The Courts

“I know you’ve been sworn and I have read your

complaints”Judge Wapner

The Structure of the Courts State Courts

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

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

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

in consultation with senate Appointment is for life

High stakes for politics Interpret laws in light of

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

Who are the “players” in the judicial system?

Prosecutor Defense Attorneys Judges

The Prosecutor Represents the state in criminal

matters Federal = Attorney general and U.S.

attorneys State = District or State attorney

Prosecutorial Discretion (400# Gorilla) Whether or not to charge & specific

charge Decision to drop case May enter and end plea negotiations

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

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

urban) Roughly ¾ of state inmates are

represented by publicly funded attorneys

Role of the Defense Represent their client in a

vigorous, adversarial manner Investigate incident, interview

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

Conflict of interest? The Devil’s Advocate

Low pay and conflict of interest = burnout

The Judge During Trial

Rule on questions of procedure (how to question witnesses, rules of evidence)

May determine guilt in a bench trial After trial or plea bargain

Responsible for determining sentence

TYPICAL PROCESS Pre-Trial Decisions Trial/Plea Bargain Sentencing

The Courts System Process

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

Pre-Trial Decisions Prosecutor must issue a criminal

charge Formal document, lays out facts of

case, circumstances of arrest, penal code

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

Misdemeanors = criminal complaint

Pre-Trial Decisions Arraignment

Judge makes sure defendant understands charge

Makes sure defendant has counsel Defendant enters plea

Guilty No Contest Not Guilty

Decision regarding pre-trial detainment

Pre-Trial Detainment Jail

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

Alternatives to Jail? Bail System

Bail Bondsmen Fairness?

Alternatives to Bail? Pretrial Supervised Release

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

Release on Recognizance (ROR) Promise to come back

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

The Trial Jury Selection Trial Process

Opening statement Prosecutor Defense Closing argument Verdict Sentence

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

Model Celebrated cases may approach ideal

of an adversarial process Lower “layers” = administrative

rather than adversarial Judge, defense, and prosecutor have

a shared understanding of what a case is “worth”

The Courtroom Workgroup Term coined by Malcolm Feeley

Judges, prosecutors and defense work together daily

Minimize conflict and develop informal procedures for dealing with cases

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

Plea Bargaining What is bargained?

Charge Sentence

Conservatives = loophole Liberals = perversion of the

system Reality? Given the “going rate,” it

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

Benefits of Plea Bargaining State

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

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

Sentencing Structures Indeterminate

Tied to rehabilitation More open ended, typically tied to parole

release Sentence = 2-5 years

Determinate More Fixed

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

mechanisms (e.g., good time credits)

Specialized Sentencing Schemes within Determinate Sentencing

Mandatory Minimum Sentences 3 strikes legislation Truth in sentencing

Federal initiative 85% for UCR Part I violent offenses

Sentencing Guidelines End result of the debate over

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

Liberals = racist / classist judges Conservatives = liberal weenie judges

Question: Where does the discretion go?

Who creates the sentencing grid?

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

0

1

2

3

4

5

6 or

more

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

XI

306

299-313

326

319-333

346

339-353

366

359-373

386

379-393

406

399-413

426

419-433

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

X

150 144-156

165

159-171

180

174-186

195

189-201

210

204-216

225

219-231

240

234-246

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

IX

86

81-91

98

93-103

110

105-115

122

117-127

134

129-139

146

141-151

158

153-163

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

VIII

48

44-52

58

54-62

68

64-72

78

74-82

88

84-92

98

94-102

108

104-112

Felony DWI VII 36 42 48 54

51-57 60

57-63 66

63-69 72

69-75

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

VI

21

27

33

39

37-41

45

43-47

51

49-53

57

55-59

Residential Burglary Simple Robbery

V

18

23

28

33

31-35

38

36-40

43

41-45

48

46-50

Nonresidential Burglary

IV

121

15

18

21

24

23-25

27

26-28

30

29-31

Theft Crimes (Over $2,500) III

121

13

15

17

19 18-20

21

20-22

23

22-24

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

II

121

121

13

15

17

19

21 20-22

Sale of Simulated Controlled Substance

I

121

121

121

13

15

17

19

18-20

Sentencing and Discretion With guideline sentencing, who has

discretion? Who creates the grids?

Many states = legislature Constant pressure to increase sentences

MN: The Minnesota Sentencing Guidelines Commission

1980 guidelines tied to prison population

Prosecutors Decide the charge (where you land on offense

seriousness)

Sentencing Disparity When 2 people who commit similar

crimes, and have the same prior record receive different sentences

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

Racial Disparities RACE

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

BUT… Disparities enter prior to judicial

involvement (police) Disproportionate involvement in serious

crime

Racial Disparity in Sentencing II The “Liberation Hypothesis”

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

white victim Rape and Capital Murder

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

minority communities

Other Disparities Class = Difficult to detect (most in

system are relatively poor) Difference between white collar and

street Differences in some “celebrated

cases” are obvious Full benefit of highly paid defense

attorneys Gender

Females more likely to be treated leniently

Reducing Sentencing Disparity Sentencing guidelines

May reduce some disparity, but does not eliminate

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

Do we want to eliminate all disparity? More harsh with females? Some disparities may be due to

legitimate factors