The use of Deadly Force

Tennessee v. Garner (1985) “Fleeing Felon”

Trend of police killings (and killings of police) have been downward

Most department have guidelines for when police may discharge firearm

Review boards for firearm discharge + administrative leave

1

The Courts

What happens between arrest and corrections

The Structure of the Courts State Courts

Layers of Trial Courts (Superior and inferior) Appellate courts Supreme court

Federal Courts Trial courts Federal Appeals courts “District courts” The Supreme Court

U.S. Supreme Court 9 Justices, appointed by president,

in consultation with senate Appointment is for life

High stakes for politics Interpret laws in light of

constitution and past court rulings Choose what cases they wish to hear—

can originate in state or federal court

Who are the “players” in the judicial system?

Prosecutor Defense Attorneys Judges

The Prosecutor Represents the state in criminal

matters Federal = Attorney general and U.S.

attorneys State = District or State attorney

The 400 pound gorilla of the court system What does a 400 pound gorilla do?

Prosecutorial Discretion Whatever he

wants!

Decisions Whether or not to

charge & specific charge

Decision to drop case

May enter and end plea negotiations

The Defense Attorney Private Attorneys (Johnny Cochran) Sixth Amendment right to counsel

Attorney list system Contracting with law firm Public defenders system (large, urban)

Roughly ¾ of state inmates are represented by publicly funded attorneys

Role of the Defense Represent their client in a

vigorous, adversarial manner Investigate incident, interview

client/witnesses, represent client at all proceedings, negotiate plea with district attorney

Conflict of interest? The Devil’s Advocate

Low pay and conflict of interest = burnout

The Judge During Trial

Rule on questions of procedure how to question witnesses, rules of

evidence May determine guilt in a bench trial

After trial or plea bargain Responsible for determining sentence

The Courts System Process

1. Formally charge 2. Pre-trial Detainment Decisions3. Determine guilt or innocence4. Impose a sentence5. Hear appeals

Pre-Trial Decisions Prosecutor must issue a criminal

charge Formal document, lays out facts of

case, circumstances of arrest, penal code

Felony cases = bill of “indictment” or “information”

Misdemeanors = criminal complaint

Pre-Trial Decisions Arraignment

Judge makes sure defendant understands charge

Makes sure defendant has counsel Defendant enters plea

Guilty No Contest Not Guilty

Decision regarding pre-trial detainment

Pre-Trial Detainment Jail

50% pre-trial, 50% sentenced < 1 year

Alternatives to Jail? Bail System

Bail Bondsmen Fairness?

Alternatives to Bail? Pretrial Supervised Release

Essentially probation while out in community before trial (similar “conditions”)

Release on Recognizance (ROR) Promise to come back

Why do people fail to show up for court dates? Role of pretrial services

The Trial Jury Selection Trial Process

Opening statement Prosecutor Defense Closing argument Verdict Sentence

Is the process really “adversarial?” Sam Walker’s “Wedding Cake”

Model Celebrated cases may approach ideal

of an adversarial process Lower “layers” = administrative

rather than adversarial Judge, defense, and prosecutor have a

shared understanding of what a case is “worth”

The Courtroom Workgroup Term coined by Malcolm Feeley

Judges, prosecutors and defense work together daily

Minimize conflict and develop informal procedures for dealing with cases

The “Going Rate” Seriousness of offense Prior record of defendant Relationship between victim and defendant

Plea Bargaining What is bargained?

Charge Sentence

Conservatives = loophole Liberals = perversion of the system Reality? Given the “going rate,” it

is not so much a “bargain” as standardized administrative process

Benefits of Plea Bargaining State

Prosecutor assured of guilt verdict Save the court time and cash More time for “serious cases”

Defendant Avoid pre-trial detention No uncertainty in sentence May get more lenient sentence

Sentencing Structures Indeterminate

Tied to rehabilitation More open ended, typically tied to parole

release Sentence = 2-5 years

Determinate More Fixed

Sentence = 26 months May still get out early through a variety of

mechanisms (e.g., good time credits)

Specialized Sentencing Schemes within Determinate Sentencing

Mandatory Minimum Sentences 3 strikes legislation Truth in sentencing

Federal initiative 85% for UCR Part I violent offenses

Sentencing Guidelines End result of the debate over

rehabilitation and intermediate sentences (1960s-1970s) Take discretion away from…

Liberals = racist / classist judges Conservatives = liberal weenie judges

Question: Where does the discretion go?

Who creates the sentencing grid?

CRIMINAL HISTORY SCORE SEVERITY LEVEL OF CONVICTION OFFENSE (Common offenses listed in italics)

0

1

2

3

4

5

6 or

more

Murder, 2nd Degree (intentional murder; drive-by- shootings)

XI

306

299-313

326

319-333

346

339-353

366

359-373

386

379-393

406

399-413

426

419-433

Murder, 3rd Degree Murder, 2nd Degree (unintentional murder)

X

150 144-156

165

159-171

180

174-186

195

189-201

210

204-216

225

219-231

240

234-246

Criminal Sexual Conduct, 1st Degree 2 Assault, 1st Degree

IX

86

81-91

98

93-103

110

105-115

122

117-127

134

129-139

146

141-151

158

153-163

Aggravated Robbery 1st Degree Criminal Sexual Conduct, 2nd Degree (c),(d),(e),(f),(h) 2

VIII

48

44-52

58

54-62

68

64-72

78

74-82

88

84-92

98

94-102

108

104-112

Felony DWI VII 36 42 48 54

51-57 60

57-63 66

63-69 72

69-75

Criminal Sexual Conduct, 2nd Degree (a) & (b)

VI

21

27

33

39

37-41

45

43-47

51

49-53

57

55-59

Residential Burglary Simple Robbery

V

18

23

28

33

31-35

38

36-40

43

41-45

48

46-50

Nonresidential Burglary

IV

121

15

18

21

24

23-25

27

26-28

30

29-31

Theft Crimes (Over $2,500) III

121

13

15

17

19 18-20

21

20-22

23

22-24

Theft Crimes ($2,500 or less) Check Forgery ($200-$2,500)

II

121

121

13

15

17

19

21 20-22

Sale of Simulated Controlled Substance

I

121

121

121

13

15

17

19

18-20

Sentencing and Discretion With guideline sentencing, who has

discretion? Who creates the grids?

Many states = legislature Constant pressure to increase sentences

MN: The Minnesota Sentencing Guidelines Commission

1980 guidelines tied to prison population

Prosecutors Decide the charge (where you land on offense

seriousness)

Sentencing Disparity When 2 people who commit similar

crimes, and have the same prior record receive different sentences

What stage do disparities enter? Jurisdictional Differences Plea bargaining (part of “going rate?”) Victim/Offender relationships Sentencing judge (biased, bad day…)

Racial Disparities RACE

Incarceration Rates Black = 3,300/100,000 Hispanic = 1,200/100,000 White = 500/100,000

BUT… Disparities enter prior to judicial involvement

(police) Disproportionate involvement in serious

crime

Racial Disparity in Sentencing II The “Liberation Hypothesis”

More disparity in less serious cases More disparity when black offender and

white victim Rape and Capital Murder

Race as part of “offense seriousness” and “prior record” Crack cocaine laws, aggressive policing of

minority communities

Other Disparities Class = Difficult to detect (most in

system are relatively poor) Difference between white collar and

street Differences in some “celebrated cases”

are obvious Full benefit of highly paid defense attorneys

Gender Females more likely to be treated

leniently

Reducing Sentencing Disparity Sentencing guidelines

May reduce some disparity, but does not eliminate

Disparity may be “built in” to sentencing grid (e.g., crack penalty)

Do we want to eliminate all disparity? More harsh with females?

Some disparities may be due to legitimate factors

Corrections Carrying out the sentence of the

decreed by the judicial system History of Corrections Community Corrections Intermediate Sanctions Institutional Corrections

Colonial America (1600s-1750s) Punishment was public Punishment was corporal or capital Prison-like institutions existed, but

were not used as “punishment”

COPORAL PUNISHMENTS

The Rise of the Penitentiary (1750-1800) William Penn

Revised criminal code in Pennsylvania to forbid torture and mutilation; ordered new “houses of correction”

Walnut Street Prison (1790) Other states (New Jersey, New York)

followed

Walnut Street Jail and Eastern Penitentiary

Corrections in the 1800s Prison brutal, corporal punishment

prevalent Prison building boom (1850s) The Rise of Prison Industry

Contract system, convict-lease, state account

The Progressive Era (early 1900s) to the 1960s The Progressives attacked many

social ills (working conditions, poverty….)

In Criminal Justice Rehabilitation (not punishment,

penance) should be the goal of corrections

Psychology/Sociology “Causes” Platform of indeterminate sentences,

probation, parole…

Corrections from 1970 to present

1960s-1970 Faith in rehabilitation crushed Liberals = justice model, Conservatives =

punish 1970s = deterrence 1980s-2000s: deterrence/incapacitation

Return to determinate sentencing 3 strikes legislation, mandatory minimums,

harsh sentencing guidelines… Chain gangs, “strip-down” prisons

Currently: Evidence based corrections?

Conscience and Convenience Why were the first prison built?

Revulsion of Gallows “Penitentiaries”

Then, “Correctional Facilities” Why do we still build prisons if we

no longer believe in rehabilitation? Incapacitation as the “default” goal of

prisons….or “convenience”

The Corrections Continuum Probation Intermediate Sanctions Jails Prisons

Probation Formally adopted in progressive era Suspend sentence, in return, offender

abides by “conditions of probation” Conditions set and enforced by judicial

system Offenders who “fail” may have probation

revoked, and original sentence imposed

Functions of Probation Departments

Pre-sentence Investigation (PSI) Interview offender, case history, tied to

rehabilitation Includes recommendation for sentence

Supervision of Offenders Counseling, meet with offenders Help with job, broker community

resources Supervise (house visits, drug testing)

Use of Probation 65% (almost 2/3) of the total corrections

population is on probation Roughly 4.2 million offenders are on

probation Average Caseload = 120

Goal has shifted Rehabilitation (1920-60s) to

supervision/zero tolerance (1980s-1990s) to “balanced” (?)

Parole Parole as release from prison

Discretionary release Parole board = appointed by governor

Related to rehabilitation and intermediate sentences

Parole as supervision Similar to probation supervision Early release a privilege, therefore must follow

conditions of release Many states abolished parole release in 1980s, but

now retain supervision “Post-custody supervision” or “Community Control”

How “effective” are probation and parole supervision?

Cost savings Probation and parole are much less expensive than

prison Recidivism

Large differences in “recidivism” across jurisdictions

For felons on probation, as high as 65% (California felons), as low as 17% get arrested within 3 years

Depends upon “risk” of clients Failure rates higher for parolees

40% return to prison within 3 years, arrest rates much higher

Intermediate Sanctions

Probation Prison Death ISP EM Boot Camp

WHY do these critters exist? Prison crowding in 1980s Probation viewed as failure Need for “continuum” of sanctions

What is the goal of these critters? Divert offenders from prison (save

money) Reduce recidivism (through

deterrence) Provide an option to judges that

fits between prison and probation

Intensive Probation or Parole Supervision (ISP) as Example Idea is to “soup up” traditional

supervision Reduce Caseloads (15 to 40

offenders) Daily contact with offender Routine drug testing Curfews, home and employment visits

Do ISP’s work? Do ISP’s divert from prison?

NO, judges are reluctant to send “prison-bound” offenders to ISP (Net Widening)

Do ISP’s reduce recidivism? NO, when compared to similar group of

offenders, they actually do worse (fishbowl effect)

Movement over past decade to use ISP as a way to punish probationers, to enforce treatment, or to incorporate effective treatment within the ISP framework

Residential Community Corrections Traditional “Half-way house”

Used to reintegrate prison inmates into society

Now Traditional functions Sanction for probation violators Day reporting centers Split sentences (probation + RCC time)

How do RCC’s Work? Typically, they are house-like

structures (not prison-like) Inmates (clients) are usually free to

leave during the day (job, classes), and return at night

Progression from little freedom to more freedom

RCC as primary way to provide correctional treatment

Institutional Corrections

Go to jail, go directly to jail, do not pass go, do not collect

$200

JAILS County Level Institutions

Usually run by Sheriff and deputies House inmates (less than 1 year) and

pre-trial detainees Conditions notoriously poor

Little programming, no medical facilities Violence, shifting population, suicide

rates high

Prisons Hold individuals sentence to at

least 1 year Operated by the executive branch

Federal Bureau of Prisons (BOP)

98 Facilities From 140,00 at yearend 2000 to

215,000 inmates at yearend 2011 Most inmates (60%) are serving

time for drug offense Clear product of “War on Drugs”

Prisons ranked on a 1 to 6 scale (1 = FCI in Colorado)

State Prisons Over 500 prisons, and 1.5 million

offenders Governor typically appoints warden Organization

Maximum (razor wire, guard towers…) Medium (similar to max, but less

serious offenders) Minimum (typically campus style)

Since the late 1970s, the total number of inmates in custody has increased dramatically

Why the dramatic increase?

Change in public opinion, and political emphasis Three strikes laws, “truth in sentencing” Longer sentences in “guidelines” Drug Policy Increase in felony convictions

Factors that do not clearly influence incarceration Crime rates, Economy

For the first time in decades… The corrections population is declining

Great recession/budgets, change in attitude?

2011 Figures Probation: 3,971,319 Parole: 853,852 Jail: 735,601 Prison: 1,504,150

Roughly 7 million under supervision About 100,000 less than previous year

1.4% decline Almost all of the decline (82,000) due to declines in

probation

What type of offenders go to prison?