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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 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.
2 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.
3
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.
Working Together?
2. Brumback, K. (2017). Cities, volunteers clash over feeding homeless in public. Associated Press. https://www.seattletimes.com/nation-
world/cities-volunteers-clash-over-feeding-homeless-in-public/
3. National Coalition for the Homeless. (2018).
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
12 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 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 justice system is
consistent. The first step after getting caught stealing something from a store is involvement with police
when law enforcement is called. The next step in the process is to proceed through the court system to
determine guilt or innocence. If you are found guilty then you will receive a sentence that will be carried
out in the next step. After conviction, you move to the correctional system for formal punishment and/or
treatments as determined by the courts. An individual may not go through the entire process and criminal
justice officials decide whether the case should continue on to the next stage. Perhaps the officer decides not
to cite you and your contact ends there. However, it may be the district attorney (DA) that decides to drop
your case before it even goes to trial. Regardless, the process is typically cops, courts, and then corrections.
We will explore each of these in greater detail later on.
News Box: In 2016, more people were arrested for marijuana possession than for all crimes the FBI
classifies as violent.
4 Overall in 2016, roughly 1.5 million people were arrested for drug-related offenses, up
slightly year-over-year
5 Marijuana enforcement and criminalization goes to the heart of some of the most
pressing issues facing the criminal justice system, policymakers, citizens, and the world. Is criminalizing
drug use effective, especially for marijuana? Is spending money on enforcing drug laws, prosecuting drug
crimes, and punishing drug offenders effective? The United States has taken a get-tough approach towards
the War on Drugs, created mandatory minimum sentences, and punished people in large numbers but is it
effective?
4. https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-18
5. Ingraham, C. (2017). More people were arrested last year over pot than for murder, rape, aggravated assault, and robbery —
combined. The Washington Post. https://www.washingtonpost.com/news/wonk/wp/2017/09/26/more-people-were-arrested-last-year-
over-pot-than-for-murder-rape-aggravated-assault-and-robbery-combined/?noredirect=on&utm_term=.62735d3474ea
Introduction to the American Criminal Justice System
13 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.2. Deviance, Rule Violations, and Criminality
SHANELL SANCHEZ
Nude Ultimate Frisbee
Imagine you recently moved to Oregon for work from Georgia after graduating college and hope to make new
friends. Georgia has been your home forever, so Oregon is entirely new. Then one day at the dog park you run
into a guy that seems like someone you would like to hang out with and he tells you to come out and play ultimate
frisbee this weekend. You decide to take the leap and meet new people, play a new sport, and have some fun.
You arrive on the field, but notice something that stands out as different to you and wonders ‘is this allowed
in Oregon?’ Some women and men are naked, some fully and some just certain parts exposed, but no one seems
uncomfortable. You look around at the topless players, all adults, and wonder if this is the wrong place. Other
people in costume walk around like Unicorns, Mario, Rainbow Brite, among others. Suddenly, thoughts start
racing through your mind: “Why are people dressed strangely? Is it legal to be nude in public in the state of
Oregon? Why does no one seem to mind? Can I keep my clothes on? What will my family in Georgia think?
Should I just go back to my apartment now?”
Suddenly, the guy from the dog park runs up and tells you to come on over so he can introduce you to the
team. Situations like this are often examples we use in the college classroom to demonstrate the difference between
deviance, rule violations, and criminal violations. Sometimes there are times that behaviors that appear to be deviant
are not illegal, but other times behaviors that are illegal are not deviant.
Just about everyone in society has done something that someone else would disagree with and see as deviant.
For example, I recently wore clothes to the gym that were out of style but how did I know they were out of
style? Well, easy! The reaction of others to my lack of style in the gym was clear that it is no longer cool to
wear knee-high socks with athletic shorts to the gym.
Another time I was at Thanksgiving dinner with my family and I expressed open support for a politician
that no one else in the family supported. Their reactions to my support of him made it evident that I
was the deviant one that was not going along with the typical political views expected in my reasonably
conservative, Republican family.
Alternatively, perhaps I am deviant when I tell you my favorite show on television is, and always will
14 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | “Facial Tattoos and Piercings”
be, the Golden Girls, which seems odd for someone in their early thirties. Perhaps someone thinks it is
utter nonsense and ‘crazy’ wasting my time watching such shows. These are just a few examples where my
behavior, thoughts, actions, or beliefs may be different from those around me.
From a sociological perspective, social norms are all around us and are accepted norms and behaviors
that defined within a specific group. The group you are in can change, which would mean the norms and
behaviors that are acceptable at any given time may change.
1
Deviance is behavior that departs from the social norm. Goode argues
that four things must happen in order for something deviant to take place
or exist:
1) a rule or norm must be established; 2) someone has to violate that
rule or norm; 3) there must be an audience or someone, that witnesses
the act and judges it to be wrong; 4) and there is likely going to be a
negative reaction from that audience that can come in many forms (i.e.,
criticism, disapproval, punishment, and more).
To commit an act of deviance one does not need to violate a
dangerous norm, and not all acts that are deviant are criminal. Not all
criminal acts are deviant either. Deviance falls on a spectrum that can
range from really deviant to not so deviant but remember it is dependent
on the audience. Think back to the previous comment about the show
Golden Girls. My grandma would not find that as deviant as my husband
does because we grew up watching it together. We spent many hours on
the couch laughing away at the silliness of it all, so we would both agree
it is a beautiful show.
2
Applying Knowledge
Assignment: Apply Goode’s definition of what needs to happen in order for something to be considered deviant
in no less than 500 words and following the example below.
Example: The awkward outfit to the gym: knee socks, athletic shorts, and an oversized Broncos t-shirt
mentioned above could be deviant. Based on Goode’s definition of deviance, this attire departed from the social
norm at the gym in 2018. Whether we realize it or not some specific rules or norms established in the gym (1);
sometimes we have a dress code, but other times, you have to keep up with current ‘hip trends’ such as yoga pants
for women in 2018. Next, I violated that norm by my attire (2); since it was a busy Monday night lots of people
saw my attire, my audience, that was able to witness my act and then judge it (3). Lastly, they cannot kick me out
for not dressing cool, but the awkward smirks, stares, and giggles were all I needed to know that my clothes were
deviant and not cool (4). This could certainly have not been true in 1950, 1980, or even early 2000s. If I think back
to when I started lifting over a decade ago, yoga pants were unheard of and no one wore anything ‘tight’ to the
gym. Today yoga pants are regular and in some parts of the country for women and men.
1. By Tuerto - [1], CC by-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=26526042
2. Goode, E. (2015). Deviant Behavior, (10th ed.). New York: Pearson, Education.
Introduction to the American Criminal Justice System
15 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.3. Social Norms: Folkways, Mores, Taboo, and Laws
SHANELL SANCHEZ
Social Control Exercise
Assignment: We rely on informal social control to influence people’s behavior, such as giving the stink eye, cold
shoulder, or correcting someone’s behavior in order to ensure people conform. Think about a time when a parent,
guardian, coach, employer, or teacher (agents of social control) used informal social control to respond to your
behavior. What did the agent of informal social control do? Provide an example when informal social control was
applied to another person. What were they doing and how was their behavior controlled through informal social
control?
Example: Talking on the phone with a work-related matter and kids start bickering over slime. I am unable to
put the phone down, so I relied on hand motions to show them it was unacceptable. There was no need to hang up
or say anything at all. The eye actions indicated they were acting inappropriate and their behavior changed.
Norms can be internalized, which would make an individual conform without external rewards or
punishments. There are four types of social norms that can help inform people about behavior that is
considered acceptable: folkways, mores, taboos, and law. Further, social norms can vary across time, cultures,
place, and even sub-group.
1
Think back to your first experiences in school and surely you can identify some folkways and mores
learned. Folkways are behaviors that are learned and shared by a social group that we often refer to as
“customs” in a group that are not morally significant, but they can be important for social acceptance.
2 Each
group can develop different customs, but there can be customs that embraced at a larger, societal level.
1. Goode, E. (2015). Deviant Behavior, (10th ed.). New York: Pearson, Education.
2. Augustyn, A., Bauer, P., Duignan, B., Eldridge, A., Gregersen, E., Luebbering, J.E., etc..., (N.D.). Folkway, Encyclopedia Britannica.
16 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Folkway Example
Imagine sitting in the college classroom with sixty other people around. As a professor who teaches early morning
classes, it is always encouraged to eat if hungry. However, everyone must be considerate of those around them.
You should not chew loudly. That would be considered rude, and it is against class ‘customs’ to do so. To make it
worse, imagine burping without saying ‘excuse me.’ These would be folkway violations. Remember, this may not
be disrespectful in all cultures, and it is very subjective.
Perhaps stricter than folkways are more because they can lead to a violation of what we view as moral
and ethical behavior. Mores are norms of morality, or right and wrong, and if you break one it is often
considered offensive to most people of a culture.
3 Sometimes a more violation can also be illegal, but other
times it can just be offensive. If a more is not written down in legislation, it cannot get sanctioned by the
criminal justice system. Other times it can be both illegal and morally wrong.
More Example
If one attended a funeral for a family member, no one would expect to see someone in bright pink clothes or
a bikini. Most people are encouraged to wear black clothing out of respect. Although there may not be specific
rules or laws that state expected attire to wear to a funeral, it would be against what most of American society
views as right and wrong to attend a funeral in a bikini or be in hot pink leotards. It would be disrespectful to the
individual people are mourning. Both mores and folkways are taught through socialization with various sources:
family, friends, peers, schools, and more.
A taboo goes a step farther and is a very negative norm that should not get violated because people will be
upset. Additionally, one may get excluded from the group or society. The nature and the degree of the taboo
are in the mores.
4
Taboo Example
A student once gave the example of a man in their neighborhood in Colorado that had multiple wives and
also had ten different children from the women. In most of American culture, it is seen as unacceptable to have
more than one spouse/partner. However, there are instances where having children with multiple people would
not be seen as taboo. Specifically, if a man or woman remarries and then has another child with their new partner.
However, again, this is more acceptable today than in the past because of the greater societal acceptance of divorce
and remarriage.
3. Sumner, W. (1906). Folkways.
4. Sumner, W. (1906). Folkways.
Introduction to the American Criminal Justice System
17 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | If one is religious think of something taboo in that specific religion? How about a sports team in college? Band?
Any ideas?
Lastly, and most important to the study of crime and criminal justice, our laws. Remember, a social norm is
an obligation to society that can lead to sanctions if one violates them. Therefore, laws are social norms that
have become formally inscribed at the state or federal level and can laws can result in formal punishment for
violations, such as fines, incarceration, or even death. Laws are a form of social control that outlines rules,
habits, and customs a society uses to enforce conformity to its norms.
Law Example
Let us go back to our example of having multiple wives for a moment. It is illegal, a violation of law, to have
multiple wives in American culture. It has not always been this way, and it is not true in every country, but in the
United States, it was viewed as so taboo, morally and ethically wrong, that there are laws that can punish people
for marrying more than one person at a time. However, there may be some people that do not think it is wrong or
some groups, but regardless, it is still illegal.
The following link is for Oregon statue ORS 163.515 Bigamy https://www.oregonlaws.org/ors/163.515
Remember our previous discussion on being the new person to Oregon and trying to figure out if it is
allowed to be nude at an ultimate frisbee practice, but they do not feel morally or ethically wrong. The first
thing one may do is go home and look up some rules and see if they are violating ultimate frisbee rules.
Next, one may check out Oregon laws governing clothing to see if they are violating laws by being nude.
In the end, one finds out that it is not ‘illegal,’ so you cannot call the cops, but you certainly did find a case
in Eugene, Oregon that determined not wearing clothes can be a violation of rules on the college campus.
https://www.oregonlive.com/news/index.ssf/2009/04/uo_board_says_no_clothes_no_ul.html
However, this is a recreational league, and it does not appear to have any formal rules established. Now one
has to make a decision that is hard: Does one want to be part of a subculture that endorses nudity? Does this
go against one’s morals and ethics? Alternatively, is one willing to be part of the team and encourage
acceptance of a new norm? The criminal justice system cannot act for merely violating norms, but at times,
what feels like a norm can lead to criminal justice involvement. For example, walk a town or city, and
many may be found jaywalking because it may be safer, faster, or more accessible. A person can get a ticket
for it in most communities because it is technically violating a law. That is the thing with the line between
deviance, rule violations, and criminality—it does not allow mean we agree. There are many examples of
laws that are not deviant and things that are deviant some subcultures may wish to be illegal. Most, but not
all crimes are deviant, and not all deviant acts are criminal. The question then becomes: well, how then do
we as a society decide who does and does not have the opportunity to make law?
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
18 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Jaywalking
Adam Ruins Everything: Why Jaywalking is a Crime? https://www.trutv.com/shows/adam-ruins-
everything/videos/why-jaywalking-is-a-crime.html
Introduction to the American Criminal Justice System
19 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.4. Interactionist View
SHANELL SANCHEZ
Tattoos at Work
An article by Forbes in 2015, encourages employers to revisit their dress code expectations, with a specific
suggestion on lifting the ‘tattoo taboo.’ The article argues “allowing employees to maintain their style or grooming
allows your company to project how genuine you are as a brand to employees and to the customers they support.”
So, instead of suggesting tattoos are taboo in the workforce to employees, according to the article, one can
encourage people to ‘project who they are’ by accepting tattoos and ultimately, improve your business. This
example demonstrates how societal changes in how deviance can change through time and space.
Read the Forbes article to learn more about this discussion:
https://www.forbes.com/sites/micahsolomon/2015/01/12/how-rethinking-employee-dress-codes-tattoos-and-
piercings-improves-customer-service-and-the-customer-experience/#7b923ad54312
Typically, in our society, a deviant act becomes a criminal act that can be prohibited and punished under
criminal law when a crime is deemed socially harmful or dangerous to society.
1
In criminology, we often cover a wide array of harms that can include economic, physical, emotional,
social, and environmental. The critical thing to note is that we do not want to create laws against everything
in society, so we must draw a line between what we consider deviant and unusual verse dangerous and
criminal. For example, some people do not support tattoos and would argue they are deviant, but it would be
challenging to suggest they are dangerous to individuals and society. However, thirty years ago, it may have
been acceptable to put into dress code, rules guiding our physical conduct in the workspace, that people may
not have visible tattoos and people may not be as vocal as they would today. Today, tattoos may be seen as
more normalized and acceptable, which could lead to a lot of upset employees saying those are unfair rules
in their work of employment if they are against the dress code.
Now that we have a basis for understanding differences between deviance, rule violations, and criminal
law violations, we can now discuss who determines if a law becomes criminalized or decriminalized in the
1. Goode, E. (2016). Deviant Behavior. Routledge: New York.
20 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | United States. A criminalized act is when a deviant act becomes criminal and law is written, with defined
sanctions, that can be enforced by the criminal justice system.
2
Jaywalking
In the 1920s, auto groups aggressively fought to redefine who owned the city street. As cars began to spread to
the streets of America, the number of pedestrians killed by cars skyrocketed. At this time, the public was outraged
that elderly and children were dying in what was viewed as ‘pleasure cars’ because, at this time, our society was
structured very differently and did not rely on vehicles. Judges often ruled that the car was to blame in most
pedestrian deaths and drivers were charged with manslaughter, regardless of the circumstances. In 1923, 42,000
Cincinnati residents signed a petition for a ballot initiative that would require all cars to have a governor limiting
them to 25 miles per hour, which upset auto dealers and sprang them into action to send letters out to vote against
the measure.
Vote No
It was at this point that automakers, dealers, and others worked to redefine the street so that pedestrians, not
cars, would be restricted. Today, these law changes can be seen in our expectations for pedestrians to only cross at
crosswalks.
2. Farmer, L. (2016). Making the modern criminal law: Criminalization and civil order. Oxford: Oxford University Press.
Introduction to the American Criminal Justice System
21 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Don’t Jaywalk
The Vox Article below has an excellent summary of what we discussed:
https://www.vox.com/2015/1/15/7551873/jaywalking-history
The creation of jaywalking laws would be an example of the interactionist view in lawmaking. The
interactionist view states that the definition of crime reflects the preferences and opinions of people who
hold social power in a particular legal jurisdiction, such as the auto industry. The auto industry used their
power and influence to impose what they felt was to be right and wrong and became moral entrepreneurs.
3
A moral entrepreneur was a phrase coined by sociologist Howard Becker. Becker referred to individuals
who use the strength of their positions to encourage others to follow their moral stances. Moral
entrepreneurs create rules and argue their causes will better society, and they have a vested interest in that
cause that maintains their political power or position.
4
5
The auto industry used aggressive tactics to garner support for the new laws: using news media to shift
3. Vuolo, M., Kadowaki, J., & Kelly, B. (2017). Marijuana's Moral Entrepreneurs, Then and Now. https://contexts.org/articles/marijuanas-
moral-entrepreneurs/
4. Becker, H. (1963). Outsiders: Studies in the sociology of deviance. New York: Free Press.
5. Cole, J.M. (2013). Guidance regarding marijuana enforcement. Washington, DC: Department of Justice, Office of the Deputy Attorney
General. Better known as the "Cole Memorandum,"
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
22 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | the blame for accidents of the drivers and onto pedestrians, campaigned at local schools to teach about the
importance of staying out of the street, and shame by suggesting you are in the wrong if you get hit.
6
Fun fact: Most people may be unaware that they word ‘jay’ was derogatory and is similar today to being
called a hick, or someone who does not know how to behave in the city. The tactic of shaming was
powerful and has been used many times in society by moral entrepreneurs to garner support and pass laws
against jaywalking.
6. Norton, P. (2007). Street rivals: Jaywalking and the invention of the motor age street. Fighting traffic: The dawn of the motor age in the American
city
Introduction to the American Criminal Justice System
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.5. Consensus View and Decriminalizing Laws
SHANELL SANCHEZ
Another view of how laws become created is the consensus view, which as it states, implies consensus
(agreement) among citizens on what should and should not be illegal. This idea implies that all groups come
together, regardless of social class, race, age, gender, and more, to determine what should be illegal. This
view also suggests that criminal law is a function of beliefs, morality, and rules that apply equally to all
members of society.
1
One Child per Family Policy in China
In modern society, we tend to have consensus in the United States that people cannot kill their baby at birth
because they wanted the opposite gender. If a person killed their child, murder charges would occur. At certain
points in history in other countries, such as China, this was occurring and was not as deviant as some Americans
would like to think it should have been, but it was still illegal. However, when the Chinese Government introduced
a One Child per Family Policy, there was a surge in female infanticide. There was immense pressure on families
to have sons because of their higher earning potential and contributions to the family. Again, that line between
deviance and criminality can often blur, especially when trying to gain consensus. Read the BBC article below for
more information.
Read the BBC article below for further information.
http://www.bbc.co.uk/ethics/abortion/medical/infanticide_1.shtml
Let us take a consensus approach to create laws, but apply it to decriminalizing laws. An act becomes
decriminalized when it is no longer criminal and becomes legalized, ultimately reducing or alleviating
penalties altogether. Some have proposed a hybrid between decriminalization and criminalizing behaviors,
such as prostitution to ensure rights to prostitutes and punish offenders who harm them.
2 An act can be
decriminalized at the State level, but not necessarily the Federal level.
1. Dawe, A. (1970). The two sociologies. The British Journal of Sociology, 21(2), 207-218.
2. Lutnick, A. & Cohan, D. (2009). Criminalization, legalization or decriminalization of sex work: what female sex workers say in San
Francisco, USA. Reproductive Health Matters, 17(34), 38-46.
24 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Marijuana Legalization
One example of decriminalization that came from a vote of consensus in states like Colorado, Washington,
and Oregon was the legalization of recreational marijuana. Recently, Texas has shown signs of potentially
decriminalizing marijuana and seeking reform laws. According to the latest University of Texas/Texas Tribune
poll, more than half of the state’s registered voters support marijuana legalization in the state (a consensus), and
only 16 percent said possession of marijuana should remain illegal under any circumstances. Marijuana is certainly a
great example of decriminalization, whether it is for recreational or medicinal purposes. University of Texas/Texas
Tribune Poll, June 2018 — Summary
University of Texas/Texas Tribune Poll, June 2018 — Summary
Read the article below for more information on Texas proposing changes:
https://www.texastribune.org/2018/06/27/marijuana-democrats-young-adults-texas-poll/
Adam Ruins Everything YouTube Link: The Sinister Reason Weed is Illegal https://www.trutv.com/
Introduction to the American Criminal Justice System
25 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | shows/adam-ruins-everything/videos/the-sinister-reason-weed-is-illegal.html
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
26 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.6. Conflict View
SHANELL SANCHEZ
A third perspective of how we define crime or create laws is referred to as conflict view, commonly
associated with Karl Marx in the 1800s. Conflict view sees society as a collection of diverse groups that
can include owners, workers, wealthy, poor, students, professionals, younger older, and more. This view
recognizes that the creation of laws is unequal and may not have consensus like in the example discussed
previously.
1
Further, the conflict view takes a very Marxian perspective and suggests that these groups are often in
constant conflict with one another. Unlike the consensus perspective, the conflict view would suggest that
the crime definitions are controlled by those with wealth, power, and social position in society. Essentially,
laws are made by a select group in society, and the laws protect the ‘haves.’ Criminality shapes the values of
the ruling class and is not of ‘moral consensus’.
2 There are many examples we use in the criminal justice field
that demonstrates the conflict view in action.
Edwin Sutherland: White Collar Crime
Edwin Sutherland, a sociologist, first introduced white-collar crime during his presidential address at the
American Sociological Society Meeting in 1939 and later published articles and books on the topic.
3 Specifically, he
was concerned with the criminological community’s preoccupation with the low-status offender and “street crimes”
and the lack of attention given to crimes that were perpetrated by people in higher status occupations.
Sutherland wrote a book, White Collar Crime, that sparked lots of debate.
4 However, there is a limited focus
on white-collar crime and even less enforcement of it in the United States. From the conflict view, this would be
because white-collar and corporate crime is committed by the ‘haves’ and they write their laws and define what is
or is not a crime. Going back to how we define crime in society, white-collar crime is still a contested one.
1. Hawkins, D. (1987). Beyond anomalies: Rethinking the conflict perspective on race and criminal punishment. Social Forces, 65(3),
719–745, https://doi.org/10.1093/sf/65.3.719
2. Boundless. (2016). The conflict perspective. Sociology – Cochise College Boundless, 26.
3. Sutherland, E. (1940). White collar criminality. American Sociological Review, 5(1), 1-12.
4. Sutherland, E. (1949). White collar crime. Dryden Press.
27 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Sutherland wrote a book, White Collar Crime, that sparked lots of debate.
5 However, there is a limited focus on
white-collar crime and even less enforcement of it in the United States. From the conflict view, white-collar and
corporate crime gets committed by the ‘haves,’ and they write the laws and define what is or is not a crime. Going
back to how we define crime in society, white-collar crime is still a contested one.
Currently, there are different views of how one should define white-collar crime: defining white-collar crime
based on the type of offender, type of offense, studying economic crime such as corporate and/or environmental law
violations, health, and safety law violations, and/or the organizational culture rather than the offender or offense.
The FBI studies white-collar crime in terms of offense, so official data for white-collar crime will not focus on the
background of the offender, which can make the use of Uniform Crime Report Data, UCR data tricky to use if
trying to determine a typical offender. The UCR will be covered more fully in chapter two, but it is data collected
from police departments, and the FBI compiles reports. Again, conflict view may suggest the lack of focus on white-
collar crime in U.S. society would be because the ‘haves’ creates the laws, not the ‘have-nots.’ https://ucr.fbi.gov/
nibrs/nibrs_wcc.pdf
6
5. Sutherland, E. (1949). White collar crime. Dryden Press.
6. Barnett, C. (N.D.). The measurement of white-collar crime using: Uniform crime reporting (UCR) data. U.S. Department of Justice.
Federal Bureau of Investigation
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.7. The Three C’s: Cops, Courts, and Corrections
SHANELL SANCHEZ
The Three C’s
As previously stated, the criminal justice system is not confined to one level of government and is made
up of local, state, and federal governments. The agencies associated with these levels can work together or
work separately. In the previous example about marijuana legalization, the federal government has not legalized
recreational or medicinal marijuana, but some states have; states have disagreed with federal law, but federal law
essentially has the final say. If the federal government wanted to punish states for selling marijuana they indeed
could since it remains a Schedule I drug.
We will spend time exploring the three main components of the criminal justice system, or an easy way to
remember this is the three main C’s: cops, courts, and corrections. This section will briefly introduce the police,
courts, and correctional systems and how they often function with each other, whereas subsequent chapters will
further focus on how they each operate as their entity.
Cops
Imagine walking downtown on a Friday night and witness a robbery in action. The first thing a person
would typically do is call 911. Then the person would tell the 911 operator, referred to as dispatch, what
they saw, where the event occurred, and any other relevant information. The operator would then send out
the call or dispatch it to nearby police on duty. The first point of contact with the criminal justice system
for most individuals is the cops. We often refer to them as first responders. We will use a variety of terms
for cops, such as police officers and law enforcement, but recognize we are always talking about the men
and women who enforce laws and protect the people of the United States. The police respond to calls and
can apprehend the offender. Because of technology, the police respond quickly.
Other times, police may witness a crime while on patrol. Police make initial contact, investigate crimes,
apprehend offenders/potential offenders (arrest), and then book them in the local jail. Law enforcement does
not determine guilt or innocence, hand down punishments, or implement the punishment.
1
1. Fuller, J. (2019). Introduction to criminal justice: A brief edition. New York Oxford: University Press
29 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | During an investigation, police officers may need to obtain a search warrant. The Fourth Amendment of
the Constitution requires that police officers have probable cause before they search a person’s home, their
clothing, car, or other property, with some exceptions explored later on. In order to ensure due process,
searches usually require a search warrant, issued by a “neutral and detached” judge. Arrests also require
probable cause and often occur after police have gotten an arrest warrant from a judge. Depending on the
specific facts of the case, the first step may be an arrest.
2 As stated above, if they catch a person in the
commission of a crime, they will arrest first and investigate later.
Police on Standby
Police on Standby
Courts
The next phase of the criminal justice system is the courts. The courts may consist of prosecutors, defense
attorneys, judges, and a reasonable jury of one’s peers. The primary role of the courts is to determine
whether an offender should be charged with a crime and if so, what charges should exist. The officers will
forward over information to the district attorneys for review, and the district attorney will determine what
2. United States Department of Justice. (N.D.). Investigation. https://www.justice.gov/usao/justice-101/investigation
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
30 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | charges are filed against an offender, also known as the defendant.
3 In the above scenario, if the
prosecutor’s office has determined there is enough evidence to charge the individual of robbing the business
downtown, then charges will be filed, and the suspect is charged with a specific crime. The defendant in
the robbery will be informed of all their rights that are afforded to them by the Constitution and that they
have the right to legal counsel or a defense attorney. There are private defense attorneys as well as public
defenders who are appointed if a person is indigent, or unable to afford their attorney. A defendant, or the
accused, will enter a plea of guilty or not guilty, and a trial date is set.
The prosecutor’s office will evaluate the type and quality of evidence they have when deciding to move
forward or drop the charges. Direct evidence is evidence that supports a fact without an inference, such as a
testimony of an eyewitness to a crime because the person saw the crime. The other type of evidence,
circumstantial evidence, would be something that happened before or after the crime or information
obtained indirectly or not based on the first-hand experience by a person. Circumstantial evidence includes
people’s impressions about an event that happened which they did not see. For example, if you went to bed
at night, and there was no gas in your tank, and then you awoke to a full tank of gas, while you didn’t
actually see your dad fill your tank, you assume the did it while you slept because gas tanks cannot fill
themselves.
4
If a defendant pleads guilty, there may be a plea bargain given.
A plea bargain is similar to a deal will be made for a reduced sentence since the defendant pleads guilty.
Plea bargains get used a lot for the vast majority of cases in our CJ system, and debates often ensue over the
ethics behind them. A defendant should only plead guilty if they committed the crime and must admit to
doing so in front of the judge. Once the defendant admits to the crime, they agree they are guilty and
agree that they may be “sentenced” by the judge presiding over the court. The judge is the only person
authorized to impose a sentence. However, with the current number of cases entering our system every
day, pleas bargains have often called a ‘necessary evil.”
5
Let us say the defendant chooses to go to trial. The prosecution and defense will then present their cases
before a jury and judge to determine if there is enough evidence to convict the defendant. The prosecutor
must prove they have probable cause that the defendant is the one who committed the crime, and the
defense ensures the rights of the accused get upheld while defending their client. Judges are important and
often get referred to as an impartial moderator or referee in the courtroom. The judge receives guidance
and assistance from several sources in order to sentence a defendant. Over time, Congress has established
minimum and maximum punishments, and the United States Sentencing Commissions has produced a set
of sentencing guidelines that recommend certain punishments for certain crimes while considering various
factors. Further, the judge will look at a pre-sentence report and consider statements from the victims, as well
as the defendant and lawyers. The judge may consider a variety of aggravating or mitigating factors. These
include whether the defendant has committed the same crime before, whether the defendant has expressed
regret for the crime and the nature of the crime itself.
6
If a defendant is convicted, then that defendant is found guilty. Let us imagine surveillance camera caught
the robber downtown and fingerprints that were left behind matched the offender; this would make a
conviction more likely. This phase is known as adjudication. If found guilty, the court is responsible for
3. Anoka County Attorney's Office. (N.D.). Roles in the Criminal Justice System. https://www.anokacounty.us/1434/Roles-in-the-Criminal-
Justice-System
4. United States Department of Justice. (N.D.). Investigation. https://www.justice.gov/usao/justice-101/investigation
5. United States Department of Justice. (N.D.). Plea bargaining. https://www.justice.gov/usao/justice-101/pleabargaining
6. United States Department of Justice. (N.D.). Sentencing. https://www.justice.gov/usao/justice-101/sentencing
Introduction to the American Criminal Justice System
31 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | handing down a punishment. In the vast majority of criminal cases, the judge decides the sentencing hearing,
but in some cases, a jury determines the outcome. Although this was a brief overview, it is essential to
know that the courts charge defendants, holding a preliminary hearing, arraignment, potential plea bargains,
adjudication, and sentencing.
After a defendant is found guilty, they have the right to appeal the outcome if they believe they were
wrongly convicted or the sentence was too harsh. An appeal is not another trial, but an opportunity for the
defendant to try to raise specific errors that might have occurred at trial. A common appeal is that a decision
from the judge was incorrect – such as whether to suppress certain evidence or to impose a certain sentence.
Appeals are complicated and sometimes result in the case going back to the trial court. A conviction can
get reversed, a sentence altered, or a new trial may be ordered altogether if the Appeals Court decides that
particular course of action. If a circuit court judge decides the appeal, then a defendant can try to appeal
that decision to the United States Supreme Court in Washington, D.C. The United States Supreme Court
is the highest appellate court in the American court system, and they make the final decision concerning a
defendant’s appeal. The Court is not required to hear an appeal in every case and takes only a small number
of cases each year.
7
More details
The courtroom in Valley County Courthouse in Ord, Nebraska. The Beaux-Arts building was constructed in 1920. It is listed in the
National Register of Historic Places.
7. United States Department of Justice. (N.D.). Appeal. https://www.justice.gov/usao/justice-101/appeal
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
32 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | In
The
News:
Brendan
Dassey
Brendan Dassey, featured in the Netflix documentary The Making of a Murderer in 2015, was charged
with murder as a juvenile. Dassey’s 2007 conviction was questionable because his videotaped confession
with police was problematic. Dassey was 16 without a lawyer or parent present during his confession. He
appeared scared and unaware of the gravity of his situation on camera, and his lawyers say he had a low
IQ in the seventh percentile of children his age, making him susceptible to suggestion. Dassey was found
guilty as an accessory to murder with his uncle Steven Avery in the 2005 murder of Teresa Halbach, a
25-year-old photographer in Manitowoc, Wisconsin. The United States Supreme Court declined to hear
his case and did not provide a statement as to why.
8
Introduction to the American Criminal Justice System
33 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Video Link Adam Ruins Everything: Why the Public Defender System is So Screwed
Up https://www.trutv.com/shows/adam-ruins-everything/videos/why-the-public-defender-system-is-so-
screwed-up.html
Corrections
Once a defendant has been found guilty, the correctional system helps carry out the punishment that is
ordered by the court. The defendant may be ordered to pay financial restitution or a fine and not serve time
under a form of incarceration. When an offender gets sentenced to a period of incarceration, at either a jail
or prison, they will serve their sentence under supervision. Offenders that get sentenced to less than a year
will serve their sentence in a local jail, but longer sentences will serve time in prison. However, offenders
can also get sentenced to community-based supervision, such as probation. In this situation, an offender
would get assigned a probation officer (PO), and there would be specific rules they are required to follow.
If an offender violates rules, the PO may request the offender be incarcerated in jail or prison to serve the
remainder of the sentence.
9 Lastly, an essential part of corrections is helping former inmates with prisoner
re-entry or reintegration into society through parole, community-based supervision after serving time in a
locked facility, and may require drug-testing, help with finding employment, education, and social support.
10
8. Victor, D. (2018). Supreme Court Won't Hear Appeal of ‘Making a Murderer' Subject Brendan Dassey. The New York Times.
https://www.nytimes.com/2018/06/25/us/brendan-dassey-supreme-court.html
9. , Fuller, J. (2019). Introduction to criminal justice: A brief edition. New York: Oxford University Press.
10. RAND Corporation. (1994-2018). https://www.rand.org/topics/prisoner-reentry.html
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Introduction to the American Criminal Justice System
35 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.8. The Crime Control and Due Process Models
SHANELL SANCHEZ
Crime Control and Due Process Model
The criminal justice system can be quite complicated, especially in the attempt to punish offenders for
wrongs committed. Society expects the system to be efficient and quick, but the protection of individual
rights and justice fairly delivered. Ultimately, the balance of these goals is ideal, but it can be challenging to
control crime and quickly punish offenders, while also ensuring our constitutional rights are not infringed
upon while delivering justice.
In the 1960s, legal scholar Herbert L. Packer created models to describe exceeding expectations of the
criminal justice system. These two models can be competing ideologies in criminal justice, but we will
discuss how these models can be merged or balanced to work together. The first tension between these
models is often the values they place as most important in the criminal justice system, the crime control
model and the due process model.
1
The crime control model focuses on having an efficient system, with the most important function being
to suppress and control crime to ensure that society is safe and there is public order. Under this model,
controlling crime is more important to individual freedom. This model is a more conservative perspective.
In order to protect society and make sure individuals feel free from the threat of crime, the crime control
model would advocate for swift and severe punishment for offenders. Under this model, the justice process
may resemble prosecutors charge an ‘assembly-line’: law enforcement suspects apprehend suspects; the courts
determine guilt; and guilty people receive appropriate, and severe, punishments through the correctional
system.
2 The crime control model may be more likely to take a plea bargain because trials may take too
much time and slow down the process.
Murder in the Gym: Crime Control Model Example by Dr. Sanchez
Imagine working out at the local gym, and a man starts shooting people. This man has no mask on so he is
easy to identify. People call 911 and police promptly respond and can arrest the shooter within minutes. Under
1. Packer, H. (1964). Two models of the criminal process. University of Pennsylvania Law Review, 113(1)
2. Roach, K. (1999). Four models of the criminal process. Journal of Criminal Law and Criminology, 89(2), 671-716.
36 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | the crime control model, the police should not have to worry too much about how evidence gets collected and
expanded. Investigative, arrest, and search powers would be considered necessary. A crime control model would
see this as a slam dunk and no need to waste time or money by ensuring due process rights. If there were any
legal technicalities, such as warrantless searches of the suspects home, it would obstruct the police from effectively
controlling crime. Effective use of time would be to immediately punish, especially since the gym had cameras
and the man did not attempt to hide his identity. Any risk of violating individual liberties would be considered
secondary over the need to protect and ensure the safety of the community in this model. Additionally, the criminal
justice system is responsible for ensuring victim’s rights, especially helping provide justice for those murdered at the
gym.
The due process model focuses on having a just and fair criminal justice system for all and a system that does not
infringe upon constitutional rights. Further, this model would argue that the system should be more like an ‘obstacle
course,’ rather than an ‘assembly line.’ The protection of individual rights and freedoms is of utmost importance and
has often be aligned more with a liberal perspective.
3
The due process model focuses on having a just and fair criminal justice system for all and a system that
does not infringe upon constitutional rights. Further, this model would argue that the system should be more
like an ‘obstacle course,’ rather than an ‘assembly line.’ The protection of individual rights and freedoms is of
utmost importance and has often be aligned more with a liberal perspective.
4
Murder in the Gym: Due Process Model by Dr. Sanchez
Back to the gym murder, the due process model would want to see all the formalized legal practices afforded to
this case in order to hold him accountable for the shooting. If this man did not receive fair and equitable treatment,
then the fear is this can happen to other cases and offenders. Therefore, due process wants the system to move
through all the stages to avoid mistakes and ensure the rights of all suspects and defendants. If the man in the gym
pled not guilty due to the reason of insanity, then he can ask for a jury trial to determine whether he is legally insane.
The courts would then try the case and may present evidence to a jury, ultimately deciding his fate. The goal is not
to be quick, but to be thorough. Because the Bill of Rights protects the defendant’s rights, the criminal justice system
should concentrate on those rights over the victim’s rights, which are not listed. Additionally, limiting police power
would be seen as positive to prevent oppressing individuals and stepping on rights. The rules, procedures, and
guidelines embedded in the Constitution should be the framework of the criminal justice system and controlling
crime would be secondary. Guilt would get established on the facts and if the government legally followed the
correct procedures. If the police searched the gym shooters home without a warrant and took evidence then that
evidence should be inadmissible, even if that means they cannot win the case.
5
3. Packer, H. (1964). Two models of the criminal process, 113 U. PA. L. Rev. 1; Yerkes, M. (1969). The limits of the criminal sanction, by
Herbert L. Packer (1968). Loyola of Los Angeles Law Review 176, 2(1).
4. Yerkes, M. (1969). The limits of the criminal sanction, by Herbert L. Packer (1968). Loyola of Los Angeles Law
Review 176, 2(1).
5. Yerkes, M. (1969). The limits of the criminal sanction, by Herbert L. Packer (1968). Loyola of Los Angeles Law
Review 176, 2(1).
Introduction to the American Criminal Justice System
37 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | There are several pros and cons to both model; however, there are certain groups and individuals that side
with one more often than the other. The notion that these models may fall along political lines is often
based on previous court decisions, as well as campaign approaches in the U.S. The crime control model is
used when promoting policies that allow the system to get tough, expand police powers, change sentencing
practices such as create “Three Strikes,” and more. The due process model may promote policies that
require the system to focus on individual rights. These rights may include requiring police to inform people
under arrest that they do not have to answer questions with an attorney (Miranda v. Arizona), providing all
defendants with an attorney (Gideon v. Wainwright), or shutting down private prisons who often abuse the
rights of inmates.
To state that crime control is purely conservative and due process if purely liberal would be too simplistic,
but to recognize that the policies are a reflection of our current political climate is relevant. If Americans
are fearful of crime, and Gallup polls suggest they are, politicians may propose policies that focus on
controlling crime. However, if polls suggest police may have too many powers and that can lead to abuse,
then politicians may propose policies that limit their powers such as requiring warrants to obtain drugs.
6
Again, this may reflect society, a reflection of a part of society, or the interests of a political party or specific
politician.
Exercise
Discuss what the primary goal of the criminal justice system should be: to control crime, ensure due process, or
both? Explain how this opinion may get influenced by individual factors, such as age, gender/sex, race/ethnicity,
economic situation, a country born in, and more. Could goals change with the more education given about
criminal justice? If so, make an argument in favor of education. If not, make an argument against educating the
public on criminal justice.
6. Davis, A. (2016). In the U.S., concern about crime climbs to 15-year high. Gallup Poll.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.9. How Cases Move Through the System
SHANELL SANCHEZ
How Cases Move Through the System
The criminal justice process is not what gets portrayed on television, and most cases do not go to trial
or result in a prison sentence. Part of the problem is that our current system is overloaded and ensuring
due process and crime control can be more challenging than one thinks. In order to effectively process
cases through the criminal justice system, discretion is an important tool for police, prosecutors, judges, and
correctional officials. Discretion provides freedom to make decisions, specifically it is the power to make
decisions on issues within legal guidelines. Many people see discretion as for the most powerful tool of the
criminal justice system.
1
2
Exercise on Discretion
Provide an example of discretion, which can be from a teacher in school, a dean, an officer, a judge, or boss.
Describe what discretion impacted life outcomes today. When I was pregnant, my sister and I argued over the
phone. This caused me to cry and emotions took over, which led to being pulled over. I encountered an officer
who was understanding. He then told asked me to drive safely, and because my record was clean, he was not going
to cite me. I was fortunate that I did not have to lose money for a ticket, and still, today, have never had a ticket.
Ethics refers to the understanding of what constitutes good or bad behavior and helps to guide our
behaviors. Ethics are important in the criminal justice system because people working in the system get
authority, power, and discretion by the government.
3 Imagine in the above case where the speeding and
swerving occurred because the person drove drunk due to the break-up. It would be unethical for police to
allow them to drive home because they were drinking and driving, which is a crime. Most people would see
it an abuse of discretion if the officer said, “I know you are drunk, but break-ups suck. Please stop crying,
drive home, and forget this happened.” Ethics and discretion often go hand-in-hand.
1. Kessler, D. & Piehl, A. (1998). The role of discretion in the criminal justice system. The Journal of Law, Economics, and Organization,
14(2), 256-276
2. Gottfredson, M., & Gottfredson, D. (1988). Decision making in criminal justice: Toward the rational exercise of discretion. New York: Plenum
3. Sellers, B. (2015). Ethics in policing. Wiley online library.
39 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | In the News: How Would an Ethical Officer React? The New York Times wrote an article about
ethical policing. Tobkin often asked his recruits, in any given situation, “How would an ethical officer
react?” All recruits were required to take an ethics class called Police Legitimacy, which deals with how
officers are viewed by the public and what they can do to improve or erode those perceptions. “There is
about one patrol officer for every thousand citizens, so if the public does not see us as legitimate and they
do not acknowledge our authority, then we are in big trouble,” Tobkin said. Recruits also closely study the
department’s “use-of-force continuum,” which dictates what level of force is appropriate in response to a
suspect’s behavior: tasers and batons on when a suspect is kicking or punching an officer, but generally not
when a suspect is simply trying to get away.
4
Samuel Walker referred to the criminal justice system as a funnel. In 1967, The President’s Commission on
Law Enforcement and the Administration of Justice published a report on the funneling effect of the criminal
justice system.
5 The criminal justice system is often referred to as a funnel because most cases do not go
through all steps in the system, some because of discretion, and a large portion because they are unknown
to police. The question remains: is the criminal justice system effective at catching, prosecuting, convicting,
and punishing offenders? Does the system properly do its job at all levels? Walker was critical of this report
and said the report did not account for the crimes unknown to police, often referred to as the dark figure of
crime. He also recognized that the most serious crimes are often reported the most, which may confuse the
public about the reality of other crimes.
6 Others also criticized the report for only looking at reported crimes
and adult crimes, but those issues will be highlighted in our next chapter on data in the criminal justice
system. It is important to recognize that the disparity between crimes that were reported and not reported.
This discrepancy was a shock in the 1970s, especially after the United States started asking people about their
victimization. The number of crimes people say they experienced far exceeded the crimes they reported to
the police.
7
The main idea to understand is that the funnel effect is said to represent how cases move through the
system by the offenses unknown to police verse known, arrests then made, prosecutions, plea bargains or
trials, sentencing, and whether the individual receives probation, prison, or parole.
8
In the News: The Crime Funnel The New York Times wrote an example of the crime funnel.
Federal agencies publish numbers of crime that constitute a big funnel. For example, the “35 million
crimes committed each year pour in at the top that can include everything from shoplifting, auto theft and
drunken fights to rapes and murders. Of these, about 25 million are serious, since they involve violence or
4. Sessini, J. (2016). How would an ethical officer act? The New York Times.
5. The challenge of crime in a free society. 1967. NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf
6. Walker, S. (2006). Sense and nonsense about crime and drugs. Cengage: Wadsworth.
7. Anderson, D. (1994). The crime funnel. The New York Times.
8. The challenge of crime in a free society. (1967). NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
40 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | sizable property loss. But millions of these crimes go unpunished because the victims never report them.
Only 15 million serious crimes come to the attention of the police.”
9
Samuel Walker referred to the criminal justice system as a funnel. In 1967, The President’s Commission on
Law Enforcement and the Administration of Justice published a report on the funneling effect of the criminal
justice system.
10 The criminal justice system is often referred to as a funnel because most cases do not go
through all steps in the system, some because of discretion, and a large portion because they are unknown
to police. The question remains: is the criminal justice system effective at catching, prosecuting, convicting,
and punishing offenders? Does the system properly do its job at all levels? Walker was critical of this report
and said the report did not account for the crimes unknown to police, often referred to as the dark figure of
crime. He also recognized that the most serious crimes get reported the most, which may confuse the public
about the reality of other crimes.
11
Others also criticized the report for only looking at reported crimes and adult crimes, but those issues
will get highlighted in our next chapter on data in the criminal justice system. It is important to recognize
that the disparity between crimes that were reported and not reported. This discrepancy was a shock in
the 1970s, especially after the United States started asking people about their victimization. The number of
crimes people say they experienced far exceeded the crimes they reported to the police.
12
The main idea to understand is that the funnel effect is said to represent how cases move through the
system by the offenses unknown to police verse known, arrests then made, prosecutions, plea bargains or
trials, sentencing, and whether the individual receives probation, prison, or parole.
13
Funnel Effect Example
Imagine selling marijuana to friends every week. No one alerts the cops and the person never gets caught, which
means this remains in the category of offenses unknown to police. However, a friend gets busted selling too close
to an elementary school, so the offense immediately is classified as known to police. An officer can choose to arrest
or not, depending on the amount. If it is illegal in that state to deal, then an ethical officer would arrest and set
discretion aside. However, it is up to the prosecutor to decide whether or not to file charges. If charges get filed, the
friend may be encouraged to plead guilty and ‘get it over with.’ This would be more likely under a crime control
model. However, his/her mom may say “No, I want you to go to trial,” which would be more likely under a due
process model and now that friend now has to decide. If he/she takes the plea bargain, they can skip the trial and
go straight to sentencing. Let us say the plea bargain allowed the friend to avoid jail time and serve 300 hours of
community service, but if convicted this friend could serve one year. Most may take the community service option
9. Anderson, D. (1994). The crime funnel. The New York Times.
10. The challenge of crime in a free society. 1967. NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf
11. Walker, S. (2006). Sense and nonsense about crime and drugs. Cengage: Wadsworth.
12. Anderson, D. (1994). The crime funnel. The New York Times.
13. The Challenge of crime in a free society. (1967). NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf
Introduction to the American Criminal Justice System
41 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | and be under community supervision such as probation. If it were a more serious offense, they may serve a prison
sentence and get paroled under community supervision after a specific amount of time.
The funnel is one way to look at the criminal justice system, but we will see later how it can be much
more complicated then this analogy suggests. It is important to know many crimes are unknown to police,
which we will often refer to as the dark figure of crime. Additionally, plea bargains are a comprehensive
tool, especially since it would cost our society so much to prosecute and allow a trial for every individual
that committed a crime. Costs are a genuine issue that the system faces daily, and if the U.S. were to
punish everyone for violating the law, there would not have any money left over for important things like
education, healthcare, repairing highways, and so much more. We would see most of our taxpayers paying
for just crime control, which may not be the best use of all that money. Again, bringing in the importance
of discretion in the criminal justice system.
Sometimes taking away discretion is excellent and sometimes having too much is wrong, but finding that
balance is very important. Sometimes a judge may use discretion to release a domestic violence offender to
community probation when an officer did not have the discretion to arrest. The judge’s discretion may cause
the victim to get revictimized, but it may not. Some offenders may be at a higher risk of reoffending and able
to determine this is valuable. We will discuss this later when talking about using evidence-based practices in
the criminal justice system.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
42 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.10. Media Coverage of Crimes
SHANELL SANCHEZ
Violent Times Example
One morning, after checking email, which is a pretty standard task, my grandfather writes a daily email. This
morning he discusses the violent times we are all living in and how murder is everywhere. He discusses how he
worries about the future of his family members because the United States is a dangerous place to live. He often
provides explanations for this ‘increase in crime’ that I, as a criminologist, know to be untrue. Sometimes he will say
kids are violent because of social media or video games, other times he will blame it on immigrants. Regardless, my
grandfather lives in fear. He is fearful of someone breaking into his home, and at the age of 80, had a security screen
installed in their nice suburban area in Colorado. He avoids downtown Denver because of his belief it is overrun by
‘gang bangers.’ However, where could all these ideas come from for him. My grandfather has never worked in the
criminal justice system, he never studied it, he did not attend college but has such strong thoughts about policies
that need to get enacted, problems with society, and he often states them as a fact. The answer: THE NEWS.
Perhaps watching too much television can cause an overestimation of rates of crime both in reality and on television.
1
Media is not a terrible thing that is conspiring to ruin our minds. Please know it is very beneficial and can
help share information, but we need to be aware of the downfalls of media and even which media we choose
to watch. Do not want to say “I am over the news” because it serves an important purpose! Also, keep in
mind that crime is going DOWN and has been consistently doing so. However, research has shown that
entertainment and news media create an image that we are living in a dangerous world.
2 It can be easy
to become fearful after watching too much news if we let ourselves fall trap to losing the facts. “Factfulness
recognizes when we get negative news, and remembering that information about bad events is much more
1. Hetsroni, A., & Tukachinsky, R. H. (2006). Television-world estimates, real world estimates, and television viewing: A new scheme for
cultivation. Journal of Communication, 56, 133-156.
2. Jewkes, Y. (2015). Media and crime (3rd ed.).Thousand Oaks, CA: Sage.
43 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | likely to reach us. When things are getting better, we often do not hear about them, which can lead to a
systematically too-negative impression of the world around us, which is very stressful.”
3
Public knowledge of crime and justice derived largely from the media. Research has examined the impact
of media consumption on fear of crime, punitive attitudes, and perceived police effectiveness. Studies have
found that the more crime-related media an individual consumes, the more fearful of crime they are.
4
5
However, we also are attracted to specific types of crime and victims when we choose to consume media.
In other words, the media is aware of our crime preferences and will report on those more. Glassner (2009)
describes what he calls the ‘ideal crime story’ for journalists to report. He notes that society likes to read about
innocent victims, likable people, and the perpetrator needs to be scary and uncaring about the crime.
6
Our society is fascinated with crime and justice, where we spend hours watching films, reading books,
newspapers, magazines, and television broadcasts that keep us constantly engaged in crime “talk.” Perhaps
what we do not always realize is the mass media plays an important role in the construction of criminals,
criminality and the criminal justice system. Our understanding and perceptions of victims, criminals,
deviants, and police largely determined by their portrayal in the mass media.
7
The majority of public knowledge about crime and justice derived from the media.
8
9
10 Since Gallup
polls began asking whether a crime had increased in 1989, a majority of Americans have usually said there is
more crime than there was the year before. There is only one year where people did not think it did, which
followed 9/11.
11
Despite decreases in U.S. violent and property crime rates since 2008, most voters say crime has gotten
worse during that span. Mostly, Americans’ perceptions of crime are often at odds with the data.
12 Research
has also shown that there are stark differences across party lines. Specifically, almost eight-in-ten voters who
supported President Donald Trump (78%) said this, as did 37% of backers of Democrat Hillary Clinton.
Just 5% of pro-Trump voters and a quarter of Clinton supporters said crime has gotten better since 2008,
according to the survey of 3,788 adults.
13 All of this is at odds with official data reports that will get discussed
in more detail in the next chapter. Since this is the case, how do people have this misperception about crime
and criminality? Where do these myths develop?
3. Rosling, H. (2018). Factfulness: Ten reasons we are wrong about the world--and why things are better than you think. Flatiron Books
4. Dowler, K. (2003). Media consumption and public attitudes toward crime and justice: The relationship between fear of crime, punitive
attitudes, and percieved police effectiveness. Journal of Criminal Justice & Popular Culture, 10, 109-126.
5. Kort-Butler, L., & Sittner-Hartshorn, K. (2011). Watching the detectives: Crime programming, fear of crime, and attitudes about the
criminal justice system. The Sociological Quarterly, 52, 36-55.
6. Glassner, B. (2009). The culture of fear: Why Americans are afraid of the wrong things (Rev. ed.). New York: Basic Books.
7. Dowler, K. (2003). Media consumption and public attitudes toward crime and justice: The relationship between fear of crime, punitive
attitudes, and perceived police effectiveness. Journal of Criminal Justice & Popular Culture, 10(2), 109-126.
8. Roberts, J., & Doob, A. (1986). Public estimates of recidivism rates: Consequences of a criminal stereotype." Canadian Journal of
Criminology 28, 229-241;
9. Surette, R. (1990). The media and criminal justice policy: Recent research and social effects. Springfield, IL: Charles C. Thomas.
10. Kappeler, V., & Potter, G. (2018). The mythology of crime and criminal justice. (5th ed). Long Grove: Waveland Press, Inc.
11. Swift, A. (2016). Americans' Perceptions of U.S. Crime Problem Are Steady. Gallup. Social Policy and Issues. https://news.gallup.com/
poll/197318/americans-perceptions-crime-problem-steady.aspx
12. Gramlich, J. (2016). Voters' perceptions of crime continue to conflict with reality. Pew Research Center. http://www.pewresearch.org/
fact-tank/2016/11/16/voters-perceptions-of-crime-continue-to-conflict-with-reality/
13. Gramlich, J. (2016). Voters' perceptions of crime continue to conflict with reality. Pew Research Center. http://www.pewresearch.org/
fact-tank/2016/11/16/voters-perceptions-of-crime-continue-to-conflict-with-reality/
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
44 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | In the News: This clip was broadcast and could create fear in young women and parents of young
women who may want to go running in broad daylight. The initial comments that they believed it was a
stranger-rape makes it frightening, even if that is not the most common victimization. https://6abc.com/
news/new-video-shows-ny-woman-on-run-hours-before-murder-/1509645/
The media plays an important role in the perception of crime and the American public’s understanding of
how the criminal justice system operates and policies Americans are willing to support for reform. Public
opinion gets connected with pressure to change crime policies.
14, especially when there is a high fear of
a certain crime
15 The media can provide the public with an estimation of how much crime there is, the
types of crime that are common, trends in crime rates, and the daily operations of the criminal justice system.
However, the media often does not portray an accurate portrayal of crime and criminal justice.
16
In the News: Follow Up to Case Above https://www.huffingtonpost.com/entry/mistrial-karina-
vetrano-killing_us_5bf5909ce4b0eb6d930ad6f9
“Fear is produced more readily in the modern community than it was earlier in our history because of increased
publicity” Edwin Sutherland.
17
Research by the Pew Research Center found that most Americans get their news from social media, despite
having concerns about the accuracy and reliability of those sources. Almost 66 percent of Americans get
news on social media. The majority (57%) say they expect the news they see on social media to be mostly
inaccurate.
18 It appears that convenience outweighs concerns with accuracy.
14. Toch, H., & Maguire, K. (2014). Public opinion regarding crime, criminal justice, and related topics: A retrospect. Journal of Research in
Crime & Delinquency, 51, 424-444.
15. Dowler, K. (2003). Media consumption and public attitudes toward crime and justice: The relationship between fear of crime, punitive
attitudes, and percieved police effectiveness. Journal of Criminal Justice and Popular Culture, 10, 109-126.
16. Kappeler, V. & Potter, G. (2018). The mythology of crime and criminal justice, (5th ed.). Long Grove: Waveland Press, Inc.
17. Sutherland, E. (1950). The Diffusion of Sexual Psychopath Laws. American Journal of Sociology, 56, 142-148.
18. Matsa, K., & Shearer, E. (2018). News use across social media platforms. The Pew Research Center. http://www.journalism.org/2018/09/
10/news-use-across-social-media-platforms-2018/
Introduction to the American Criminal Justice System
45 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Media Exercise
Go about a daily routine, but record every time crime is discussed. Write down every time it happens such
as watching TV, listening to the news, scrolling through newsfeeds, reading, and more. What was the message?
Listening to the radio on the way to work? The goal is to record anything heard in the day related to crime and
attempt to see the messages one may be receiving. Once enough instances get recorded, write a summary of the
findings.
The media focus their attention on crimes that will capture viewers attention. The more shocking, upsetting,
gruesome, and dramatic the case the better! In the above case of Katrina Vetrano, it is shocking that a
30-year-old woman goes out for a jog and winds up raped and murdered. It is even more shocking that it
is in the day and then adds to it by a stranger. People will click on this case because it preys upon fears, but
this causes problems. How do we devise policies that protect people if we get driven by fear? Women are
more likely to be victimized by people they know, not strangers. However, the media makes it seem like it
is strangers that are most likely to victimize women. Is this problematic? Yellow journalism is the practice of
using sensational stories in print media to attract readers and increase profit, and it works, but not without
problems.
19
While the media plays an important role in creating fear of crime and myths, they are not the only ones
that do so. In subsequent chapters, we will talk about the government, politicians, and power-elites.
20 In the
next section, we will discuss the wedding cake model in an attempt to understanding how what we most
commonly see in the news media can distort our understanding of crime frequency and types of crimes. The
media may report on the stuff that will appear to be interesting, ‘If it bleeds, it leads,’ even if that is the crime
that is less common. Homicides account for more than a quarter of the crime stories on the evening news,
but they represent less than 1 percent of all crimes.
21 In order to get people to read or listen to the story, they
have to capture our attention. How many people want to read about another marijuana arrest? Not many
probably! Most of us want to hear the gruesome crimes that keep us up at night; despite them being rare. By
covering these crimes in-depth, we create fear and distorted reality of crime, criminals, and criminal justice.
Immigration and Crime Exercise
The fear of immigrants bringing crime to the United States is popular rhetoric right now, especially among
politicians
https://www.washingtonpost.com/news/politics/wp/2018/06/22/the-original-source-for-trumps-
claim-of-63000-immigrant-murders-bad-data-from-steve-king-in-2005/?utm_term=.f6a353aa5109. In the 2016
election, immigration and crime were one of the most perpetuated myths by Republican candidates, such as Donald
Trump. He demonized media, suggesting they do not also perpetuate this myth https://www.washingtonpost.com/
news/post-politics/wp/2016/08/27/trump-in-undocumented-immigrants-we-are-going-to-get-rid-of-the-
19. Kappeler, V., & Potter, G. (2018). The mythology of crime and criminal justice. (5th ed.). Long Grove: Waveland Press, Inc.
20. Kappeler, V., & Potter, G. (2018). The mythology of crime and criminal justice (5th ed.). Long Grove: Waveland Press, Inc.
21. Dorfman, L., & Schiraldi, V. (April 2001). Off Balance: Youth, Race & Crime in the News. Retrieved April 2006, from
http://www.buildingblocksforyouth.org/media/media.html.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
46 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | criminals/?utm_term=.d9962af916ee. Be aware that this fear tactic is not unique to Donald Trump and his campaign
and has been going on forever. Additionally, fear may change, but fear is an excellent tool to get people to
support an agenda. Border control became a hot button, and the argument was that we would remove crime
and criminals. This myth was created and ‘sold’ to citizens via social media, news, films, and other media
outlets.
First, find two news articles that argue that immigrants are dangerous and bring crime to the United States.
Second,
read
both
NPR
links
https://www.npr.org/2018/06/22/622540331/fact-check-trump-illegal-
immigration-and-crime https://www.npr.org/templates/story/story.php?storyId=5365863
Third, evaluate current belief systems before and after reading these. Write a summary of the knowledge gained
from merely double-checking news outlets.
BONUS: To learn even more go and find peer-reviewed research and government research to support the
argument that immigrants do not bring crime and are not more dangerous. Start with Sampson. 2008. Rethinking
Crime and Immigration https://journals.sagepub.com/doi/pdf/10.1525/ctx.2008.7.1.28
Chavez, L. (2001). Covering immigration: Popular images and the politics of the nation. About this book: Media
images not only reflect the national mood but also play a dominant role in shaping national discourse. This book
brings new questions about the media’s influence over the public’s increasing fear of immigration.
Immigration
Reduces
Crime http://www.umass.edu/preferen/You%20Must%20Read%20This/
Lee%20Immigration%20and%20Crime.pdf
The article below is a great opinion piece about media and crime.
http://articles.latimes.com/2001/apr/15/opinion/op-51152
Introduction to the American Criminal Justice System
47 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.11. Wedding Cake Model of Justice
SHANELL SANCHEZ
Wedding Cake Model
Another model of justice was developed by Samuel Walker that attempts to demonstrate how cases move
through the system and may be treated differently by media and society. This model referred to as the
Wedding Cake Model Theory, is unique because it differentiates types of crimes by how serious the offense
is, the offenders criminal record, and the victim and offender relationship.
1 It is referred to as a wedding
cake because of the different tiers or layers on a cake. Take a moment to glance at the wedding cake image
below and notice that wedding cakes often have different layers and the bottom tends to be the largest with
the top being the smallest. This section will explain what each layer would resemble in the criminal justice
system.
We are going to work our way from the bottom of the cake, or the most significant piece, to the smallest
piece on top. In the criminal justice system, the bottom layer of the model would represent the most
1. Walker, S. (2006). Sense and nonsense about crime and drugs: A policy guide (6th ed.). Belmont, CA: Thomson
48 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | significant number of cases handled by the system, which often includes misdemeanors and traffic violations.
This layer may also get comprised of first-time offenders of less severe crimes.
2 Misdemeanors are the
least dangerous types of crimes which can include, depending on where location, public intoxication,
prostitution, graffiti, among others. Imagine getting caught tagging a park wall and never being caught for
a crime before, which is where this crime would fall. These are often the crimes most of us have committed,
but also most of us may not have been caught or punished. A misdemeanor may result in a monetary fine,
rather than jail time.
Bottom-Layer Example (The Largest Portion) Dr. Sanchez
If a person were speeding five over on the interstate, it is unlikely they would get pulled over, or spend time in
court. They are likely to pay the fine which admits guilt. However, if they cannot afford the fine, it would require
them to go to jail, which brings in a whole host of other issues. The bottom layer of the cake often does not require
a person to go to trial because most people with minor crimes are given and accept plea bargains. If one were to go
to jail for a misdemeanor, it is typically for less than one year.
When we previously talked about crime control resembling an assembly line, this tier would be an
example of that: people get cited for everyday violations, people pay their fines rather than go to court,
by paying fines they admit guilt, and their interaction with the system will end. These crimes are the
ones that are seen as so common newspapers will rarely report on them. How often would you like to
read about someone getting cited for speeding ten mph over? Or being arrested for small possession of
marijuana? Although most of these are common marijuana arrests have increased alongside legalization in the
U.S. they are annoying to read about from https://www.forbes.com/sites/tomangell/2018/09/24/marijuana-
arrests-are-increasing-despite-legalization-new-fbi-data-shows/#43134be64c4b
The second tier, or next layer, is comprised of lower-level felonies that may be violent or non-violent.
Again, many of these cases end in a plea bargain and do not end in significant jail or prison time.
3 However,
they consume a significant amount of the courts’ time. For example, Oregon has three different levels or
classes of felonies. Class A is the most serious and can result in up to 20-years imprisonment, Class B can
result in up to 10 years imprisonment, and Class C is the least serious with up to five years.
4 The second tier
would be comprised mostly of Class C felonies.
The third tier is comprised primarily of what most of us know as serious felonies that tend to be violent
and involve offenders with significant criminal histories. In this tier’s cases are more likely to go to trial if the
offender pleads not guilty, and if found guilty, will result in prison time. As stated in the Oregon example,
this would most likely be Class B Felonies and maybe some Class A felonies.
Lastly, the top tier often referred to as celebrated cases, would be the smallest part of the cake and would
be made up of the high-profile cases that tend to be profiled by the media. If found guilty, offenders could
receive significant punishments which may include life imprisonment or the death penalty. The top tier
is less common than the others, but it also the crime we like to think of as really bad. It is also the cases
that garner a lot of news time, and perhaps it is a case that made it to the United States Supreme Court.
2. Walker, S. (2006). Sense and nonsense about crime and drugs: A policy guide (6th ed.). Belmont, CA: Thomson
3. Walker, S. (2006). Sense and nonsense about crime and drugs: A policy guide (6th ed.). Belmont, CA: Thomson
4. https://www.criminaldefenselawyer.com/resources/criminal-defense/felony-offense/oregon-felony-class.htm
Introduction to the American Criminal Justice System
49 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Therefore, the media may glorify these cases, especially if it is a well-known case like O.J. Simpson, Bernie
Madoff, Kobe Bryant, Michael Jackson, Jeffrey Dahmer, and Ted Bundy. Most people know about these
cases, and it may have struck fear into the public, but again, these are garnered more attention because they
are uncommon, committed by people who are famous or shock the public consciousness.
Ted Bundy Obsession Example
Our society is so obsessed with the celebrated cases that we often talk a lot about them, cover them extensively
on the news, and live in fear because of them. Students in a class that are pro-death penalty often say, “I reserve it
for all the Ted Bundy’s in the world.” They are rare, but we fear them! Take this news link that shares images of his
last meals on death row.
https://www.cbsnews.com/pictures/last-meals-of-death-row/8/
The Wedding Cake Model theory not only helps us better understand the operation of the criminal justice
system but also how our perceptions of crime and criminality can be skewed by what gets reported in the
news. It is uncommon for us to hear or read reports on the most common types of crimes, the bottom tier.
When we get bombarded with the crimes that are more at the top, celebrated cases, we may begin to think
that is the reality.
Wedding Cake Model Exercise
Find a case for each tier of the wedding cake model in the news and write up a 500 word summary of where it
fits and why. Lastly, discuss how it may get influenced by our extensive coverage or rare, yet essential news cases.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.12. Street Crime, Corporate Crime, and White-Collar Crime
SHANELL SANCHEZ
As previously demonstrated, crime can be broadly defined, but the two most common types of crime
discussed are, street crime and corporate or white-collar crime. Most people are familiar with street crime
since it is the most commonly discussed amongst politicians, media outlets, and members of society. Every
year the Justice Department puts out an annual report titled “Crime in the United States” which means street
crime but has yet to publish an annual Corporate Crime in the United States report. Most Americans will
find little to nothing on price-fixing, corporate fraud, pollution, or public corruption.
Street Crime
Street crime is often broken up into different types and can include acts that occur in both public and
private spaces, as well as interpersonal violence and property crime. According to the Bureau of Justice (BJS),
street crime can include violent crime such as homicide, rape, assault, robbery, and arson. Street crime also
includes property crimes such as larceny, arson, breaking-and-entering, burglary, and motor vehicle theft.
The BJS also collects data on drug crime, hate crimes, and human trafficking, which often fall under the
larger umbrella of street crime.
1
Fear of street crime is real in American society; however, street crime may not be as rampant as many
think. In a 2017 report, the BJS found that the rate of robbery victimization increased from 1.7 per 1,000
persons in 2016 to 2.3 in 2017. Overall, robbery happens to a small percentage of Americans, which also
seems to be a similar trend when looking at the portion of persons age 12 or older who were victims
of violent crime. The BJS noted an increase from 0.98% in 2015 to 1.14% in 2017, but note the small
percentage overall. Further from 2015 to 2017, the percentage of persons who were victims of violent
crime increased among males, whites, those ages 25 to 34, those age 50 and over, and those who had never
married. There are clear risk factors that can be taken into account when attempting to develop policy,
which discussed in subsequent chapters of the book. There were also areas where the BJS noted a downward
trend in crime, such as the decline in the rate of overall property crime from 118.6 victimizations per 1,000
households to 108.4, while the burglary rate fell from 23.7 to 20.6.
2
Polls have consistently found that people are worried about crime in the United States, specifically street
crime. Riffkin (2014) found that people worry about various crimes such as homes getting burglarized
when they were home, the victim of terrorism, attacked while driving their car, murdered, the victim of a
1. https://www.bjs.gov/index.cfm?ty=tp&tid=316
2. Morgan, R., & Truman, J., (December, 2018). NCJ 252472
51 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | hate crime, and sexually assaulted https://news.gallup.com/poll/178856/hacking-tops-list-crimes-americans-
worry.aspx. For most people in society, people can go about their daily lives without the fear of being a
victim of street crime. Street crime is important to take seriously, but it is reassuring to note that it is unlikely
to happen to most people. The conversation should happen around why fears are high, especially amongst
those less likely to be a victim. For example, elderly citizens have the greatest fear of street crime, yet they
are the group least likely to experience it. Whereas younger people, especially young men, are less likely to
fear crime and are the most likely to experience it.
3
Gallup polls
Because Americans are often fearful of street crime, for various reasons, resources are devoted to prevention
and protecting the public. The United States spends roughly $265.2 billion dollars a year and employs
more than one million police officers, almost 750,000 correctional officers, and more than 490,000 judicial
and legal personnel on street crime.
4 The Uniform Crime Reports (UCR) estimated in 2015 that financial
loses from property crime at $14.3 billion in 2014 (FBI, 2015a), but keep that number in mind for a
3. Doerner, W. G., & Lab, S.P. (2008). Victimology (5th ed.). Cincinnati, Ohio: Lexis-Nexis.
4. Kyckelhahn, T. (2012). Justice expenditure and employment extracts. Bureau of Justice Statistics
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
52 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | minute.
5 Although it is crucial to recognize that street crime does occur, and it impacts certain groups
disproportionately more than others, it is also important to recognize other types of crime less commonly
talked discussed. In fact, the BJS does not have a link that directs people to the next two types of crime
discussed when on their main page of crime type.
Corporate Crime
When most people think of crime, they think of acts of interpersonal violence or property crime. The
typical image of a criminal is not someone who is considered a ‘pillar’ in society, especially one who may
have an excellent career, donate to charity, devote time to the community, and engage in ‘normal’ behavior.
6 Corporate crime is an offense committed by a corporation’s officers who pursue illegal activity (various
kinds) in the name of the corporation. The goal is to make money for the business and run a profitable
business, and the representatives of the business. Corporate crime may also include environmental crime if a
corporation damages the environment to earn a profit.
7 As C. Wright Mills (1952) once stated, “corporate
crime creates higher immorality” in U.S. society.
8 Corporate crime inflicts far more damage on society than
all street crime combined, by death, injury, or dollars lost.
Credit Suisse pled guilty to helping thousands of Americans file false income tax returns, and the company
got fined $2.6 billion. Last year, BNP Paribas pled guilty to violating trade sanctions and was forced to pay
$8.9 billion, which exceeds the yearly out of pocket yearly costs of all the burglaries and robberies in the
United States ($4.5 billion in 2014 according to the FBI). Another example is health care fraud. The estimates
suggest this costs Americans $100 billion to $400 billion a year.
9
In 2001, the energy company Enron committed accounting and corporate fraud, where shareholders lost $74
billion in the four years leading to its bankruptcy, thousands of employees lost jobs, and billions of dollars
got lost in pension plans.
10
In addition to financial loss, corporate crime can be violent. In 2016, the FBI estimated the number
of murders in the nation to be 17,250.
11 Compare 54,000 Americans who die every year on the job or
from occupational diseases such as black lung and asbestosis and the additional tens of thousands of other
Americans who fall victim every year to the silent violence of pollution, contaminated foods, hazardous
consumer products, and hospital malpractice.
12 A vast majority of these deaths are often the result of criminal
recklessness. Americans are rarely made aware of them, and they rarely make their way through the criminal
justice system.
The last major homicide prosecution brought against a major American corporation was in 1980. A
Republican Indiana prosecutor charged Ford Motor Co. with homicide for the deaths of three teenaged girls
who died when their Ford Pinto caught on fire after being rear-ended in northern Indiana. The prosecutor
alleged that Ford knew that it was marketing a defective product, with a gas tank that crushed when rear-
ended, spilling fuel, where the girls incinerated to death. Ford hired a criminal defense lawyer who in turn
hired the best friend of the judge as local counsel, and who, as a result, secured a not guilty verdict after
5. FBI. (2015b), September 28). Latest crime stats released. Washington, DC: US Department of Justice.
6. Fuller, J.R. (2019). Introduction to criminal justice. New York, Oxford: Oxford University Press.
7. Fuller, J.R. (2019). Introduction to criminal justice. New York, Oxford: Oxford University Press.
8. Horowitz, I. (Ed.) (2008), Power, politics, and people. Wright Mills, C. (1952). A diagnosis of moral uneasiness (pp.330-339). New York:
Ballantine.
9. (2000). License To Steal: How Fraud Bleeds America's Health Care System. Westview Press.
10. Folger, J. (November, 2011). The Enron collapse: A look back. Investopedia. Retrieved from https://www.investopedia.com/updates/
enron-scandal-summary/
11. FBI: UCR. 2016. FBI Murder. https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/murder
12. Mokhiber, R. Corporate crime & violence: Big business power and the abuse of the public trust. Random House, Inc.
Introduction to the American Criminal Justice System
53 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | persuading the judge to keep key evidence out of the jury room.
13 https://www.history.com/this-day-in-
history/fatal-ford-pinto-crash-in-indiana.
Sometimes the terms corporate and white-collar crime are used interchangeably, but there are important
distinctions between the two terms.
14
White-Collar Crime
In contrast to corporate crime, white-collar crime usually involves employees harming the individual
corporation. Sometimes corporate and white-collar crime goes hand in hand, but not always. An example
of white-collar crime would be the financial offenses of Bernard Madoff, who defrauded his investors of
approximately $20 billion. Instead of trading stocks with his clients’ money, Madoff had for years been
operating an enormous Ponzi scheme, paying off old investors with money he got from new ones.
By late 2008, with the economy in free fall, Madoff could no longer attract new money, and the scheme
collapsed, which resulted in hundreds of investors, including numerous charities, being wiped out. As of
today, a court-appointed trustee has managed to recover about $13 billion, which is most of the money
Madoff’s investors put into his funds. The trustee sold off Madoff family’s assets, including their homes in the
Hamptons, Manhattan, and France and a 55-foot yacht named Bull.
15
Dr. Sanchez’s Professor in Graduate School
In 2008, many people were negatively impacted by Madoff, one of which was a former professor for Dr. Sanchez.
He lost his retirement, which required him to keep teaching well into his 80’s, as well as lost his home. The impact
of Madoff was far-reaching and although most may call it a purely economic crime, people committed suicide and
lost everything in this scandal.
No official program measures corporate and white-collar crime like there is with street crime occurring in
the United States. Therefore, we estimate costs to society, and who the victims are. Additionally, unlike street
crime where the crime can often be discovered instantly and investigated quickly, corporate and white-collar
crime can take years to investigate and even longer to prosecute. Remember, Madoff was involved in fraud
most of his working life but were not caught until he was nearing the end at the age of 71.
16
13. Steinzor, R. (Dec. 2014). It’s called 'Why Not Jail?': Industrial catastrophes, corporate malfeasance, and government inaction. Cambridge
University Press.
14. Kleck, G. (1982). On the use of self-report data to determine the class distribution of criminal and delinquent behavior." American
Sociological Review, 427-433.
15. Zarroli, J. (2018). For Madoff victims, scars remain 10 years later, National Public Radio, https://www.npr.org/2018/12/23/678238031/
for-madoff-victims-scars-remain-10-years-later
16. Fuller, J.R. (2019). Introduction to Criminal Justice. New York: Oxford, Oxford University Press.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.13. Different Types of Crimes and Offenses
SHANELL SANCHEZ
Once an act gets identified as a crime, the law then attempts to define crime in a way that can distinguish
the harm done and the severity of the crime. There are different types of crime and two different types of
offenses that will get discussed. In the previous section, street crime, corporate crime, and white-collar crime
get discussed. However, more broadly, there are crimes against the person, crimes against property, crimes
against public order, and drug crime that typically get counted and fall under street crime.
Crimes Against the Person
Crimes against the person are often considered the most serious and may include homicide, rape,
assault, kidnapping, and intimate partner violence. Each of these crimes can carry a different penalty
based upon the seriousness of the crime. For example, because Ted Bundy murdered women, rather
than ‘just’ assaulted, Bundy was eligible for capital punishment in the U.S. The state defines the crime
and the punishment.
Crimes Against Property
Property crimes are widespread and seen as less severe than crimes against the person. Property crimes
may include larceny, burglary, arson, and trespassing. There are varying degrees of liability depending
on the circumstances of the case.
Crimes Against Public Order
Public order crimes may not harm other people or property but impact social order. Think back to
the example of feeding homeless in community’s where that is illegal. Other typical examples would
be disorderly conduct, loitering, and driving under the influence. The victim is society, and the goal
is to maintain social order. Many debates whether certain crimes against public order are more or less
severe, but get inappropriately punished. For example, driving while intoxicated can take lives and may
be more severe. However, the law will charge for vehicular manslaughter or murder if life gets taken
because someone drove drunk.
Drug Offenses
Most often drug offenses can be seen as a crime against public order, but the United States reaction to
illegal drug use has altered the resources of the CJ system because of the “war on drugs.” Some examples
of drug offenses can be possession of illegal drugs, being high, and selling. Punishment will vary based
on the drug, how much of the drug is in possession or sold, and where it gets sold.
Misdemeanor
55 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | A misdemeanor is considered a minor criminal offense that is punishable by a fine and jail time for up
to one year.
Felony
A felony is an offense that is punishable by a sentence of more than one year in state or federal prison
and sometimes by death.
Many different types of crimes and punishments can be handed out by the criminal justice system. Each
state determines what and how this will operate if discussing state-level crime. Other crimes are defined in
federal statutes and can get punished at the federal level such as treason. Some crimes are seen as more severe,
especially if they are violent in nature or harm people. Others may get seen as a ‘victimless’ or behavior that
gets seen as consensual, yet undesirable to those making the laws. This general overview demonstrates the
complexity of defining crime and understanding the role society has in shaping these perceptions.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
56 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.14. Victims and Victim Typologies
SHANELL SANCHEZ
It was not until 1660 that the word victim was first used to in the sense of a person who is hurt, tortured or
killed by another. A victim of crime did not exist until well into the 17th century. Why were victims ignored
for so long?
1 A victim is an integral part of the system, in fact, some say without a victim there would be no
need for the CJ system. Victims are the people or communities that suffer physical, emotional, or financial
harm as a result of a crime. Over the years different typologies of victims have been created to demonstrate
the unique role or position of victims in relation to crime. Typically, when people hear someone has been a
victim of a crime we often think of them as completely innocent. In fact, a lot of new legislation and policy
changes created to provide the victim with a greater role in the CJ offers the stereotypical view of the victim
as completely innocent.
2
Typologies of Crime Victims
Theorists have developed victim typologies that are concerned primarily with the situational and personal
characteristics of victims and the relationship between victims and offenders. Benjamin Mendelsohn was one
of the first criminologists to create a victim typology, in the 1950s, but was not without controversy. Below
is a table of Mendelsohn’s typology of crime victims and as you can see he placed a lot of emphasis on most
victims attitude that leads to their victimization.
3
Mendelsohn’s Typology of Crime Victims
1. Hagemann, O., Schäfer, P., & Schmidt, S. (Eds.) (2010). Victimology, Victim Assistance, and Criminal Justice: Perspectives Shared by
International Experts Wemmers, J. A short history of victimology. at the Inter-University Centre of Dubrovnik. 2010. Available at SSRN:
https://ssrn.com/abstract=2482627
2. Fuller, J.R. (2019). Introduction to Criminal Justice: New York: Oxford University Press.
3. Mendelsohn, B. (1976). Victimology and contemporary society's trends. Victimology, 1(1), 8-28.
57 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Innocent victim
Someone who did not contribute to the victimization and is in
the wrong place at the wrong time. This is the victim we most
often envision when thinking about enhancing victim rights.
The victim with minor guilt
Does not actively participate in their victimization but
contributes to it in some minor degree, such as frequenting
high-crime areas. This would be a person that continues to go
to a bar that is known for nightly assault.
The guilty victim, guilty offender
Victim and offender may have engaged in criminal activity
together. This would be two people attempting to steal a car,
rob a store, sell drugs, etc.
The guilty offender, guiltier victim
The victim may have been the primary attacker, but the
offender won the fight.
Guilty victim
The victim instigated a conflict but is killed in self-defense. An
example would be an abused woman killing her partner while
he is abusing her.
Imaginary victim
Some people pretend to be victims and are not. This would be
someone falsifying reports.
Other criminologists developed similar typologies but included other elements. For example, Hans Von
Hentig expanded his typology from situational factors that Mendelsohn looked at and considered the role
of biological, sociological and psychological factors. For example, Von Henting said the young, elderly, and
women are more susceptible to victimization because of things such as physical vulnerabilities. It is important
to recognize that some crimes, and ultimately crime victims, are excluded in these typologies such as white-
collar and corporate crime.
4
5
Von Hentig’s Typology
Young people
Immature, under adult supervision, lack physical strength and
lack the mental and emotional maturity to recognize
victimization
Females/elderly
Lack of physical strength
Mentally ill/intellectually disabled
Can be taken advantage of easily
Immigrants
Cannot understand language or threat of deportation makes
them vulnerable
Minorities
Marginalized in society, so vulnerable to victimization.
Dull normals
Reasonably intelligent people who are naive or vulnerable in
some way. These people are easily deceived.
The depressed
The acquisitive
Gullable, easily swayed, and not vigilant.
Greedy and can be targeted for scammers who would take
advantage of their desire for financial gain.
The lonesome and broken-hearted
Often prone to victimization by intimate partners. They desire
to be with someone at any cost. They are susceptible to
manipulation.
Tormentors
Primary abusers in relationships and become victims when the
one being abused turns on them.
Blocked, exempted, and fighting victims
Enter situations in which they are taken advantage such as
blackmail.
Von Hentig’s work was the basis for later theories of victim precipitation. Victim precipitation suggests
4. Burgess, A. W. (2013). Victimology: Theories and applications. (3rd ed.). Burlington: Jones and Bartlett.
5. Von Hentig, H. (1948). The criminal and his victim: Studies in the sociobiology of crime. New Haven: Yale University Press.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
58 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | many victims play a role in their victimization. First, the victim acted first during the course of the
offense, and second that the victim instigated the commission of the offense.
6 It is important to note that
criminologists were attempting to demonstrate that victims may have some role in the victimization and
are not truly innocent. Today we often recognize the role in victimization without blaming the individual
because ultimately the person who offended is the person who offended.
6. Smith, M., & Bouffard, L. A. (2014). "Victim precipitation." The Encyclopedia of Criminology and Criminal Justice, Wiley Online Library.
Introduction to the American Criminal Justice System
59 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.15. Victim Rights and Assistance
SHANELL SANCHEZ
Definition of a Victim
The CJ system refers to a victim as a person who has been directly harmed by a crime that was committed
by another person. In some states, victims’ rights apply only to victims of felonies (more serious crimes) while
other states also grant legal rights to victims of misdemeanors (less serious crimes). Some states allow a family
member of a homicide victim or the parent or guardian of a minor, incompetent person, or person with a
disability to exercise these rights on behalf of the victims.
1
The U.S. criminal justice system first introduced services for victims of federal criminal offenses during the
1980s. In the 1990s it was made law and Congress created the Victim’s Rights and Restitution Act H.R.5368.
The Act requires all Federal law enforcement agency officers and employees to make their best efforts to
accord victims of crime with the right to (1) be treated with fairness and respect for the victim’s dignity and
privacy; (2) be protected from their accused offenders; (3) notification of court proceedings; (4) attend public
court proceedings related to the offense under certain conditions; (5) confer with the Government attorney
assigned to the case; (6) restitution; and (7) information about the conviction, sentencing, imprisonment, and
release of the offender. Directs Federal law enforcement agency heads to designate the persons responsible
for identifying the victims of a crime and providing certain services to such victims such as: (1) informing
them where to receive medical care and counseling; (2) arranging protection from an offender; and (3)
keeping the victim informed of developments during the investigation and prosecution of the crime and
after the trial such as the arrest of a suspected offender or an escape of a convicted offender.
2
The state prosecutes criminal offenses in the name of society, which is why cases are Smith v. Colorado,
so victims and families were often not included in the process since they were not a necessary part of the
court system. Today we have introduced various rights and include victim-impact statements. Victim-
impact statements given an account by the victim, the victim’s family, or others affected by the offense that
expressed the effects of the offense.
3
1. The National Center for Victims of Crime. (2012). Victim's rights. http://victimsofcrime.org/help-for-crime-victims/get-help-bulletins-
for-crime-victims/victims%27-rights
2. https://www.congress.gov/bill/101st-congress/house-bill/5368 H.R.5368 - Victims' Rights and Restitution Act of 1990 101st Congress
(1989-1990)
3. http://victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/victims%27-rights
60 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Victim Impact Statements Video: Listen and Learn
You will watch victim impact statements that were created to help educate people on the impact of various
crimes. Warning: It is hard to watch at times and may cause you to feel upset, sad, angry, or more.
•
First, watch the youtube video https://www.youtube.com/watch?v=_ghpl4vDZ3s
•
Second, write a 500-word response about the benefits of victim-impact statements, the impact the
film had on you, and any other general thoughts you had while watching.
Victim Rights
Today, all states and the federal government have passed laws to establish a set of victims’ rights. The main
goal of these laws is to provide victims with certain information and protections. It is important to note that
victims’ rights, just like criminal offenses, will depend on the jurisdiction where the crime is investigated and
prosecuted. The rights may vary state, federal or tribal government, or military installation.
4
Overview of Victim’s Rights
Below is a list of basic victims’ rights from the National Center for Victims of Crime that are provided by
law in most jurisdictions. Again, it is important to remember these rights vary, depending on federal, state,
or tribal law.
1.
Right to be Treated with Dignity, Respect, and Sensitivity
1.
Victims generally have the right to be treated with courtesy, fairness, and care by
law enforcement and other officials throughout the entire criminal justice process.
This right is included in the constitutions of most states that have victims’ rights
amendments and in the statutes of more than half the states.2 Victim impact
statements allow crime victims, during the decision-making process on sentencing
or parole, to describe to the court or parole board the impact of the crime on
their lives. The victim impact statement may include a description of psychological,
financial, physical, or emotional harm the victim experienced as a result of the crime.
A judge may use information from these statements to help determine an offender’s
sentence; a parole board may use such information to help decide whether to grant
parole and what conditions to impose in releasing an offender. Many victims have
reported that making victim impact statements improved their satisfaction with the
criminal justice process and helped them recover from the crime. In some states, the
4. The National Center for Victims of Crime. (2012). Victim's rights. http://victimsofcrime.org/help-for-crime-victims/get-help-bulletins-
for-crime-victims/victims%27-rights
Introduction to the American Criminal Justice System
61 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | prosecutor is required to confer with the victim before making important decisions.
In all states, however, the prosecutor (and not the victim) makes decisions about the
case.
2.
Right to Be Informed
1.
The purpose of this right is to make sure that victims have the information they
need to exercise their rights and to seek services and resources that are available to
them. Victims generally have the right to receive information about victims’ rights,
victim compensation (see “Right to Apply for Compensation,” below), available
services and resources, how to contact criminal justice officials, and what to expect
in the criminal justice system. Victims also usually have the right to receive
notification of important events in their cases. Although state laws vary, most states
require that victims receive notice of the following events:
▪
the arrest and arraignment of the offender
▪
bail proceedings
▪
pretrial proceedings
▪
dismissal of charges
▪
plea negotiations
▪
trial
▪
sentencing
▪
appeals
▪
probation or parole hearings
▪
release or escape of the offender
States have different ways of providing such information to victims. Usually,
information about court proceedings is mailed to the victim. Some states have an
automated victim notification system that automatically calls or e-mails the victim
with updates on the status of the offender, while others require the victim to
telephone the authorities to receive such updates.
3.
Right to Protection
1.
In many states, victims have the right to protection from threats, intimidation, or
retaliation during criminal proceedings. Depending on the jurisdiction, victims may
receive the following types of protection:
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
62 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | ▪
police escorts
▪
witness protection programs
▪
relocation
▪
restraining orders
Some states also have laws to protect the employment of victims who are
attending criminal proceedings (see “Right to Attend Criminal Proceedings,”
above).
4.
Right to Apply for Compensation
1.
All states provide crime victim compensation to reimburse victims of violent
crime for some of the out-of-pocket expenses that resulted from the crime. The
purpose of compensation is to recognize victims’ financial losses and to help them
recover some of these costs. All states have a cap on the total compensation award
for each crime, and not all crime-related expenses are covered. To be eligible for
compensation, victims must submit an application, usually within a certain period of
time, and show that the losses they are claiming occurred through no fault of their
own. Some types of losses that are usually covered include:
▪
medical and counseling expenses
▪
lost wages
▪
funeral expenses
Compensation programs seldom cover property loss or pain and suffering. Also,
victim compensation is a payer of last resort; compensation programs will not cover
expenses that can be paid by some other program, such as health insurance or
workman’s compensation.
5.
Right to Restitution from the Offender
1.
In many states, victims of crime have the right to restitution, which means the
offender must pay to repair some of the damage that resulted from the crime. The
purpose of this right is to hold offenders directly responsible to victims for the
financial harm they caused. The court orders the offender to pay a specific amount of
restitution either in a lump sum or a series of payments. Some types of losses covered
by restitution include:
2.
lost wages
3.
property loss
Introduction to the American Criminal Justice System
63 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 4.
insurance deductibles
6.
Right to Prompt Return of Personal Property
1.
Crime investigators must often seize some of the victim’s property as evidence
for a criminal case. In most states, authorities must return such property to the
victim when it is no longer needed. To speed up the return of property, some states
allow law enforcement to use photographs of the item, rather than the item itself, as
evidence. The prompt return of personal property reduces inconvenience to victims
and helps restore their sense of security.
7.
Right to a Speedy Trial
8.
Right to Enforcement of Victim’s Rights
1.
To be meaningful, legal rights must be enforced. States are beginning to pass
laws to enforce victims’ rights, and several states have created offices to receive and
investigate reports of violations of victims’ rights. Other states have laws that permit
victims to assert their rights in court.
5
5. National Center for Victims of Crime. (2012). http://victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/
victims%27-rights
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
64 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 1.16. "Spare the Rod, Spoil the Child" Myth/Controversy
This unit delved into theories of criminal behavior, and the previous unit sought crime control policies.
Each theory suggests an appropriate means to reduce or prevent violence. Some work and some do not.
Deterrence theories operate on the assumption that people want to minimize pain. Learning theories suggest
people may learn how to be a criminal (or learn how not to be a criminal). Disciplining children is a primary
function of the family. Many people believe it is acceptable, or even necessary, to spank their children.
Spanking is a form of corporal punishment. Why do parents spank their children? For some parents, they
spank as a form of punishment (Remember operant conditioning? It is a form of positive punishment). They
are using physical means to stop a behavior from happening again. These are ideological beliefs.
Other parents might say that they’ve been spanked as a child, and they turned out fine. This belief
reinforces the family upbringing myth. Additionally, other parents might feel pressure to discipline their
child with physical force. Some parents “think” they seem “weak” if they do not spank their child.
Furthermore, grandparents and other family members might encourage new parents to spank their children.
Please listen or read the National Public Radio’s podcast on spanking (NPR’s – “The American Academy
of Pediatrics On Spanking Children: Don’t Do It, Ever.”)
There is a difference between physical discipline and physical abuse, but it is a fine line. If you are in favor
of spanking, would you let another family member spank your child? Would you let a stranger? Why or
why not? It is not illegal to spank children in the United States, but decades of research have recommended
other methods of punishment and discipline besides physical force. At the very least, it is easy for children
to learn that violence (spanking) is an appropriate method to get what you want. Parents who spank their
children because their child “hit” another child or sibling might want to reflect on a child may learn – “I’m
going to hit (spank) you for hitting another person. Don’t hit!”
65 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 2: Defining and Measuring Crime
and Criminal Justice
Learning Objectives
In the previous section, we spent much time trying to understand how to define crime, whereas this section will
focus on the task of measuring crime. Measuring crime is quite complex and requires an understanding of different
data sets and how we use them. Defining crime seems complex, but measuring crime is just as complicated of a task.
Without crime, there is no need for the criminal justice system. We must have a clear and accurate understanding
of crime in order to create effective policies to combat it or help minimize it. This section will teach students how
to obtain accurate measures of crime so that they can be an informed citizen. Further, if we have an accurate picture
of crime and trends, we can better predict the needs of our society, such as increased patrol, rehabilitation services,
and more. We will also spend some time talking about evidence-based practices, discussed in greater detail later.
After reading this section, students will be able to:
•
Develop an understanding of the different data sources used to gather precise and accurate measures
of crime
•
Recognize the difference between official or reported statistics, self-report statistics, and victimization
statistics
•
Evaluate the reliability of statistics and data heard about the criminal justice system
Critical Thinking Questions
1.
What are the three different types of data sources we often rely on in CJ?
2.
What are the strengths and limitations of each data source?
3.
Identify when each type of data source would be appropriate for different crimes and why.
67 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 2.1. Dark or Hidden Figure of Crime
SHANELL SANCHEZ
It is difficult to determine that amount of crime that occurs in our communities every year because many
crimes never come to the attention of the criminal justice system. There are various reasons that will be
discussed, such as victims not reporting, victims not realizing they are victims, and offenders not getting
caught. Research reveals, that on average, more than half of the nation’s violent crimes, or nearly 3.4 million
violent victimizations per year, went unreported to the police between 2006 and 2010, according to a
new report published by the Bureau of Justice Statistics (BJS).
1 Because of this underreporting of crime,
criminologists often refer to a concept known as the dark figure of crime.
There are three general sources of crime statistics that will be covered in this chapter: official statistics,
which we often describe as reported statistics, self-report statistics, and victimization statistics. Each of these
sources of crime statistics has pros and cons, and we will spend time discussing those as well. Additionally, we
will discuss the importance of looking at crime trends over time, relying upon statistics and research when
developing policy, and how data should be a tool that enhances the criminal justice system.
If we have accurate and reliable crime statistics, we can evaluate criminal justice policies and programs. For
example, we could use crime statistics to see if incarcerating drug offenders is effective. Such effectiveness
is studied in the correctional system via the ‘risk principal,’ or classifying people based on the level of risk.
https://heinonline.org/HOL/LandingPage?handle=hein.journals/fedsen27&div=37&id=&page=
Relying on official statistics can be problematic to grasp a correct understanding of crime in society
because many crimes never even come to the attention of the criminal justice system. Official statistics are
often the crimes that are known or reported to police or others. It may seem shocking that people do not
report crimes, but it is more common than we think. Let us take the example of looking at the gap between
reported and unreported crimes.
Dark Figure of Crime Example
My father-in-law grew up in a small town in South Dakota. When his family moved to Colorado, they still had
a rural mindset to their property. They often think people should not touch other peoples things, so there is no
1. Bureau of Justice Statistics. (2012). Nearly 3.4 million violent crimes per year. https://www.bjs.gov/content/pub/press/vnrp0610pr.cfm
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | need to lock up their house, car, or other property. He leaves his vehicle, house, and garage unlocked in Colorado
because of that mindset. However, they live in a large, populous part of Colorado in a suburb outside Denver. Most
people do not know the neighbor three doors down. One morning he woke up to his truck gone! The first thing
he did was realize he left the keys in the truck and the truck was unlocked (normal to him). Next, he decided to
take a walk to look for it before phoning the police. He located the truck, and it was damaged. It appeared that kids
took it for a joy ride, as evidence from the beer cans and odor. He chose not to call the police. Why? He was happy
the property had was located, yet he believed ‘it was his fault,’ and he had to get to work. Is this type of reaction
more common than we may think?
A friend of mine was a victim of domestic violence for over nine months and never told anyone, especially police.
Her boyfriend was only presented as perfect, loving, and romantic on social media and around people. When she
did come forward, it was after she landed in the emergency room due to him assaulting her. People may initially
think domestic violence victims would always call the police, but there are so many reasons people do not come
forward.
When victims of crime do not report, or police are not made aware of a crime these crimes go uncounted in the
official statistics. They become part of the ‘dark figure of crime‘ that we will learn about throughout this section.
2
Some Reasons People May Not Report
3
1. The victim may not know a crime occurred
2. The offender is a member of the family, a friend, or an acquaintance
3. The victim thinks it is not worth reporting
4. The victim may fear retaliation
5. The victim may also have committed a crime
6. The victim does not trust the police
2. Biderman, A., & Reiss, A. (1967). On exploring the "dark figure of crime." The Annals of the American Academy of Political and Social
Science. 374(1), 1–15. https://doi.org/10.1177/000271626737400102
3. Brantingham, P., & Brantingham, P. (1984). Patterns in Crime, New York: Macmillan.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 2.2. Official Statistics
SHANELL SANCHEZ
Despite being aware that crime does go unreported, it is still important to estimate and attempt to measure
crime in the country. However, it is essential always to be aware of the data sources strengths and weaknesses
when reading crime statistics. Also, be cautious of how changing data collection techniques may alter
statistics. For example, if a survey never collected data on prescription drug abuse but then all of a sudden
does it could seem like prescription drugs are being abused at high rates. However, it is most likely just
because it is the first time the questions got asked and there are no comparison groups.
Official statistics are gathered from various criminal justice agencies, such as the police and courts, and
represent the total number of crimes reported to the police or the number of arrests made by that agency.
Remember, if an officer uses discretion and does not arrest a person, even if a crime was committed, this does
not get reported.
The Federal Bureau of Investigation’s (FBI’s) Uniform Crime Reports (UCR) is the largest, most common
data on crime currently available. The UCR lists the number of crimes that were reported to the police
and the number of arrests made. The link below can take you to the UCR homepage https://www.fbi.gov/
services/cjis/ucr.
The UCR Program’s primary objective is to generate reliable information for use in law enforcement
administration, operation, and management. Various groups and agencies rely upon the UCR crime data,
such as law enforcement executives, students, researchers, the media, and the public at large seeking
information on crime in the nation.
1 The UCR began in 1929 by the International Association of Chiefs of
Police to meet the need for reliable uniform crime statistics for the nation. In 1930, the FBI was tasked with
collecting, publishing, and archiving those statistics. Every year there are four annual publications produced
from data received from more than 18,000 city, university and college, county, state, tribal, and federal law
enforcement agencies voluntarily participating in the program.
2
The UCR Program consists of four data collections: The National Incident-Based Reporting System
(NIBRS), the Summary Reporting System (SRS), the Law Enforcement Officers Killed and Assaulted
(LEOKA) Program, and the Hate Crime Statistics Program. The UCR also publishes special reports on
Cargo Theft, Human Trafficking, and NIBRS topical studies. The UCR Program will manage the new
National Use-of-Force Data Collection.
1. U.S. Department of Justice. (2017). UCR Reports
2. U.S. Department of Justice. (2017). UCR Reports
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | National Incident-Based Reporting System, or NIBRS
The National Incident-Based Reporting System, or NIBRS, was created to improve the overall quality
of crime data collected by law enforcement. NIBRS is unique because it collects data on crimes reported
to the police, but also incidents where multiple crimes are committed, for example when a robbery
escalates into a rape.
3 NIBRS also collects information on victims, known offenders, relationships between
victims and offenders, arrestees, and property involved in the crimes. See the link to go directly to
NIBRS https://www.fbi.gov/services/cjis/ucr/nibrs
Hate Crime Statistics
Congress passed the Hate Crime Statistics Act, 28 U.S.C. § 534, on April 23, 1990. This required
the attorney general to collect data “about crimes that manifest evidence of prejudice based on race,
religion, sexual orientation, or ethnicity.” Hate crime statistics may assist law enforcement agencies, provide
lawmakers with justification for certain legislation, provide the media with credible information, or simply
show hate crime victims that they are not alone (FBI, 2018). See the link to go to the FBI’s hate crime
statistics link https://www.fbi.gov/services/cjis/ucr/hate-crime.
The FBI UCR Program’s Hate Crime Data Collection gathers data on the following biases:
Race/Ethnicity/Ancestry
•
Anti-American Indian or Alaska Native
•
Anti-Arab
•
Anti-Asian
•
Anti-Black or African American
•
Anti-Hispanic or Latino
•
Anti-Multiple Races, Group
•
Anti-Native Hawaiian or Other Pacific Islander
•
Anti-Other Race/Ethnicity/Ancestry
•
Anti-White
Religion
•
Anti-Buddhist
•
Anti-Catholic
•
Anti-Eastern Orthodox (Russian, Greek, Other)
•
Anti-Hindu
3. Rantala, R. R. (2000). Effects of NIBRS on crime statistics. Bureau of Justice Statistics Special Report. U.S. Department of Justice, Office of
Justice Programs. Washington, DC.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | •
Anti-Islamic
•
Anti-Jehovah’s Witness
•
Anti-Jewish
•
Anti-Mormon
•
Anti-Multiple Religions, Group
•
Anti-Other Christian
•
Anti-Other Religion
•
Anti-Protestant
•
Anti-Atheism/Agnosticism/etc.
Sexual Orientation
•
Anti-Bisexual
•
Anti-Gay (Male)
•
Anti-Heterosexual
•
Anti-Lesbian
•
Anti-Lesbian, Gay, Bisexual, or Transgender (Mixed Group)
Disability
•
Anti-Mental Disability
•
Anti-Physical Disability
Gender
•
Anti-Male
•
Anti-Female
Gender Identity
•
Anti-Transgender
•
Anti-Gender Non-Conforming
Introduction to the American Criminal Justice System
73 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | The types of hate crimes reported to the FBI are broken down by specific categories. The aggregate hate
crime data collected for each incident include the following:
•
Incidents and offenses by bias motivation: Includes crimes committed by and against
juveniles. Incidents may include one or more offense types.
•
Victims: The types of victims collected for hate crime incidents include individuals (adults
and juveniles), businesses, institutions, and society as a whole.
•
Offenders: The number of offenders (adults and juveniles), and when possible, the race and
ethnicity of the offender or offenders as a group.
•
Location type: One of 46 location types can be designated.
•
Hate crime by jurisdiction: Includes data about hate crimes by state and agency.
Law Enforcement Officers Killed and Assaulted Program LEOKA
LEOKA provides data and training that helps keep law enforcement officers by providing relevant,
high quality, potentially lifesaving information to law enforcement agencies focusing on why an incident
occurred as opposed to what occurred during the incident, with the hope of preventing future incidents.
4
4. FBI (2017). https://www.fbi.gov/services/cjis/ucr/leoka
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | LEOKA Data
Exclusions from the LEOKA Program’s Data Collection
Deaths resulting from the following are not included in the LEOKA Program’s statistics:
•
Natural causes such as heart attack, stroke, aneurysm, etc.
•
On duty, but death is attributed to their own personal situation such as domestic violence,
neighbor conflict, etc.
•
Suicide
Examples of job positions not typically included in the LEOKA Program’s statistics (unless they meet the
above exception) follow:
•
Corrections/correctional officers
•
Bailiffs
•
Parole/probation officers
•
Federal judges
•
The U.S. and assistant U.S. attorneys
Introduction to the American Criminal Justice System
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | •
Bureau of Prison officers
•
Private security officers
All of these official statistics are a great starting point, although, recognize they are imperfect in nature. Police
agencies can change their attention to certain events, which can change the overall number of arrests. For
example, if police begin cracking down on domestic violence the statistics may go up. This crackdown can
make it appear that the problem has increased, although it can be related to the crackdown. Just remember,
if the crime is not reported, or no arrest is made it will not get captured in the data.
Bureau of Justice Statistics Exercise
The BJS is relatively user-friendly. Look at crime statistics by state, region, or city, and explore different years
and crime types.
https://www.bjs.gov/index.cfm?ty=datool&surl=/arrests/index.cfm
Examine current state AND city crime trends in the past five years.
Second, pick a state AND city interested in living in and examine the crime trends for the past five years.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 2.3. Victimization Studies
SHANELL SANCHEZ
Victimization studies attempt to fill in where police reports are missing by asking people if they have been
a victim of a crime in a given year, reported or not. The National Crime Victimization Survey (NCVS) is
the primary source of information on criminal victimization in the United States. The NCVS helps fill in
gaps that the UCR and NIBRS cannot fill in because that data is only crimes known to police. Every year the
U.S. Census Bureau administers the survey and gathers data on frequency, characteristics, and consequences
of criminal victimization from approximately 135,000 households, composed of nearly 225,000 persons. The
NCVS collects information on nonfatal personal crimes (i.e., rape or sexual assault, robbery, aggravated and
simple assault, and personal larceny) and household property crimes (i.e., burglary, motor vehicle theft, and
other theft) both reported and not reported to police.
1 It is important to help fill in the gap of the dark figure
of crime previously discussed.
The NCVS collects information on age, sex, race and Hispanic origin, marital status, education level, and
income, and whether they experienced victimization. Additionally, the NCVS collects information about
the offender about age, race and Hispanic origin, sex, and victim-offender relationship, characteristics of the
crime (e.g., time and place of occurrence, use of weapons, nature of injury, and economic consequences),
whether the crime get reported to police, reason(s) the crime was or do not get reported, and victim
experiences with the criminal justice system.
2 See the link below to explore the NCVS https://www.bjs.gov/
index.cfm?ty=dcdetail&iid=245
See the report below on findings of repeat victimization from the NCVS: https://www.bjs.gov/
index.cfm?ty=pbdetail&iid=6046
NCVS Exercise
1. Bureau of Justice Statistics, Data Collection: National Crime Victimization Survey (NCVS)
2. Bureau of Justice Statistics, Data Collection: National Crime Victimization Survey (NCVS)
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Go to the NCVS page and use the analysis tool that allows you to examine the National Crime Victimization
Survey (NCVS) data on both violent and property victimization. You can select the victim, household, and incident
characteristics.
You can instantly generate tables with national estimates of the numbers, rates, and percentages of victimization
from 1993 to the most recent year that NCVS data are available. The pre-set Quick Tables show you trends in
crime and reporting to the police. If you would like more detail, use the Custom Tables analyze victimization by
excellent characteristics.
https://www.bjs.gov/index.cfm?ty=nvat
As with any data source, there are challenges and limitations to victimization surveys. Respondents may
have issues recalling victimization, which can lead to underreporting or overreporting. If an individual was
traumatized the event may blur together, and it may have occurred in 2017 rather than 2018, but gets
reported as 2018. Other times respondents may lie or omit information for various reasons such as shame,
fear, confusion, and a lack of trust. If the respondent is uncomfortable with the interviewers, they may
not want to tell them that their partner abused them, out of fear it will get reported to police. However,
methodological techniques can attempt to minimize these challenges buy bounding to mitigate the chances
of this happening.
3
3. Lab, S., Holcomb, J., & King, W. (2013). Criminal justice: The Essentials. Oxford University Press: Oxford.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 2.4. Self-Report Statistics
SHANELL SANCHEZ
Self-report statistics are stats that are reported by individuals. Self-report statistics get gathered when people
are asked to report the number of times they may have committed a particular crime during a set period in
the past, regardless of getting caught or not. For example, in-class students take a criminal activity checklist
and report behaviors they have engaged in at some point in their lives. People should be honest since the data
has no identifying information collected, and report even if no one ever found out what we find during class
time it that all the students, for over eight years of teaching, have committed a crime. However, the amount
of students that have to get caught is minimal, especially those that received formal sanctioning from the CJ
system (funneling of crime).
Monitoring the Future is an ongoing study of the behaviors, attitudes, and values of American secondary
school students, college students, and young adults. Each year, a total of approximately 50,000 8th, 10th,
and 12th-grade students get surveyed (12th graders since 1975, and eighth and 10th graders since 1991).
Besides, annual follow-up questionnaires are mailed to a sample of each graduating class for some years
after their initial participation. The Monitoring the Future Study has been funded under a series of
investigator-initiated competing research grants from theNational Institute on Drug Abuse, a part of the
National Institutes of Health. MTF is conducted at the
Survey Research Center in the Institute for Social Research at theUniversity of Michigan.
Monitoring the Future Drug Use Amongst Teens
How do we get estimates on drug use amongst teens if most of them do not get caught? We rely on reports
like the one above from the MTF. Monitoring the Future (MTF) is a long-term study of substance use
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | among U.S. adolescents, college students, and adult high school graduates through age 60. The survey is
conducted annually, which allows us to examine long term trends. MTF findings identify emerging
substance use problems, track substance use trends, and inform national policy and intervention strategies.
Respondents are confidential, which means we cannot link their answers to them. Therefore, people may
be more likely, to tell the truth.
1
In the Report: One Form of Drug Use Showed a Sharp Increase in Use in 2018
The most important findings to emerge from the 2018 survey is the dramatic increase in vaping by
adolescents. Vaping is a relatively new phenomenon, so we are still developing measures related to this
behavior, which included asking separately for the first time in 2017 about the vaping of three specific
substances—nicotine, marijuana, and just flavoring. As the section on vaping in this monograph shows,
there was a significant and substantial increase in 2018 in the vaping of all three of these substances,
including some of the most substantial absolute increases MTF has ever tracked for any substance. Given
that nicotine is involved in most vaping, and given that nicotine is a highly addictive substance, this
presents a severe threat.
2
Self-report statistics are great because they can help discover problems we were unaware of, such as vaping.
Further, it helps us identify victimless crimes, or crimes to where there is no victim such as drug use,
gambling, and underage drinking. Lastly, we uncover offenses that are not as serious such as shoplifting,
which are less likely to be known to police.
3
However, self-report data also has its limitations. Respondents may exaggerate or underreport their
criminal behavior, for various reasons. For example, in the class activity we do, many students did not
know what they did was illegal behavior until the statute was read, so they would never have thought they
committed a crime. Lastly, if we do not capture a large sample, we may limit who gets the survey. If we are
surveying kids in school about substance abuse, but not reaching out to all kids even if they get suspended,
we may miss important data.
4
Which Data Should We Use?
In each type of data (official, self-report, and victimization) there are pros and cons. Additionally, each source is
more likely to produce a better picture of what is occurring depending on the area of study. If a person wanted to
1. Johnston, L.D., Miech, R.A., O’Malley, P.M., Bachman, J.D., Schulenberg, J.E., & Patrick, M.E. (2018). MTF. 2018 Overview Key
Findings on Adolescent Drug Use
2. ohnston, L.D., Miech, R.A., O’Malley, P.M., Bachman, J.D., Schulenberg, J.E., & Patrick, M.E. (2018). MTF. 2018 Overview Key Findings
on Adolescent Drug Use
3. Hindelang, Hirschi, & Weis, (1981). Measuring delinquency. Thousand Oaks, CA: Sage Pubs.
4. Lab, S., Holcomb, J., & King, W. (2013). Criminal justice: The Essentials. Oxford University Press: Oxford.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | get the best statistics on reported homicides in the US, which source would be best? How about domestic violence?
What if we were interested in finding out drug abuse rates amongst teens in high school?
Introduction to the American Criminal Justice System
81 |
SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 2.5. Misusing Statistics
SHANELL SANCHEZ
Genocide: Misuse of Statistics Exercise
The misuse of statistics promotes crime myths and generates fear of crime. There are various ways that we
can misuse statistics, such as limiting public access to critical information, intending to mislead the public by
presenting false information, or using deceptive formats to present information.
1
Exercise: Find a news article that demonstrates an apparent misuse of statistics for a crime OR an article that
demonstrates that people are trying to get release accurate and reliable information about a crime. Specifically,
discuss how it is a misuse of statistics or not and why that particular article was picked in 500 words.
For example, the article I found is about the genocide in Myanmar. The article is titled, “What is happening in
Myanmar is genocide. Call it by its name” in the Washington Post. For a long time, no one referred to this crime
as a genocide, and there were deliberate attempts by the government in Myanmar and the world to not refer to
it as genocide. Despite visual evidence that a genocide was occurring, the government tried to deny it. The news
said, “NO MORE. Call it what it is.”
https://www.washingtonpost.com/opinions/global-opinions/what-is-happening-in-myanmar-is-genocide-
call-it-by-its-name/2018/08/29/611a1090-aafe-11e8-a8d7-0f63ab8b1370_story.html?utm_term=.9e76f629a8b3
1. Kappler, V., & Potter, G. 2018. The Mythology of Crime and Criminal Justice (5th ed.). Waveland Press, Inc: Long Grove.
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Genocide of Rohingya families
Watch the video link embedded at the top of the CNN news clip where the Monks say the international
community is wrong and it is not genocide. However, the United Nations took a stance by calling it genocide
and calling for the end of it. https://www.cnn.com/2017/11/25/asia/myanmar-buddhist-nationalism-mabatha/
index.html
Misusing statistics can happen all the time, and sometimes it is intentional, others accidental. When
we think back to the example of my grandfather, he would just cite stats out of nowhere. However, he had
never really studied any of the issues and his sources were unreliable. As a child, I often wondered how
he knew this? He did not intend to spew inaccurate facts but accidentally did to us because he listened to
someone who thought they had knowledge. This happens often when people give ‘opinions’ without facts,
which they are merely opinions. It is important to be able to distinguish this.
Introduction to the American Criminal Justice System
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 3: Criminal Law
Learning Objectives
This section examines the fundamental principles of criminal law. It describes the functions of formal criminal
law (what criminal law does and what it cannot do), how crimes differ from civil and moral wrongs, and various
classification schemes used in discussing criminal law. This section also examines the sources of substantive and
procedural criminal law (where we look to find our criminal law), the limitations that the constitution places on
both substantive criminal law and procedural criminal law, and the important concept of the rule of law in American
jurisprudence (legal theory). After reading this section, students will be able to:
•
Distinguish between a criminal wrong, a civil wrong, and a moral wrong.
•
Identify the many ways in which criminal law is classified.
•
Recognize the many sources of substantive and procedural criminal law.
•
Identify the limitations that the federal constitution and state constitutions place on creating
substantive laws and enforcing those laws.
•
Recognize the importance of rule of law in American jurisprudence and understand the importance
of judicial review in achieving rule of law.
Critical Thinking Questions
1.
What does formal law do well? What does formal law not do so well?
2.
Should we be able to impose sanctions for violations of moral wrongs?
3.
Consider the constitutional requirement of separate but equal branches of government. Why do you
think the drafters of the constitution intended each of the branches of government to be a check on each
other? How does that “play out” when deciding what laws should be made and what laws should be
enforced? What current issues are you aware of that highlight the importance of three separate but equal
branches of government?
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 4.
How does direct democracy (in the form of ballot measures and propositions) influence substantive
criminal law (creating crimes and punishing crimes). What, if any, are the advantages of using direct
democracy to create and punish crime? What, if any, are the disadvantages?
5.
Consider state-wide decriminalization of marijuana possession and use across the nation and the
federal statute banning possession and use of marijuana. How should this federal/state conflict be
resolved? Does your opinion change if the behavior is one that you favor or disfavor?
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 3.1. Functions and Limitations of Law
LORE RUTZ-BURRI
Law is a formal means of social control. Society uses laws (rules designed to control citizen’s behaviors) so
that these behaviors will conform to societal norms, cultures, mores, traditions, and expectations. Because
courts must interpret and enforce these rules, laws differ from many other forms of social control. Both
formal and informal social control have the capacity to change behavior. Informal social control, such as
social media (including Facebook, Instagram, and Twitter) has a tremendous impact on what people wear,
how they think, how they speak, what people value, and perhaps how they vote. Social media’s impact on
human behavior cannot be overstated, but because these informal controls are largely unenforceable through
the courts as they are not considered the law.
Laws and legal rules promote social control by resolving basic value conflicts, settling individual disputes,
and making rules that even our rulers must follow. Kerper (1979) recognized the advantages of law in
fostering social control and identified four major limitations of the law. First, she noted, the law often cannot
gain community support without support of other social institutions.
1 (Consider, for example, the United
States Supreme Court (Court) case of Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954),
which declared racially segregated schools unconstitutional. The decision was largely unpopular in the
southern states, and many had decided to not follow the Court’s holding. Ultimately, the Court had to
call in the National Guard to enforce its decision requiring schools to be integrated.) Second, even with
community support, the law cannot compel certain types of conduct contrary to human nature. Third, the
law’s resolution of disputes is dependent upon a complicated and expensive fact-finding process. Finally, the
law changes slowly.
2
Lippman (2015) also noted that the law does not always achieve its purposes of social control, dispute
resolution, and social change, but rather can harm society. He refers to this as the “dysfunctions of law.”
“Law does not always protect individuals and result in beneficial social progress. Law can be used to repress
individuals and limit their rights. The respect that is accorded to the legal system can mask the dysfunctional
role of the law. Dysfunctional means that the law is promoting inequality or serving the interests of a small
number of individuals rather than promoting the welfare of society or is impeding the enjoyment of human
rights.”
3
1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company.
2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 11). West Publishing Company.
3. Lippman, M. R. (2015). Law and society (pp. 11). Thousand Oaks, CA : SAGE Publications.
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Similarly, Lawrence Friedman has identified several dysfunctions of law: legal actions may be used to
harass individuals or to gain revenge rather than redress a legal wrong; the law may reflect biases and
prejudices or reflect the interest of powerful economic interests; the law may be used by totalitarian regimes
as an instrument of repression; the law can be too rigid because it is based on a clear set of rules that don’t
always fit neatly (for example, Friedman notes that the rules of self-defense do not apply in situations in
which battered women use force to repel consistent abuse because of the law’s requirement that the threat
be immediate); the law may be slow to change because of its reliance on precedent (he also notes that judges
are also concerned about maintaining respect for the law and hesitate to introduce change that society is not
ready to accept); that the law denies equal access to justice because of inability to pay for legal services; that
courts are reluctant to second-guess the decisions of political decision-makers, particularly in times of war
and crisis; that reliance on law and courts can discourage democratic political activism because Individuals
and groups, when they look to courts to decide issues, divert energy from lobbying the legislature and from
building political coalitions for elections; and finally, that law may impede social change because it may limit
the ability of individuals to use the law to vindicate their rights and liberties.
4
4. Lippman, M. R. (2015). Law and society (pp. 25). Thousand Oaks, CA : SAGE Publications.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 3.2. Civil, Criminal, and Moral Wrongs
LORE RUTZ-BURRI
This chapter is about people committing crimes—engaging in behavior that violates the criminal law—and
how society responds to these criminal behaviors. Crimes are only one type of wrong. People can also violate
civil law or commit a moral wrong and not be guilty of any crime whatsoever. So, what is the difference
between a civil wrong, a criminal wrong, and a moral wrong?
Civil Wrongs
A civil wrong is a private wrong, and the injured party’s remedy is to sue the party who caused the
wrong/injury for general damages (money). The plaintiff (the injured party) sues or brings a civil suit
(files an action in court) against the defendant (the party that caused the harm). Plaintiffs can be individuals,
businesses, classes of individuals (in a class action suit), or government entities. Defendants in civil actions
can also be individuals, businesses, multinational corporations, governments, or state agencies.
Civil law covers many types of civil actions or suits including: torts (personal injury claims), contracts,
property or real estate disputes, family law (including divorces, adoptions, and child custody matters),
intellectual property claims (including copyright, trademark, and patent claims), and trusts and estate laws
(which covers wills and probate).
The primary purpose of a civil suit is to financially compensate the injured party. The plaintiff brings
the suit in his or her own name, for example, Sam Smith versus Joe Jones. The amount of damages is
theoretically related to the amount of harm done by the defendant to the plaintiff. Sometimes, when the jury
finds there is particularly egregious harm, it will decide to punish the defendant by awarding a monetary
award called punitive damages in addition to general damages. Plaintiffs may also bring civil suits called
injunctive relief to stop or “enjoin” the defendant from continuing to act in a certain manner. Codes of the
civil procedure set forth the rules to follow when suing the party who allegedly caused some type of private
harm. These codes govern all the various types of civil actions.
In a civil trial, the plaintiff has the burden of producing evidence that the defendant caused the injury and
the harm. To meet this burden, the plaintiff will call witnesses to testify and introduce physical evidence. In
a civil case, the plaintiff must convince or persuade the jury that it is more likely than not that the defendant
caused the harm. This level of certainty or persuasion is known as preponderance of the evidence. Another
feature in a civil suit is that the defendant can cross-sue the plaintiff, claiming that the plaintiff is actually
responsible for the harm.
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Criminal Wrongs
Criminal wrongs differ from civil or moral wrongs. Criminal wrongs are behaviors that harm society as
a whole rather than one individual or entity specifically. When people violate the criminal law there are
generally sanctions that include incarceration and fines. A crime is an act, or a failure to act, that violates
society’s rules. The government, on behalf of society, is the plaintiff. A criminal wrong can be committed
in many ways by individuals, groups, or businesses against individuals, businesses, governments or with no
particular victim.
Criminal Defendant
Victim
Examples
Individual
Self or with no particular victim
Gambling or drug use
Individual
Other individual(s)
Assault, battery, theft
Individual
Business or government
Trespass, welfare fraud
Group of individuals
Individual(s)
Conspiracy to commit murder
Group of individuals
Government or no particular victim
Riot, rout, disorderly conduct
Business entity
Individuals
Fraud
Business entity
Government or no particular victim
Fraud, pollution, tax evasion
Criminal laws reflect a society’s moral and ethical beliefs. They govern how society, through its
government agents, holds criminal wrongdoers accountable for their actions. Sanctions or remedies such as
incarceration, fines, restitution, community service, and restorative justice program are used to express
societal condemnation of the criminal’s behavior. Government attorneys prosecute, or file charges against,
criminal defendants on behalf of society, not necessarily to remedy the harm suffered by any particular
victim. The title of a criminal prosecution reflects this: “State of California v. Jones,”, “The Commonwealth
v. Jones,”, or “People v. Jones.”
In a criminal jury trial (a trial in which a group of people selected from the community decides whether
the defendant is guilty of the crime charged) or a bench trial (a trial in which the judge decides whether
the defendant is guilty or not) the prosecutor carries the burden of producing evidence that will convince
the jury or judge beyond any reasonable doubt that the criminal defendant committed a violation of law
that harmed society. To meet this burden, the prosecutor will call upon witnesses to testify and may also
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | present physical evidence suggesting the defendant committed the crime. Just as a private individual may
decide that it is not worth the time or effort to file a legal action, the state may decide not to use its
resources to file criminal charges against a wrongdoer. A victim (a named injured party) cannot force the
state to prosecute the wrongdoing. Rather, if there is an appropriate civil cause of action–for
example, wrongful death–the injured party will need to file a civil suit as a plaintiff and seek monetary
damages against the defendant.
Moral Wrongs
Moral wrongs differ from criminal wrongs. “Moral law attempts to perfect personal character, whereas
criminal law, in general, is aimed at misbehavior that falls substantially below the norms of the community.”
1
There are no codes or statutes governing violations of moral laws in the United States.
“The Witness” Exercise
Watch the 2015 Netflix documentary “The Witness” in which Bill Genovese re-examined what was said, heard
and reported about his sister, Kitty Genovese. This frequently cited examples of a moral wrong involve the story
of thirty-seven neighbors who purportedly did nothing when “Kitty” Genovese was stabbed to death outside
their apartment building in New York City in 1964. There are many discrepancies about this story and what the
neighbors knew, or didn’t know, and what they did, or didn’t do, but the general belief is that they had at least a
moral obligation to do something (for example, call the police), and by failing to do anything, they committed a
moral wrong. Ultimately, none of the neighbors had any legal obligation to report the crime or intervene to help
Ms. Genovese.
Overlap of Civil, Criminal, and Moral Wrongs
Sometimes criminal law and civil law overlap and an individual’s action constitute both a violation of
criminal law and civil law. For example, if Joe punches Sam in the face, Sam may sue Joe civilly for civil
assault and battery, and the state may also prosecute Joe for punching Sam, a criminal assault and battery.
Consider the case involving O.J. Simpson. Simpson was first prosecuted in 1994 for killing his ex-wife and
her friend (the criminal charges of murder). After the criminal trial in which the jury acquitted Simpson,
the Brown and Goldman families filed a wrongful death action against Simpson for killing Nicole Brown
and Ronald Goldman. The civil jury found Simpson responsible and awarded compensatory and punitive
damages in the amount of $33.5 million dollars. Wrongful death is a type of tort. Torts involve injuries
inflicted upon a person and are the types of civil claims or civil suits that most resemble criminal wrongs.
Sometimes criminal behavior has no civil law counterpart. For example, the crime of possessing burglary
tools does not have a civil law equivalent. Conversely, many civil actions do not violate criminal law. For
example, civil suits for divorce, wills, or contracts do not have a corresponding criminal wrong. Even though
there is certainly an overlap between criminal law and civil law, it is not a perfect overlap. Because there
is no legal action that can be filed for committing a moral wrong, there really is not any overlap between
criminal wrongs, civil wrongs, and moral wrongs.
1. Gardner, T.J. (1985) Criminal Law: Principles and Cases (3rd ed., pp.7). West Publishing Company.
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LORE RUTZ-BURRI
Where do you look to see if something you want to do violates some criminal law? The answer is “in
many places.” Criminal law originates from many sources. Some criminal law is the result of constitutional
conventions, so you would need to review federal and state constitutions. Other criminal laws result from the
legislative or initiative process, so you will need to review state statutes or congressional acts. Other criminal
law results from the work of administrative agencies, so you need to review state and federal administrative
rules. Other criminal law, called case law, originates from appellate court opinions written by judges. These
court opinions, called “decisions”, are published in both official and unofficial reporters, but thanks to the
Internet, they are now easy to find if you know the parties’ names. Much of our criminal law descended
from the English common law. This law developed over time, through custom and tradition, and it is a bit
more difficult to locate, but it is mentioned in treatises and legal “hornbooks” (like legal encyclopedias) and
is often referred to in case decisions.
The Federal Constitution—The Constitution of the United States
Although the United States Constitution recognizes only three crimes (counterfeiting, piracy, and
treason), it nevertheless plays a significant role in the American criminal justice system. Most importantly,
the Constitution establishes limits on certain types of legislation or substantive law, and it provides significant
procedural constraints on the government when it seeks to prosecute individuals for crimes. The
Constitution also establishes federalism (the relationship between the federal government and state
governments), requires the separation of powers between the three branches of government (the judicial
branch, the legislative branch, and the executive branch), and limits Congress’s authority to pass laws not
directly related to either its enumerated powers (listed in the Constitution) or implied powers (inferred
because they intertwined with the enumerated powers).
Constitutional Limitations on Criminal Law and Procedure
The drafters of the federal Constitution were so concerned about two historic cases of abuse by English
Parliament (ex post facto laws and bills of attainder) that they prohibited Congress from passing these types
of laws in the original body of the Constitution. (See, Article I Section 9 of the Constitution.) Ex post facto
laws are laws that are retroactively applied, or punishments retroactively increased, or changes in the amount
and types of evidence that is required of the government in order to successfully prosecute an individual.
Bills of attainders are laws that are directed at named individual or group of individuals and has the effect
of declaring them guilty without a trial.
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U.S. Constitution. The states adopted the Bill of Rights in 1791. The statesmen had opposing viewpoints
concerning how strong the national government should be and how strong state governments should be.
Even as the original federal constitution was being circulated and ratified, the framers were thinking about
the provisions that became known as the Bill of Rights.
Music & Law Exercise
For a novel way to explore this dispute, listen to the soundtrack from Alexander Hamilton, the Broadway Musical
composed by Lin-Manuel Miranda.
The First Amendment limits Congress’s ability to pass laws that limit free speech, freedom of religion,
freedom of assembly and association. The Second Amendment limits Congress’s ability to outlaw the
personal possession of firearms. The Fourth, Fifth, Sixth and Eighth Amendments have provisions that
govern criminal procedure during the investigative, pretrial, and trial phases. The Eighth Amendment sets
limits on the government’s ability to impose certain types of punishments, impose excessive fines, and set
excessive bail. The Due Process Clauses of the Fifth and Fourteenth Amendment require that criminal justice
procedures be fundamentally fair. The Fourteenth Amendment’s Equal Protection Clause requires that, at
a minimum, there be some rational reason for treating people differently. For example, states can pass laws
prohibiting minors from purchasing and consuming alcohol because states have a reasonable interest in
protecting the health and welfare of its citizens. These amendments discussed more fully below, added several
constraints on Congress. The impact of the Bill of Rights was to place substantial checks on the federal
government’s ability to define crimes.
The Incorporation Debate
When drafted and passed, the U.S. Constitution and the Bill of Rights applied only to the federal
government. Individual states each had their own guarantees and protections of individuals’ rights found
in the state constitutions. (See below.) Since 1868, the Fourteenth Amendment has become an important
tool for making states also follow the provisions of the Bill of the Rights. It was drafted to enforce the Civil
Rights Act passed in 1866 in the post-Civil War states. Section 1 of the Fourteenth Amendment enjoins
the states from depriving any person of life, liberty, or property, without due process of law. It prohibits
states from adopting any laws that abridge the privileges and immunities of the citizens of the United States
and requires that states not deny any person equal protection under the law. U.S. Const. amend. XIV, § 2.
The practice of making the states follow provisions of the Bill of Rights is known as incorporation. Over
decades, the Supreme Court debated whether the Bill of Rights should be incorporated all together, in
one-fell-swoop, called total incorporation, or piece-by-piece, called selective incorporation. The case-by-
case, bit-by-bit approach won. In a series of decisions, the Supreme Court has held that the Due Process
Clause of the Fourteenth Amendment makes enforceable against the states those provisions of the Bill of
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1 For example, in 1925 the Court recognized
that the First Amendment protections of free speech and free press apply to states as well as to the federal
government.
2 In the 1960s, the Court selectively incorporated many of the procedural guarantees of the
Bill of Rights. The Court also used the Fourteenth Amendment to extend substantive guarantees of the Bill
of Rights to the states. Most recently, on February 20th, 2019 the Court incorporated the right to be free
from excessive fines guarantee found in the Eighth Amendment to the states in Timbs v. Indiana, ___ U.S.
___ (2019).
First Amendment Limitations
Under the First Amendment, Congress cannot create laws that limit individuals’ speech. The Court has
recognized symbolic speech (for example, wearing black armbands) and expressive conduct (for example,
picketing) as protected under the First Amendment’s guarantee that Congress shall not abridge freedom
of speech. The Court struck down a law banning flag burning. Texas v. Johnson, 491 U.S. 397 (1989).
The Court upheld a local ordinance prohibiting public indecency when applied to business establishment
wishing to provide totally nude dancing. Barnes v. Glen Theater, 501 U.S. 560 (1991). The Court has
recognized political speech and commercial speech as protected by the First Amendment as well. See,
e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). The Court has, however, deemed
some speech not worthy of protection, and consequently may be limited. According to the Court, non-
protected speech includes libel and slander, fighting words, words that present a clear and present danger
when spoken, obscenity and profanity. See, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) “There are
certain well-defined and narrowly limited classes of speech, the prevention, and punishment of which have
never been thought to raise any constitutional problem. These include the lewd and obscene, the profane,
the libelous, and the insulting or fighting words—those which by their very utterance inflict injury or tend
to incite an immediate breach of peace.” Similarly, the Court has said anti-hate crime statutes permissibly
limit individuals’ speech to the extent they are directed at conduct rather than the content of the speech.
See, e.g., Rav v. City of St. Paul, 505 U.S. 377 (1992) and Wisconsin v. Mitchell, 508 U.S. 476 (1993).
The First Amendment limits Congress’s authority to legislate in the realm of religion as well. Congress
cannot make laws that either create a religion (these violate the Establishment Clause) or target and
interfere with a person’s exercise of their own religion (these violate the Free Exercise Clause). Finally, the
First Amendment guarantees that people have the right to freely associate and assemble with others. Thus,
Congress cannot make laws that completely limit people’s ability to gather together peaceably. However,
1. Palko v. Connecticut, 302 U.S. 319 (1937).
2. Gitlow v. New York, 268 U.S. 652 (1925)
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | the Court has indicated that the government can place reasonable time and manner limitations based on
the location in which the gathering is to take place. See, e.g., Cox v. Louisiana, 379 U.S. 536 (1965).
Second Amendment Limitations
Legislatures can place restrictions on weapons and ammunition purchase and possession, but they cannot
completely restrict people’s ability to possess guns for the purpose of self-defense. See, District of Columbia
v. Heller, 554 U.S. 570 (2008) (an individual’s right to possess a weapon is unconnected with service in the
military). According to the Court, the Second Amendments’ protections apply equally to the states. See,
McDonald v. Chicago, 561 U.S. 742 (2010).
Fourth Amendment Limitations
The Fourth Amendment limits the government’s ability to engage in searches and seizures. Under
the least restrictive interpretation, the Amendment requires that, at a minimum, searches and seizures be
reasonable. Under the most restrictive interpretation, the Amendment requires that government officers
need a warrant any time they do a search or a seizure. The Court has interpreted the Fourth Amendment in
many cases and, the doctrine of stare decisis notwithstanding, search and seizure law is subject to the Court’s
constant refinement and revision. One thing is clear, the Court has never embraced the most restrictive
interpretation of the Fourth requiring a warrant for every search and seizure conducted.
Fifth Amendment Limitations
The Fifth Amendment protects against self-incrimination (having to disclose information that could
ultimately harm you) in that it states that no person “shall be compelled in a criminal case to be a witness
against himself.” Defendants have the right to not testify at trial and the right to remain silent during a
custodial interrogation. See, Miranda v. Arizona, 384 U.S. 436 (1966). The Fifth Amendment also provides
for a grand jury in federal criminal prosecutions, prohibits double jeopardy, demands due process of law,
and prohibits taking private property for public use (a civil action). The Court has incorporated the double
jeopardy provision through the Fourteenth Amendment, making states also prohibited from subjecting a
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Amendment’s grand jury provision is one of two clauses of the Bill of Rights that has not been incorporated
to the states, but most states do use the grand jury at least for some types of cases. The Fifth Amendment
also entitled citizens prosecuted by the federal government to the due process of law. This is discussed more
fully below as a Fourteenth Amendment right.
Sixth Amendment Limitations
The Sixth Amendment guarantees a criminal defendant: the right to a speedy trial, the right to a public
trial, the right to a jury trial, the right to have his or her trial in the district where the crime took place, the
right to be told what charges have been filed, the right to confront witnesses at trial, the right to compel
witnesses to testify at trial, and the right to assistance of counsel. This Amendment governs the federal
court process, but because of the Fourteenth Amendment’s Due Process Clause, these rights also apply to
defendants in state criminal cases.
Eighth Amendment Limitations
Legislatures cannot make laws that make the punishment for a crime “cruel or unusual.” This means that
punishments cannot be either barbaric (causing needless pain) or disproportionate (i.e., too severe to fit
the crime). In addition to the prohibition against cruel and unusual punishment, the Eighth Amendment
also prohibits the imposition of excessive bail and excessive fines. The Court has dealt with excessive fines
in terms of whether the fine is disproportionate to the crime. See, e.g., Timbs v. Indiana (above) (forfeiting
defendant’s $42,000 land rover was excessive compared to the maximum fine he could get for his crime
($10,000.) The prohibition against excessive bail does not mean that courts must set bail in every case, but
rather, when courts do set bail, it must not be excessive. Bail is excessive when it is an amount more than
necessary to assure the defendant’s reappearance. Stack v. Boyle, 342 U.S. 1 (1951). *
Fourteenth Amendment limitations
The Fourteenth Amendment mandates that states do not deny their citizen’s due process of law. Due
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | process can be summarized as making sure that the government treats people fairly. Part of fairness is giving
people fair warning as to what behaviors are permitted and what behaviors are not permitted—putting
people on notice of what the law is. Thus, legislators must be very careful when making new laws.
They cannot make laws that are so poorly drafted such that a person of ordinary intelligence would not
understand the law or that would allow police too much discretion in how they will interpret and apply
the law because such a law would be considered void for vagueness.
The Fourteenth Amendment also guarantees equal protection of the law. Generally, legislatures cannot
make laws that treat people differently unless the laws are rationally related to a legitimate government
interest. When legislatures attempt to pass laws that treat people differently based on sex, then the
court reviews the law with heightened scrutiny — the law must be designed to achieve an important
government interest and the differential treatment must be based on an actual physiological difference
between the sexes and not based on archaic stereotypes. When legislatures attempt to pass laws that treat
people differently based upon their race or ethnicity, then they have to have even a more compelling
reason to do so, and even then, the courts, employing “strict scrutiny” are likely to declare such laws
unconstitutional.
Limitations Found in the “Penumbra” of the Constitution
Sometimes the Constitution doesn’t explicitly state protection or right that the courts have nevertheless
found to be inherent or found within the Constitution. Justice Douglas, writing the majority opinion in
Griswold v. Connecticut, 381 U.S. 479 (1965), stated
“[The] . . . specific guarantees in the Bill of Rights have penumbras, formed by emanations from those
guarantees that help give them life and substance. … Various guarantees create zones of privacy. The
right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without
the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the
‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone
of privacy which government may not force him to surrender to his detriment. The Ninth Amendment
provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.’
The Fourth and Fifth Amendments were described … as protection against all governmental invasions
‘of the sanctity of a man’s home and the privacies of life.’ We recently referred in Mapp v. Ohio, 367 U. S.
643, 656, to the Fourth Amendment as creating a ‘right to privacy, no less important than any other right
carefully and particularly reserved to the people.’ (Footnote omitted).” 381 U.S. at 484-485.
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Thus, legislatures cannot make laws that allow the government to invade people’s privacy, even
though no specific amendment can be pointed to. The constitutional right to privacy must often be
balanced against the state’s compelling interests such as promoting public safety. The courts have found
the right to privacy in the context of reproductive freedom (See, e.g., Roe v. Wade, 410 U.S. 113
(1972) (right to abortion), Eisenstadt v. Baird, 405 U.S. 438 (1972) (the right of married persons to
possess contraceptives), Griswold v. Connecticut, 381 U.S. 479 (1965) (declaring invalid the ban on
contraceptives), Stanley v. Georgia, 394 U.S. 557 (1969) (the right to view and possess adult pornography),
and the right of adults to engage in consensual sexual contact), and Lawrence v. Texas, 539 U.S. 558 (2003)
(the right of adults to engage in consensual sexual contact).
State Constitutions
States’ constitutions, similar to the federal constitution, set forth the general organization of state
government and basic standards governing the use of governmental authority. Although the federal
constitution is preeminent because of the Supremacy Clause, state constitutions are still significant. State
constitutional rules are supreme as compared to any other rules coming from all other state legal sources
(statutes, ordinances, administrative rules) and prevail over such laws in cases of conflict. The federal
constitution sets the floor of individual rights, but states are free to provide more individual freedoms and
protections that are granted by the federal constitution. State constitutions are defined and interpreted by
state courts, and even identical provisions in both the state and federal constitution may be interpreted
differently. For example, the state constitution’s guarantee to be free from unreasonable searches and
seizures may mean that, under state law, roadblocks established to identify impaired, intoxicated drivers are
impermissible, but under the federal constitution, these roadblocks are permitted and are not deemed to be
unreasonable seizures.
Comparing Cases Exercise
Compare the U.S. Supreme Court holding in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) to
the Michigan Supreme Court holding interpreting the same case under Michigan Constitution, 506 N.W.2d 209
(Mich. 1993).
Rule of Law, Constitutions and Judicial Review
One of the key features of the American legal system has been its commitment to the rule of law. Rule
of law has been defined as a “belief that an orderly society must be governed by established principles and
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3 Reichel identified a three-step process by which
countries can achieve rule of law.
4 The first step is that a country must identify core, fundamental values.
The second step is for the values to be reduced to writing and written somewhere that people can point to
them. The final step is to establish a process or mechanism whereby laws or governmental actions are tested
to see if they are consistent with the fundamental values. When laws or actions embrace the fundamental
values, they are considered valid, and when the laws or actions conflict with the fundamental values, they
are invalid.
Applying this three-step process to America’s approach to law one can see that Americans have
recognized fundamental values, such as the right to freedom of speech, the right to privacy, and the
right to assemble. Second, we have reduced these fundamental values to writing and, for the most part,
have compiled them in our constitutions (both federal and state). Third, we have a mechanism, that of
judicial review, by which we judge whether our laws and our government actions comply with or violate
our fundamental values found within our constitutions. Judicial review is the authority of the courts to
determine whether a law (a legislative action) or action (an executive or judicial action) conflicts with the
Constitution. Judicial review can be traced to the case of Marbury v. Madison, 5 U.S. 137 (1803), in which
Chief Justice John Marshall wrote, “It is emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret
that rule. If two laws conflict with each other, the courts must decide on the operation of each.”
3. Feldmeier, J. P., & Schmalleger, F. (2012). Criminal Law and Procedure for Legal Professionals. Prenice Hall.
4. Reichel, P. (2018) Comparative Criminal Justice Systems: A Topical Approach. New York, NY: Pearson.
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Legislative Enactments
LORE RUTZ-BURRI
Statutes, Ordinances, and Other Legislative Enactments
Most substantive criminal law is legislative law. State legislatures and Congress enact laws which take the
form of statutes or congressional acts. Statutes are written statements, enacted into law by an affirmative vote
of both chambers of the legislature and accepted (or not vetoed) by the governor of the state or the president
of the United States. State legislatures may also create legislative law by participating in interstate compacts,
or multi-state legal agreements. An example of this includes the Uniform Extradition Act, or the Uniform
Fresh Pursuit Act. Congress makes federal law by passing acts and approving treaties between the United
States and other nation states. Local legislators, city and town councilors, and county commissioners also
make laws through the enactment of local ordinances.
Controversial Issue: Ballot Measures, Initiatives, and Referendums–Direct Democracy and Law
Making
In several states, citizens have the power to enact laws through direct democracy by putting “ballot
measures” or “propositions” up for a vote. This type of lawmaking by the people started primarily in
the Western states around the turn of the 20th century. Initiatives, referendums, and referrals have some
slight differences, but generally, these ballot measures ultimately find their way into either statutes or
the constitution, and so they are included in this section on legislative law. For example, Oregon Ballot
Measure 11, establishing minimum mandatory sentences for 17 person felonies, was voted on in November
1994 and took effect April 1, 1995. It is now found in the Oregon Revised Statutes as ORS 137.700.
Proposition 36, approved by Californians in 2012, significantly amended the “three strikes” sentencing
laws approved in 1994. Initiatives, referendums, and referrals can be effective in quickly changing the
criminal law, like the mandatory sentencing in the 1980s, and is a way to circumvent what can be a
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Colorado, and Alaska.
States’ Authority to Pass Criminal Laws
States are sovereign and autonomous, and unless the Constitution takes away state power, the states have
broad authority to regulate activity within the state. Most criminal laws at the state level are derived from
the states’ general police powers, or authority, to make and enforce criminal law within their geographic
boundaries. Police power is the power to control any harmful act that may affect the general well being
of citizens within the geographical jurisdiction of the state. A state code, or state statutes, may regulate any
harmful activity done in the state or whose harm occurs within the state.
Congress’s Authority to Pass Laws
Federal lawmakers do not possess police power. Instead, Congress must draw its authority to enact
criminal statutes from particular legislative powers and responsibilities assigned to it in the Constitution.
Congress’s legislative authority may be either enumerated in the Constitution or implied from its provisions,
but if Congress cannot tie its exercise of authority to one of those powers, the legislation may be declared
invalid.
Enumerated powers, for example, the power to regulate interstate commerce, are those that are specifically
mentioned in Article I Section 8 of the Constitution. Over the years, however, courts have broadly
interpreted the term “interstate commerce” to mean more than just goods and services traveling between
and among the states. Instead, interstate commerce includes any activity—including purely local or intrastate
activity—that affects interstate commerce. The affectation doctrine maintains that congressional authority
includes the right to regulate all matters having a close and substantial relation to interstate commerce.
Although the Court has found limits on what affects interstate commerce, Congress has used its broad power
to regulate interstate commerce to criminalize a wide range of offenses including carjacking, kidnapping,
wire fraud, and a variety of environmental crimes.
The implied powers of Congress are those that are deemed to be necessary and proper for carrying out
all the enumerated powers. Article I Section 8 of the Constitution states, “Congress shall have Power . .
. to make laws which shall be necessary and proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution.” The implied powers doctrine expands legislative power
of Congress, and for that reason, the Necessary and Proper Clause has often been called the “expansion
clause.” Due to the implied powers found in the Necessary and Proper Clause, Congress has authority to pass
legislation and regulate a wide variety of activity to the extent that it is able to show that the law furthers one
of the enumerated powers. Nevertheless, the Court will overturn acts of Congress when it believes Congress
has overstepped its constitutional authority. So, despite the broad expanse of implied powers, Congress’s
authority is still limited and by no means is as vast as the states’ police powers.
Conflicting State and Federal Statutes
Sometimes substantive federal law conflicts with state laws or policies, and sometimes the federal
government’s interest in prosecuting cases in federal court conflicts with competing interests of the states.
One recent conflict between federal interests and state interests involves Oregon’s physician-assisted suicide
law, the “Death with Dignity Act”. See, Gonzales v. Oregon, 646 U.S. 243 (2006)(upholding Oregon’s law
Introduction to the American Criminal Justice System
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | by deciding that the United States Attorney General could not enforce the national controlled substance
act against Oregon physicians). Another debate surrounds the conflicting federal and state laws governing
marijuana use. Between 1996 and 2018, thirty states and the District of Columbia passed laws legalizing
the possession of small quantities of marijuana for medicinal purposes for state residents. Since 2012,
Colorado, Washington, Oregon, Alaska, California, Nevada, Massachusetts, and Maine have passed laws
through the initiative process legalizing recreational use and possession of small amounts of marijuana
by adults. In the 2018 elections, even more, states passed laws allowing for medical use, recreational
use.
See,
https://www.forbes.com/sites/tomangell/2018/12/06/marijuanas-ten-biggest-victories-
of-2018/#7ca0dd5232df. These popular initiatives conflict directly with the federal Controlled Substance
Act, 21 U.S.C. 13, § 841, (CSA) which holds that any use or possession of marijuana is a federal crime. In
January 2018, the Trump administration through the U.S. Department of Justice, under Attorney General
Sessions rescinded the Obama-era restraint policies on marijuana prosecutions and indicated the desire to
fully enforce the CSA. However, in April 2018, President Trump announced he was backing down on the
crackdown on recreational use of marijuana that had been announced in January 2018.
Movement Towards Codification: The American Institute and the Model Penal Code
By the 1960s and 1970s, all states had begun codifying their criminal laws. These codifications would
likely not have taken place if not for the American Law Institute (ALI) and the publication of its Model
Penal Code (MPC). Established in 1923, the ALI is an organization of judges, lawyers, and academics that
draft model codes and laws. Its most important work in the criminal justice realm is the Model Penal Code.
The ALI began working on the MPC in 1951, and it proposed several tentative drafts over the next decade.
In 1962 the Model Penal Code was finally published. It consists of general provisions concerning: criminal
liability, definitions of specific crimes, defenses, and sentences. The MPC has had a significant impact on
legislative drafting of criminal statutes. Every state has adopted at least some provisions, or at least the
approach, of the MPC, and some code states have adopted many or most of the provisions in the MPC.
No state has adopted the MPC in its entirety.
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and Court Rules
LORE RUTZ-BURRI
Administrative Law—Agency-Made Law
State and federal legislatures cannot keep up with the task of enacting legislation on all the myriad
subjects that must be regulated by law. In each branch of government, various administrative agencies exist
with authority to create administrative law. At the federal level, for example, the Environmental Protection
Agency enacts regulations against environmental crimes. At the state level, the Department of Motor
Vehicles enacts laws concerning drivers’ license suspension. Administrative regulations are enforceable by
the courts provided that the agency has acted within the scope of its delegated authority from the legislature.
Common Law
One important source of criminal law in the United States is common law. English law developed over
centuries and, generally, when we refer to American common law, we are referring to the common law rules
brought over from England to the United States when we became a nation. However, this is not necessarily
always clear.
1 LaFave describes the process by which common law was derived in England.
“. . . Although there were some early criminal statutes [in England], in the main the criminal law was
originally common law. Thus by the 1600s the judges, not the legislature, had created and defined the
felonies of murder, suicide, manslaughter, burglary, arson, robbery, larceny rape, sodomy and mayhem; and
such misdemeanors as assault, battery, false imprisonment, libel, perjury, and intimidation of jurors. During
the period from 1660 . . . to 1860 the process continued with the judges creating new crimes when the
need arose and punishing those who committed them: blasphemy (1676), conspiracy (1664), sedition (18th
century), forgery (1727), attempt (1784), solicitation (1801). From time to time the judges, when creating
new misdemeanors, spoke of the court’s power to declare criminal any conduct tending to “outrage decency”
or “corrupt public morals.” or to punish conduct contra bonos mores: thus they found running naked in the
streets, publishing an obscene book, and grave-snatching to be common law crimes.
Of course, sometimes the courts refused to denote as criminal some forms of anti-social conduct. At times
their refusal seemed irrational, causing the legislature to step in and enact a statute: thus false pretenses,
embezzlement, incest and other matters became statutory crimes in England. … Some immoral conduct,
mostly of a sexual nature (such as private acts of adultery or fornication, and seduction without conspiracy)
1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 27). West Publishing Company.
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | was punished by ecclesiastical courts in England. The common law courts never punished these activities as
criminal, and thus, they never became English common law crimes.
At the same time that judges were developing new crimes, they were also developing new common law
defenses to crime, such as self-defense, insanity, infancy, and coercion. …
About the middle of the nineteenth century, the process of creating new crimes almost came to a standstill
in England. ”
2
American courts originally relied on the decisions of the English Courts, but Kerper (1979, p. 27) notes
that
“as the number of American decisions grew, the American courts began to rely more and more on
their own decisions. At the same times, differences in social and economic conditions (and to some extent,
differences in the personalities of the judges) led the courts in different states to take different views of
the common law. As a result, while the English tradition produced a core of similarity, there developed
significant differences in common law rules in the various states. Thus, the common law standard governing
an officer’s authority to arrest for minor crimes might be substantially different in Ohio and New York,
although the general framework of the common law governing arrests was likely to be similar in both
states.”
3
In order to understand the limitations of common law, it is helpful to understand the difference between
the common law tradition followed by the United States, and other nations that follow the English model
and the civil law tradition which developed in Europe. The civil law tradition uses legislative codes as the
primary source of law. Under the civil law tradition, new substantive law replaces, rather than supplements,
old substantive law. Thus, judges in the civil law tradition are not bound by prior interpretations of
legislative codes, and all courts are free to interpret the codes according to generally accepted principles
of legal interpretation. Stare decisis, discussed below, plays no persuasive or binding role in the civil law
tradition. Under the common law tradition though, new substantive law generally adds to, rather than
replaces, old substantive law.
Kerper notes that our common law tradition is not purely one of common law, and that common law is
displaced by statutes, case law, and the constitution.
“Though the description of the Anglo-American system as a “common law legal system” notes an
important distinction between it and the civil law system, that description should not lead one to ignore the
fact that legislation also constitutes an important source of law in the Anglo-American system. That system
is actually a mixed system of common law rules and statutory rules. The common law rules established by
American and English courts have always been subject to displacement by legislative enactments. Indeed,
the courts have the authority to develop common law standards only where the legislatures have not sought
to provide legislative solutions. … In our country, the common law also is subject to the legal limitations
imposed by federal and state constitutions. The supremacy of the constitutions extends over all forms of
law, including the common law. Just as legislation cannot violate a constitutional limitation, neither can a
common law rule.”
4
Common law is a source of both substantive and procedural law (discussed below), but it is important to
note that there are no federal common law crimes. If Congress has not enacted legislation to make certain
conduct criminal, that conduct cannot constitute a federal crime.
2. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 70). St. Paul, Minn: West Group.
3. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 27). West Publishing Company.
4. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 28-29). West Publishing Company.
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Judge-Made Law: Case Law
The term case law refers to legal rules announced in opinions written by appellate judges when deciding
appellate cases before them. Judicial decisions reflect the court’s interpretation of constitutions, statutes,
common law, or administrative regulations. When the court interprets a statute, the statute, as well as its
interpretation, control how the law will be enforced and applied in the future. The same is true when a court
interprets federal and state constitutions. When deciding cases and interpreting the law, judges are bound by
precedent.
Stare Decisis
tare Decisis and Precedent: Been There, Done (must do) That.
The doctrine of stare decisis
stare decisis comes from a Latin phrase that states, “to stand by the decisions and not
disturb settled points”. It tells the court that if the decisions in the past have held that a particular rule
governs a certain fact situation, that rule should govern all later cases presenting the same fact situation.
Under the doctrine of stare decisis, past appellate court decisions form precedent, that judge must follow
in similar subsequent cases. Stare decisis permits society to presume that bedrock principles are founded
in the law rather than in the proclivities of individuals, and thereby contribute to the integrity of our
constitutional system of government, both in appearance and fact.”
5 Trial courts and appellate courts must
follow the controlling case law that has already been announced in appellate court decisions from their
own jurisdiction. Trial courts must follow precedent when they decide questions of law. [Questions of
law include what a statute means, what the law states, how the constitution should be interpreted, whether
a particular law even applies under the facts in the case before them. On the other hand, questions of
fact are decided by jurors (or judges in bench trials) and include, for example, how fast was the defendant
driving, what color hat the defendant was wearing, or whether the gun went off accidentally.] One way
courts get around precedent is to distinguish the facts in the case before them as much different than the
facts in the earlier case. For example, if the court may decide that the fact that the defendant was running
away from the scene, in this case, is so different from the earlier case in which the defendant was merely
walking away from the scene that there is no precedent it must follow.
The advantages of stare decisis include efficiency, equality, predictability, the wisdom of past experience,
and the image of limited authority.
6 Efficiency occurs because each trial judge and the appellate judge does
not have to work out a solution to every legal question. Equality results when one rule of law is applied
to all persons in the same setting. “Identical cases brought before different judges should, to the extent
humanly possible, produce identical results. … Stare decisis assists in providing uniform standards of law for
similar cases decided in the same state. It provides a common grounding used by all judges throughout the
jurisdiction.”
7 Stare decisis provides stability in allowing individuals to count on the rules of law that have
been applied in the past. Kerper’s example is a police officer’s reliance on past decisions to help determine
the legality of a pending arrest. “Without regard to past decisions, the conduct of a wide variety of activities
5. Vasquez v. Hillery, 474 U.S. 254 (1986)
6. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 47-49). West Publishing Company.
7. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 49). West Publishing Company.
Introduction to the American Criminal Justice System
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | would take on an added hazard of unpredictable legality. Without stability, the law could well loose (sic)
its effectiveness in maintaining social control.”
8 Stare decisis also ensures proper recognition of the wisdom
and experience of the past. Justice Cardozo observed that “no single judge is likely to have ‘a vision at
once so keen and so broad’ as to ensure that his new ideas of wise policy are indeed the most beneficial for
society.”
9 Finally, stare decisis enhances the image of the courts as the impartial interpreter of the law.
“Stare decisis decreases the leeway granted to the individual judge to settle controversies in accordance
with his own personal desires. … Indeed, the doctrine of stare decisis indirectly serves to restrict the law-
making role of the judge even in those cases presenting “open issues” not resolved by past precedent. … A
sudden change in the composition of the judiciary, even at the highest level, should not present an equally
sudden change in the substance of the law.”
10
In the federal system, all federal courts must follow the decisions of the Supreme Court as it is the final
interpreter of the federal constitution and federal statutes. If, however, the Supreme Court has not ruled on
an issue, then the federal trial courts (U.S. District Courts and U.S. Magistrate Courts) and federal appellate
courts (Circuit Courts of Appeals) must follow decisions from their own circuit. Each circuit is treated, in
effect, as its own jurisdiction, and the court of appeals for the various circuits are free to disagree with each
other.
Because stare decisis is not an absolute rule, courts may reject precedent by overruling earlier decisions.
One factor that courts will consider before overruling earlier case law is the strength of the precedent.
Another factor is the field of law involved. Courts seem to be more reluctant to override precedents
governing property or trade where commercial enterprises are more likely to have relied quite heavily
on the precedent. Courts also consider the initial source of precedent, such as statutory interpretation.
For example, if the courts decided in 1950 that the statute meant that individuals could graze their cattle
on federal lands without being in violation of any trespass laws, and then the federal government did
not subsequently change the law, the legislature’s inaction indicates the interpretation was probably right.
The most compelling basis upon which a court will overturn precedent, however, is if it perceives the
presence or absence of changed circumstances. For example, scientific or technological developments may
warrant the application of new rules. Consider the common law year and a day rule which required the
government, in a murder prosecution, prove that the victim died within one year and a day of the attack.
The rule is premised on the idea that there needed to be some showing that the defendant’s act caused the
death. Medical science now makes it possible to trace the source of fatal blow, so murder statutes no longer
include the year and a day rule. One final ground for overruling a prior decision is general changes in
the spirit of the times. For example, in Trop v. Dulles, 356 U.S. 86 (1958), the Court looked to “evolving
standards of decency” in deciding whether the defendant’s punishment was cruel and unusual and thus
violated the Eighth Amendment.
8. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 49). West Publishing Company.
9. Cardozo, B. N. (1924). The Growth of the Law. New Haven, CT: Yale University Press.
10. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 51-52). West Publishing Company.
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | Matters of First Impression or “Wow, this is new territory, what should we do now?”
If a court is dealing with a legal issue for the first time, there is no precedent to follow, and it cannot then
be bound by stare decisis. The court may look to other states to see if there is any persuasive case authority
on the matter, but state courts do not have to follow established law from other states. When there is no
precedent or controlling cases, the case or issue is referred to as a matter of the first impression. In cases
of the first impression, courts get to decide what the relevant rule should be. In deciding cases of the first
impression, judges will look to relevant statutes, legislative history, and cases involving similar situations
“The situation may be a new one. … Yet the judges do not throw up their hands and say the case may
not be decided; they decide it. Maybe they can use some settled law in an analogous situation. … Even
if there is no available analogy, or if there are competing analogies, the judge will make (some prefer to
say discover) the law to apply to the new situation. The new law will be decided according to the judges’
ideas (ideas they acquire as members of society) of what is moral, right, just; of what will further sound
public policy, in light of customs and traditions of the people of which the judges are members.” LaFave,
W. Criminal Law, 69(3d. ed., 2000). ”
It is not necessarily easy, to interpret the law and apply it to the facts of a case. Facts can be “messy”, the
law can be less than clear, and not everyone will agree on the appropriate meaning of the law’s mandate.
Judges, therefore, rely on several tools or approaches when interpreting the language of a statute. LaFave
has identified various approaches used by judges to interpret the law.
11 First, judges will look at the plain
meaning of the statute and rely on dictionary-like tools to discover the meaning of the words. According to
the Court in Caminetti v. United States, 242 U.S. 470 (1917), “Where the language is plain and admits of no
more than one meaning, the duty of interpretation does not arise.” Even under this strict constructionist
approach, judges can still disagree whether the language of the statute is plain. Also, there is a danger with
this plain meaning approach, and courts will not follow a statute though apparently plain language when
strict application results in injustice, oppression or even an absurd consequence.
Second, judges will look to the drafter’s intent revealed in the legislative history, or records of legislative
hearings and floor debates, when it exists. LeFave notes that sometimes it is easier to figure out the framer’s
intent than other times. Moreover, different lawmakers may have had different intents when they cast their
votes enacting the law. Additionally, sometimes legislators never considered the specific factual scenario
facing the court.
“It should be noted also that not all judges are enamored of the use of legislative history in interpreting
ambiguous statutes. And in any event, the legislative history is less likely to be controlling in construing
criminal statutes than civil statutes. If one purpose of a criminal statute is to warn the public of what
conduct will get them into criminal trouble, that is, if prospective criminals are entitled to a fair
11. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 86-89). St. Paul, Minn: West Group.
Introduction to the American Criminal Justice System
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | warning–then the public should be able to ascertain the line between permitted and prohibited conduct
from the statute itself.”
12
Third, judges may try to focus on the original understanding or original meaning of the law. Under this
approach, the court asks itself how a common person reading the law when it was enacted, would have
understood the law. For example, when looking at a statute written in 1972, the court would ask itself how
the common person in 1972 would have understood the statute. This approach is problematic because not
all people living in 1972 would have interpreted the law in the same way.
Fourth, as discussed above, judges may interpret the law based on precedent. One drawback to this
approach is that facts of the earlier cases will always differ somewhat from the facts in the new case the
court is trying to interpret. Another difficulty occurs when the court is faced with a new situation or a new
law and there is no precedent to guide the court. LaFave identified the difficulty in adhering too closely to
precedent:
“Sometimes a court, having earlier construed a criminal statute strictly in favor of the defendant, later
decides that its earlier construction was wrong. … Obviously, other things being equal, courts should
interpret statutes correctly, regardless of past mistakes. On the other hand, it may not be fair to . . .
change the rule now. The difficulty lies in the Anglo-American theory of precedents that case law operates
retroactively, and in particular that case law which overrules earlier precedents operates retroactively.
When faced with this problem–that of overruling or following an earlier erroneous interpretation . . . [one]
court felt obliged to follow case precedent with an invitation to the legislature to change the rule of for the
future; but [another court overruled the precedent.]
The choice, however, is not necessarily between following the precedent (thus letting a defendant off
but perpetuating a bad decision) and retroactively overruling it (thus eliminating a bad precedent but
putting the defendant behind bars). There are two techniques by which the defendant may go free even
if the precedent is overruled. It is not impossible for the court to overrule for the future only, letting the
defendant go but stating in the opinion that anyone who from now on conducts himself the way this
defendant did will be guilty of the crime. The second method is to overrule the erroneous precedent but
to give the defendant the defense of mistake of law induced by an appellate court. … Some courts have
gone so far as to say that the adoption of a new interpretation of an old statute is forbidden by ex post facto
constitutional provision if the new interpretation is harder on the defendant than the old.”
13
Finally, there are common law doctrines which direct the court to interpret ambiguous terms in a
specific way. For example, the rule of lenity tells the court to interpret the statute in the light that is most
favorable to the defendant. Another rule, expressio unius est exclusion alters, meaning the inclusion of one is
the exclusion of all others, holds that when a legislative body includes specific items within a statute, the
assumption is that it intends to exclude all other terms. Another doctrine of in pari materia, meaning on the
same matter or subject, directs the court to interpret an ambiguous statute in a light most consistent with
12. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 89). St. Paul, Minn: West Group.
13. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 96-97). St. Paul, Minn: West Group.
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | other statutes on the same subject. Finally, there is a general maxim that special language controls over
general language, and later statutes control over earlier statutes.
Court Rules of Procedure
The U.S. Supreme Court and state supreme courts make a law that regulates the procedures followed
in the lower courts- both appellate and trial courts- in that jurisdiction. These court rules, adopted by the
courts to facilitate the administration and processing of cases, are generally limited in scope, but they may
nevertheless provide significant rights for the defendant. For example, the rules governing speedy trials may
be governed generally by the Constitution, but very specifically by court rules in a particular jurisdiction.
Local courts may also pass local court rules that govern the day-to-day practice of law in these lower
courts. For example, a local court rule may dictate when and how cases are to be filed in that jurisdiction.
Generally, the local bar (all the attorneys in the jurisdiction) are consulted, and a workforce consisting of
judges, trial court administrators, and representatives from district attorney’s office, the public defender’s
office, assigned counsel consortiums, and private attorneys will meet every few years to decide on the local
rules.
Okay, so where do I look to see if my behavior is prohibited?
Because criminal law has many sources–constitutions, legislative enactments, administrative rules, case
law, and common law–it is not necessarily an easy task to determine whether your behavior or the
way government responds to your behavior, is lawful. First, it is always advisable to know your rights
under the federal constitution and your state constitution and understand what limits the constitution
places on legislative enactments and law enforcement actions. Still, even assuming that laws have been
properly enacted and that police have followed proper procedure, it may be difficult to determine whether
your behavior is prohibited. Because most states now codifying their criminal laws by enacting statutes,
start there. Then look to any case law which may interpret these statutes. Since courts generally follow
precedent due to the doctrine of stare decisis, one red flag that your behavior may be unlawful is that, in the
past, the courts have found behavior similar to yours to be unlawful.
Introduction to the American Criminal Justice System
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LORE RUTZ-BURRI
In this section of the chapter, we turn to the various ways that criminal law has been classified. Classification
schemes allow us to discuss aspects or characteristics of the criminal law. Some classifications have legal
significance, meaning that how a crime is classified may make a difference in how the case is processed or
what type of punishment can be imposed. Some classifications historically mattered (had legal significance),
but no longer have much consequence. Finally, some classifications have no legal significance, meaning the
classification exists only to help us organize our laws.
Classifications Based on the Seriousness of the Offense
Legislatures typically distinguish crimes based on the severity or seriousness of the harm inflicted on
the victim. The criminal’s intent also impacts the crime’s classification. Crimes are classified as felonies or
misdemeanors. Certain, less serious, behavior may be classified as criminal violations or infractions. The
term offense is a generic term that is sometimes used to mean any type of violation of the law, or it is
sometimes used to mean just misdemeanors or felonies. Although these classification schemes may seem
pretty straight forward, sometimes states allow felonies to be treated as misdemeanors and misdemeanors to
be treated as either felonies or violations. For example, California has certain crimes, known as wobblers,
that can be charged as either felonies or misdemeanors at the discretion of the prosecutor upon consideration
of the offender’s criminal history or the specific facts of the case.
The distinction between felonies and misdemeanors developed at common law and has been incorporated
in state criminal codes. At one time, all felonies were punishable by death and forfeiture of goods, while
misdemeanors were punishable by fines alone. Laws change over time, and as capital punishment became
limited to only certain felonies (like murder and rape), new forms of punishment developed. Now, felonies
and misdemeanors alike are punished with fines and/or incarceration. Generally, felonies are treated as
serious crimes for which at least a year in prison is a possible punishment. In states allowing capital
punishment, some types of murder are punishable by death. Any crime subject to capital punishment is
considered a felony. Misdemeanors are regarded as less serious offenses and are generally punishable by
less than a year of incarceration in the local jail. Infractions and violations, when those classifications exist,
include minor behavior for which the offender can be cited, but not arrested, and fined, but not incarcerated.
The difference between being charged with a felony or misdemeanor may have legal implications beyond
the length of the offender’s sentence and in what type of facility an offender will be punished. For example, in
some jurisdictions, the authority of a police officer to arrest may be linked to whether the crime is considered
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | a felony or a misdemeanor. In many states the classification impacts which court will have the authority to
hear the case. In some states, the felony-misdemeanor classification determines the size of the jury.
Classifications Based on the Type of Harm Inflicted
Almost all state codes classify crimes according to the type of harm inflicted. The Model Penal Code uses
the following classifications:
• Offenses against persons (homicide, assault, kidnapping, and rape, for example)
• Offenses against property (arson, burglary, and theft, for example)
• Offenses against family (bigamy and adultery, for example)
• Offenses against public administration (e.g., bribery, perjury, escape)
• Offenses against public order and decency (e.g., fighting, breach of peace, disorderly conduct,
public intoxication, riots, loitering, prostitution)
Classifications based on the type of harm inflicted may be helpful for the purpose of an organization, but
some crimes such as robbery may involve both harms to a person and property. Although generally, whether
a crime is a person or property crime may not have any legal implications when a person is convicted, it may
matter if and when the person commits a new crime. Most sentencing guidelines treat individuals with prior
person-crime convictions more harshly than those individuals with prior property-crime convictions. That
said, it is likely that the defense will argue that it is the facts of the prior case that matter not how the crime
was officially classified.
Mala in se Mala Prohibita
Mala in se Mala Prohibita Crimes
Crimes have also been classified as either mala in se
mala in se (inherently evil) or mala prohibita
mala prohibita (wrong simply
because some law forbids them). Mala in se crimes, like murder or theft, are generally recognized by every
culture as evil and morally wrong. Most offenses that involve injury to persons or property are mala in se.
All of the common law felonies (murder, rape, manslaughter, robbery, sodomy, larceny, arson, mayhem and
burglary) were considered mala in se crimes. Mala prohibita crimes, like traffic violations or drug possession,
are acts that are crimes not because they are evil, but rather because some law prohibits them. Most of the
newer crimes that are prohibited as part of a regulatory scheme are mala prohibita crimes.
Substantive and Procedural Law
Another classification scheme views the law as either substantive law or procedural law. Both criminal law
and civil law can be either substantive or procedural. Substantive criminal law is generally created by statute
or through the initiative process and defines what conduct is criminal. For example, substantive criminal
law tells us that Sam commits theft when he takes Joe’s backpack if he did so without Joe’s permission if he
intended to keep it. Substantive criminal law also specifies the punishment Sam could receive for stealing
the backpack (for example, a fine up to $500.00 and incarceration of up to 30 days). The substantive law
may also provide Sam a defense and a way to avoid conviction. For example, Sam may claim he reasonably
mistook Joe’s backpack as his own and therefore can assert a mistake of fact defense. Procedural law gives
us the mechanisms to enforce substantive law. Procedural law governs the process for determining the
rights of the parties. It sets forth the rules governing searches and seizures, investigations, interrogations,
pretrial procedures, and trial procedures. It may establish rules limiting certain types of evidence, establishing
timelines, as well as require the sharing of certain types of evidence and giving a certain type of notice. The
primary source of procedural law is judicial interpretations of the federal constitution and state constitutions,
Introduction to the American Criminal Justice System
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | but state and federal statutes, particularly those adopting rules of evidence, also provide much of our
procedural law.
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | 3.7. Substantive Law: Defining Crimes, Inchoate Liability,
Accomplice Liability, and Defenses
LORE RUTZ-BURRI
Substantive Law
Substantive law includes laws that define crime, meaning laws that tell us what elements the government
needs to prove in order to establish that this crime has been committed. Substantive law also includes the
definitions of inchoate crimes (incomplete crimes) of conspiracies, solicitations, and attempts. Substantive
law also sets forth accomplice liability (when a person will be held responsible when they work in concert
with others to complete a crime). Substantive law also identifies the defenses that a person may raise when
they are charged with a crime. Finally, substantive law indicates the appropriate penalties and sentences for
crimes. Today, the great majority of substantive law has been codified and is found in the state’s particular
criminal code or in the federal code. Generally, criminal codes are separated into two parts: a general part
and a special part. The general part typically defines words and phrases that will be used throughout the
code (for example, the word intentionally), indicates all possible defenses and provides the general scheme
of punishments. The special part of the code typically defines each specific crime setting forth the elements
of the crime (components of the crime) the government must prove beyond a reasonable doubt in order to
convict a defendant of a crime.
Elements of the crime
With the exception of strict liability crimes and vicarious liability crime (discussed below), the government
will always have to prove that the defendant committed some criminal act, the actus reus
actus reus element and that he
or she acted with criminal intent, the mens rea
mens rea element. When proving a crime of conduct, the state must
prove that the defendant’s conduct met the specific actus reus requirement. The government must prove that
the defendant’s behavior was either a voluntary act (meaning not the product of a reflex or done while asleep,
or under hypnosis), a voluntary omission to act (meaning that he or she failed to act) when there was a legal
duty to do so, or that he or she possessed some item that should not have been possessed. To meet the mens
rea element, the state must prove that the defendant’s act was triggered by criminal intent. The elements of
a specific crimes may also include what is referred to as attendant circumstances. Attendant circumstances
are additional facts set out in the substantive law’s definition that the state must prove to establish a crime, for
example, that the place burglarized be a dwelling, or that the property value is a at least a certain amount.
When proving a crime of causation, the state must also prove that the defendant caused specific, listed
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SOU-CCJ230-Introduction-to-the-American-Criminal-Justice-System-1593030955.pdf | harm. Although generally not included in the listed elements, to prove a crime of causation, the government
must also prove that the defendant is the actual cause of the harm (actual or but/for cause) and that it is fair
to hold him or her responsible (that the defendant is the legal or proximate cause of the harm).
Statutes are generally silent on the other elements of crimes of conduct or crimes of causation: legality and
concurrence. The legality element is met when a law is validly enacted and puts people on notice that
certain behavior is illegal. Laws are presumed to be valid, and the state generally does not have to begin each
case by proving that proper procedure was followed when the law was enacted. The concurrence element
requires the state must also prove that the criminal intent triggered the criminal act–that the mens rea and
actus reus occurred at the same time.
Occasionally, a statute will be silent as to the mens rea element. When this occurs, courts need to decide
whether the legislature has intended to create a strict liability crime or has just been sloppy in drafting the
law. Strict liability crimes are ones where the government does not have to prove criminal intent. Courts
are disinclined to find in favor of strict liability statutes unless there is a clear indication that the legislature
intended to create strict liability. The courts will examine legislative history, the seriousness of harm caused
by the crime, whether the crime is male in se or mala prohibitum, and the seriousness of the punishment in
deciding whether the state should be relieved of its obligation to prove criminal intent of the defendant. As
a general rule, the courts are more likely to find that a crime is a strict liability one when there is a small
punishment and when the crime is more of a recent, regulatory offense (mala prohibitum crime).
Inchoate Offenses: Attempt, Conspiracy, and Solicitation
In order to prevent future harm, state and federal governments have enacted statutes that criminalize
attempts to commit crimes, solicitations to commit crimes, and conspiracies to commit crimes. The common
law also recognized these inchoate offenses or incomplete offenses. With each of the inchoate crimes, the
state must prove that the defendant intended to commit some other crime, the highest level of criminal
intent. For example, there is no crime of attempt, but there is a crime of attempted theft. State laws vary in
the approaches and tests of whether the defendant has taken enough steps to be charged with attempt, but all
agree that mere preparation does not constitute an attempt. Conspiracies involve an agreement between at
least two parties to commit some target crime. Some jurisdictions also require that there be an overt act in
furtherance of the crime (some outward movement towards the commission of the target crime) which
reaffirms there is a meeting of the minds between the co-conspirators. Solicitations involve a person asking
another to commit a crime on his or her behalf, and they do not even require an agreement by the person
requested to do so.
Accomplice Liability: Aiders and Abetters
People who commit crimes frequently do so with assistance. Substantive criminal law describes when a
person can be found guilty for the acts of another. For example, the common law recognized four parties
to a crime: principal in the first degree, principal in the second degree, accessory before the fact, and
accessory after the fact. Many complicated legal rules developed to offset the harsh common law treatment of
most crimes as capital offenses (death penalty eligible). The modern statutory trend has been to recognize
accomplices, people who render assistance before and during the crime, on one hand, and accessories after
the fact, people who help the offender escape responsibility after the crime has been committed, on the other.
Accomplices, as treated as equally liable as the main perpetrator as “the hand of one, is the hand of them all.”
Accessories after the fact, under the modern trend, are charged with hindering prosecution or obstructing
justice after the crime are punished to a lesser extent than the main perpetrators.
Vicarious Liability
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Subsets and Splits