Interpretation of Incorporation Controversy

							       CJ 600
Issues in the Court System
           Historical Overview
   Use of British common law
   Colonial courts unclear as to which acts of
    Parliament or case law applied
   Every colony different
   Colonial courts had wide powers, very
    undifferentiated, with legislative, executive
    and judicial functions
   Mistrusted, associated with Br. Gov.
                   History
   Movement to codified law
   Requirements fo practice law varied
   Following the Revolutionary War,
    established of more courts, appellate
    courts
   Constitution established Supreme Court,
    authorized other courts
   Vague
                    History
   Lower courts a hodge podge, differ from
    state to state
   Organization was frequently tied to politics
   Judges elected or appointed
   Dual nature of US Government
   Supreme court established by constitution,
    and the federal courts by the Judiciary Act
    of 1789
                   History
   Supreme Court had little power until
    Marbury v. Madison, when the court
    struck down a section of the Judiciary Act
    as unconstitutional –judicial review
   Around 1820s, courts began a trend of
    setting legal doctrine
   Until WW II, conservatives and business
    depended on judicial branch, distrusted
    legislature
                    History
   Courts seldom dealt with constitutional
    rights of individuals, tended to rule against
    individuals and labor
   Section 1983 and post civil war
    amendments passed after the war, but
    had little effect
   Plessy v. Ferguson (1896)--segregation
                  History
   Early 20th century began an expansion of
    due process for criminal defendants
   Powell vs. Alabama, 1932 (Scottsboro
    case)
   Incorporation controversy
   Depression era: federal legislation kept
    getting struck down by the Supreme Court
   Roosevelt threatened court packing
                    History
   Court backed down
   1950s, Warren court, civil rights revolution
   Brown v. Board of Education
   Series of decisions: Mapp v. Ohio,
    Miranda v. Arizona, Gideon v. Wainwright
   Burger court: Furman v. GA and Gregg v.
    GA, prisoners rights cases
   Some ―erosion‖ since then
                   History
   Other decisions, such as religion cases,
    Roe v. Wade
   Controversy: original intent, strict
    interpretation, social interpretation
   Courts have become increasingly powerful
   Number of cases and lawsuits
   Number of cases filed against the criminal
    justice system, esp. police and corrections
               Court issues
   1. Court models: constellation, federation,
    union
   2. Selection of judges: appointed vs.
    election
   3. Bail: purpose to assure presence at
    trial
   Problems: favors rich, unnecessary
    detention in some instances, get longer
    sentences, the bail bondsman
                   Issues
   Deposit bail: eliminating the bail
    bondsman
   Manhattan Bail Project
   4. Preventative detention
   5. Courtroom work group: prosecutors,
    defense counsel, judges, also police and
    probation officers
                   Issues
   Courtroom work group a community of
    people who work together and have a
    mutual interest in getting the job done as
    efficiently as possible
   ―Going rate‖ the group develops over time
    a consensus about what a crime and prior
    criminal history is ―worth‖
   Often not adversarial, consensus reached
                    Issues
   Observational studies find that researchers
    are able to predict outcomes after
    studying such groups
   Why sentence disparity? Each courtroom
    work group develops its own going rate,
    based on the individuals involved,
    community standards, etc.
                   Issues
   6. Prosecutor
   Prosecutor’s dilemma
   Quasi-judicial immunity
   Prosecutorial discretion—power to pursue
    or dismiss cases
   Of every 100 cases, 35 sent to JJS, 65 to
    district attorney
                  Prosecutor
   Of those 65, 20 rejected or diverted, 45
    accepted for prosecution
   Of those 45, 10 dismissed or failed to
    appear, 35 plead guilty (30)or go to trial
    (5)
   2 acquitted in trial, 33 convicted (3 in trial)
   There is considerable variation across
    jurisdictions
                Prosecutor
   Factors that affect discretion
   Nature of the evidence
   Attitude of the victim
   Relationship of victim to the offender
   (chances of conviction 20-30% lower if
    they know one another)
   Harm to the victim
   Costs
                Prosecutor
   Available alternatives
   Use of civil sanctions
   Willingness of suspect to cooperate
   Strength of the evidence and seriousness
    of the offense appear to be the greatest
    factors

             Defense counsel
   Gideon v. Wainwright and Argersinger v.
    Hamlin
   Private, contract, assigned, public
    defender
   Defense counsel’s dilemma—the guilty
    client
   Loyalties divided, not only to client, must
    also get along with courtroom work group
             Plea bargaining
   Advantages: costs decrease, more
    efficient
   Less time spent on minor and clear-cut
    cases
   Decrease pretrial detention time
   Victims and witnesses spared a trial
             Plea bargaining
   Disadvantages
   Innocent may plead guilty
   Loss of rights
   Might contribute to sentence disparity
   Attempts to curtail plea bargaining have
    not usually been successful
   Preplea conference
                Trial issues
   Review: constitutional rights
   Speedy, public, jury, summon witnesses,
    cross-examination, counsel
   Issues
   Scientific jury selection
   Does it give certain clients an advantage
    by virtue of some extralegal factor?
                  Issues
   Unanimous vs. non-unanimous decisions
   9 out of 12 the lowest
   Advantages: more efficient, less hung
    juries, less possibility of a bribe
   However, an important minority (the
    thoughtful juror) could be ignored
               Court issues
   12 person jury vs. lesser numbers (6)
   Advantages: easier to obtain a jury,
    cheaper, more convictions
   Disadvantages: less representative of the
    community, less discussion of the case
               Court issues
   Videotaping
   Trials, testimony
   Trials—many judges opposed, argue that
    it is distracting and detracts from the
    dignity of the proceeding
   On the other hand, provides a record, can
    be used as an educational tool
               Court Issues
   Videotaping of testimony
   Police could be on the streets, spares
    victims, confessions and lineups could be
    used
   Inadmissible sstatements could be
    eliminated
   Child victims could be spared the stress
   However, violates right to confrontation
               Other issues
   Continuances
   Victim-witness bureaus
                 Sentencing
   Purposes: individual deterrence
    (punishment), general deterrence,
    retribution, incapacitation, rehabilitation
   Punishment: must be consistent,
    immediate, introduced at its maximum
    intensity, too severe is not effective,
    extended periods not effective, rewards
    for punished responses must be reduced
               Punishment
   Alternative response with same or greater
    reward
   Access to different situations to obtain
    those rewards
          Types of sentences
   Indeterminate, determinate (flat),
    indefinite (range, good time, parole)
   Disenchantment with indeterminate
    sentences and rehabilitation, sentencing
    disparity
   Consequences
   Longer sentences
                Sentencing
   Sentence reform
   Sentencing guidelines (presumptive
    sentencing)
   Remove judicial discretion
   Federal: Sentencing Reform Act of 1984
   Sentencing guidelines, abolition of parole
   Mandatory minimums for certain types of
    crime
           Sentencing reforms
   Controversial law, disliked by federal
    judges, perceived as to inflexible
   Partially account for the dramatic increase
    in the federal prison population
   Have most affected the minority prison
    population
                State reform
   Several states have implemented
    sentencing guidelines with less
    controversy
   Minnesota the most notable example
   Reduction of disparity without additional
    discrimination, and
   Guidelines are tied to predictions of prison
    populations, can be modified
              Other reforms
   Megan’s laws
   Selective incapacitation
   Mandatory minimums (mostly for drug and
    weapons offenses)
   Truth-in-sentencing laws (reduction of
    good-time, elimination of parole
    discretion, or use of presumptive parole)
   Three strikes and you’re out
            Other alternatives
   Fines, probation, shock probation,
    intermediate sanctions (boot camps,
    electronic monitoring, intensive probation
    supervision, community-based corrections)