THE PENAL SYSTEMAN OVERVIEW

Why do we have a penal system?

• Incapacitation: remove dangerous people from society so they don’t harm the rest of us.

• Deterrence: • Individual deterrence: punish offenders so they won’t want to

commit more crime• Societal deterrence: prevent people from committing crime by

threatening them with punishment

• Retribution: punish people because they broke the law.

• Rehabilitation: help people who broke the law so that they don’t make the same mistakes again.

Overview of the Court System• The federal court system

prosecutes people who break federal laws (Examples: terrorism, trafficking of drugs across state or international borders, mail fraud, white collar crimes involving large amounts of money)

• The state court system prosecutes people who break state laws (Examples: murder, sexual assault, aggravated battery, drug possession)

A Little Bit of Vocab…

• Misdemeanor: A low-level crime, like public intoxication, solicitation of illegal business, loitering, or possession of a small amount of marijuana. Punishable by up to one year in jail.

• Felony: A serious crime, like selling drugs, murder, sexual assault, or unlawful use of a weapon.

• Prison: The facility where someone is sent after being convicted of a crime and sentenced to more than one year.

• Jail: The facility where someone stays while they are awaiting trial or serving a sentence of less than one year.

Overview of the Process Step One: Charges

• When someone is arrested, there may or may not be an investigation before the person is charged with a crime. (Example: the police see someone engaged in criminal behavior vs. someone is suspected of committing a murder last night.)

• Once charged, the defendant is brought to court. The judge determines if the police had probable cause to arrest the defendant, and bond is set. The judge has 3 options for bond:• Remand (No Bond): Typically reserved for defendants who are a danger to

society • D-Bond: Defendant has to post 10% of the amount set by the judge in order to

await trial outside of jail. When the case has been resolved, the defendant gets most of the money back if he or she doesn’t miss a court date.

• I-Bond: Defendant is released on his or her own recognizance; doesn’t have to post any money. He or she signs a document promising to return to court.

Overview of the Process Step Two: Pretrial Proceedings

• Preliminary Hearing: Hearing where the prosecution shows the judge that a crime has probably been committed and the defendant probably committed that crime. Usually only the arresting officer testifies.

• Arraignment: Hearing where the judge advises the defendant of the charges against them and the potential penalties associated with the charges. The defense attorney enters a “not guilty” plea on the defendant’s behalf and files a motion for discovery.

• Discovery: Each side shares their evidence with the other side. The state provides the defense with copies of any and all police reports, statements from alleged victims and witnesses, and any physical evidence that they intend to use at trial.

Overview of the Process Step Three: Trial

• The defendant can decide if he or she wants to plead guilty or go to trial.

• If the defendant decides to go to trial, he or she can decide whether to have a jury trial or a bench trial (a trial where the judge decides the verdict).

• At trial, both sides take turns presenting evidence and questioning witnesses. At this stage, it is the state’s attorney’s burden to prove the defendant is guilty beyond a reasonable doubt.

Sentencing

• If a defendant is found guilty at trial, his or her attorneys can present mitigating factors (positive things about the defendant, personal struggles, reasons why he or she felt he had no choice but to commit the crime, etc.), and the prosecutors can present aggravating factors (the effect of the crime on the victims, the dangerousness of the crime, negative things about the defendant, etc.) The judge will then decide on the sentence.

• If a person is convicted, judges are also required to adhere to mandatory minimum sentences (in state and federal courts) based on the nature of the offense.

Plea Bargaining

• In both the federal system and the Illinois state system, only approximately 2% of cases actually go to trial. This means that the overwhelming majority of defendants end up pleading guilty. Why?• Some defendants decide that they will plead guilty because they

can’t win at trial. • Plea bargaining saves the courts time and money. While it is illegal to

impose a harsher sentence on a defendant who loses at trial, the “trial tax” is an unspoken reality in a lot of jurisdictions.

• Some defendants sit in jail for a long time awaiting trial, and they might decide to plead guilty in exchange for probation or supervision so that they don’t have to continue to sit in jail.

• FACT: The average length of a stay in Cook County Jail is 57 days, and it used to be even longer.

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