe rre d t o a s
t h e crim in a l co d e , o r le s s co m m o n ly a s t h e penal code .
The clear distinction between the executive, legislative, and judicial branches
of government becomes blurry when U.S. governmental agencies and
commissions are considered .
These types of bureaucratic organizations can be referred to as semi –
legislative and semi -judicial in character .
These organizations have the power to make rules that have the force of law,
the power to investigation violations of those laws, and the power to impose
sanctions on those deemed to be in violation .
Who Makes these “Laws?”
Examples of such agencies are the Federal Trade Commission (FTC), the
Internal Revenue Service (IRS), and the Environmental Protection Agency
When these agencies make rules that have the force of law, the rules are
collectively referred to as administrative law .
When the appellate courts decide a legal issue, the doctrine of precedence
means that future cases must follow that decision .
This means that the holding in an appellate court case has the force of law:
Such laws are often referred to as case law .
The entire criminal justice community depends on the appellate courts,
especially the Supreme Court, to evaluate and clarify both statutory laws and
government practices against the requirements of the Constitution .
These legal rules are all set down in court cases.
Section 3.2: Substantive Criminal Law
Prepared by Adam J. McKee
Defining Criminal Law
The criminal law in its broadest sense encompasses both the substantive
criminal law and criminal procedure .
In a more limited sense, the term criminal law is used to denote the
substantive criminal law, and criminal procedure is considered another
category of law.
Most college criminal justice programs organize classes this way.
Substantive Criminal Law
Recall that the substantive law defines criminal acts that the legislature wishes
to prohibit and specifies penalties for those that commit the prohibited acts.
For example, murder is a substantive law because it prohibits the killing of
another human being without justification.
No Crime Without Law
It is fundamental to the American way of life that there can be no crime
without law. This concept defines the idea of the Rule of Law.
The rule of law is the principle that the law should govern a nation, not an
The importance of the rule of law in America stems from the colonial
experience with the English monarchy.
It follows that, in America, no one is above the law.
Unlike the governments of other countries, the legislative assemblies of the
United States do not have unlimited power.
The power of Congress to enact criminal laws is circumscribed by the
These limits apply to state legislatures as well.
Bills of Attainder and Ex Post Facto L
A bill of attainder is an enactment by a legislature that declares a person (or
a group of people) guilty of a crime and subject to punishment for
committing that crime without the benefit of a trial.
An ex post facto law is a law that makes an act done before the legislature
enacted the law criminal and punishes that act.
The prohibition also forbids the legislature from making the penalty for a
crime more severe retroactively.
Both of these types of laws are strictly prohibited by the Constitution.
Fair Notice and Vagueness
The due process clauses of the Fifth and Fourteenth Amendments mandate
that the criminal law afford fair notice.
The idea of fair notice is that people must be able to determine exactly what is
prohibited by the law, so vague and ambiguous laws are prohibited.
If a law is determined to be unclear by the Supreme Court, it will be struck
down and declared void for vagueness .
Such laws would allow for arbitrary and discriminatory enforcement if allowed
The First Amendment
The First Amendment to the United States Constitution guarantees all Americans the
“freedom of expression.”
Among these “expressions” are the freedom of religion and the freedom of speech.
In general, Americans can say pretty much whatever they like without fear of
The First Amendment and Criminal La
Any criminal law passed by the legislature that infringes on these rights would not
withstand constitutional scrutiny.
There are, however, some exceptions.
Clear and Present Danger
When the health and safety of the public are at issue, the government can
curtail the freedom of speech.
One of the most commonly cited limiting principles is what has been called
the clear and present danger test .
This test, established by the Supreme Court in Schenck v. United States (1919),
prohibits inherently dangerous speech, such as falsely shouting “fire!” in a
Another prohibited type of speech has been referred to as fighting words .
This means that the First Amendment does not protect speech calculated to
incite a violent reaction.
Other Unprotected Speech
Other types of unprotected speech include hate speech, profanity, libelous
utterances, and obscenity.
These latter types of speech are very difficult to regulate by law because they
are very hard to define and place limits on.
The current trend has been to protect more speech that would have once
been considered obscene or profane.
Freedom of Religion
The freedom to worship as one sees fit is also enshrined in the Constitution.
Appellate courts will strike down statutes that are designed to restrict this
freedom of religion .
The high court has protected door -to -door solicitations by religious groups
and even ritualistic animal sacrifices.
Limits on Religious Freedom
The Court, however, has not upheld all claims based on the free exercise of
Statutes criminalizing such things as snake handling, polygamy, and the use of
hallucinogenic drugs have all been upheld.
The Freedom of Assembly
The First Amendment protects the right of the people to assemble publicly,
but it is not absolute.
The courts have upheld restrictions on the time, place, and manner of public
assemblies, so long as those restrictions were deemed reasonable.
The reasonableness of such restrictions usually hinges on a compelling state
The freedom of assembly does not protect conduct that jeopardizes the public
health and safety.
The Second Amendment
The constitutionally guaranteed “right to keep and bear arms” in the Second
Amendment is by no means absolute has been the source of much litigation
and political debate in recent years.
The Supreme Court has established that the second Amendment confers a
right to the carrying of a firearm for self -defense, and that right is applicable
via the Fourteenth Amendment to the states.
Restrictions on the Second Amendme
Typical restrictions include background checks and waiting periods.
Some jurisdictions highly regulate the concealing, carrying, and purchase of
firearms, and many limit the type of firearms that can be purchased.
Many criminal laws have enhanced penalties when they are committed with
Most gun laws and concealed carry laws vary widely from jurisdiction to
The Eighth Amendment to the United States Constitution prohibits the
imposition of Cruel and Unusual Punishments.
Both the terms cruel and unusual do not mean what they mean in everyday
usage; they are both legal terms of art.
The Supreme Court has incorporated the doctrine of proportionality into the
Doctrine of Proportionality
Proportionality means that the punishment should fit the crime, or at least
should not be grossly disproportionate to the offense.
The idea of proportionality has appeared in cases that considered the grading
of offenses, the validity of lengthy prison sentences, and whether the
imposition of the death penalty is constitutional.
The legal controversies of three strikes laws and the death penalty will be
discussed at greater length in a later section.
The Right to Privacy
Most American’s view the right to privacy as a fundamental human right.
It is shocking, then, to find that the Constitution never expressly mentions a
right to privacy.
The Supreme Court agrees that such a right is fundamental to due process
and has established the right as being inferred from several other guaranteed
Among these are the right of free association, the prohibition against
quartering soldiers in private homes, and the prohibition against
unreasonable searches and seizures.
The Right to Privacy and Criminal Law
The right to privacy has been used to protect many controversial practices
that were (at least at the time) socially unacceptable to large groups of people.
Early courts decided that laws prohibiting single people from purchasing
contraceptives were unconstitutional based on privacy rights arguments.
The right to an abortion established in Roe v. Wade (1973) h in ge d p rim a rily
o n a p riva cy righ t s a rgu m e n t .
Mo re re ce n t ly, in Lawrence v. Texas (2003), t h e co u rt ru le d t h a t la ws
p ro h ib it in g p riva t e h o m o s e xu a l s e xu a l a ct ivit y we re u n co n s t it u t io n a l.
In t h e Lawrence ca s e , p riva cy righ t s we re t h e d e cid in g fa ct o r.
Section 3.3: Elements of Crimes
Prepared by Adam J. McKee
The Importance of Elements of Crime
The legal definitions of all crimes contain certain elements .
If the government cannot prove the existence of these elements, it cannot
obtain a conviction in a court of law.
Other elements are not part of all crimes, but are only found in crimes that
prohibit a particular harm .
Distinguishes Between Offenses
Often, a difference in one particular element of a crime can distinguish it from
another related offense, or a particular degree of the same offense.
At common law, for example, manslaughter was distinguished from murder
by the mental element of malice aforethought .
The Actus Reus
Nobody can read minds, and the First Amendment means that people can
say pretty much whatever they want.
What you think and say (within limits) is protected. It is what you do —your
behaviors —that the criminal law seeks to regulate.
Lawyers use the legal Latin phrase actus reus t o d e s crib e t h is e le m e n t o f a
crim e .
“Act” is a verb!
It is commonly translated into English as the guilty act.
The term act ca n b e a b it co n fu s in g.
Mo s t p e o p le t e n d t o t h in k o f t h e t e rm a ct a s a n a ct io n ve rb —it is s o m e t h in g
t h a t p e o p le d o .
Th e crim in a l la w o ft e n s e e ks t o p u n is h p e o p le fo r t h in gs t h a t t h e y d id n o t d o .
Wh e n t h e la w co m m a n d s p e o p le t o t a ke a p a rt icu la r a ct io n a n d t h e y d o n o t
t a ke t h e co m m a n d e d a ct io n , it is kn o wn a s a n o m is s io n .
Threats and Attempts
Threatening to act or attempting an act can also be the actus reus e le m e n t o f
a n o ffe n s e .
In addition to acts and omissions, possession of something can be a criminal
The possession of certain weapons, illicit drugs, burglary tools, and so forth
are all guilty acts as far as the criminal law is concerned.
Types of Possession
Actual possession is the legal idea that most closely coincides with the
everyday use of the term.
Actual possession refers to a person having physical control or custody of an
In addition to actual possession, there is the idea of constructive possession .
Constructive possession is the legal idea that the person had knowledge of
the object, as well as the ability to exercise control over it.
A fundamental principle of law is that to be convicted of a crime, there must
be a guilty act (the actus reus) and a culpable mental state .
Recall that culpability means blameworthiness.
In other words, there are literally hundreds of legal terms that describe
mental states that are worthy of blame.
The most common is intent .
The Model Penal Code
The Model Penal Code boils all of these different terms into four basic
culpable mental states:
According to the Model Penal Code, a person acts purposely when “it is his
conscious object to engage in conduct of that nature….”
A person acts knowingly if “he is aware that it is practically certain that his
conduct will cause such a result.”
In other words, the prohibited result was not the actor’s purpose, but he knew
it would happen.
A person acts recklessly if “he consciously disregards a substantial and
Further, “The risk must be of such a nature and degree that, considering the
nature and purpose of the actor’s conduct and the circumstances known to
him, its disregard involves a gross deviation from the standard of conduct that
a law-abiding person would observe in the actor’s situation.”
A person acts negligently when “he should be aware of a substantial and
unjustifiable risk that the material element exists or will result from his
The idea is that a reasonably carefully person would have seen the danger,
but the actor did not.
At times, the legislature will purposely exclude the mens rea e le m e n t fro m a
crim in a l o ffe n s e .
Th is le a ve s o n ly t h e gu ilt y a ct t o d e fin e t h e crim e .
Crim e s wit h n o cu lp a b le m e n t a l s t a t e a re kn o wn a s s t rict lia b ilit y o ffe n s e s .
Mo s t o f t h e t im e , s u ch crim e s a re m e re vio la t io n s s u ch a s s p e e d in g.
An o ffice r d o e s n o t h a ve t o give e vid e n ce t h a t yo u we re s p e e d in g p u rp o s e ly,
ju s t t h a t yo u we re s p e e d in g.
Strict Liability and Seriousness
If violations such as this had a mental element, it would put an undue burden
on law enforcement and the lower courts.
There are a few instances where serious felony crimes are strict liability, such
as the statutory rape laws of many states.
For an act to be a crime, the act must be brought on by the criminal intent.
In most cases, concurrence is obvious and does not enter into the legal
An individual who breaks into a cabin in the woods to escape the deadly cold
After entering, the person decides to steal the owner’s property.
This would not be a burglary (at common law) since burglary requires a
breaking and entering with the intent to commit a felony therein.
Upon entry, the intent was to escape the cold, not to steal.
Thus, there was no concurrence between the guilty mind and the guilty act.
Criminal Harm and Causation
In criminal law, causation refers to the relationship between a person’s
behavior and a negative outcome.
Some crimes, such as murder, require a prohibited outcome.
There is no murder if no one has died (although there may be an attempt).
In crimes that require such a prohibited harm , the actus reus must have
caused that harm.
Section 3.4: Legal Defenses
Prepared by Adam J. McKee
The Role of Defenses in Court
To successfully obtain a conviction, the prosecutor must show all of the
elements of the crime beyond a reasonable doubt in criminal court.
This is not the end of it in some cases.
It must also be shown (if the issue is raised) that the actus reus a n d t h e mens
rea wa s p re s e n t , b u t a ls o t h a t t h e d e fe n d a n t co m m it t e d t h e a ct wit h o u t
ju s t ifica t io n o r e xcu s e .
Types of Legal Defenses
Both justifications and excuses are types of legal defenses.
If a legal defense is successful, it will either mitigate or eliminate guilt.
A justification consists of a permissible reason for committing an act that
would otherwise be a crime.
For example, it would be a crime to shoot a man dead on the street.
If, however, the man was a mugger and had the shooter at knifepoint, then
the justification of self -defense could be raised.
A justification means that an act would normally be wrong, but under the
circumstances it was the right thing to do.
When a criminal defendant uses an excuse, the act was not the right thing to
do, but society should nevertheless hold the actor less culpable because of
some extenuating circumstance.
The term insanity comes from the law; psychology and medicine do not use it.
The everyday use of the term can be misleading.
If a person acts abnormally, they tend to be considered by many as “crazy” or
Not All Mental Diseases Qualify
At law, merely having a mental disease or mental defect is not adequate to
It must be remembered that Jeffery Dahmer was determined to be legally
sane, even though everyone who knows the details of his horrible acts knows
that he was seriously mentally ill.
To use insanity as a legal excuse, the defendant has to show that he or she
1. the capacity to understand that the …
Section 6.1: Jails
Prepared by Adam J. McKee
The idea of jails has a long history, and the historical roots of American jails are in
the “gaols” of feudal England.
Sheriffs operated these early jails, and their primary purpose was to hold accused
persons awaiting trial.
This English model was brought over to the Colonies, and the function remained
In the 1800s, jails began to change in response to the penitentiary movement.
The Evolved Role of Jails
Their function was extended to housing those convicted of minor offenses and
sentenced to short terms of incarceration .
They were also used for other purposes, such as holding the mentally ill and
The advent of a separate juvenile justice system and the development of state
hospitals alleviated the burden of taking care of these later categories.
Today’s jails are critical components of local criminal justice systems.
They are used to address the need for secure detention at various points in the
criminal justice process.
Jails typically serve several law enforcement agencies in the community,
including local law enforcement, state police, wildlife conservation officers, and
federal authorities .
Jailsrespond to many needs in the criminal justice system and play an integral
role within every tier of American criminal justice.
A Dynamic Need
These needs are ever changing and influenced by the policies, practices, and
philosophies of the many different users of the jail.
Running a jail is a tough business, usually undertaken by a county sheriff .
Often, much of the Sheriff’s authority is delegated to a jail administrator .
Running a jail is such a complicated endeavor partly because jails serve an
extremely diverse population .
Unlike prisons where inmate populations are somewhat homogenous, fails hold
vastly different individuals.
Jails hold both men and women, and both children and adults. Most state
prisoners are serious offenders, whereas jails old both serious offenders as well
as minor offenders who may be vulnerable to predatory criminals.
Those suffering from mental illness, alcoholism, and drug addiction often find
themselves in jail.
It is in this environment that jail staff must accomplish the two major functions of
Booking and Intake
The booking and intake function of jails serves a vital public safety function by
providing a secure environment in which potentially dangerous persons can be
assessed,and the risk these individuals pose the public can be determined .
The second major function of jails is the idea of custody.
That is, people are deprived of their liberty for various reasons.
The two most common of these reasons are
1. pretrial detention
A major use of modern jails is what is often referred to as pretrial detention .
In o th e r wo rd s , ja ils re ce ive a ccu se d p e rs o n s p e n d in g a rra ign m e n t a n d h o ld
th e m a wa itin g tria l, co n victio n , o r s e n te n cin g.
Mo re th a n h a lf o f ja il in m a te s a re a ccu se d o f crim e s a n d a re a wa itin g tria l.
Th e a ve ra ge tim e b e twe e n a rre s t a n d s e n te n cin g is a ro u n d s ix m o n th s .
Other Judicial Hearings
Jails also readmit probation and parole violators and absconders, holding them
for judicial hearings.
The major purpose of pretrial detention is not to punish offenders, but to protect
the public and ensure the appearance of accused persons at trial.
How Many Jails Are There?
According to the Bureau of JusticeStatistics, there are around 3,300 jails currently
in operation within the United States.
This large number points to a very important fact: Jails are primarily a local
Jails(and detention centers) are facilities designed to safely and securely hold a
variety of criminal offenders, usually for a short period .
The wide variety of offenders comes from the fact that jails have dual roles.
The size of jails can vary widely depending on the jurisdiction the facility serves.
Both geographic and legal jurisdiction must be considered.
The single most important determinant of jail size is population density: The
more people a given jurisdiction has, the more jail inmates they are likely to
Many rural jails are quite small, but America’s largest population centers tend to
have massive jail complexes.
Most counties and many municipalities operate jails, and a few are operated by
federal and other non -local agencies. 13
There has been a trend for small, rural jurisdictions to combine their jails into
regional detention facilities.
These consolidated operations can increase efficiency, security, and better
ensure prisoners’ rights .
A primary function of jails is to house criminal defendants after arrest .
Within a very narrow window of time, the arrestee must appear before a judge.
The judge will consider the charges against the defendant and the defendant’s
risk of flight when determining bail.
The judge may decide to remand the defendant to the custody of the jail until
trial, but this is rare.
Most often, pretrial release will be granted .
Jails for Punishment
As a criminal sanctioning option, jails provide a method of holding offenders
accountable for criminal acts.
Jailshouse offenders that have been sentenced to a jail term for misdemeanor
offenses, usually for less than one year.
There are many ways that jail sentences can be served, depending largely on
the laws and policies of the particular jurisdiction .
A central goal of incarceration as punishment in the criminal justice system is
the philosophical goal of deterrence.
Rehabilitation and reintegration are sometimes considered secondary goals of
These goals are not usually deemed amenable to the jail environment, and few
programs designed to meet these goals exist.
Many local jails do make a modest effort to provide inmates with opportunities
for counseling and change to deter future criminal behavior, but always within
the constraints of scant resources.
Jails in some jurisdictions are responsible for transferring and transporting
inmates to federal, state, or other authorities .
Jails are also tasked with holding mentally ill persons pending their transfer to
suitable mental health facilities where beds are often unavailable.
Other Government Purposes
Jails also hold people for a variety of government purposes ; they hold
● Wanted by the armed forces
● For protective custody (individuals who may not be safe in the community)
● Found in contempt of court
● As witnesses for the courts
Jails often hold state and federal inmates due to overcrowding in prison
Jails are commonly tasked with community -based sanctions, such as work
details engaged in public services.
Arrestees often arrive at the jail with myriad many problems .
Substance abuse, alcohol abuse, and mental illness often mean that jail inmates
are not amenable to complying with the directions of jail staff.
Many have medical problems, psychological problems, and emotional problems .
Emotional & Behavioral Problems
Inmates can display the full gambit of human emotions : fail staff may see fear,
anxiety, anger, and depression every day.
Behaviors often mirror emotional state, and at times staff must deal with
noncompliant, suicidal, or violent inmates.
While inmates are in custody, the jail is responsible for their health and wellbeing.
Outside Influences on Jails
Jails function in a role as a service provider for the rest of the criminal justice
Jailadministrators have very little discretion in who goes to jail and how long they
remain in custody.
Law and policy play a big role in dictating who goes to jail, as do the discretionary
decisions of probation and parole officers, law enforcement, and judges.
Many jails temporarily detain juveniles pending transfer to juvenile authorities.
The trend in juvenile incarceration is toward lower numbers and a move toward
The juvenile offender population dropped 14% from 2010 to 2012, to the lowest
number since 1975.
In the March 2015 report, it was noted that for the first time since 2000, more
offenders were in local facilities than were in state operated facilities.
The degree of security present in juvenile facilities tends to vary widely between
An important measure of security used in OJJDPreports is locking youth in
“sleeping rooms .”
More than half of all facilities reported that they had one or more confinement
features in addition to locking juveniles in their sleeping room (which usually
happens at night).
These security features usually consist of locked doors and gates designed to
keep juveniles within the facility.
Types of Juvenile Facilities
Unlike adult jails, juvenile detention takes place in a variety of different
According to the OJJDPstudy, the most common type of facility were facilities
that considered themselves to be “residential treatment centers,” followed by
those that considered themselves to be “detention centers.”
The classifications of “group home,” “training school,” “shelter,” “wilderness
camp,” and “diagnostic center” are also used.
Group homes and shelters tended to be privately owned, and detention centers
tended to be state run facilities.
Section 6.2: Prisons
Prepared by Adam J. McKee
As inmates enter a prison system after sentencing, they are typically assessed
at a classification or reception facility based on
● the nature of their crime
● criminal history
● escape risk
● health needs
● any behavioral issues that must be addressed
Goals of Assessment
The goal of these assessments is to determine the dangerousness of the
offender and the viability of various treatment options.
Based on the assessment results, prison personnel will assign the offender to
a particular prison facility.
The primary concern when assigning an inmate to a facility is safety, followed
by practical concerns about bed space.
The needs of the inmate are also considered in the process.
Prisoners thus have almost no control of where they are confined.
Some prisons do allow for transfers to facilities closer to family, but these
requests are subject to security concerns and bed space.
Often, female inmates are housed far from family because the small number
of female facilities often means that there are no options close to family.
Development of Prisons
Prior to the 1800s, common law countries relied heavily on physical
Influenced by the high ideas of the enlightenment, reformers began to move
the criminal justice system away from physical punishments in favor of
This was a dramatic shift away from the mere infliction of pain that had
prevailed for centuries.
Among these early reformers was John Howard, who advocated the use of
Penitentiaries , a s t h e n a m e s u gge s t s , we re p la ce s fo r o ffe n d e rs t o b e
p e n it e n t .
Th a t is , t h e y wo u ld e n ga ge in wo rk a n d re fle ct io n o n t h e ir m is d e e d s .
To a ch ie ve t h e a p p ro p ria t e a t m o s p h e re fo r p e n it e n ce , p ris o n e rs we re ke p t in
s o lit a ry ce lls wit h m u ch t im e fo r re fle ct io n .
Philadelphia’s Walnut Street Jail wa s a n e a rly e ffo rt t o m o d e l t h e Eu ro p e a n
p e n it e n t ia rie s .
Th e s ys t e m u s e d t h e re la t e r b e ca m e kn o wn a s t h e Pennsylvania System .
Un d e r t h is s ys t e m , in m a t e s we re ke p t in s o lit a ry co n fin e m e n t in s m a ll, d a rk
ce lls .
A ke y e le m e n t o f t h e Pe n n s ylva n ia Sys t e m is t h a t n o co m m u n ica t io n s
wh a t s o e ve r we re a llo we d .
Criticisms of the Pennsylvania System
Critics of this system began to speak out against the practice of solitary
confinement early on.
They maintained that the isolated conditions were emotionally damaging to
inmates, causing severe distress and even mental breakdowns.
Nevertheless, prisons across the United States began adopting the
Pennsylvania model, espousing the value of rehabilitation.
The New York System
The New York system evolved along similar lines, starting with the opening of
New York’s Auburn Penitentiary in 1819.
This facility used what came to be known as the congregate system. Under
this system, inmates spent their nights in individual cells, but were required to
congregate in workshops during the day.
Work was serious business, and inmates were not allowed to talk while on the
job or at meals.
Did It Work?
By the middle of the nineteenth century, prospects for the penitentiary
movement were grim.
No evidence had been mustered to suggest that penitentiaries had any real
impact on rehabilitation and recidivism.
The Lease System
Prisons in the South and West were quite different from those in the
In the Deep South, the lease system d e ve lo p e d .
Un d e r t h e le a s e s ys t e m , b u s in e s s e s n e go t ia t e d wit h t h e s t a t e t o e xch a n ge
co n vict la b o r fo r t h e ca re o f t h e in m a t e s .
Pris o n e rs we re p rim a rily u s e d fo r h a rd , m a n u a l la b o r, s u ch a s lo ggin g, co t t o n
p ickin g, a n d ra ilro a d co n s t ru ct io n .
Disillusionment with the penitentiary idea, combined with overcrowding and
understaffing, led to deplorable prison conditions across the country by the
middle of the nineteenth century.
New York’s Sing Sing Prison was a noteworthy example of the brutality and
corruption of that time.
The Reformatory Movement
A new wave of reform achieved momentum in 1870 after a meeting of the
National Prison Association (which would later become the American
At this meeting held in Cincinnati, members issued a Declaration of
Th is d o cu m e n t e xp re s s e d t h e id e a t h a t p ris o n s s h o u ld b e o p e ra t e d
a cco rd in g t o a p h ilo s o p h y t h a t p ris o n e rs s h o u ld b e re fo rm e d , a n d t h a t
re fo rm s h o u ld b e re wa rd e d wit h re le a s e fro m co n fin e m e n t .
Th is u s h e re d in wh a t h a s b e e n ca lle d t h e Re fo rm a t o ry Mo ve m e n t .
The Elmira Reformatory
One of the earliest prisons to adopt this philosophy was the Elmira
Reformatory , wh ich wa s o p e n e d in 1876 u n d e r t h e le a d e rs h ip o f Zebulon
Bro ckwa y ra n t h e re fo rm a t o ry in a cco rd a n ce wit h t h e id e a t h a t e d u ca t io n wa s
t h e ke y t o in m a t e re fo rm .
Cle a r ru le s we re a rt icu la t e d , a n d in m a t e s t h a t fo llo we d t h o s e ru le s we re
cla s s ifie d a t h igh e r le ve ls o f p rivile ge .
The Mark System
Under this “mark” system, prisoners earned marks (credits) toward release.
The number of marks that an inmate was required to earn in order to be
released was established according to the seriousness of the offense.
This was a movement away from the doctrine of proportionality, and toward
indeterminate sentences and community corrections.
The Rehabilitation Model
The next major wave of corrections reform was known as the rehabilitation
model, which achieved momentum during the 1930s.
This era was marked by public favor with psychology and other social and
Ideas of punishment gave way to ideas of treatment, and optimistic reformers
began attempts to rectify social and intellectual deficiencies that were the
proximate causes of criminal activity.
The Medical Model
This was essentially a medical model in which criminality was a sort of disease
that could be cured.
This model held sway until the 1970s when rising crime rates and a changing
prison population undermined public confidence.
The Crime Control Model
After the belief that “nothing works” became popular, the crime control model
became the dominate paradigm of corrections in the United States.
The model attacked the rehabilitative model as being “soft on crime.”
“Get tough” policies became the norm throughout the 1980s and 1990s, and
lengthy prison sentences became common.
The aftermath of this has been a dramatic increase in prison populations and
a corresponding increase in corrections expenditures.
Reform Still Needed
Those expenditures have reached the point that many states can no longer
sustain their departments of correction.
The pendulum seems to be swinging back toward a rehabilitative model, with
an emphasis on community corrections.
While the community model has existed parallel to the crime control model
for many years, it seems to be growing in prominence.
Prisons in the United States today are usually distinguished by custody
Super -maximum -security prisons (Su p e r Ma x) a re u s e d t o h o u s e t h e m o s t
vio le n t a n d m o s t e s ca p e -p ro n e in m a t e s .
Th e s e in s t it u t io n s a re ch a ra ct e rize d b y a lm o s t n o in m a t e m o b ilit y wit h in t h e
fa cilit y, a n d fo rt re s s -like s e cu rit y m e a s u re s .
Th is t yp e o f fa cilit y is ve ry e xp e n s ive t o b u ild a n d o p e ra t e .
Th e firs t s u ch p ris o n wa s t h e n o t o rio u s fe d e ra l p ris o n Alcatraz , b u ilt b y t h e
Fe d e ra l Bu re a u o f Pris o n s in 1934.
Maximum -security prisons are fortresses that house the most dangerous
Only 20% of the prisons in the United States are labeled as maximum security,
but, because of their size, they hold about 33% of the inmates in custody.
Because super -max prisons are relatively rare, maximum -security facilities
hold the vast majority of America’s dangerous convicts.
Maximum Security Characteristics
These facilities are characterized by very low levels of inmate mobility, and
extensive physical security measures.
Tall walls and fences are common features, usually topped with razor wire.
Watchtowers staffed by officers armed with rifles are common as well.
Security lighting and video cameras are almost universal features.
States that use the death penalty usually place death row inside a maximum –
These areas are usually segregated from the general population, and extra
security measures are put in place.
Death row is often regarded as a prison within a prison, often having different
staff and procedures than the rest of the facility.
Medium -security prisons use a series of fences or walls to hold prisoners
that, while still considered dangerous, are less of a threat than maximum –
The physical security measures placed in these facilities are often as tight as
for maximum -security institutions.
The major difference is that medium -security facilities offer more inmate
mobility, which translates into more treatment and work options.
These institutions are most likely to engage inmates in industrial work, such
as the printing of license plates for the State.
Minimum -security prisons are institutions that usually do not have walls and
Prisoners housed in minimum -security prisons are considered to be
nonviolent and represent a very small escape risk.
Most of these institutions have far more programs for inmates, both inside
the prison and outside in the community.
Minimum Security Differences
Part of the difference in inmate rights and privileges stems from the fact that
most inmates in minimum -security facilities are “short timers” –they are
scheduled for release soon.
The idea is to make the often problematic transition from prison to the
community go more smoothly.
Inmates in these facilities may be assigned there initially, or they may have
worked their way down from higher security levels through good behavior
and an approaching release date.
Women are most often housed in women’s prisons.
These are distinguished along the same lines as male institutions.
These institutions tend to be smaller than their male counterparts are, and
there are far fewer of them.
Women do not tend to be as violent as men are, and this is reflected in what
they are incarcerated for.
The majority of female inmates are incarcerated for drug offenses.
Inmate turnover tends to be higher in women’s prisons because they tend to
receive shorter sentences.
A few states operate coeducational prisons where both male and female
inmates live together.
The reason for this is that administrators believe that a more normal social
environment will better facilitate the eventual reintegration of both sexes into
The fear of predation by adult male offenders keeps most facilities segregated
In the recent past, the dramatic growth in prison populations led to the
emergence of private prisons.
Priva t e o rga n iza t io n s cla im e d t h a t t h e y co u ld o wn a n d o p e ra t e p ris o n s m o re
e fficie n t ly t h a n go ve rn m e n t a ge n cie s ca n .
Th e Corrections Corporation of America is t h e la rge s t co m m e rcia l
o p e ra t o r o f ja ils a n d p ris o n s in t h e Un it e d St a t e s .
Th e p o p u la rit y o f t h e id e a h a s wa n e d in re ce n t ye a rs , m o s t ly d u e t o le ga l
lia b ilit y is s u e s a n d a fa ilu re t o re a lize t h e h u ge s a vin gs p ro m is e d b y t h e
p riva t e co rp o ra t io n s .
A major problem affecting the operation of prisons in the United States is
what is known as special populations.
Among these are elderly inmates.
An a gin g p o p u la t io n in ge n e ra l co u p le d wit h m a n d a t o ry s e n t e n cin g la ws h a s
ca u s e d a n e xp lo s io n in t h e n u m b e r.
Th is is a n e xp e n s ive p ro p o s it io n fo r t h e Am e rica n co rre ct io n a l s ys t e m .
A s u b s t a n t ia l re a s o n fo r t h is in cre a s e d co s t is t h e in cre a s e d m e d ica l
a t t e n t io n p e o p le t e n d t o re q u ire a s t h e y gro w o ld e r.
While the trend in prison population data is down, prison overpopulation is
still a major problem in many states.
Many of those states are under court order to fix overcrowding problems,
which are unconstitutional.
Governments have responded with many programs aimed at reducing prison
Prisons are like small cities in many respects.
All of the requirements of life must be met, and rehabilitative objectives
must be facilitated.
Medical services must be rendered, and religious needs must be met.
Inmates have a right to some types of recreation.
Many prisons have labor and industry programs.
Rehabilitative programs include job training, addiction treatment, therapy for
psychological and emotional problems, and many other programs are
Section 6.3: Prisoner’s Rights
Prepared by Adam J. McKee
Prisoner’s Rights in America
American courts were reluctant to get involved in prison affairs during most
of the 19th century.
Until the 1960s, the courts used a hands -off approach to dealing with
Since, it the court has recognized that “Prison walls do not form a barrier
separating prison inmates from the protections of the Constitution” ( Turner
v. Safley, 1987).
Pris o n e rs d o give u p ce rt a in righ t s b e ca u s e o f co n vict io n , b u t n o t a ll o f t h e m .
Hudson v. Palmer(1984)
“While prisoners enjoy many protections of the Constitution
that are not fundamentally inconsistent with imprisonment
itself or incompatible with the objectives of incarceration,
imprisonment carries with it the circumscription or loss of many
rights as being necessary to accommodate the institutional
needs and objectives of prison facilities, particularly internal
security and safety.”
The phrase political right is used to refer to rights related to the participation
in the democracy of the United States: Chief among these is the right to vote.
The Constitution of the United States allows states to revoke a person’s right
to vote upon conviction, but does not require it.
Several states revoke the right to vote while a person is incarcerated but
restore the right once the person is released from prison.
Status and Voting Rights
A few states revoke the right to vote for life when a person is convicted of a
The right to vote cannot be denied to those who are pretrial detainees
confined to a jail, or someone who is a misdemeanant.
These individuals are usually given the right to vote by absentee ballot.
Free Speech and Assembly
The First Amendment right of prisoners to free speech is curtailed, but not
Prison administrators must justify restrictions on free speech rights.
The rights to assemble is generally curtailed.
As a rule, prison administrators can ban any inmate activity that is a risk to the
security and safety of the institution.
Freedom of Religion
Generally, prisoners have the right to free exercise of their religious beliefs.
These, however, can be curtailed when the health and safety of the institution
are at risk.
To be protected, the particular religious beliefs must be “sincerely held.”
Prison officials may not, however, legally show a preference for one religion
Policy v. Religion
In practice, some religious customs have conflicted with prison policies, such
as requiring work on religious holidays that forbid labor.
These types of policies have been upheld by the courts.
Access to the Courts
The First Amendment guarantees the right “to petition the Government for a
redress of grievances.”
For prisoners, this has translated to certain types of access to the courts.
The two major categories of petitions that can be filed by prisoners are
criminal appeals (often by habeas corpus petitions) and civil rights lawsuits.
The right to petition the courts in these ways is referred to as the right of
access to the courts.
Freedom from Retaliation
Inmates who file complaints, grievances, and lawsuits against prison staff have
a constitutional right to be free from retaliation.
The Supreme Court based this right on the logic that retaliation by prison staff
hampers the exercise of protected constitutional rights.
In practice, this right has been difficult for inmates to assert.
Prison staff can often find legitimate reasons for taking action that was
intended as retaliation.
In the landmark case of Wolff v. McDonnell (1974), t h e Su p re m e Co u rt d e fin e d
t h e co n t o u rs o f p ris o n e r righ t s d u rin g p ris o n d is cip lin a ry p ro ce e d in gs .
Wh ile n o t a ll d u e p ro ce s s righ t s d u e a crim in a l d e fe n d a n t we re d u e t h e
p ris o n e r in a d is cip lin a ry p ro ce e d in g, s o m e righ t s we re p re s e rve d .
Wolff: Advanced Notice
Advance written notice of charges must be given to the disciplinary action
inmate, no less than 24 hours before his appearance before the Adjustment
Wolff: Record of Evidence
There must be a written statement by the factfinders as to the evidence relied
on and reasons for the disciplinary action.
Wolff: Preparing a Defense
The inmate should be allowed to call witnesses and present documentary
evidence in his defense if permitting him to do so will not jeopardize
institutional safety or correctional goals.
The inmate has no constitutional right to confrontation and cross -examination
in prison disciplinary proceedings, such procedures in the current
environment, where prison disruption remains a serious concern, being
discretionary with the prison officials.
Wolff: Appointed Counsel
Inmates have no right to retained or appointed counsel.
Right to Privacy
The right to privacy is closely related to the law of search and seizure.
In the landmark case of Hudson v. Palmer (1984), t h e Co u rt d e t e rm in e d t h a t
in m a t e s d o n o t h a ve a re a s o n a b le e xp e ct a t io n o f p riva cy in t …
Section 1.1: Major Components
Prepared By Adam J. McKee
In reality, there is no one criminal justice system in the United States.
There are many similar systems.
Each state has its criminal justice system, and the Federal government has
This section considers how these various systems are composed by looking at
the major components common to them all.
Traditionally, the criminal justice system can be divided into three major
The Rule of Law
It may seem that there is no real common thread to this system.
In the United States, the thing that binds all of the components together and
regulates them is the Rule of Law.
Th e ru le o f la w is t h e id e a t h a t e ve ry p e rs o n is s u b je ct t o t h e la w, e ve n t h o s e
t h a t m a ke t h e la w, in t e rp re t t h e la w, a n d e n fo rce t h e la w.
The most potent law in the United States is the Constitution of the United
This body of laws provides all Americans with civil liberties that the
government cannot violate.
If a state law or a federal law violates any of these protections, then the law
will be declared void.
The Role of the Courts
It is up to the appellate courts, most notably the Supreme Court, to interpret
these laws and determine the exact nature and scope of specific civil liberties
in the United States.
Further, if an agent of the state or federal government violates a person’s
rights, that person has remedies available.
Citizens can sue government employees that violate their rights under Section
1983 of the United States Code .
An important remedy in criminal justice is the exclusionary rule .
The exclusionary rule was established by the Supreme Court ( SCOTUS) to
prevent police misconduct.
The rule states that illegally obtained evidence (evidence obtained in violation
of someone’s constitutional rights) cannot be admitted as evidence in court.
People tend to use the word police generically to indicate those individuals
with law enforcement responsibility.
The majority of these are municipal police officers.
There are many sheriffs’ deputies as well as state and federal agents that do
not technically fit under the umbrella term “police.”
Enforcing the law is only a small fraction of what the police do every day.
They maintain order and provide many services to the communities they
The police also have the responsibility of investigating crimes, collecting
evidence, and work with prosecutors to obtain convictions in court.
The police are often called the “gatekeepers of the criminal justice system.”
This description is accurate because entry into the system requires formal
action on the part of law enforcement.
Police officers have incredible decision -making authority when dealing with
citizens and suspects.
An officer can choose to ignore an offense, issue a verbal warning, issue a
written warning, issue a citation, or formally arrest the person.
Limits on Discretion
Of course, the seriousness of the crime plays a major role in how the police
exercise discretion .
An officer would not ignore or issue a citation to a person engaged in a
serious felony crime.
Specialization in Policing
The duties of police officers can be very general in the case of a patrol officer,
or they can be very specialized in the case of a homicide detective.
The level of specialization depends largely on the size of the agency where the
Large, urban police departments tend to have more resources, more officers,
and a higher degree of specialization.
The Backbone of Policing
The backbone of policing is the patrol division, and patrol is always a
The successful patrol officer is a jack -of -all-trades.
When law enforcement and prosecutors accuse a person of violating a
criminal law, it is up to the courts to determine if the person did indeed violate
If so, it is up to the court prescribe the appropriate punishment.
Sentencing is limited by the sentencing laws in that court’s jurisdiction.
Our Adversarial System
Because the American legal system is adversarial in nature, there must always
be two teams in any court case.
In a criminal matter, a lawyer known as the prosecutor presents the
A major goal of the prosecutor is to see the defendant found guilty of the
The defense attorney has the job of trying to show that the defendant is not
The judge serves as a referee, making sure that both sides diligently follow
the rules of the “game.”
The jury is tasked with deciding (at the end) who the winner is.
In the adult criminal justice system, all cases are adversarial in nature.
Finders of Fact
In a jury trial, the jury serves as the finder of fact.
The term finder of fact in this case means that the jury decides whether the
defendant is innocent or guilty.
In serious cases, the defendant has a right to trial by jury.
It is allowable, however, that the defendant consent to a bench trial.
A bench trial is a trial where the judge takes on the role of the jury as finder of
Corrections is another umbrella term that encompasses many diverse
crim in a l ju s t ice a ct ivit ie s .
Co rre ct io n s ca n in clu d e :
● p ro b a t io n
● p a ro le
● ja il
● p ris o n
● m a n y co m m u n it y-b a s e d s a n ct io n s
What is it for?
A problem with accurately defining corrections is a general disagreement
about the philosophy of incarceration.
● Does society send people to prison as p u n is h m e n t , o r for p u n is h m e n t ?
● Do we e xp e ct p ris o n s t o p u n is h o r re h a b ilit a t e ?
Mo s t p e o p le ca n a gre e o n o n e t h in g: Th e p u b lic e xp e ct s co rre ct io n a l
in s t it u t io n s t o e n s u re t h e p u b lic s a fe t y.
Jailsare usually operated at the local level, most often under the leadership of
a county sheriff .
Jails are most commonly thought of as holding individuals that have been
arrested and are awaiting a first appearance in court.
Other jail inmates have been convicted of relatively minor offenses
(misdemeanors) and are serving sentences of less than one year.
Other prisoners may have been convicted of serious offenses, and are housed
in the local jail awaiting transfer to a state prison.
Persons convicted of serious crimes can be sentenced to a prison term.
A prison is generally larger, more secure, and provides more services than a
The reason for these extra services is that prisons are designed for long
sentences (relative to jail sentences).
Prisons are most often run at the state level of government, but there are also
many federal prisons.
One of the overarching goals that brings the components of the criminal
justice system together is that each is designed (in some way) to promote
Everyone has an idea of what justice is, but pinning down a definition that will
be widely agreed upon proves to be a challenge.
There are several different ways of looking at the idea.
Justice as Equality
One way to view justice is in terms of equality .
In economic language, equality means that everyone gets the same amount,
regardless of what they “put in.”
Justice as Equity
Another perspective is to view justice in terms of equity .
When viewed this way, it means that people get what they deserve.
Many feel that “just deserts” means that criminal punishments should be in
proportion to the harm done.
This concept of just deserts in criminal justice has been referred to as
retributive justice .
The idea of wrongdoers being deserving of repayment in kind is known by the
Latin phrase Lex Talionis, o r t h e law of retribution .
In it s p u re s t fo rm , le x t a lio n is is t h e Bib lica l d o ct rin e o f “a n e ye fo r a n e ye , a
t o o t h fo r a t o o t h .”
In t o d a y’s crim in a l ju s t ice s ys t e m , t h e id e a o f re t rib u t io n t a ke s o n t h e m e a n in g
o f va ria b le le n gt h s o f p ris o n s e n t e n ce s .
Justice as Fair Process
Another way to look at the idea of justice is to examine the process.
In other words, an act is just if it was done using a fair process.
Justice viewed in terms of fair process is often referred to as procedural
This idea leaves room for debate as to what sort of processes are to be
Accessibility and predictability are common criteria.
In the United States, the idea of procedural justice is closely tied to the idea of
due process .
In a philosophical sense, due process means that agents of the criminal justice
system conduct criminal proceedings in a “fundamentally fair” way.
In a practical sense, due process means that the state must respect all legal
rights of accused persons.
Due Process and the Constitution
What criminal justice procedures are required under due process is a
dynamic body of rules.
These rules are most often judicial determinations of what exactly the
Constitution means in practice.
The idea of due process is represented throughout the Bill of Rights , as well
as being specifically guaranteed by the
1. Fifth Amendment (applies to the federal government)
2. Fourteenth Amendment (applies to state government)
Section 1.2: Roles, Objectives, and Limits
Prepared by Adam J. McKee
Three Branches of Government
Because the criminal justice system represents a function of the “state,” each
of the Three Branches of Government has a role to play.
Each branch has different responsibilities; thus, each branch depends on the
other to function properly.
Each of the three exists on the federal, state, and local level.
Each of these levels of government dominates some aspect of the criminal
Which Level of Government?
Law enforcement is primary a local government function, as are jail
Making criminal laws and operating corrections agencies is primarily a state
The federal government duplicates all criminal justice functions on a national
Ultimately, prisons, jails, and corrections programs can be operated at all
levels of government.
The Role of Legislatures
The term legislature refers to lawmaking assemblies such as the Congress of
the United States or the law making bodies of all the states.
Legislatures have many important functions in the criminal justice system.
Perhaps the most direct function is that the legislature determines what acts
are crimes and what the punishment is for particular crimes.
Statutes and Codes
They do this by enacting statutes.
Official versions of the law that are organized by subject are called codes.
Thus, when we refer to the criminal code (also called the penal code ) we are
referring to a collection of statutes that define crimes.
Legislatures and Federalism
In the dual federalist criminal justice system of the United States, state
legislatures are the source of the bulk of criminal laws.
Another crucial role of the legislature is to provide funding for criminal justice
agencies and programs.
Without funding, criminal justice activities would halt.
The Role of the Judiciary
The role of the judiciary in criminal justice is complicated by the hierarchical
nature of the court systems.
This hierarchy can be simplified by dividing courts into two major categories:
1. trial courts
2. appellate courts
Trial courts adjudicate the guilt of people charged with crimes and impose
sentence on those determined to be guilty.
Myth v. Reality
Hollywood leads to the conclusion that most criminal cases result in a trial by
This is substantially incorrect.
The fact is that most criminal defendants who do not have their charges
dropped prior to being formally charged will plead guilty.
Most of those guilty pleas are a result of plea bargaining , an unglamorous but
necessary process that takes place largely out of the public view.
Appellate courts are different in that they do not conduct criminal trials.
Rather, they hear complaints raised by people who were not satisfied with
their treatment by the trial court or some other aspect of the criminal justice
The appellate courts can hear these complaints because they have the power
of judicial review .
Judicial review means that the appellate courts can review a law made by the
legislature and determine if it meets constitutional standards.
At the federal level, this means the standards set forth in the Constitution of
the United States.
At the state level, state appellate courts can determine if state legislatures
have acted within the limits of that state’s particular constitution.
If the high court determines that a law is unconstitutional , then the law
Sometimes lawmakers will attempt to redraft the law to meet constitutional
standards, and other times they delete it entirely.
Appeals courts also have the power to review the actions of government
employees, such as law enforcement officers and correctional officers.
The most important appellate court in the United States is the Supreme Court .
The day-to -day activities of police officers are heavily influenced by Supreme
Court decisions dictating how the police must treat suspects and evidence.
The United States has dual court systems due to the structure of the American
The Role of the Executive
The executive branch of government includes the offices of the president of
the United States, governors of the fifty states, and the mayors of America’s
many towns and cities.
Often these individuals are directly responsible for many appointments within
the criminal justice system.
Mayors appoint chiefs of police in many towns and cities.
Governors appoint law enforcement heads as well as correctional leadership.
The President appoints federal judges, including those who sit on the
Agenda Setting & Public Opinion
The executive has a key role to play in setting criminal justice agendas and
galvanizing public opinion.
Discretion in Criminal Justice
A theme that permeates any discussion of the criminal justice system is the
use and misuse of discretion .
The term discretion is used to indicate the power that agents of the criminal
justice system have to make decisions based on personal judgments.
At this point, the discussion centers on discretion at the highest levels of
government, and how that discretion influences the criminal justice system.
The Bureau of Justice Statistics (1993) has identified three common goals of
every element of the criminal justice system. These are:
Efficiency means economically applying available resources to accomplish
statutory goals as well as to improve public safety.
Effectiveness refers to carrying out justice system activities with proper regard
for equity, proportionality, constitutional protections afforded defendants and
convicted offenders, and public safety.
Fairness refers to justice issues such as assuring equal treatment and
handling of like offenders and giving equal weight to legally relevant factors in
Fairness is of such great importance because it is enshrined in the
Constitution of the United States under the catchall phrase due process .
Procedural Due Process
Note that the Supreme Court has focused on procedural due process as the
ultimate measure of justice in the United States.
That is, the system of concerned with everyone being treated the same as
they are processed through the system.
More often than not, the fairness of individual outcomes is of little concern.
The Constitutional Framework
No matter where you live in the United States, you are protected by two
independent criminal justice systems.
There is always the federal system as well as the system of the state.
This means that at both the state and federal level we find those who enforce
the law, those who adjudicate the law, and those who punish and rehabilitate
While these broad goals are the same, the particulars are quite different.
Which Level of Government?
The system is further complicated by the fact that most law enforcement in
the United States is done on a local level.
Thus, local officers are enforcing state laws.
Offenders sentenced to a period of incarceration can serve their time in local
jails or state run penitentiaries.
The federal system is less convoluted in that federal agents investigate federal
crimes, and federal prosecutors take those cases to federal courts.
The Criminal Justice Burden
By far, state and local government takes on the largest share of the criminal
As citizens, the local police departments and sheriff’s departments that serve
us are whom we depend on to protect us from criminal harms.
The Nonsystem Argument
One of the most enduring debates about the criminal justice system of the
United States is whether it is a system at all.
The term system suggests components that work together to achieve some
Critics argue that no such thing happens in American criminal justice.
What the Naysayers Say
They argue that the police, courts, and corrections agencies act independently
of each other with different financial resources and different goals and
Many critics see a failure to organize around a central purpose, and thus we
find that the criminal justice system is no system at all.
This position is known as the Nonsystem Argument .
The Role of Rules in Criminal Justice
One common aspect of all criminal justice systems within the United States is
the abundance of rules that govern criminal justice activities.
These rules are hierarchical.
The most important and enduring rules that must be followed by agents of
the criminal justice system are those enshrined in the Constitution of the
The Bill of Rights
Most of the safeguards of American civil liberties against intrusion by the
government are contained in the Bill of Rights .
The Bill of Rights is the first ten Amendments to the Constitution.
After the federal constitution and the constitution of the states comes federal
and state statutes.
The collection of federal statutes organized by topic is called the United States
St a t e s h a ve a crim in a l co d e s a s we ll.
Court Rules and Agency Regulations
There are also court rules established by the high courts that bind the lower
courts as well as agents of the criminal justice system.
At the federal level, these are known as the Federal Rules of Criminal Procedure.
In a d d it io n t o t h e s e va rio u s la ws , t h e re a re a ge n cy ru le s a n d re gu la t io n s t h a t
a ge n t s o f t h e crim in a l ju s t ice s ys t e m m u s t fo llo w.
Why We Need Discretion
Discretion refers to the authority the public gives agents of the criminal justice
system to make decisions based on their own professional judgment.
Discretion is necessary because formal rules cannot take into account every
contingency criminal justice professionals encounter in practice.
To function effectively, criminal justice professionals must make judgment
Juvenile Justice: The Bad Old Days
For much of history in the United States, children were treated the same as
According to common law, the defense of infancy was available to children
below the age of seven.
The idea was that very young children were not culpable because they lacked
the capacity to understand the wrongfulness of their actions.
After age seven, the infancy defense disappeared, and children could face
prison and even death.
During the 19 th century, society’s view of children began to change.
People began to realize that children were not merely miniature adults.
They were still developing cognitively and morally.
This new view of adolescence spawned a revolution in juvenile justice and led
to a completely separate way of dealing with youths that committed crimes.
The Juvenile Court Movement
The Juvenile Court Movement began in the United States at the end of the
From the juvenile court statute adopted in Illinois in 1899, the system has
spread to every State in the Union, the District of Columbia, and Puerto Rico.
The rigid and cold adult system was not appropriate for children.
Both the substantive and the procedural criminal law had to be discarded in
favor of a system that fostered the best interest of the child .
Thus, from inception the focus of the juvenile system was “treatment” or
Section 1.3: Defining and Measuring Crime
Prepared by Adam J. McKee
A crime is an act or omission that is prohibited by law.
For a law to be valid, a particular punishment or range of punishments must
In the United States, the most common punishments are fines and
As a matter of legal theory, a crime is a failed duty to the community for which
the community will exact some punishment.
Types of Crimes
Historically, legal scholars differentiated between things that were “wrongs in
themselves,” which were referred to as mala in se offenses.
These were distinct from mala prohibita offenses, which represented acts that
were criminal merely because the government wished to prohibit them.
Many criminal justice scholars use these terms to differentiate between
heinous crimes like rape and murder and victimless crimes such as gambling
Today, the most common and most basic division of crimes is based on the
seriousness of the offense, and thus the possible punishment.
Misdemeanors are less serious crimes that are punishable by fine and
confinement in a local jail for a period not to exceed a year.
Felonies are more serious crimes that the government punishes by fines,
imprisonment (most commonly under the auspices of the state’s Department
of Corrections) for a period exceeding a year, or death.
The distinction between misdemeanors and felonies is of ancient origin,
coming to us through the Common Law of England .
Common Law Felonies
Common law felonies included:
What is classified as a misdemeanor largely depends on the jurisdiction.
Common examples are:
● petty theft
● public intoxication
● simple assault
● disorderly conduct
Some crimes can be both misdemeanors and felonies, depending on the
A battery that results in a handprint on the victim’s face may be classified as a
misdemeanor, while a kick that breaks the victim’s ribs may be a felony.
Similarly, an arson that does relatively little damage (in terms of financial
costs) may be a misdemeanor, while an arson that destroys a home will be a
These distinctions have made it into our popular culture, where criminals who
commit felonies are often known as felons .
Less commonly used is the term misdemeanant , who is a person convicted of
Most jurisdictions recognize a class of offenses that do not result in any period
of incarceration, and are punished with only a fine.
These minor breaches of the law are usually called violations .
To understand crime and the criminal justice system, we need to understand
the prevalence of crime.
Good crime statistics are critically important to understanding crime trends.
The more federal and state agencies know about crime trends, the more
intelligently they can allocate precious resources and maximize efforts at
crime suppression and prevention.
Crime statistics are also frequently used as an evaluation tool for justice
If the rate of a particular crime is falling, then what the system is doing will
seem to be working.
If the rate of a particular crime is rising, then it will seem to indicate that the
criminal justice system is failing.
Uniform Crime Reports
In the United States, the most frequently cited crime statistics come from the
FBI’s Uniform Crime Reports (UCR) .
The UCR are crime data collected by over 16,000 local and state law
enforcement agencies on crimes that have been brought to the attention of
These law enforcement agencies voluntarily send information to the FBI,
which compiles them into an annual published report along with several
special reports on particular issues.
Criticisms of the UCR
Since its inception in the 1930s, many people have been critical of the UCR
system for a variety of reasons.
Among these reasons are:
● only crimes reported to the police are included
● only counts the most serious crime committed in a series of crimes
● does not differentiate between completed crimes and attempts
● does not include many types of crimes(e.g., white -collar and federal
Social Scientists’ Complaints
Scholars complained that the UCR did not obtain potentially important
information about the victim, the offender, the location of the crime and so
Without this information, social scientists could not use the UCR data in
attempts to explain and predict crime.
These complaints eventually led to the development of a much more
informative system of crime reporting known as the National Incident Based
Reporting System (NIBRS).
The NIBRS is an incident-based reporting system in which agencies collect
data on each single crime occurrence.
NIBRS data come from local, state, and federal automated records’ systems.
What NIBRS Includes
The NIBRS collects data on each single incident and arrest within 22 offense
categories made up of 46 specific crimes called Group A offenses.
For each of the offenses coming to the attention of law enforcement, specified
types of facts about each crime are reported.
In addition to the Group A offenses, there are 11 Group B offense categories
for which only arrest data are reported.
Benefits of NIBRS
● Can furnish information on nearly every major criminal justice issue
facing law enforcement today.
● Legislators and other stakeholders have access to more comprehensive
crime information than the summary reporting can provide.
● ·Law enforcement can better make a case to acquire the resources
needed to fight crime.
● Enables agencies to find similarities in crime -fighting problems so that
agencies can work together to develop solutions.
● Provides statistics to enable a law enforcement agency to provide a full
accounting of the status of public safety within the jurisdiction.
Problems with NIBRS
The major problem with NIBRS today is that it has not been universally
Agencies and state Programs are still in the process of developing, testing, or
implementing the NIBRS.
In 2004, 5,271 law enforcement agencies contributed NIBRS data to the UCR
The data from those agencies represent 20 percent of the U.S. population and
16 percent of the crime statistics collected by the UCR Program.
The Dark Figure of Crime
A commonly cited problem with the UCR is that there are many, many crimes
that do not come to the attention of police.
This problem is not limited to minor offenses.
For example, it is estimated that nearly half of all rapes go unreported.
These undocumented offenses are often referred to as the dark figure of
National Crime Victimization Survey (
This is the reason that the United States is the Bureau of Justice Statistics’ (BJS)
developed the National Crime Victimization Survey (NCVS) .
The NCVS, which began in 1973, provides a detailed picture of crime incidents,
victims, and trends.
What the NCVS Measures
Today, the survey collects detailed information on the frequency and nature
of the crimes of:
● rape and sexual assault
● personal robbery
● aggravated and simple assault
● household burglary
● motor vehicle theft.
It does not measure homicide or commercial crimes.
The NCVS Data
Two times a year, U.S. Census Bureau personnel interview household …
Section 2.2: Politics in Criminal Justice
Prepared by Adam J. McKee
Politics is the art and science of running a government and guiding
governmental policy .
The nature of politics in America is conflict and debate about policy, and
criminal justice policy falls into that arena .
The American political system and the criminal justice system involve actions
of the President, Congers, courts, bureaucracies, interest groups, elections,
and the media .
These groups are mirrored on the state level and to some degree on the local
The actions of elected officials have a direct impact on the system, and the
policies they implement directly affect how justice is done .
The Politics of Selecting Decision Ma
In a democratic republic, one of two ways selects criminal justice decision
makers : They either are elected by the public, or are appointed by a public
official (often an elected one).
Elected mayors, for example, often appoint chiefs of police .
The President of the United States (an elected official) appoints Supreme
Court justices with the confirmation of the U.S. Senate (a body of elected
Both methods are highly political and cannot be understood without
understanding something of the political process . 4
The Politics of Lawmaking
Although the federal legal system and that of most states rely on the old
common law for their historical foundations, criminal law is mostly a matter of
statute these days.
That is, criminal laws are made by legislative assemblies that decide which
acts are prohibited, and what punishments are appropriate for those that
commit those acts in violation of the law .
The “Get Tough” Era
Obviously, politics influences the laws that assemblies pass.
Today the nation finds itself at the conclusion of what has been a “get tough”
era of criminal justice . Ushered in by the “crack epidemic” of the early 1980s,
this has been a period of harsher punishments, longer prison sentences, less
therapeutic programs, and skyrocketing corrections budgets .
The Political Pendulum
The pendulum seems to have reached the far right, and now may be swinging
back toward the middle .
Many states have begun concentrated efforts at finding alternatives to
incarceration, and the federal government is considering early release for
drug offenders sentenced under the “get tough” drug laws of the previous two
The Politics of Policing
Most police departments try to distance themselves from the vicissitudes of
politics as much as possible .
To be effective, law enforcement must be seen as fair and impartial, serving
all of the community without favoritism or political patronage .
The political climate of a community can have a huge impact on the police
Elected officials appoint police administrators, and can often fire them just
Local Politics and Policing
The style of law enforcement, formal departmental policy, and informal norms
can all be heavily influenced by local politics .
The structure of local government can have an impact on how police services
are delivered .
Professional city managers, for example, are less likely to get involved in
police affairs than are mayors and city council members .
The Politics of Prosecution
While police departments are often somewhat shielded from politics and
influenced by it indirectly, prosecutors in most jurisdictions are elected
officials and thus highly political .
At the federal level, an essentially political process appoints U.S. attorneys .
The career paths of these federal lawyers tend to be linked to one particular
political party or the other .
Politically Motivated Prosecutions
It is common to see prosecutors at both the state and federal level using their
tenure as prosecutors to launch political careers .
This fact gives rise to the unethical possibility of political prosecutions against
political enemies .
In fact, many at the time stated that this was the sort of thing that was
happening with the impeachment proceedings launched against then –
President Bill Clinton .
The Politics of the Judiciary
There is a tendency among academic writers to view the judiciary as
somehow above partisan politics .
In the modern American reality, this is a pleasant fiction .
Judges at all levels of government are either elected or appointed, and this
fact makes them political creatures .
Elected judges fear public reactions to issues with political foundations, such
as appearing “soft on crime” or being in favor of the death penalty, or for it,
depending on the political climate in the judge’s jurisdiction .
The Impact of Ideology
Those political affiliations and beliefs necessarily inform judges’ decisions .
Conservative courts tend to side with law and order, willing to sacrifice some
civil liberties to maintain law and order .
Liberal judges tend to take the opposite, ruling in favor of civil liberties at the
expense of (in the minds of the opposition) public safety .
Judicial Decisions Are Political
It has been said that the real job of appellate courts is balancing the civil rights
of the people with the desire of the people to be safe from crime .
Obviously, the political beliefs of the justices making these decisions weighs
heavily in the outcome of important cases.
The Politics of Corrections
As with the other elements of the criminal justice systems, corrections is a
highly politicized aspect of government .
At the local level, the operation of jails is tied to the office of sheriff in many
jurisdictions, which ties jail operations to the politics of particular individuals
being elected and reelected as sheriff .
At the state level, departments of corrections are highly political, with
administrators and budgets being politically determined .
The Politics of Parole
Another highly political aspect of corrections is the membership and
functioning of parole boards, which is established by appointment of the
governor in most jurisdictions .
If parole boards make release decisions that later reflect badly on the board
members, the bad press will ultimately turn to the governor .
The Politicization of Justice
As politics is such an integral part of criminal justice, a high potential for
serious problems generated by politics exists .
Rash decisions can be made, poorly considered policies can be implemented,
and ill -conceived laws can be written that hamper the efficient and ethical
administration of justice .
Politics and Emotional Decision Maki
Unscrupulous politicians can easily make appeals to people’s emotions, fears,
and prejudices to improve their own chances at reappointment or reelection .
Sadly, emotionally charged decisions do not tend to be rational decisions .
In the high -stakes world of criminal justice, clear, rational thinking is often
overshadowed by politically charged emotionality .
Crime Control versus Due Process
Herbert Packer (1964) outlined two competing models of the value systems
operating within criminal justice today : The crime control model a n d th e
due process model .
Th e s e t wo m o d e ls o f h o w t h e ju s t ice s ys t e m s h o u ld o p e ra t e re fle ct t wo
o p p o s in g s e t s o f p o lit ica l id e o lo gie s t h a t h a ve a m a s s ive im p a ct o n crim in a l
ju s t ice d e cis io n -m a kin g a t a ll le ve ls .
Democrat versus Republican?
The divide is not as simple as Democrat or Republican.
Both models represent core values in the American way of life.
After all, every good citizen wants to see crime controlled.
We want to live in safe, orderly communities.
As Americans, we also highly value freedom.
We loath the idea of oppressive governments that interfere with our personal
We are proud of our rights to be free from government oppression, and we
value our right to privacy.
The Crime Control Model
According to Packer,
“The value system that underlies the Crime Control Model is based on the proposition that
the repression of criminal conduct is by far the most important function to be performed by
the criminal process.”
The Crime Control Philosophy
There is a definite political philosophy that underlies this assertion:
“The failure of law enforcement to bring criminal conduct under tight control is viewed as
leading to the breakdown of public order and thence to the disappearance of an important
condition of human freedom. If the laws go unenforced, which is to say, if it is perceived
that there is a high percentage of failure to apprehend and convict in the criminal process,
a general disregard for legal controls tends to develop.”
Adherents of the Crime Control Model advocate enhancing the powers of the
police to investigate and prosecute criminals .
These necessarily include enhanced powers of search and seizure .
Under this philosophy of criminal justice, the primary focus of the system
should be discovering the truth and establishing the facts .
The Due Process Model
The Due Process Model takes a rather opposite view of how the system
should operate .
The key to understanding this position is that it hinges on protecting the civil
rights of every citizen .
Under this philosophy, the most important function of the criminal justice
system is to ensure procedural due process, which mean maintaining
fundamental fairness in all aspects of the criminal justice process .
A major policy implication if this view is to limit police powers in order to
prevent the oppression of the individual citizen .
Adherents of this position hold that merely establishing guilt is not adequate ;
the government must show guilt in a fair and legal way that respects the rights
of the accused.
A Dynamic Process
In reality, the courts and other elements of the criminal justice system have to
strike a balance of these two positions .
It must be realized that the relative importance of each of these positions is
not static : There is a constant tug of war between the two positions .
The Makeup of the Court
As the makeup of America’s high courts change, so too does the underlying
philosophy that dominates the decisions of those courts .
Liberal courts establish broad civil liberties, and conservative courts erode
those liberties in the name of law and order .
The Juvenile Justice System
The 1800s saw a revolution in the way Americans controlled juvenile
The movement away from treating juveniles as adults began as early as 1825
when the Society for the Prevention of Juvenile Delinquency began
advocating separate facilities for juvenile offenders.
Privately run juvenile facilities sprang up, and soon generated controversy
over reported abuses.
This criticism led many states to create their own juvenile detention facilities.
Detention facilities were not the only facet of the system that was changing.
Illinois passed the Juvenile Court Act of 1899, which established the America’s
first juvenile court.
The British policy of parens patriae (t h e go ve rn m e n t a s th e p a re n t ) wa s t h e
ra t io n a le fo r th e s t a t e b e co m in g in vo lve d in th e live s o f ch ild re n d iffe r e n t ly
t h a n it d id wit h a d u lt o ffe n d e rs .
Th e d o ct rin e wa s in te rp r e t e d t o m e a n th a t t h e s t a t e h a d b o t h t h e righ t a n d
t h e o b liga t io n t o in t e r ve n e wh e n n a t u ra l p a re n t s fa ile d to d is cip lin e
a d e q u a t e ly a n d p ro t e ct ch ild re n .
The Welfare of the Child
A critical aspect of the developing juvenile justice system was a focus on the
welfare of the child .
Delinquent youths were seen as being in need of the benevolent guidance of
the court .
Rather than merely punishing delinquents for their wrongdoings, juvenile
courts sought to turn delinquents into productive citizens through treatment
rather than the punitive measures used in adult cases.
By 1910, 32 States had established juvenile courts, and many of those had
established probation services.
By 1925, all but two States had established the foundations of a juvenile
justice system .
Section 2.3: The Policymaking Role of the
Prepared by Adam J. McKee
The Supreme Court and Policy
The Supreme Court of the United States has an extremely important
policymaking role, and this has an enormous impact on the criminal justice
The Supreme Court has the power of judicial review.
Th is p o we r wa s firs t e xe r cis e d in th e la n d m a r k ca s e o f Marbury v. Madison ,
d e cid e d in 1803.
Marbury v. Madison (1803)
The Court struck down a statute that it considered “repugnant to the
This case served as the precedent for judicial review, and the Supreme Court
has exercised the power ever since that time .
Judicial review is th e a u t h o rit y o f t h e Su p re m e Co u r t t o re vie w t h e a ct s o f
Co n gre s s , a n d d e t e rm in e if t h o s e a ct s m e e t t h e s t a n d a rd s s e t fo rt h in t h e
Co n s t it u t io n .
The Due Process Clause
The Due Process Clause has proven very important in the Court’s shaping of
policy through judicial review .
What exactly constitutes due process is extremely vague, and when the Court
decides whether something is required by due process, they are in effect
making policy .
The evolution of police procedure during the Warren Court years is an
enduring example of this policy -making power at work .
In theory, Supreme Court justices should practice what constitutional scholars
have called judicial modesty .
Ju d icia l m o d e s t y r e fe rs t o t h e id e a t h a t ju s t ice s s h o u ld o n ly s t rike d o wn a ct s o f
t h e le gis la tive b ra n ch wh e n th o s e la ws a r e in d ire ct co n flict wit h a
co n s t it u t io n a l p ro vis io n .
Th e re h a s b e e n a h is t o rica l t re n d o f ju d icia l s e lf-re s t r a in t a m o n g a t le a s t s o m e
ju s t ice s .
These justices feel that policy is best left in the hands of the legislative and
executive branches .
Striking down a law merely because a majority of justices disagrees with the
legislature is wrong under this doctrine .
The way our system functions, there is nothing to stop the justices from doing
Other justices take the position that the court should be active in cases of civil
liberties and civil rights .
When it comes to allowing political agendas enter into the judicial decision –
making process, the justices must police themselves .
The Political Lens
Supreme Court justices, in theory, sit in order to interpret the law .
This interpretation is, in reality, filtered through a political lens.
No matter how well meaning these justices may be, their perceptions of what
is right or wrong in the law are impacted by their personal political beliefs .
“Liberal” v. “Conservative”
While there are always individual differences, a common way to divide the
political leanings of the court is to use the terms liberal a n d conservative t o
d e s crib e b o t h in d ivid u a l ju s t ice s , t h e co u rt in ge n e ra l, a n d p a rt icu la r d e cis io n s .
Illu s t ra t io n s o f liberal decisions a re d e cis io n s fa vo rin g crim in a l d e fe n d a n t s ,
p e o p le cla im in g d is crim in a t io n , a n d t h o s e cla im in g vio la t io n s o f civil righ t s .
De cis io n s t h a t a p p e a r t o fa vo rin g p o lice , p ro s e cu t o r s , a n d o t h e r go ve rn m e n ta l
e n t it ie s a re s a id t o b e conservative .
The Recent Court
Currently, the Supreme Court as a distinct cluster of four judges that
consistently vote liberal, and another cluster of four justices who vote
Justice Anthony Kennedy sits right in the middle of the political spectrum, and
is the “swing” vote that makes predicting the outcome of Supreme Court
decisions very difficult .
With the vacancy created upon the death of Justice Scalia (a staunch
conservative), the future of the Court is in question .
Not all liberal justices are equally liberal .
In the 2013 term, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena
Kagan cast liberal votes 70 percent of the time .
While still left leaning, Justice Stephen Breyer is substantially more
conservative than his female counterparts .
Activism v. Restraint
There are two major vantage points from which to regard the work of the
Supreme Court .
The first is that the constitution should be interpreted as it is written .
A second is that the Constitution must be interpreted in the context of
modern life and modern problems .
The is debate has been characterized as one between judicial activism and
judicial restraint .
Judicial activism represents the idea that the Court should actively seek to
right wrongs that other branches of government actively promote or will not
do anything about .
The majority of justices on the Warren Court were known as judicial activists .
These justices believed that the court should take an active role in ensuring
the civil rights of all Americans .
Judicial restraint is the idea that the democratic process should direct
changes in policy .
That is, policy should be set by legislative enactments that represent the will of
the people .
Advocates of judicial restraint commonly argue that since Justices are
appointed rather than elected, they are not the proper body to make policy
Note that while the Warren court was liberal in its judicial activism, that court’s
example should not lead to the conclusion that activism is always liberal .
The reality is that there will always be a tug of war between a strict
constructionist view of the constitution and the dynamic body of ideas
envisioned by extreme judicial activists .
The reality of an evolving society utilizing evolving technology dictates that the
Constitution be somewhat dynamic .
The Necessity of Change
A literal interpretation of the constitution would indicate that your phone
calls, texts, and emails are all subject to “seizure” by the government without
a warrant .
Those things did not exist when the Fourth Amendment was written, so the
they could not be protected .
The fundamental question that remains is one of striking a balance between
nullifying the democratic process and not allowing the Constitution to
remain relevant over time .
Limits on Judicial Activism
The legal framework that judges work within limits judicial activism to some
Before a federal court can hear a case, certain conditions must be met.
Under the Constitution, federal courts exercise only judicial powers.
This means that federal judges may interpret the law only through the
resolution of actual legal disputes, referred to in Article III of the Constitution
as “Cases or Controversies.”
Second, assuming there is an actual case or controversy, the plaintiff in a
federal lawsuit also must have legal standing t o a s k t h e co u rt fo r a d e cis io n .
Th a t m e a n s t h e p la in t iff m u s t h a ve b e e n a ggrie ve d , o r le ga lly h a rm e d in s o m e
wa y, b y t h e d e fe n d a n t .
Th u s , o r ga n iza t io n s s u ch a s t h e Am e rica n Civil Lib e rt ie s Un io n ca n n o t s u e t h e
p o lice d ire ct ly, b u t t h e y ca n fu n d le ga l a s s is t a n ce fo r a p a rt y t h a t a ct u a lly
a lle ge s h a rm d o n e b y t h e p o lice .
Jurisdiction of the Courts
In addition, the case must present a category of dispute that the law in
question was designed to address, and it must be a complaint that the court
has the power to remedy .
That is, the court must be authorized, under the Constitution or a federal law,
to hear the case.
For example, if there is no substantial federal question , th e Su p r e m e Co u r t
ca n n o t re vie w a ca s e o rigin a t in g in s t a t e co u rt s .
In addition, the case cannot be moot .
A ca s e is moot if it d o e s n o t p re s e n t a n o n go in g p ro b le m fo r t h e co u r t t o
re s o lve .
Th e fe d e ra l co u rt s , t h u s , a r e co u rt s o f lim it e d ju ris d ict io n b e ca u s e t h e y m a y
o n ly d e cid e ce rt a in t yp e s o f ca s e s a s p ro vid e d b y Co n gr e s s o r a s id e n t ifie d in
t h e Co n s t it u t io n .
The Power of the Court
Even with these limits, the policymaking role of the Supreme Court should
not be underestimated .
The rulings of the court are just as consequential as acts of congress and the
executive decisions of the president .
Many times, the ruling of the court is not based merely on a literal reading of
the law .
In many cases, the justices are invoking their own interpretations of what the
law should be, and not what it objectively is.
Section 2.4: The Civil Rights Revolution
Prepared by Adam J. McKee
The Political Pendulum
A political pendulum, swinging back and forth from liberal to conservative,
marks the history of the U.S. Supreme Court.
Obviously, conservative courts are courts composed of conservative justices,
usually appointed by conservative presidents.
Liberal courts, on the other hand, are composed of liberal justices, usually
appointed by liberal presidents.
The Warren Court
These courts are often characterized by the name of the chief justice at the
During the 1960s, the pendulum swung to the apex of liberalism when Chief
Justice Earl Warren (1953 – 1969) led it .
The Warren Court adhered to Packer’s Due Process Model, at least after the
judicial activists achieved a majority on the Court with the retirement of Justice
Frankfurter’s retirement in 1962.
This date marks the true beginning of the civil rights revolution .
The Civil Rights Revolution
This liberal court, headed by Warren, emphasized civil rights across the legal
The most enduring changes in criminal justice occurred in their
interpretations of the Fourth Amendment and Fifth Amendments, with many
landmark cases coming down that were designed by the court to shield
citizens from the abuse of police powers .
Prior to the 1960’s, the Supreme Court rarely interfered in the way that states
ran their own criminal justice systems.
The 1960s was a time of rapid social change, and that change is reflected in
the decisions of the Warren Court.
When the Warren court passed down its decision in Mapp v. Ohio in 1961, t h e
crim in a l ju s t ice s ys t e m in Am e rica wa s ch a n ge d fo re ve r.
Over the remainder of Warren’s tenure as Chief Justice, the court would hand
down many more decisions that would redefine the American legal landscape
in terms of civil liberties .
Mapp v. Ohio
A more conservative Supreme Court, back in 1949, stated that the
exclusionary rule applied only to federal law enforcement officers .
According to the ruling in Wolf v. Colorado (1949), if citize n s h a d a n y p ro t e ct io n
a ga in s t ille ga lly o b t a in e d e vid e n ce b e in g u s e d a ga in s t t h e m in co u rt , it wa s u p
t o s t a t e s u p re m e co u rt s t o in t e rp re t s t a t e co n s t it u t io n s in s u ch a wa y.
Wh e n Mapp o ve r ru le d Wolf, th e exclusionary rule wa s a p p lie d t o a ll la w
e n fo r ce m e n t in t h e Un ite d St a t e s , n o m a tt e r wh a t le ve l o f go ve rn m e n t
e m p lo ye d t h e m .
Another landmark decision influencing law enforcement practice passed
down by the Supreme Court was Chimel v. California (1969).
Today, we teach that Chimel established an exception to the warrant
requirement known as a search incident to arrest .
As a n e xce p t io n t o th e s e a r ch wa r ra n t re q u ire m e n t , t h is m a y s e e m like a
ca s e t h a t fit s Pa cke r’s crim e co n t ro l m o d e l.
Th is is b e ca u s e a n e xce p t io n t o th e s e a r ch wa rr a n t re q u ire m e n t is ge n e ra lly
co n s id e re d t o b e n e fit la w e n fo r ce m e n t , a n d is t h u s a vict o r y fo r la w a n d
o rd e r a t t h e e xp e n s e o f a civil righ t.
The Facts of Chimel
The facts of the case paint a different picture.
When the police arrested Chimel in his home for burglary, they searched his
home for stolen coins that were the fruits of his crime.
The coins were found in a garage attached to the house.
The court ruled that while the search was incident to the arrest, the search of
the garage went too far.
The Impact of Chimel
The proper scope of a search incident to arrest was the area in the suspect’s
“immediate control .”
We can see from this that the court limited a common police practice,
effectively doing away with an unwritten arrest exception to the search
warrant requirement of the Fourth Amendment .
Because this was deemed a due process issue by the Supreme Court, that
clause of the Fourteenth Amendment was used to apply the Fourth
Amendment rule to state law enforcement .
While the decisions of the Warren court had a weighty impact on many
aspects of American life, the most profound effects on the criminal justice
system were in the area of due process and defendants’ rights.
In Gideon v. Wainwright (1963), t h e co u rt h e ld t h a t in d ige n t d e fe n d a n t s fa cin g
ja il t im e h a d t h e righ t t o a p p o in t e d co u n s e l if t h e y co u ld n o t a ffo rd t h e ir o wn
la wye r.
In Miranda v. Arizona (1966), t h e Wa rre n Co u rt ru le d t h a t p o lice m u s t in fo rm
s u s p e ct s o f ce rt a in righ t s p rio r t o a cu s t o d ia l in t e rro ga t io n .
Du e t o p o p u la r cu ltu re , m o s t e ve r y Am e rica n kn o ws t h e s t a t e m e n t t h a t is
re a d t o s u s p e ct s b y t h e p o lice :
“You have the right to remain silent. Anything you say can and will be used against you in
a court of law. You have the right to have an attorney present during questioning. If you
cannot afford an attorney, one will be appointed for you by the state.”
Not every case decided by the Warren Court served to benefit criminal
In Terry v. Ohio (1968), fo r e xa m p le , t h e Co u rt ru le d t h a t t h e p o lice co u ld
s e a rch s u s p e ct s fo r we a p o n s wit h le s s t h a n p ro b a b le ca u s e .
The Pendulum Swings Back
The pendulum began to swing the other way in the 1970s.
This swing occurred because the composition of the court began to change .
As liberal justices retired from the court, Republican presidents such as Nixon,
Reagan, and Bush replaced them .
By the end of the first Bush administration, the court had transitioned from
the very liberal Warren Court to a much more conservative body .
The Conservative Courts
These conservative courts hammered out many exceptions to the blanket
protections created by the Warren Court .
This has created an increasingly broad scope of lawful investigative activity for
law enforcement .
This shift from the Due Process Model to the Crime Control Model did not
take place only within the courts .
It took place in the executive and the legislative branches as well .
The Burger Court
The Burger Court (1969 – 1986) was far more conservative than the Warren
Court, but there was no conservative majority .
One of the most controversial cases decided by the Burger Court was Furman
v. Georgia (1972), wh ich a b o lis h e d t h e d e a t h p e n a lty a s it wa s e n a ct e d a t th e
t im e .
Th is wa s n o t in ke e p in g wit h th e co n s e rva t ive e xp e ct a t io n s o f t h e Bu r ge r
Co u rt b e ca u s e Wa rre n Bu rge r wa s a co n s e rva t ive a p p o in t e d b y Pr e s id e n t
Rich a rd Nixo n .
Conservatives hoped that a court led by Burger would be far more
conservative, even to the point of overruling the more liberal of the Warren
Court’s rulings –This was not to happen .
The court may have chipped away at the major Warren Court doctrines, but it
declined to overturn them .
The chief justice may have been conservative when Furman was handed
down, but the remnants of the Warren Court still sitting on the bench kept the
court liberal, at least to a degree, in its majority decisions .
Because the composition of the court had shifted, some conservative
decisions were handed down.
Burger voted with the majority of the court in 1976 to reinstate the death
penalty in Gregg v. Georgia(1976).
Chipping Away at Warren
The Rehnquist Court (1986 – 2005) was far more conservative than the
These conservative courts, perhaps out of concern for the time -honored
tradition of cohesion and unity of the Supreme Court, did not overrule many
of the liberal decisions of the Warren Court.
Rather, they “chipped away” at them by creating scores of exclusions.
That is, things like the exclusionary rule still existed as a matter of law, but
there would be many exceptions that were created during the Reagan -Bush
Rehnquist was a strong believer …
SOU-CCJ230 Introduction to the American Criminal Justice System
SOU-CCJ230 Introduction to the
American Criminal Justice System
Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore
Rutz-Burri, and Shanell Sanchez
Open Oregon Educational Resources
SOU-CCJ230 Introduction to the American Criminal Justice System by Alison S. Burke, David Carter, Brian Fedorek, Tiffany
Morey, Lore Rutz-Burri, and Shanell Sanchez is licensed under a Creative Commons Attribution-ShareAlike 4.0 International
License, except where otherwise noted.
What is an OER textbook? 1
A Bit About Our Collaboration Project 2
Author Bios 3
Goals, Learning Objectives, and Skills 5
Table of Contents 7
1: CRIME, CRIMINAL JUSTICE, AND CRIMINOLOGY
1.1. Crime and the Criminal Justice System
1.2. Deviance, Rule Violations, and Criminality
1.3. Social Norms: Folkways, Mores, Taboo, and Laws
1.4. Interactionist View
1.5. Consensus View and Decriminalizing Laws
1.6. Conflict View
1.7. The Three C’s: Cops, Courts, and Corrections
1.8. The Crime Control and Due Process Models
1.9. How Cases Move Through the System
1.10. Media Coverage of Crimes
1.11. Wedding Cake Model of Justice
1.12. Street Crime, Corporate Crime, and White-Collar Crime
1.13. Different Types of Crimes and Offenses
1.14. Victims and Victim Typologies
1.15. Victim Rights and Assistance
1.16. “Spare the Rod, Spoil the Child” Myth/Controversy 65
2: DEFINING AND MEASURING CRIME AND CRIMINAL JUSTICE
2.1. Dark or Hidden Figure of Crime
2.2. Official Statistics
2.3. Victimization Studies
2.4. Self-Report Statistics
2.5. Misusing Statistics
3: CRIMINAL LAW
3.1. Functions and Limitations of Law
3.2. Civil, Criminal, and Moral Wrongs
3.3. Sources of Criminal Law: Federal and State Constitutions
3.4. Sources of Criminal Law: Statutes, Ordinances, and Other Legislative Enactments
3.5. Sources of Law: Administrative Law, Common Law, Case Law and Court Rules
3.6. Classifications of Law
3.7. Substantive Law: Defining Crimes, Inchoate Liability, Accomplice Liability, and Defenses
3.8. Substantive Law: Punishment: Incarceration and Confinement Sanctions
3.9. Substantive Law: Physical Punishment Sentences
3.10. Substantive Law: Monetary Punishment Sentences
3.11. Substantive Law: Community-Based Sentences
3.12. Procedural Law
4: CRIMINAL JUSTICE POLICY
4.1. Importance of Policy in Criminal Justice
Alison S. Burke
4.2. The Myth of Moral Panics
Alison S. Burke
4.3. The Stages of Policy Development
Alison S. Burke
4.4. Importance of Evidence Based Practices
Alison S. Burke
4.5. Re-Evaluating Policy
Alison S. Burke
5: CRIMINOLOGICAL THEORY
5.1. What is Theory?
5.2. What Makes a Good Theory?
5.3. Pre-Classical Theory
5.4. Classical School
5.6. Positivist Criminology
5.7. Biological and Psychological Positivism
5.8. The Chicago School
5.9. Strain Theories
5.10. Learning Theories
5.11. Control Theories
5.12. Other Criminological Theories
6.1. Policing in Ancient Times
6.2. Sir Robert Peel
6.3. Policing Eras
6.4. Levels of Policing and Role of Police
6.5. Recruitment and Hiring in Policing
6.6. Recruitment and Hiring Websites for Future Careers
6.7. Police Misconduct, Accountability, and Corruption
6.8. Current Issues: Police Shootings
6.9. Current Issues: Use of Force and Vehicle Pursuits
6.10. Current Issues: Stereotypes in Policing
6.11. Current Issues: Accountability
6.12. Current Issues: Internal Affairs and Discipline
6.13.Current Issues: Body Cameras
6.14. Myth: “Police Only Write Speeding Tickets to Harass Citizens and it is Entrapment.”
7.1. Introduction to the U.S. Court System
7.3. Structure of the Courts: The Dual Court and Federal Court System
7.4. Structure of the Courts: State Courts
7.5. American Trial Courts and the Principle of Orality
7.6. The Appeals Process, Standard of Review, and Appellate Decisions
7.7. Federal Appellate Review of State Cases
7.8. Courtroom Players: Judges and Court Staff
7.9. Courtroom Players: Prosecutors
7.10. Courtroom Workgroup: Defense Attorneys
8.1. A Brief History of The Philosophies of Punishment
8.6. Prisons and Jails
8.7. A Brief History of Prisons and Jails
8.8. Types of Jails
8.9. Who Goes to Jail?
8.10. Growth of Prisons in the United States
8.11. Types of Prisons
8.12. Prison Levels
8.13. Who Goes to Prison?
9: COMMUNITY CORRECTIONS
9.2. Intermediate Sanctions
9.4. Boot Camps/Shock Incarceration
9.5. Drug Courts
9.6. Halfway Houses
9.8. House Arrest
9.9. Community Residential Facilities
9.10. Restorative Justice
9.12. Current Issues in Corrections
9.13. Current Issues in Corrections: Mass Incarceration
9.14. Current Issues in Corrections: War on Drugs and Gangs
9.15. Current Issues in Corrections: Aging and Overcrowding
9.16. Current Issues in Corrections: Reentry and the Future of Corrections
10: JUVENILE JUSTICE
10.1. Youth Crime
Alison S. Burke
10.2. Juvenile Justice
Alison S. Burke
10.3. History of the Juvenile Justice System
Alison S. Burke
Alison S. Burke
10.5. Juvenile Justice Process
Alison S. Burke
10.6. Due Process in the Juvenile Court
Alison S. Burke
10.7. The Juvenile Justice and Delinquency Prevention Act of 1974
Alison S. Burke
10.8. Getting Tough: Initiatives for Punishment and Accountability
Alison S. Burke
10.9. Returning to Rehabilitation in the Contemporary Juvenile Justice System
Alison S. Burke
10.10. The Structure of the Juvenile Justice System
Alison S. Burke
10.11. Juvenile Institutions
Alison S. Burke
We hope you are as excited about this textbook as we were writing it. This is a free academic resource and
a free textbook that can be printed at low-cost if you prefer paper. Southern Oregon University’s Disability
Resource has reviewed this textbook for accessibility to all students.
Introduction to the American Criminal Justice System is an Open Educational Resource (OER)
https://en.wikipedia.org/wiki/Open_educational_resources that is licensed under the Creative Commons
(CC 4.0) format https://creativecommons.org with support to complete this project from Open Oregon
Educational Resources https://openoregon.org.
This introductory textbook is unique because it was a collaborative effort by all Criminology and Criminal
Justice professors at Southern Oregon University (SOU) in Ashland, Oregon. This textbook will meet the
learning objectives outlined through SOU and as a community college transfer course, as well as cover all
other topics expected to find in an introductory course. This book can be used on a quarter or semester
system, as well as cover topics that may get left out of some introductory texts such as controversial issues in
the criminal justice system. Further, we made it as comprehensive as possible to cover core concepts and areas
in the criminal justice system including theory, policing, courts, corrections, and the juvenile justice system.
Additionally, we created examples that will help make difficult concepts or ideas more relatable. Every
section provides an overview of key terms, critical thinking questions for course engagement, assignments,
and other ancillaries such as multimedia links, images, activity ideas, and more.
Feel free to ask any questions. Email Shanell Sanchez at [email protected] with any specific questions
about the book or any other professor if it is specific to their page.
A Bit About Our Collaboration Project
This OER could not be possible without the support from many different people. Our financial support came
from a grant through Open Oregon https://openoregon.org.
Dr. Shanell Sanchez wants to personally thank all her colleagues at SOU for taking on this endeavor with
her. The first plan was to adapt and edit an existing OER, but after an exhaustive search of OER’s, we found
there is a dearth of CCJ OER’s. We realized that if we wrote this book, we would be one of the first CCJ
OER’s available. The initial idea seemed a bit overwhelming, but watching it come together was amazing.
Dr. Sanchez had a vision for what an ideal textbook should look like for first-year students and our newest
majors or potential majors, but it was not possible without all of us working together.
Amy Hofer at Linn-Benton Community College served as our grant manager, but she went beyond that.
She has served as an excellent resource, mentor, and helped us find opportunities to present our experiences
Dr. Jeffrey Gayton is our university librarian at Southern Oregon University and helped coordinate this
project from the start of our application to the release of our OER going live.
Brian Stonelake, a professor in the Mathematics department at Southern Oregon University, provided
excellent guidance and insight to us when we were applying for the grant.
Christina Richardson was our student that served as a contributing editor, as well as created our glossary
for this OER. She went through the entire book to pose suggestions, edits, and comments that helped make
the end product better.
Alison S. Burke, Ph.D., Professor of Criminology and Criminal Justice, Southern Oregon University,
Alison S. Burke is a professor of criminology and criminal justice at Southern Oregon University.
She earned her Ph.D. from Indiana University of Pennsylvania and her MCJ from the University of
Colorado Denver. While in Denver, she worked with adjudicated youth in residential treatment facilities
and group homes. She has published a variety of journal articles and book chapters related to juvenile justice,
delinquency, and gender, and her primary research interests involve women and crime, juvenile justice
and delinquency, and pedagogy in higher education. Her most recent book is titled Teaching Introduction to
David E. Carter, Ph.D., Associate Professor of Criminology and Criminal Justice, Southern
Oregon University, https://inside.sou.edu/criminology/faculty/davidcarter.html
David E. Carter joined the Criminology and Criminal Justice Department in 2008. He received his Ph.D.
from the University of Cincinnati. Dave served in the U.S. Army for 8 years as a linguist prior to attending
school. He has published works in the Journal of Research in Crime and Delinquency in the area of life-
course research, as well as in the Corrections Compendium, where he wrote about U.S. inmate populations.
He also works with local agencies (in a consultative role) providing evidence-based practices and evaluations
for correctional programs in the area of effective interventions and evidence-based programming. At SOU,
Dave has helped facilitate the Lock-In event and annual that provides students with a hands-on experience
of the justice system.
Brian Fedorek, Ph.D., Associate Professor of Criminology and Criminal Justice, Southern Oregon
Brian Fedorek earned his doctorate at the Indiana University of Pennsylvania in Criminology. He has
taught classes in Terrorism, Comparative Criminal Justice, Theories of Criminal Behavior, and introductory
courses. His research interests include media and crime, criminological theory, and criminal violence. He has
served on the board of the Western Association of Criminal Justice.
Tiffany L. Morey, M.S., Instructor of Criminology and Criminal Justice, Southern Oregon
Tiffany L. Morey has an almost three-decade career in the law enforcement arena. She retired as a
Lieutenant from a police department in Las Vegas, Nevada. Her expertise is in the law enforcement, crime
scene investigation (CSI), and forensics fields. During her tenure in policing in Las Vegas she worked
in patrol, the crime prevention division, community services, recruitment, special events, problem-solving
unit (first ever unit/substation for her department in a high gang and drug area), undercover prostitution
and narcotics stings, search warrant service assistance, mounted unit departmental work, CSI (crime scene
investigator), forensics, Sergeant and Sergeant field training program and master trainer, Lieutenant and
Lieutenant field training program, and finally Acting Captain. During this time, she was also chosen and paid
by an independent firm to travel the country and conduct oral board interviews and assessment center testing
and recruiting for law enforcement agencies and fire departments. She developed a ground-breaking class
to assist candidates in the law enforcement hiring process and is now under contract to publish the related
textbook/study guide. Tiffany continues to operate in the field of CSI and forensics as an expert investigator
and witness on violent crime. She also runs a Crime Prevention Through Environmental Design (CPTED)
business, offering citizens and owners of businesses CPTED reviews to ensure the safety of their homes and
buildings. Finally, in her free time, she runs SOAR Wildlife Center (SoarWildlife.org), which is a non-profit
organization, that rehabilitates sick, injured, or orphaned fawns and other baby mammals.
Lore Rutz-Burri, J.D., Professor of Criminology and Criminal Justice, Southern Oregon
Lore Rutz-Burri is a 1982 graduate of Southern Oregon State College (now SOU) with a Bachelors of
Arts degree in Criminology and Political Science. After graduating, she lived in Southern Austria until 1984.
Upon returning to the states, she earned an M.C.J (Master’s degree in Criminal Justice) from the University
of South Carolina. In 1985 she started in a Ph.D. program at the University of Maryland, College Park, but
early on decided she would rather pursue a law degree. In 1989 she graduated “order of the coif” with her
doctor of jurisprudence (JD) from the University of Oregon School of Law. Following law school, Lore
clerked for the Superior Court of Alaska in Fairbanks for one year and then worked for 5 years as a deputy
district attorney in Josephine County, Oregon. There, she prosecuted a variety of crimes, but mostly assault
cases. In 1995, she began teaching criminology and criminal justice at SOU. Since 2015 she has been a
part-time Circuit Court judge in the Josephine County courts. Lore has been married for over 27 years to
her husband, Markus (a Swiss national). They have two sons– Severin (who studied at SOU and majored in
psychology) and Jaston (who studied at U of O and majored in philosophy). She has both case books and
introductory text on criminal law and criminal procedure.
Shanell K. Sanchez, Ph.D., Assistant Professor of Criminology and Criminal Justice, Southern
Oregon University, https://inside.sou.edu/criminology/faculty/dr-shanell-sanchez.html
Shanell Sanchez joined the Criminology and Criminal Justice department at Southern Oregon University
in Ashland, Oregon in 2016. Prior to that, Shanell was an Assistant Professor in Criminal Justice at Colorado
Mesa University in Grand Junction, Colorado. She received her Ph.D. from the University of Nebraska-
Lincoln in Sociology in 2012. Her research and teaching interests are centered around social change and
justice, inequality, and comparative crime and justice.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
Goals, Learning Objectives, and Skills
There is a dearth of OER textbooks in Criminology and Criminal Justice, which made creating this textbook
all the more exciting. At times we faced challenges about what or how much to cover, but our primary goal
was to make sure this book was as in-depth as the two textbooks we were currently using for our CCJ 230
introduction course. The only way we were willing to undertake this project as if it was as good, or better
than the current books students read. We have had very positive feedback about the required textbooks in
the course but consistently heard how expensive the books were to buy. We also needed to ensure we met
the learning outcomes outlined by SOU for a general education course, as well as the state of Oregon, to
make sure this textbook helps students meet those outcomes.
SOU’s catalog course description for CCJ 230 states this course surveys the functional areas of criminal
justice in the United States. This OER covers law enforcement, criminal courts, sentencing, penal
institutions, and community-based sanctions. It also includes historical and contemporary perspectives on
components of the criminal justice system, as well as the legal and constitutional frameworks in which they
• Students will increase the breadth of their knowledge and understanding of the American Criminal
• Students will enhance their critical thinking skills via writing, reading, and discussion.
• Students will learn the history, functions, responsibilities, processes, and importance of each
component of the criminal justice system.
• Students will become familiar with research and its relationship to criminal justice policy.
• Students will use the foundations learned about the American criminal justice system in future CCJ
Additionally, myths and controversies are incorporated in the course covering the above-noted content areas
in the American criminal justice system. In our experience, this tends to be the most exciting part of the
class. It also helps students build all learning outcomes through assignments, readings, and materials covered
in class. The primary goal when writing this book was to make it easy to read, with fun examples, thought-
provoking discussion questions, and is accessible to all to ensure that students would read. The content level
targeted first-year students who are taking their first course in Criminology and Criminal Justice, but also as
a general education course for those that may not intend to major. In order to ensure each area has accessible
materials for the course and meets our learning objectives and goals, we have conducted preliminary research
in order to determine our best option is moving forward.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
Table of Contents
1. Crime, Criminal Justice and Criminology
2. Defining and Measuring Crime and Criminal Justice
3. Criminal Law
4. Criminal Justice Policy
5. Criminological Theory
9. Community Corrections
10. Juvenile Justice
We dedicate this book to our students at Southern Oregon University, who continuously work hard in our
classes and develop lasting relationships with us. We also dedicate this book to all our partners, children, fur
babies, and friends that supported us in the writing process.
1: Crime, Criminal Justice, and
This section will broadly introduce crime, criminal justice, and criminology. This section is designed to be a
broad overview of what the subsequent chapters will cover in detail. It also demonstrates how the United States
create laws, policies enacted to enforce laws, and the role of the media. After reading this section, students will be
• Understand the differences between deviance, rule violations, and criminality
• Explain the differences between the interactionist, consensus, and conflict views in the creation of
• Identify the three components of the criminal justice system
• Discuss the differences between crime control and due process model, and application examples to
• Describe the wedding cake model theory and application examples to each tier
• Briefly explain the role of the media and how media may spread myths in society
• Briefly understand the unique role of victims in the criminal justice process
Background Knowledge Probe: The goal here is to assess current knowledge about the criminal
justice system at the start of the course. Each of these topics is covered throughout the course, and they will
often be a controversial topic and topic for debate.
You will indicate whether you know each statement to be True or False, but there is no right or wrong
answer since it is just to assess your background knowledge.
1. Blacks commit more crime than any other racial group.
2. The United States has the lowest recidivism rates in the world (return to prison).
3. The death penalty is cheaper than life imprisonment.
4. Politicians shape our thoughts on crime, even if they are inaccurate.
5. Children are most likely to be killed by a stranger.
6. A stranger is most likely to physically harm you.
7. White-collar crime costs our country more every year than street-crime.
8. Juveniles are more violent today than ever before.
9. Immigrants commit more crime than native-born people.
10. Violent crime has risen in the United States over the last 20 years.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
1.1. Crime and the Criminal Justice System
Theft as a Child
The first lesson in crime and criminality I remember was when I was in second grade and stole something from
a local drug store. I thought that the bracelet was shiny and perfect. At first, I remember wanting to try it on, but
then I did not want to take it off. I had more questions than my Nana may have been ready to answer about why I
did it and why I could not keep it. I had to take the bracelet back, which hurt because I loved it. Because of guilt or
shame, I told my grandma what I did.
Think about a time in your life that you may have done something similar. Was this first lesson in crime and
criminality from the person you were raised by such as a parent(s) or grandparent(s)? Did they teach you that what
you did was a crime and, hopefully, how to correct this wrong at a young age?
You were probably punished, and they may have consisted of helping out with more chores or losing your
allowance to pay back what you stole.
Imagine all the questions you may have for your parents at the moment: Why was it wrong? What would happen
to me if I did not tell you? What is a crime? Who decides what makes a crime? What happens to me if I commit a
crime and get caught? What is my punishment? Why was it wrong when there were so many polishes there?
Further, I had to help out around the house for the weekend. In exchange for all this, she did not tell my dad
because she knew her punishment was sufficient and to tell him may be excessive. She took a balanced approach to
punishment and I think this is why it was so effective. It was not too strict, it was hard to complete, and I had to
think about what I did.
Most criminologists define crime as the violation of the laws of a society by a person or a group of
people who are subject to the laws of that society (citizens). Thus, crime as defined by the State or Federal
government. Essentially, crime is what the law states and a violation of the law, stated in the statue, would
make actions criminal.
1. Lynch, M., Stretesky, P., Long, M. (2015). Defining crime: A critique of the concept and its implication. Palgrave Macmillan: US.
For example, if someone murdered another individual in the process of stealing their automobile most
people would see this as a criminal and a straight-forward example of crime. We often see murder and
robbery as wrong and harms society, as well as social order. However, there are times crime is not as straight-
forward though and people may hesitate to call it criminal. The community I live in, and many others
throughout the area, post signs that it is illegal to give food and other items to homeless individuals in need.
If one were to violate this law and give food to a homeless person it would not involve harm to individuals,
but the social order.
Adele MacLean joined others in an Atlanta park to feed the hungry the Sunday before Thanksgiving and
was given a citation and a summons to appear in court. Ultimately, MacLean’s case was dropped when she
showed up in court, but she and her lawyers argued the citation for serving food without a permit was
improper and demonstrates callousness toward the homeless. The city and some advocates say feeding people
on the streets can hinder long-term solutions and raises sanitation concerns.
Approximately 40 cities across
the nation have active laws to restrict food sharing, and a few dozen more had attempted such restrictions,
according to the National Coalition for the Homeless.
We will talk later about how we may create laws based on what can cause harm. Harm can be to the social order,
physical, economic, social, emotional, environmental, and more. In order to ensure that people receive justice in
today’s society, we use the criminal justice system to administer punishment or reward, and those crimes are often
punished based on morals and norms.
The criminal justice system is a major social institution that is tasked with controlling crime in various ways.
Police are often tasked with detecting crime and detaining individuals, courts often adjudicate and hand down
punishments, and the correction system implements punishments and/or rehabilitative efforts for people who have
been found guilty of breaking the law.
Criminal Justice Process
When the law is broken, the criminal justice system must respond in an attempt to make society whole
again. The criminal justice system is made up of various agencies at different levels of government that
can work independently and together, but each attempting to deal with crime. Challenges may arise
when agencies do not work together or attempt to work together inefficiently. The notorious serial killer
Ted Bundy was an example of U.S. law enforcement agencies not working together because of lack of
technological advancement to freely exchange information and resources about killings in their area. Bundy
exploited gaps in the traditional law enforcement, investigative processes throughout different jurisdictions,
and ultimately was able to avoid arrest and detection. If various agencies at the Federal, State, and Local law
enforcement level had worked together they could have potentially stopped Ted Bundy sooner. Following
Ted Bundy, a Multi-agency Investigative Team manual, also known as the MAIT Taskforce, was created
through the National Institute of Justice to develop information about the crime, it causes and how to control
it https://www.ncjrs.gov/pdffiles1/Digitization/110826NCJRS.pdf. One of the values of the United States is
that local agencies will control their local community, but at times this may create unexpected complications.
2. Brumback, K. (2017). Cities, volunteers clash over feeding homeless in public. Associated Press. https://www.seattletimes.com/nation-
3. National Coalition for the Homeless. (2018).
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
You are to create an argument for or against law enforcement agencies working together. Some countries have
national police forces, whereas we do not. Be prepared to defend your position in the class.
Although agencies may operate differently, the way cases move through the criminal …
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