SOLUTIONS MANUAL for Criminal Justice Today 16th Edition By Frank Schmalleger

Chapter 1 What Is Criminal Justice?

CHAPTER OVERVIEW Chapter 1 introduces the subject of criminal justice. It describes the major theme of the book and discusses whether the criminal justice process actually functions as a “system”. It then provides an overview of the criminal justice process and the textbook as a whole. Finally, it discusses multiculturalism and diversity and the unique challenges and opportunities they present for the criminal justice system.

The major theme of the book, individual rights versus public order, is a primary determinant of the nature of contemporary criminal justice. Individual rights advocates focus on protecting personal freedoms and civil rights within our society while public order advocates suggest that under certain circumstances involving criminal threats to public safety, the interests of society should take precedence over individual rights. Individual rights and community interests are delicately balanced in our criminal justice system. Attempts to expand individual rights affect community interests; conversely, as community interests have expanded more recently, individual rights have been limited. Balancing these competing interests revolves around individual conceptions of social justice.

The criminal justice system includes a number of component agencies: police, courts, and corrections. However, whether it functions as a “system” has been called into question. The consensus model supports the system view, arguing that there is a high level of cooperation among agencies and individuals in the system, and that the components of the system operate without conflict. Conversely, the conflict model of criminal justice views the operation of these components from a different perspective, arguing that the goals of individual agencies differ and various external pressures fragment their efforts, leading to a criminal justice “nonsystem.”

Both models have value in helping us understand the operation of the criminal justice system.

Although the agencies of justice have a diversity of functions, they are linked closely enough for the term system to be applied. However, their sheer size makes effective inter-agency cooperation difficult.

The author provides an overview of the book and introduces the stages in the justice process.

In general, the criminal justice process begins with the police who are responsible for conducting an investigation, making an arrest if probable cause can be established, and booking the suspect. Pretrial activities begin with the first appearance, where the suspect is brought before a judge and may have the opportunity for bail. A preliminary hearing will then be conducted to determine whether there is probable cause and whether the criminal justice process should continue. In some states, the prosecutor may then seek to continue the case by filing an information with the court; in others, an indictment must be returned by a grand jury before prosecution can proceed. The suspect then goes to arraignment and is asked to enter a plea. If the defendant does not plead guilty, a trial will be held. After conviction, the judge imposes punishment in the form of a sentence, after which the corrections stage begins.

As required by the U.S. Constitution, criminal justice case processing must be conducted with fairness and equity, also known as due process. Due process underlies the Bill of Rights; the guarantees in the Bill of Rights has been interpreted and clarified by the Supreme Court. Court decisions provide rights in practice and often carry as much weight as legislative action.

The two models of justice are also discussed. The crime-control model values efficiency while the due process model emphasizes individual rights. While these goals appear opposing, it 1 Copyright © 2021 Pearson Education, Inc.

is realistic to think of the American system of justice as representative of crime control through due process – a system of social control that is fair to those whom it processes.

The move towards evidence-based practice is discussed, as well as a brief introduction to the beginnings of academic criminal justice and criminology. Finally, the issue of multiculturalism, which describes a society that is home to a multitude of different cultures, each with its own set of norms, values and behaviors, is introduced. The face of multiculturalism in America is different today than in the past. Multiculturalism is one form of diversity; diversity characterizes both immigrant and U.S.-born individuals.

CHAPTER OBJECTIVES After reading this chapter, students should be able to 1.

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Summarize the history of crime in America and corresponding changes in the American criminal justice system.

Describe the public order (crime-control) and individual rights (due process) perspectives of criminal justice, concluding with how the criminal justice system balances the two perspectives.

Explain the relationship between criminal justice and general concepts of equity and fairness.

Describe the American criminal justice system in terms of its three major components and their respective functions.

Describe the process of American criminal justice, including the stages of criminal case processing.

Define due process of law, including where the American legal system guarantees due process.

Describe the role of evidence-based practice in contemporary criminal justice.

Explain how multiculturalism and social diversity present special challenges to, and opportunities for, the American system of criminal justice.

CHAPTER OUTLINE I.

Introduction • Discuss current events that have affected public attitudes toward the American criminal justice system. Explain the concept of procedural fairness and discuss its importance in the American justice system.

• Ask students to discuss how recent events, including both acts of violence by police and assaults on police, have affected their view of the criminal justice system?

• Explain how crime is defined in this textbook and ask students if they can think of additional ways it might be defined.

• Ask students whether a random act of violence has recently occurred in their community.

You can also ask about an event they might have heard about recently on the news or read about on the Web. Ask them to discuss their initial response, and ask whether they are concerned about possibly becoming a victim of such random violence.

II. A Brief History of Crime in America • Provide students with a historical perspective of crime in the last half century. An effective way to highlight the changes is to simply provide a timeline of critical events (those discussed in this section and those listed in Figure 1-1). Discuss the importance of 2 Copyright © 2021 Pearson Education, Inc.

these high-profile cases and how they influence public understanding of criminal justice.

Ask students what other high profile crimes they remember.

• Ask students to discuss why the increased emphasis on individual rights beginning in the 1960s was associated with an increase in reported crime.

• Ask students to discuss whether they consider crimes committed via cyberspace to be more or less serious than similar crimes that are not Internet-based.

• Engage students in a discussion of why crime and criminal justice are such important political issues. Ask them how the political process can be influenced by high-profile media events, such as any of the incidents discussed at the beginning of the chapter.

Discuss the September 11 attacks with students, and then describe how politicians responded by enacting the USA PATRIOT Act. III. The Theme of This Book • Highlight the key differences between the individual-rights and public-order perspectives.

• Ask students if they identify more with what the book calls the individual-rights perspective or the public-order perspective? Ask them to consider what experiences they have had that might explain their affinity for that perspective?

• Ask students whether they see a trend in our society in favor of individual-rights or public-order interests. Encourage them to present examples to support their opinions.

• Ask students to discuss the relative merits of the individual-rights and public-order perspectives. Discuss how the goals of both perspectives might be balanced in contemporary society.

• Poll students to determine their identification with either the individual-rights perspective or the public-order perspective. After polling is complete, assign students to presentation groups by asking those who most closely identify with the public-order perspective to defend individual rights, and vice versa. Such role reversal can be interesting in its own right, but it may also serve to broaden students’ appreciation for the values of others.

• Divide the class into groups, and assign one group to be individual-rights advocates and the other to be public-order advocates. A good issue for students to examine is the profiling of airline passengers. Explain to students how the criminal justice system’s response to the events of September 11, 2001 has significantly changed airport screening procedures. Ask the students representing the public-order advocates to prepare a list of personal characteristics (e.g., race, ethnicity, gender, age, clothing) that they would seek to utilize in screening potential dangerous passengers in an airport terminal. Ask the students viewing this issue as individual-rights advocates to provide a list of stereotypes or situations regarding passengers in a terminal that might indicate an unreasonable search or seizure by the criminal justice system. After placing both lists on the board for everyone to see, have the two groups debate the topic.

• Have students collect clippings and stories from the Web, newspapers, and magazines, and do a short report or presentation noting which criminal justice–related topics (such as individual rights, social control, policing, terrorism, and violent crime) receive the most coverage.

IV. Criminal Justice and Basic Fairness • Explain the differences between criminal justice and social justice. Contrast the focus of criminal justice (violations of the criminal law) and civil justice (fairness in relationships among citizens, government agencies, and businesses in private matters).

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• Discuss the concept of justice, and ask students what justice means to them. Ask them whether “justice for all” is a reasonable expectation for our system of criminal justice.

Have them discuss other ways of achieving justice, other than through the formal criminal justice process.

• Explain the relationship of criminal justice to fundamental notion of fairness and to the wider notions of equity and morality.

• Explain that the word “justice” in “criminal justice” implies a sense of basic fairness, and that no criminal justice system will seem fair to the citizens it serves unless it rings true to the basic sense of fairness to which those citizens hold.

• Explain that criminal justice is “truth in action” within the process of administrative justice and that while justice the ultimate goal of criminal justice, the reality frequently falls short of the ideal V. American Criminal Justice: System and Functions A. The Consensus Model • Explain that the consensus model of criminal justice envisions the components of the criminal justice system as functioning together to achieve the goal of justice.

B. The Conflict Model • Explain that the conflict model of criminal justice envisions the components of the criminal justice system as serving their own interests and competing with one another over scarce resources, public recognition, and various other forms of accomplishment.

• Compare and contrast the consensus and conflict models of criminal justice and discuss the importance of both models in the study of the criminal justice system.

• Ask students to discuss which model (consensus or conflict) best describes the American system of criminal justice and to explain why they hold that view.

• Ask students to consider why the author says that the various agencies of justice are linked closely enough to be termed a system while at the same time he agrees with Skolnick’s idea of a criminal justice nonsystem.

• One way to teach students about the consensus and conflict models is to discuss the limitations that tax-supported funding can place on criminal justice agencies. Explain that the consensus model is most likely to be present in areas where the state and local tax bases can provide for adequate staffing of police, criminal courts, and correctional agencies; because each agency can afford more services, this leads to greater cooperation between agencies. Then explain how budget cuts that occur in times of limited tax revenues may result in increased workloads for the various components of the system. Operating within the constraints of a fixed budget can create fragmented efforts, as each subcomponent must make more of an individual effort to deliver services in an environment that does not always encourage maximum cooperation between agencies.

VI. American Criminal Justice: The Process • Explain the criminal justice system in terms of its main components: the police, the courts, and corrections.

• Use Figure 1-4 to provide students with a brief overview or “road map” of the criminal justice process and explain that each stage in the process will be covered in more detail throughout the text.

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A. Investigation and Arrest • Explain the use of arrest warrants.

• Explain the U.S. Supreme Court decision, Miranda v. Arizona and the requirement to advise individuals of their rights prior to questioning. Discuss the impact this decision has had on criminal justice.

B. Pretrial Activities • Explain how the court process begins, and discuss what occurs at the first appearance, including the bail process.

• Explain probable cause by showing that as actors in the criminal justice system develop a case against a suspect, the information available to them and their belief about the defendant’s culpability generally build according to the following steps: (1) reasonable suspicion, (2) probable cause, (3) a preponderance of the evidence, (4) clear and convincing proof, and finally (5) proof beyond a reasonable doubt.

• Explain the difference between an indictment and an information.

• Discuss the pros and cons of the grand jury system. Lead a discussion as to whether the grand jury system should be abolished.

• Explain why a judge may choose not to accept a guilty plea and what happens if a defendant “stands mute” and refuses to enter a plea of any type.

C. Adjudication • Explain why most cases do not come to trial and discuss the implications of this.

• Introduce the concept of precedent as understandings built up through common usage and also as decisions rendered by courts in previous cases.

• The text mentions the large percentage of cases that are plea bargained. Briefly discuss the implications of plea bargaining on the defendant, including giving up the right to trial and the presumption of innocence.

D. Sentencing • Discuss the difference between consecutive and concurrent sentences. Ask the class to discuss factors that a judge might consider when deciding between consecutive and concurrent sentences.

E. Corrections • Discuss some of the problems with modern prisons.

F. Reentry • Explain that not all convicted offenders are incarcerated.

VII. Due Process and Individual Rights • Discuss the concept of due process and explain why it is such a central notion in American criminal justice.

• Ask students to discuss what our justice system would be like without due process? Ask if they would want to live in a society that did not guarantee due process rights. Why or why not.

A. The Role of the Courts in Defining Rights • Discuss the concept of separation of powers and the implications of allowing Supreme Court decisions to carry as much weight as legislative actions.

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• Explain why many rights written into the Constitution did not exist in practice until the Supreme Court decided to recognize them in cases brought before it.

• Explain the concept of “judge-made law” and the importance of Supreme Court decisions.

B. The Ultimate Goal: Crime Control through Due Process • Explain the crime control and due process models of criminal justice and emphasize that their goals are not necessarily mutually exclusive. Although the two goals appear opposing, explain that the view of the justice system as representative of crime control through due process is a realistic one.

• One way to illustrate the concerns of due process model is by discussing a case in which a defendant was wrongfully convicted. If applicable, discuss the ways in which DNA technology has both assisted law enforcement and also helped free innocent people who were wrongly-convicted. Relevant cases that could be discussed include: Rubin “Hurricane” Carter (the subject of the movie The Hurricane) Randall Dale Adams (the movie The Thin Blue Line was based on his case) The Kern County child abuse cases (the subject of the documentary Witch Hunt) Ron Williamson and Dennis Fritz (the basis for John Grisham’s book The Innocent Man: Murder and Injustice in a Small Town) o Cameron Todd Willingham (the subject of the documentary film Incendiary: The Willingham Case) VIII. Evidence-Based Practice in Criminal Justice o o o o

• Explain evidence-based practice, and describe the role of evidence-based research in contemporary criminal justice.

• Stress the difference between “evidence-based practices” and “criminal evidence” • Describe the work of the Campbell Collaboration’s Crime and Justice Coordinating Group and explain why systematic reviews of research are so important today.

A. The Start of Academic Criminal Justice • Explain the similarities and differences between criminology and criminal justice.

IX. Multiculturalism and Social Diversity in Criminal Justice • Explain how multiculturalism and diversity present special challenges to, and opportunities for, the American system of criminal justice.

• Expand upon the concept of social diversity and review other types of diversity in addition to multiculturalism.

• Ask students to consider how the multicultural nature of the U.S. has changed over time, and how it might continue to change in the near future.

• A good way for students to appreciate the complex role that the criminal justice system faces in a multicultural society is to identify distinct languages used in America. Have students identify cities in the U.S. in which multiple languages (other than English) are spoken. Have students discuss whether the criminal justice system should pay a higher salary to employees who have bilingual skills.

• Discuss the importance of cultural competence within the criminal justice system.

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LIST OF CHANGES/TRANSITION GUIDE •

A new key term, “procedural justice,” has been added to the chapter.

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The discussion of “new era” crime has been expanded.

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Mention is now made of the criminal proceedings against Bill Cosby.

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The chapter’s statistics have been updated.

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Two new key terms, “evidence-based” and “evidence-based practice (EBP)” have been added to the chapter.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Have students collect clippings and stories from newspapers, magazines, and the Web to do a short report or presentation noting which criminal justice–related topics (such as individual rights, social control, policing, terrorism, and violent crime) receive the most coverage. “The Crime Report: Your Criminal Justice Network” is a useful website for criminal justice– specific current events.

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Consider holding a debate in class to help students understand the dichotomy of individual-rights advocates and public-order advocates is to hold a debate in class.

Divide the class in half and assign one half to be individual-rights advocates and the other to be public-order advocates. A good issue for them to take a position on is drunk driving. Explain to students how the criminal justice system’s response to drunk driving has evolved significantly during the last 30 years. Emphasize that drunk driving was virtually ignored in the 1970s; when an incident came to the attention of the criminal justice system, it would either be ignored, or the drunk driver would receive a short sentence. Today drunk driving is considered a serious crime and is given high priority in many cities. Ask the half of the class that represents the individual-rights advocates to argue that the new emphasis on drunk driving is excessive. Ask the half of the class viewing the issue as public-order advocates to provide reasons that strict enforcement of drunk-driving laws is a reasonable criminal justice response.

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Ask students to write a short essay on which perspective they identify with more closely – individual rights or public order. Have them discuss the relative merits of each perspective and how the goals of both may be balanced in contemporary society. They may also present personal experiences that help explain their affinity for their chosen perspective.

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Ask students to write a short essay discussing which model, consensus or conflict, best describes the American system of justice today and why.

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Provide students with a list of criminal justice issues, such as habitual offender statutes (three-strikes laws, etc.), the Miranda warnings, the exclusionary rule, mandatory domestic violence arrests, speedy trials, police crackdowns, drunk-driving roadblocks, and providing attorneys to indigents. Have students discuss whether each issue is more consistent with the due process model or the crime-control model.

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Have students review the list of individual rights guaranteed by the Bill of Rights that is presented in Table 1-1 and discuss what additional rights they believe should be included.

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Create a criminal justice e-newsletter to which members of the class can contribute throughout the term. Students should serve as researchers, reporters, and editors and should 7 Copyright © 2021 Pearson Education, Inc.

cover criminal justice topics that might be of interest to the campus community, such as date rape, drug abuse, and vandalism. Have students arrange for all aspects of the newsletter’s production. You might consider posting the newsletter on the Web. •

Create a class blog to which members of the class can contribute throughout the term.

Students could post their thoughts on topics under class discussion, showcase their opinions about critical criminal justice matters, and let others know what the study of criminal justice entails.

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Create a Web site for your class. Post news of student activities in the criminal justice area, build a discussion area for current criminal justice topics, list links to other criminal justice Web sites, and perhaps post a brief biography of each student in the class (do not post personal information such as addresses or telephone numbers).

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Ask representatives from community criminal justice agencies to visit your class throughout the semester, either in person or virtually through computer conferencing. Create a master schedule for speakers, linking it to the topics covered in the class syllabus and in the textbook.

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Collect information on the criminal justice system’s response to terrorism after the attacks at the World Trade Center and the Pentagon. Find at least one article that highlights individualorder concerns and one that highlights public-order concerns. In class, display (or duplicate) the articles, and have students compare and contrast the findings from the different articles.

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Explore the range of criminal justice careers online. Click on the links below to hear interviews with law enforcement professionals, and/or read job descriptions and pay ranges.

Arson/fire investigator https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/arson_fire_i nvestigator.html Bailiff https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/bailiff.html Correctional officer https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/correctional _officer.html Correctional treatment specialist https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/correctional _treatment_specialist.html Court clerk https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/court_clerk. html

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Court reporter https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/court_report er.html Crime laboratory analyst https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/crime_labor atory_analyst.html Crime prevention specialist https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/crime_preve ntion_specialist.html Crime scene technician https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/crime_scene _technician.html Criminalist https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/criminalist. html Deputy Sheriff https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/deputy_sher iff.html Federal Bureau of Investigations (FBI) special agent https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/fbi_special_ agent.html Federal Protective Service (FPS) officer https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/fps_officer. html Fish and game warden https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/fish_and_ga me_warden.html

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Forensic science technician https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/forensic_sci ence_technician.html Gaming surveillance officer [hyperlink opens in new window: https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/gaming_sur veillance_officer.html] K-9 Officer https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/k9_officer.html Loss prevention specialist (retail) https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/loss_preven tion_specialist.html Motorcycle Officer https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/motorcycle_ officer.html National Security Agency (NSA)

police officer

https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/nsa_police_ officer.html Paralegal https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/paralegal.ht ml Park ranger https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/park_ranger .html Parole Officer https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/parole_offic er.html

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Police Detective https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/police_dete ctive.html Police Dispatcher https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/police_disp atcher.html Police Officer https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/police_offic er.html Police Sniper https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/police_snip er.html Probation Officer https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/probation_o fficer.html Sheriff https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/sheriff.html State Trooper https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/state_troope r.html SWAT Team Member https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/swat_team_ member.html U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Special Agent https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/atf_special_ agent.html U.S. Coast Guard (USCG) Sea Marshal https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/sea_marshal .html 11 Copyright © 2021 Pearson Education, Inc.

U.S. Drug Enforcement Agency (DEA) Special Agent https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/dea_special _agent.html U.S. Immigration and Customs Enforcement (ICE) Special Agent https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/ice_special_ agent.html U.S. Internal Revenue Service (IRS) Special Agent https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/irs_special_ agent.html U.S. Marshal https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/us_marshal _service.html U.S. Secret Service Special Agent

https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/careers_in_cj/secr et_service_agent.html] SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

Describe the American experience with crime during the last half century. What noteworthy criminal incidents or activities can you identify during that time, and what social and economic conditions might have produced them?

During the civil rights era in the 1960s and 1970s, there was a strong emphasis on individual rights. This led to the recognition of personal rights previously denied on the basis of race, ethnicity, gender, sexual orientation, or disability. During the same time, American criminal justice sought to understand the root causes of crime and violence. During the more recent past, interest has increased in keeping an ordered society, ensuring the public safety, and providing for the rights of victims. Currently the focus is on accountability, with a “get tough on crime” attitude. The change during the past century was due to a societal frustration.

There was an inability of the system to prevent crimes. The events of September 11, 2001, led to increased conservatism in public policy. More recently, corporate and white-collar crime have taken center stage in criminal justice, and the current era is characterized by declining rates of “traditional” crimes but an increase in crimes that are Internet-based or involve other forms of high technology.

2.

What is the theme of this textbook? According to that theme, what are the differences between the individual-rights perspective and the public-order perspective?

The main theme of this book is that of individual rights versus public order. The theme stresses the need to balance the protection of each individual’s constitutional rights with the protection of society as a whole. Ensuring that the basic rights of individuals are not 12 Copyright © 2021 Pearson Education, Inc.

infringed upon while society is protected through the maintenance of public order requires a delicate balancing act. The central feature of the individual-rights perspective is the focus on its protection of personal freedoms. This perspective is concerned about unnecessarily restrictive government actions that limit or eliminate these freedoms. The central feature of the public-order perspective is in the acknowledgment that the interests of society should take precedence over individual rights. These perspectives are in conflict. The individualrights perspective is willing to sacrifice public safety in order to protect important personal freedoms. The public-order perspective is willing to eliminate or limit rights to increase public safety.

3.

What is justice? What aspects of justice does this chapter text discuss? How does criminal justice relate to other, wider notions of equity and fairness?

Justice focuses on the principle of fairness and the ideal of moral equity. The chapter focuses on social justice, criminal justice, and civil justice. Social justice embraces all aspects of civilized life and is linked to broader notions of fairness and right and wrong. Criminal justice is one aspect of this wider form of justice. Criminal justice is an important mechanism by which justice can be achieved. Not only do victims, defendants, and others seek and expect fairness from the criminal justice system, but the activities and actions of the criminal justice system often spark society to consider what is considered equal justice.

4.

What are the main components of the criminal justice system? How do they interrelate? How might they conflict?

The criminal justice system encompasses three main components: police, courts, and corrections. These three components interrelate in several ways. First, they interact in the processing of specific cases. For example, police officers conduct investigations and make arrests. Offenders must then be processed by the court system, but police officers play a critical role in this process, as they might confer with prosecutors or testify at motion hearings or trials. If an offender is convicted, prosecutors might recommend the sentence and judges may consider prison overcrowding issues when deciding the final sentence. Second, these components interact at a policy level. The formal and informal decision-making processes of each component can impact the strategies and priorities of the other components. Third, the components are increasingly working together in various ways to respond to specific types of crimes. For example, drug, gun, and violent crime task forces often include line-level and command staff from the different components. The interactions between components often result in conflict. Each component focuses on achieving different goals, and the priorities of the different components may not be consistent. A new criminal justice strategy might be implemented by one component, but the goals of that program may not be consistent with the other components.

5.

List and describe the various stages of case processing that characterize the American system of criminal justice. a. Investigation, arrest, and booking. The process generally begins with the investigation of a crime. A witness or victim might report a crime, a patrol officer may discover a crime, or police officers might use undercover operations to discover crime. An arrest involves taking a person into custody. Booking involves taking pictures and fingerprints and recording personal information. b. First appearance, preliminary hearing, information or indictment, and arraignment. At the first appearance, the judge tells suspects of the charges, will advise them of their 13 Copyright © 2021 Pearson Education, Inc.

rights, and will decide bail. The purpose of the preliminary hearing is to determine whether there is sufficient evidence to continue the criminal justice process. In some states, the prosecutor may seek to continue the case by filing an information with the court; other states require an indictment be returned by a grand jury before prosecution may proceed. At the arraignment, the suspect hears the charges and is asked to enter a plea. c. Adjudication. Cases are resolved by either plea bargaining or trial. Cases that go to trial are governed by the rules of evidence, procedural law, and precedent. Trials are best thought of as a contest between prosecuting and defense attorneys. d. Sentencing. Once a person pleads guilty or is convicted at trial, the judge must impose a sentence. Judges have a wide range of sentences available to them, but their discretion is limited by statute and guidelines. Defendants do have the right to appeal. e. Corrections and Reentry. Corrections begin after a sentence is imposed. Among the options available to judges are prison and probation.

6.

What is meant by due process of law? Where in the American legal system are guarantees of due process found?

Due process means procedural fairness. Due process of law includes laws creating and defining offenses, an impartial tribunal, accusation in proper form, notice and opportunity to defend, trial according to established procedures, and discharge or conviction. Due process underlies the first ten amendments of the U.S. Constitution, and is specifically guaranteed by the Fifth, Sixth, and Fourteenth Amendments.

7.

What is the role of research in criminal justice? What is evidence-based practice? How can research influence crime-control policy?

Research has become a major component of criminal justice and has served to increase professionalism, in practice and in theory. Evidence-based practice comes from sound research. Whereas evidence usually refers to a crime, here it refers to findings that are supported by research studies. Criminal justice research influences policy by providing sound research on which policy can be based.

8.

What is multiculturalism? What is social diversity? What impact do multiculturalism and diversity have on the practice of criminal justice in contemporary American society?

Multiculturalism is the existence within one society of diverse groups that maintain unique cultural identities while frequently accepting and participating in the larger society’s legal and political system. Social diversity refers to differences between individuals and groups within the same society. This can include differences based on culture, race, religion, ethnicity, age, gender identity, and disabilities.

The diversity within American society makes the United States a textbook example of multiculturalism. America has always been multicultural and extremely diverse, although the face of multiculturalism in America is quite different than in the past. Overall, however, modern American society is an amalgam of ethnic, racial, religious, and cultural influences.

Few governmental systems are as impacted by multiculturalism and diversity as is the criminal justice system. Perhaps the most dramatic effects are noted in the field of law enforcement. Continuing revelations of past or current wrongs committed by police against 14 Copyright © 2021 Pearson Education, Inc.

individual members of the public—wrongs unarguably shown to have been motivated by racial or ethnic bias—have significantly eroded public trust in policing agencies. Recent events have led to increased distrust of the police and feelings of injustice about how suspects, especially African-Americans, are being treated by the criminal justice system.

The courts, also are confronted with multicultural factors that demand consideration as rulings are made. A ruling against an offender charged with violating American law by practicing an ethnic or religious tradition can create backlash within the affected ethnic community.

Correctional officials must also address multiculturalism on a daily basis. Given the diverse populations in American prisoners, corrections departments must sometimes scramble to meet inmates’ religious or ethnic needs while trying to operate within the constraints of limited budgets.

Multiculturalism presents both profound problems and significant opportunities for American justice administrators. While some argue that oversensitivity to multiculturalism and diversity has a corrosive effect that weakens the justice system, others see our growing social awareness as a catalyst for change that will yield greater justice for all.

Like all segments of society—business and industry, education, the military, and so on—the criminal justice system’s adoption of functional changes to accommodate evolving social concerns is a complex process that inevitably moves far too slowly for some and way too fast for others. It is critical to note, though, that the process has begun and is continuing.

Questions for Reflection 1.

Reiterate the theme of this textbook. How might this textbook’s theme facilitate the study of criminal justice?

The main theme of this textbook is individual rights versus public order. The theme stresses the need to balance the protection of each individual’s constitutional rights with the protection of society as a whole. Ensuring that the basic rights of individuals are not infringed upon while society is protected through the maintenance of public order requires a delicate balancing act.

The study of criminal justice involves examination of the processes by which the various components of the system interact to maintain the balance between individual rights and public order. In considering the impact of social issues and technological changes on future crime, administrators must also address systemic changes mandated by increased social awareness of and sensitivity to the multicultural makeup of American society.

2.

Why is public order necessary? Do we have enough public order or too little? How can we tell? What might a large, complex society like ours be like without laws and without a system of criminal justice? Would you want to live in such a society? Why or why not?

Answers will vary

3.

What must we, as individuals, sacrifice to facilitate public order? Do we ever give up too much in the interest of public order? If so, when?

Answers will vary.

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4.

This text describes two models of the criminal justice system. What are they, and how do they differ? Which model do you think is more useful? Which is more accurate?

Why? The consensus model assumes that the component parts of the criminal justice system strive toward a common goal, and that the movement of cases and people through the system is smooth due to cooperation between the various components of the system. The conflict model says that criminal justice agency interests tend to make actors within the system selfserving, and that pressures for success, promotion, pay increases, and general accountability fragment the efforts of the system as a whole, leading to a criminal justice nonsystem.

Answers will vary.

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Chapter 2 The Crime Picture CHAPTER OVERVIEW This chapter provides a statistical overview of crime in America and identifies special categories of crime of particular interest. Though examined statistically it is important to remember that, unlike TV dramas, the numbers represent real people, victims and perpetrators, real pain and real loss.

Crime statistics in the U.S. come from two major sources, the FBI’s Uniform Crime Reporting Program (also known today as the UCR/NIBRS program) and the National Crime Victimization Survey (NCVS) produced by the Bureau of Justice Statistics. A third course of crime data is offender self-reports.

Statistics from the UCR are based on reports by victims of crime to the police. The FBI collects crime information from approximately 18,000 law enforcement agencies, using standardized definitions of offenses. The UCR program also includes the National IncidentBased Reporting System (NIBRS), which represents a significant redesign of the original UCR program. Unlike the UCR, which is summary-based, NIBRS is incident-driven. UCR/NIBRS information reports rates of crime. Since the program began, there have been three major shifts in crime rates and a fourth appears imminent. The UCR/NIBRS program is currently going through a transitional phase as more NIBRS-based data are being integrated into the FBI’s official summaries.

The FBI collects data on eight Part I offenses, each of which is briefly discussed. They include murder, rape, robbery, aggravated assault, burglary, larceny-theft, motor-vehicle theft, and arson. Data are also collected on a number of Part II offenses, which are generally less serious than the Part I crimes. Only information on recorded arrests is collected for Part II offenses.

The NCVS is based on victim self-reports and includes data on reported and unreported crime in an effort to uncover information on the dark figure of crime. The survey asks citizens directly about their victimization experiences, including characteristics of the perpetrator, the crime, and the incident. This survey includes information on six crimes: rape and sexual assault, robbery, assault, burglary, personal and household larceny, and motor vehicle theft.

Although both sources provide some general understanding of the crime problem, they have limitations. Because UCR/NIBRS data are based on citizen crime reports to the police, there are several inherent problems. Not all people report crimes to the police, some crimes are rarely if ever reported, certain crimes do not fit into the traditional reporting categories, reports go through multiple bureaucratic levels, and victim reports may be inaccurate. The NCVS relies on survey data, which may be skewed for several reasons. Respondents include personal interpretations as well as objective information, not everyone is equally willing to participate, some victims may be afraid to report crimes to the interviewers, and some respondents may invent victimizations.

Additionally, both the UCR/NIBRS and the NCVS are human artifacts and only contain data considered appropriate by their creators.

Several special categories of crime are also discussed in this chapter. Information is provided on crime against women (including stalking and cyberstalking), crime against the elderly, hate crime, corporate and white-collar crime, organized crime, gun crime, drug crime, cybercrime, and terrorism.

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CHAPTER OBJECTIVES 1.

2.

3.

4.

Describe the FBI’s UCR/NIBRS Program, including its purpose, its history, and what it tells us about crime in the United States today.

Describe the National Crime Victimization Survey (NCVS) program, including its purpose, its history, and what it tells us about crime in the United States today.

Compare and contrast the UCR and NCVS data collection and reporting programs.

Describe how the special categories of crime discussed in this chapter are significant today.

CHAPTER OUTLINE I.

Introduction A. Crime Data and Social Policy • Explain why crime statistics are valuable to policymakers.

• Discuss common misperceptions about crime caused by our heavy reliance on the news media for information about crime. Explore the differences between crime statistics and media coverage of crime. Explain that research on the types of crime presented in the news consistently indicates an inverse relationship between the amount of crime that occurs and what the media present. For example, murder is the index offense least likely to occur, but it is the crime most likely to be presented in the news. Ask students what implications media coverage may have for public opinion on crime and for criminal justice policy-making.

• Point out that there are questions regarding how objective, and therefore how useful, crime statistics are.

B. The Collection of Crime Data • Introduce the two main sources of crime statistics: The Uniform Crime Reports and the National Crime Victimization Survey.

• Briefly discuss other data sources, including self-reports and the Sourcebook of Criminal Justice Statistics.

• Explain the historical circumstances that led to the development of the NCVS and the UCR, and discuss how new and innovative types of crime (such as some hightechnology offenses) might not be fully counted under those programs.

• Explain the different types of information on crime that may be obtained from the UCR Program, the NCVS, and offender self-reports and that the choice of data source may depend on the type of information required.

• Explain how unsolicited reports from crime victims to law enforcement agencies (found in the crime reports produced by the UCR/NIBRS Program) can lead to a far different picture of crime in America than a random survey of self-reporters (as in the NCVS).

II. The UCR/NIBRS Program A. Development of the UCR Program • Explain that the FBI originally constructed a Crime Index, which represented the total number of Part I Offenses that have been reported to the police, but this was discontinued because it was skewed by the large numbers of larceny-thefts.

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• Explain the circumstances leading to the development of the UCR, discuss the sources of UCR data, and identify the eight Part I crimes. Explain that arrest data is collected for additional categories of crime as well.

• Point out that the UCR provides information not only on total numbers of crimes but also crime rates, and explain that crime rates allow researchers to compare crime in different jurisdictions, or in the same jurisdiction over time.

• Ask students what our understanding of crime was like before the creation of the UCR/NIBRS and the NCVS. Ask them to consider what insights the UCR/NIBRS and the NCVS may have provided policymakers.

• Explain the criminal justice funnel and how many cases fall out as they move through the criminal justice system B. The National Incident-Based Reporting System (NIBRS) • Point out that while the original UCR was summary-based, NIBRS is incident-drive.

Ask students why this distinction is important.

• Explain why the FBI believed it was necessary to develop NIBRS. Review the differences between the summary-based UCR system and the incident-driven NIBRS, using Table 2-1 as a reference.

• Ask students to discuss possible drawbacks to the FBI’s intended transition to a NIBRS-only data format and to consider problems that might be created by a move away from traditional UCR data.

• Discuss the features of NIBRS that provide additional benefits, over and above the traditional UCR. • Ask students why they think so few agencies participate in NIBRS. C. Historical Trends • Discuss the three major shifts in crime rates that have occurred since the UCR began.

Ask students to identify factors that have affected crime, and to consider what factors may affect crime in the near future.

• The text mentions that law enforcement administrators frequently feel they are judged by their success in lowering crime rates. Ask students to identify possible alternative measures of policing effectiveness.

D. UCR/NIBRS in Transition • Introduce the crime clock and stress that it does not mean crime occurs regularly or “like clockwork.”

• Explain that the definitions used by NIBRS may differ from those used by the traditional UCR. • Explain the concept of clearance rates and point out that a crime may be cleared even though the suspect is not convicted of the crime. Ask students to consider why some crimes have much higher clearance rates than others. Explain that personal crimes are cleared far more frequently than most property crimes because victims of violence are often able to identify their attackers.

E. Part I Offenses • Review the eight major UCR Part I offenses crimes.

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• Research your state’s crime-reporting program, and develop a PowerPoint presentation or other teaching materials showing the incidence of reported Part I offenses in your state during the past year.

• Remind the class that official definitions (including UCR/NIBRS terminology) for each of the Part I offenses are provided in the glossary.

• Stress that the definitions of the Part I crimes provided in the text may not be the same as those used in your state (or in any other state). While discussing each crime, you may want to present the definition used in your state and discuss the differences.

1. Murder • Explain the various types of homicide, including justifiable homicides, first degree murder, and second degree murder.

• Explain the concept of felony murder and point out that although all murders are felonies, the category of felony murder, in some jurisdictions, refers to the (often unintentional) death of a person during the commission of another crime, such as the bank patron who dies of a heart attack during a bank robbery.

• Ask the class to discuss whether they agree with charging an offender with first-degree murder if the murder was not actually intended but occurred during the commission of another crime.

• Discuss statistics and characteristics of murder.

• Explain the difference between spree killings, mass murder, and serial murder.

• Ask students to discuss reasons why murder consistently has the highest clearance rate of any Part I crime.

2. Rape • Explain how the definition of rape in the UCR was revised and ask students to consider why this change may have been made.

• Explain that criminologists believe that many rapes go unreported and discuss some of the reasons why victims do not report this crime.

• Discuss statistics and characteristics of rape.

• Explain that many researchers see rape as a crime of power rather than one of sex. Explain that many rapists seek to humiliate their victims and that they enjoy the sense of power that comes from the abuse. Mention, however, that other researchers have found that imprisoned rapists identify “lust,” rather than “power,” as their primary criminal motivation.

• Ask whether the phenomenon of date rape is of recent origin or has existed for generations. Why has it received so much media attention recently?

3. Robbery • Discuss statistics and characteristics of robbery.

• Ask students why they think the hierarchy rule was eliminated from NIBRS. • Explain the hierarchy rule and discuss the implications of this rule on the accuracy of UCR statistics.

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• Explain that street or highway robbery is any robbery that occurs outdoors in a public place. Stress that highway robbery does not necessarily occur on the road or in a vehicle.

4. Aggravated Assault • Explain the differences between simple and aggravated assault. Explain that some states use the term “assault” to refer to an attempt and “battery” to refer to a completed assault.

• Discuss statistics and characteristics of assault.

• Explain that certain crimes, like rape, assault, and robbery, seem to show seasonal variations. Ask students why they think this is so.

5. Burglary • Stress that burglary is primarily a property crime even though it may involve personal confrontation.

• Discuss statistics and characteristics of burglary.

• Explain the differences among forcible entry, unlawful entry where no force is used, and attempted forcible entry.

• Point out that people often tend to confuse the terms robbery and burglary, using them interchangeably. Explain the differences between the two terms and show why they are not the same.

• Ask students to suggest reasons why the clearance rate for burglary tends to be so low.

6. Larceny-theft • Discuss statistics and characteristics of larceny.

• Explain the difference between simple and grand larceny.

• Ask students to suggest reasons why, if it is so common, larceny-theft appears to be the most underreported crime category in the UCR. • Have students discuss whether the theft of information should be included in larceny statistics.

• Have students discuss why identity theft is considered such a serious crime and identify ways in which identity theft might be prevented.

7. Motor Vehicle Theft • Explain that motor vehicle theft is actually a form of larceny-theft but is categorized separately by the UCR/NIBRS Program.

• Explain that motor vehicles are defined for UCR/NIBRS purposes as selfpropelled vehicles that run on land and not on rails, and point out that the theft of other types of vehicles are classified as larceny-theft.

• Ask students to discuss reasons why motor vehicle theft is not included in the statistics for larceny-theft?

• Ask students why people are more likely to report motor vehicle theft than many other types of crimes.

• Discuss statistics and characteristics of motor vehicle theft.

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• Explain that carjacking is considered to be robbery rather than motor vehicle theft by the UCR/NIBRS program.

8. Arson • Explain that the category of arson was added to the UCR/NIBRS Program in 1979 and stress that many agencies do not submit complete data. Ask students what effect this may have on the accuracy of the data in the UCR. • Point out that arson data only include fires determined through investigation to have been willfully or maliciously set and that fires of unknown or suspicious origin are excluded from arson statistics.

• Discuss statistics and characteristics of arson.

F. Part II Offenses • Point out that Part II offenses include a number of social-order, or so-called victimless crimes.

• Remind students that the statistics on Part II offenses are for recorded arrests, not for crimes reported to the police.

• Discuss Part II offenses and explain the reasoning behind only collecting arrest data for these crimes.

• Using Table 2-2, examine the incidence of the various types of Part II crimes. Point out that the largest category is drug law violations. Discuss possible reasons for the incidence of each offense category.

III. The National Crime Victimization Survey • Explain that the NCVS is based on victim self-reports rather than police reports.

• Discuss the origins of the NCVS, and explain that is designed to give a more complete picture of crime than the UCR. • Define the dark figure of crime and point out that a large percentage of crime never come to the attention of the police. Explain that self-report surveys of victims and offenders help uncover some of this unreported crime. Explain why the issue of the dark figure of crime is important to those using crime statistics.

• Ask the class why the NCVS does not collect data on homicide.

• Point out that the NCVS shows that many more crimes occur than are reported.

• Compare the Part I crimes used in the UCR to the crimes measured by the NCVS. Point out that a number of crimes, such as murder, victimless crimes, and crimes against businesses are not included in the NCVS. • Discuss recent NCVS statistics and ask the class what these findings may indicate about the underlying nature and causes of crime in America.

• Have students use the online NCVS Victimization Analysis Tool to explore crime and victimization statistics.

• Watch the video, “Crime Statistics: The Dark Figure” on YouTube.

IV. Comparisons of the UCR and NCVS • Stress that both the UCR/NIBRS and the NCVS programs have problems.

• Describe the differences between the UCR/NIBRS and the NCVS. Ask students which they expect would report more crime and why 22 Copyright © 2021 Pearson Education, Inc.

• Explain how data from the UCR, which includes crimes reported to the police, may provide a very different picture of crime in America than information obtained from a random survey of self-reporters such as the NCVS. • Remind students of the hierarchy rule and how this affects the amount of crime reported in the UCR. • Ask students to discuss which form of data gathering—that represented by the UCR/NIBRS or the NCVS—provides the most useful information about crime in America and why. How might we combine data provided by the two to get a more complete picture of crime?

• Which form of data gathering—that represented by the UCR/NIBRS or the NCVS— would individual-rights advocates be most likely to support? Which form would publicorder advocates likely support? Why? In a broader sense, how can the form in which data are gathered serve political ends?

• Ask students to consider what our understanding of crime might have been like before the creation of the UCR/NIBRS and the NCVS? Have them consider possible that the UCR/NIBRS and the NCVS may have provided policymakers.

• Select several crimes that are covered by both the UCR and the NCVS and compare the definitions. Also present the definitions found in the state statutes. Highlight the differences and explain how this not only makes it more difficult to compare information from the UCR and NCVS, but also increases the risk of errors in data collection.

• To help students understand the differences between the various sources of crime statistics, ask students whether the following statistics would be found in the UCR/NIBRS or the NCVS (correct answers in parentheses): o In 2005, 254 infants were murdered. (UCR/NIBRS) o Approximately 40% of crimes are reported to the police. (NCVS) o Fifty-six percent of aggravated assaults are cleared by arrest. (UCR/NIBRS) o There were 5,660 arsons reported in 2005 (UCR/NIBRS) V. Special Categories of Crime • Explain the purpose and usefulness of crime typologies.

A. Crime against Women • Discuss findings from the National Violence against Women Survey.

• Explain the importance of the Violence against Women Act (VAWA).

• Ask students why they think there is special focus crime against women but no parallel discussion of crime against men.

• Briefly discuss the crime of stalking and explain that it only became a crime in 1990.

Define cyberstalking and discuss why is becoming such a serious problem today.

• Have students discuss the #me too movement and how it is affecting contemporary American society.

B. Crime against the Elderly • Discuss characteristics of elderly victims.

• Ask students why elderly tend to experience lower rates of victimization than other age groups.

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• Ask students to discuss whether elder victimization should be a special issue of concern. Have them discuss how the effect of crime may be more serious for an elderly victim.

C. Hate Crime • Define hate crimes and explain the various categories of bias that may motivate a hate crime.

• Explain that laws continue to expand to include more categories, such as disability, sexual orientation, gender, and gender identity. Ask students to identify other groups which they believe should be protected by the law.

• Explain that the Hate Crime Statistics Act, which was signed into law by President George H. W. Bush in 1990, requires the collection of hate crime statistics.

• Discuss information obtained from recent hate crime data and explain the effects of the 9/11 terrorist attacks on hate crimes.

• Discuss the Violent Crime Control and Law Enforcement Act of 1994 and the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2010. Explain how these Acts expanded the definition of hate crime to include additional protected categories.

• Point out that hate crime statistics vary greatly depending on the data source used and explain that the NCVS reports more hate crimes than the UCR. • Ask students how hate crimes and the existence of survivalist organizations highlight the dichotomy between individual rights and the need for public order.

• Lead a debate as to whether it is appropriate to penalize some crimes more severely based on their motivation.

• Ask students whether they think that the number and intensity of hate crimes will increase or decrease throughout the twenty-first century and why.

• Ask students to discuss why a crime motivated by hate is often more harmful to the victim and the community than the same crime not motivated by hate.

D. Corporate and White-Collar Crime • Explain the difference between corporate and white-collar crime • Explain the effect of the recent economic downturn on mortgage fraud scams and discuss the various types of mortgage fraud.

• Discuss the Corporate Fraud Task Force and the Sarbanes-Oxley Act. • Ask students if they think there are differences in the characteristics of offenders committing traditional Part I crimes and those committing white-collar and corporate crime, and why/why not.

E. Organized Crime • Explain that the idea of organized crime as the Mafia is a stereotype and that there is considerable variation in the types of groups involved in organized crime.

• Discuss the concept of transnational organized crime and why it is such a key issue in criminal justice today.

F. Gun Crime • Remind students of the constitutional guarantee of the right to bear arms and explain that this has contributed to the plethora of guns in our society today.

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• Review the various Supreme Court rulings on the Second Amendment and the right to bear arms.

• The Brady Handgun Violence Prevention Act was passed in 1994. It provided a fiveday waiting period and a national incident criminal background check system. Point out that the five-day waiting period was discontinued in 1998 after an instant computerized background checking system went into operation.

G. Drug Crime • Point out that unlike many types of crime, drug-related crime has continued to increase and is a major cause of the growth in the U.S. prison population.

• Discuss the problem of mass incarceration in the United States today and explain the link between increasingly severe sentences for drug crimes and the continued increase in the prison population.

• Discuss the links between drugs and crime and explain that a large percentage of homicides are drug-related.

• Ask students whether they agree with the legalization of recreational marijuana. Have the class discuss how this might affect the criminal justice system.

H. Cybercrime • Explain that cybercrime involves the use of computers and computer technology to commit crimes. Point out that the theft of computer equipment is not cybercrime.

• Explain that many cybercrimes are not new forms of offending but are traditional crimes that use technologies in their commission.

I. Terrorism • Point out that the events of September 11, 2001 brought terrorism to the forefront of American consciousness.

LIST OF CHANGES/TRANSITION GUIDE •

A new key term, “unreported crime,” has been added to the chapter.

•

Updated crime statistics are found throughout the chapter.

•

The discuss of underreported and unreported crime has been expanded

•

An enhanced discussion of NIBRS is now part of the chapter.

•

A brief discussion of the Parkland High School shooting in Florida has been added.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Have students research UCR Part I crime statistics for their home states (and/or counties and cities) for the past few years. Have students compare crime rates for each geographic area and discuss possible reasons for the variations in rates.

•

Have students research UCR Part I crime statistics for their home state, including trend data, and compare the state figures to national trends. Have them identify the similarities and differences between state and national crime patterns and trends.

•

Have students select a crime that is included in both the UCR and the NCVS. Have them research statistics on this crime from both sources, including trend data, and compare the results. Have them identify similarities and differences in the information on crime patterns and trends obtained from the two sources.

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•

Find the latest national summary of campus crime. (USA Today periodically publishes a detailed report of such statistics, and data may also be available on the Internet). Have students compare crime on your campus with reports of campus crime elsewhere. What might account for the differences observed?

•

Have students construct and conduct a local community or campus questionnaire about crime. For example, a random sampling of resident and off-campus students to determine victimization rates with regard to the theft of textbooks, computers, and personal items from dorm rooms and classrooms can provide a picture of crime on campus. It may be advisable to limit the survey to property crimes because of the sensitive nature of certain types of other crimes. The questionnaire could be extended to include professors and administrative staff. If yours is a distance learning school, invite students to participate by online questionnaire.

Have students report on their findings.

•

Have students construct and conduct a local community or campus self-report survey that asks respondents about the offenses they have committed. It may be advisable to limit the survey to property crimes because of the sensitive nature of certain types of other crimes.

The questionnaire could be extended to include professors and administrative staff. If yours is a distance learning school, invite students to participate by online questionnaire. Have students report on their findings.

•

Present students with a variety of situations and have them identify which Part I offense category is occurring in each, and explain their responses. You could also include situations that are not crimes. Sample criminal situations include (answers in parentheses): o A college freshman visits a friend’s residence hall and forces her to have sexual intercourse. (rape) o A woman is caught after she puts a gun to an elderly man’s head and takes his wallet and watch. (robbery) o A man drives his car into a group of teenagers. Six teenagers have to be taken to the hospital for treatment of their injuries. (aggravated assault) o A 14-year-old girl steals a Porsche 944 from a car dealership. (motor vehicle theft) o A 14-year old boy steals a bulldozer. (larceny-theft) o A man walks through an open door of a home and steals cash and other valuables and raids the refrigerator. (burglary) o An 18-year-old girl gave birth to a baby boy in her mother’s fourth-floor apartment and tossed the child out the window, causing the baby’s death. (murder) o A woman walks out of a coatroom with a leather jacket that does not belong to her. (larceny-theft) o A man sets his neighbor’s Christmas tree on fire. (arson) o A woman borrows her neighbor’s boat to go fishing without obtaining his permission first. (larceny-theft)

•

Prior to class, visit the Websites of the Uniform Crime Reports and the National Crime Victimization Survey. Collect information on murder from both sites. Display this information in class and discuss key issues, including: o How much information is available at these sites? o What does it consist of? o What are the similarities and the differences in the availability of information on the crime of murder between these two sites?

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o Generally speaking, how do the two sites compare? o Which one do you find more useful? Why? •

The above exercise could also be done with other crime types, and could also include data from the National Crime Victimization Survey.

•

Conduct a debate on gun control. Divide students into groups and assign one group to research and argue in favor of gun control and the other group to research and argue in favor of the Constitutional right to bear arms. Consider asking students their opinions and then assigning them to argue the opposite view.

•

Have students visit the Website of the FBI and bring back information on some of the reasons why it is so difficult to combat white-collar crime.

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

Describe the historical development of the FBI’s Uniform Crime Reporting Program, and list the crimes on which it reports. How is the ongoing implementation of the National Incident-Based Reporting (NIBRS) system changing the UCR Program? How do data reported under the new UCR/NIBRS differ from the crime statistics reported under the traditional UCR Program?

The FBI has been compiling statistics on crimes known to the police since 1930, by Congress authorization. The FBI received reports from 400 cities in 43 states in its first year of operation. Today, approximately 18,000 police departments voluntarily submit to the FBI information on the crimes that have been reported to them. To ensure reporting uniformity, the FBI developed standardized definitions of offenses. The original Uniform Crime Reporting Program was designed to permit comparisons over time through the Crime Index, which summed the reports of seven major offenses (murder, forcible rape, robbery, aggravated assault, burglary, larceny-theft, and motor vehicle theft) and expressed the result as a crime rate based on population. An eighth offense (arson) was added in 1979. Over the years, concern grew over the Crime Index’s unclear picture of criminality because the abundance of larceny-theft reports skewed the results. In 2004, the FBI discontinued its use of the Crime Index and instead published simple violent crime and property crime totals. The FBI is currently working to develop a better and more viable index.

The National Incident-Based Reporting System (NIBRS) is an incident-based reporting system that collects detailed data on every single crime occurrence (as compared to the summary-based UCR). Under the new enhanced system, law enforcement agencies provide detailed information about crime and arrest activities at the incident level. NIBRS replaces the old Part I and Part II offenses with 22 general offenses and also eliminates the hierarchy rule. NIBRS is not a separate report, but utilizes data from the UCR system in more detail.

With the addition of NIBRS based data, some of the older definitions of criminal activity have changed.

2.

Describe the history of the National Crime Victimization Survey (NCVS). What do data from the NCVS tell us about crime in the United States today?

The NCVS was first conducted in 1972. It built on efforts previously made by the National Opinion Research Center and the President’s Commission on Law Enforcement and the Administration of Justice in the late 1960s. The intent was to uncover the “dark figure of crime,” referring to crime that occurs but is not reported to authorities. According to recent NCVS statistics, approximately 15% of American households are affected by crime annually 27 Copyright © 2021 Pearson Education, Inc.

and about 23 million victimizations occur each year. According to the NCVS, the rate of both violent and property crime reported by the NCVS has declined since 1993. Many researchers believe that self-reported crime is more accurate than crime reported to police in getting a true picture of crime and delinquency.

3.

What significant differences between the UCR/NIBRS and NCVS programs can be identified?

NCVS programs are based on victim self-reports rather than police reports, as with UCR/NIBRS. Murder, kidnapping, victimless crimes, commercial robbery, and business burglary are not included in NCVS reports as they are in UCR/NIBRS. The UCR uses a hierarchical counting system, which counts the most serious incident in a series of criminal events against a single person. UCR/NIBRS counts crimes reported, whereas NCVS counts both completed and attempted offenses that may or may not have been reported to police.

Researchers tend to rely on NCVS data more than UCR/NIBRS because it is a more accurate gauge of criminal incidents than police reports.

4.

What are the special categories of crime discussed in this chapter? Why are they important?

The chapter discusses several special categories of crime, including crime against women, crime against the elderly, hate crime, corporate and white-collar crime, organized crime, gun crime, drug crime, high-technology and computer crime, and terrorism. These categories are important because they provide us with additional ways to think about crime and how the criminal justice system responds to crime. The importance of these special categories is also illustrated by thinking of them as crime typologies. Various typologies are used to describe the characteristics of criminal offending. Creating such special categories increases the importance of these types of crime and provides a common ground for scholars and policymakers to discuss them.

Questions for Reflection 1.

What can crime statistics tell us about the crime picture in America? How has that picture changed over time? What additional changes might be coming?

Analysis of crime data yields discernible patterns of crime and victimization rates and the demography of both crime victims and criminals. Changes in the frequency or types of crime in specific geographic regions are easily detectable, as are changes in the participation of specific demographic groupings in criminality. Statistics are also able to show how public perceptions of crime are not always realistic and how the influence of the media is instrumental in creating those perceptions.

Since its inception in 1930, the UCR Program has enabled researchers to identify three major shifts in crime rates. The first was a pronounced reduction in crime rates after the crimeprone young male segment of the population entered military service in large numbers during World War II. The second shift was a dramatic increase as the postwar baby-boom generation entered its teen years—the crime-prone age range—in the 1960s. Another escalation was detected in the 1980s, when drug-related violent crimes increased significantly, peaking in about 1991. Through the remainder of the 1990s, major crime rates initially stabilized and then began showing declines in almost all categories.

A fourth shift in crime rates appears to be on the horizon. Factors such as the recent economic uncertainty, increased joblessness among unskilled workers, the growing number 28 Copyright © 2021 Pearson Education, Inc.

of ex-convicts back on the streets, the recent growth in the teenage population, the increasing influence of gangs, copycat crimes, and the lingering social disorganization resulting from natural disasters may lead to sustained increases in crime.

2.

What are the potential sources of error in the nation’s major crime reports? Can you think of some popular use of crime statistics today that might be especially misleading?

Because UCR/NIBRS data are based mainly in reports to the police, they are flawed for a number of reasons. They omit unreported crime, and not everyone reports when they are victimized. For example, a drug dealer is unlikely to file a report if someone steals his or her drug supply. Likewise, the victim of the theft of a $20 item will probably not file a report because the amount of the deductible on his or her insurance (if he or she has it) likely exceeds the amount of the loss. Certain types of crimes are rarely if ever reported, particularly so-called victimless crimes such as prostitution and gambling. High-technology and computer crimes do not fit well with traditional reporting categories and may be underrepresented in the crime statistics. Victims’ reports may be inaccurate. The various levels of bureaucracy through which reports are filtered also increases the likelihood of inaccuracies in the data. Further, the hierarchy rule, which mandates that only the most serious crime be reported in cases where multiple crimes are committed, prevents the counting of criminal events known to have occurred. Some of these problems are being addressed by adoption of the National Incident-Based Reporting System (NIBRS).

NCVS data are obtained through surveys and interviews, which may result in skewed results.

Survey respondents may answer subjectively rather than objectively. Not everyone is equally willing to talk to interviewers. Some victims are afraid to report crimes to the surveyors while others may invent victimizations.

It has become commonplace for the news media to report declines in the overall rate of crime in the United States. Such reports, of course, are based on “official” crime statistics—especially those made available through the UCR. Because data on crime rates, however, are based primarily on the reported rates of specific crimes (such as murder, rape, robbery, etc.), any increase or change in the rates of novel forms of crimes not covered by the program will not be visible. Hence, the recent rise in high-technology crimes is not obvious because it does not fall into one of the categories of crime reported under the UCR Program.

3.

Why are many crime statistics expressed as rates? How does the use of crime rates instead of simple numerical tabulations improve the usefulness of crime data?

Expressing crime statistics as rates permits comparisons among areas, across time, and among populations of widely varied sizes. Pure numbers can be grossly misleading. In a city with a population of 7 million, 600 murders would equate to a murder rate of 8.57 per 100,000. If 30 murders occur in a city with a population of 300,000, the rate would be 10 per 100,000. Observers might fixate on the huge number of murders in the larger city—600— and inaccurately believe the city to be more dangerous than the smaller city. In fact, the smaller city, with its higher rate per 100,000, presents a greater risk of someone being murdered.

This ability to evaluate crime data on a universal scale clarifies the true meaning of the hard numbers, defuses emotional responses to large numbers, and enables the researcher to interpret more accurately what those numbers really mean.

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4.

Do “traditional” UCR/NIBRS and NCVS categories accurately reflect the changing nature of crime in America? Why or why not?

Answers will vary.

5.

This chapter recognizes the changing nature of crime. What might crime rates look like if all types of crime today could be captured by traditional crime reporting systems?

Answers will vary.

6.

Do some property crimes have a violent aspect? Are there any personal crimes that could be nonviolent? If so, what might they be?

Certain property crimes often include a violent aspect. Examples will vary but may include: • A motor vehicle theft by carjacking that results in the injury or death of the vehicle’s owner.

• A burglary that involves a violent confrontation between the property owner and the burglar.

• An arson that results in the injury or death of a person.

• A larceny by purse snatching that results in injury to the purse’s owner.

For a crime to be categorized as a violent crime, it is not necessary for actual injury or death to occur. Violence can extend from the mere threat of physical harm or from intimidation that leads the victim to believe he or she will suffer physical harm if he or she resists.

Consequently, personal crimes are inherently violent.

7.

What is a clearance rate? What does it mean to say that a crime has been “cleared”?

What are the different ways in which a crime can be cleared?

When a crime has been cleared, it has been “solved” by the police A crime can be cleared by arrest, but also by exceptional circumstances, such as when the suspect has been killed during the commission of the crime, when the suspect was not arrested but later died, or when the suspect is known but has fled U.S. jurisdiction and is likely to be unarrestable as a result. It is not necessary for an individual to be convicted of a crime for a crime to be considered cleared.

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Chapter 3 The Search for Causes CHAPTER OVERVIEW Chapter 3 provides an overview of theories used to explain the causes of crime. It begins with an introduction to theory building in criminal justice, emphasizing the importance of research for testing hypotheses. The chapter is organized into eight general theoretical categories, and Table 3-1 provides an extremely useful summary of the characteristics of these theories and of the people most noted for their development.

Theories of the Classical School are based on the work of Cesare Beccaria and Jeremy Bentham. The five basic assumptions of classical theory are: 1.

2.

3.

4.

5.

Crime is caused by the individual exercise of free will.

Pain and pleasure are the two central determinants of human behavior.

Crime disparages the quality of the bond that exists between individuals and society.

Punishment is necessary to deter violators of the law and to serve as an example to others.

Crime prevention is possible through swift and certain punishment.

The neoclassical perspective is a contemporary perspective that places more emphasis on rationality and cognition; a key perspective is rational choice theory.

Theories in the Biological School search for physical or biological explanations of crime and have evolved over time due to the influence of medical and technological advances.

Early biological theories focused on inherited or bodily characteristics. Franz Joseph Gall argued that skull shape determined personality and behavior. Cesare Lombroso considered various parts of the body in his atavistic explanation for crime. Criminals, he argued, were throwbacks to earlier stages of evolution. William Sheldon used somatotyping (or body typing) to categorize each individual’s physique by its mesomorphic, endomorphic, and ectomorphic characteristics and found that juveniles with dominant mesomorphic physiques were most likely to commit crime. Richard Dugdale has considered biological inheritance as applied to criminal families in his examination of the Jukes’ family tree and Henry Goddard’s study of the Kallikaks.

Modern biosocial theories see the interaction between biology and the physical and social environment as key to understanding human behavior, including criminality. For example, chromosome theories look to internal gene structure to understand the causes of crime. The XYY chromosome theory was popular in the 1960s and early 1970s, but later studies question the ability of the XYY theory to predict criminal behavior. Other researchers have examined the effects of biochemical imbalances, hormones, allergic reactions to food, and the consumption of dietary stimulants (e.g., sugar, coffee) on criminal behavior. Research into heritability is often based on studies of twins, as a way of determining the influence of genetic and environmental factors on behavior.

Psychological explanations argue that criminal behavior results from inappropriately conditioned behavior or from abnormal, dysfunctional, and inappropriate mental processes. One thread of early psychological theories was behavioral conditioning; the other focused on personality, including personality disturbances and diseases of the mind. People who believe in conditioning hold that the frequency of any behavior can be increased through rewards, punishments, and/or association with other stimuli. Sigmund Freud argued that personality was developed from the interaction of the id, the ego, and the superego. One source of criminal 31 Copyright © 2021 Pearson Education, Inc.

behavior is the ability of a person’s superego to control his or her id. Trait theories explain crime as the result of fundamental personality characteristics. Psychological profiling involves the attempt to derive a composite picture of an offender’s social and psychological characteristics from the crime the offender committed and the manner in which it was committed.

Sociological explanations of crime examine the effects on behavior of environmental forces such as poverty, urban decay, and unemployment. For example, Shaw and McKay’s social ecology theory argues that certain areas of a city—those with high rates of poverty, unemployment, and lack of schooling—are socially disorganized and likely to produce crime.

Merton, borrowing the concept of anomie from Émile Durkheim, argued that since the means to achieve goals are not equally available to all groups, individuals are forced to use illegitimate means such as crime to accomplish goals. On the other hand, subcultural theories argue that the goals of various groups are different, and some groups view committing crime as a legitimate goal. For example, Marvin Wolfgang and Franco Ferracuti found that murder was an acceptable goal for certain groups.

Social process theories focus on the interaction between individuals and society and frequently highlight the role of social learning. Sutherland’s differential association theory sees crime as the product of socialization and believes it is learned in the same manner as law-abiding behavior. Restraint theories, such as containment theory, social control theory, and the neutralization approach, focus on forces that keep people from committing crime. Labeling theory, which was fashionable in the 1960s, views continued crime as a result of the effect of society’s negative responses to individuals who have been defined as offenders. Social development theory is an integrated approach that examines the process of interaction among and between individuals and society as the root cause of criminal behavior.

Conflict theories consider law to be a tool of the powerful and see crime as the natural consequence of economic and other social inequities. Radical criminology is rooted in early conflict theory and blames criminality on the unequal distribution of wealth and power in capitalist societies. There are also several emergent perspectives, such as feminist criminology and postmodern criminology.

None of these theories provide a definitive explanation of why people commit crimes.

However, understanding how these theories explain the causes of crime is important because they have an impact on the development of criminal justice policy and the criminal justice system’s response to crime.

CHAPTER OBJECTIVES 1.

2.

3.

4.

5.

6.

7.

Summarize the development of criminological theory, including the role of social research in that development.

Describe the Classical School of criminology, including how it continues to influence criminological theorizing through neoclassical thought.

Describe the basic features of biological theories of crime causation and their shortcomings.

Explain biosocial criminology and show how biosocial understanding of criminal behavior focus on the interaction between biology and the social and physical environments.

Describe the fundamental assumptions of psychological explanations for crime and their shortcomings.

Describe the basic features of sociological theories of crime causation.

Describe social process theories of criminology, including the kinds of crime-control policies that might be based on them.

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8.

9.

Describe conflict theories of criminality, including the kinds of crime-control policies that might be based on them.

Summarize emerging theories in criminology.

CHAPTER OUTLINE I.

Introduction • Review the definitions of crime and deviant behavior, and the differences between them.

Explain that what one group considers deviant may be acceptable behavior for another group. Identify a social group and discuss how its “normal” behavior could be considered deviant by others not in the group.

• Ask students to list behaviors they consider to be deviant. Discuss the similarities and differences among their responses and identify which ones are crimes.

II. Criminological Theory • Explain that there is no single cause of crime and introduce the range of theories available to explain criminal behavior.

• Explain the concept of a theory. Review the basic steps in building theories and creating social policies (refer to Figure 3-1). Describe the similarities and differences between the physical and social sciences as they relate to theory building.

• Explain why some theories are better than others—that is, why some are better at explaining, predicting, and so on. Discuss the fact that some theories serve the political ends of interest groups that find their worldviews reaffirmed by a theory’s assertions.

• Establish some criteria for a “good” theory, such as predictability. Ask students to rank those criteria in terms of importance.

• Explain the use of research to test hypotheses.

• As you cover the various historical and contemporary perspectives on criminality, relate each school of thought to the criteria for a “good” theory.

• Suggest that each theoretical approach to crime causation can be characterized by the “locus” that it assigns to the root cause of crime. Explain that biological theories point to physiological causes, sociological theories highlight cultural circumstances, and so on.

• As you discuss the various theoretical approaches, show how particular treatment and rehabilitative strategies might derive from each school of thought on crime causation.

For example, you could discuss imposing the death penalty or of life in prison without possibility of parole for offenders who are thought to be criminal by virtue of some biological defect.

• Lead a class discussion. Ask students how we judge when when a theory is useful? Can the same theory be useful in different ways for different people? Can we agree on an ultimate criterion of usefulness for a “good” theory? After the group establishes criteria for a “good” theory, ask students to suggest what makes one theory better than another by placing the criteria in rank order.

• Explain the concept of an interdisciplinary theory of criminal behavior that combines elements of all the schools of thought described in this chapter. Suggest that such a perspective, at the very least, might combine biological, psychological, and sociological elements in one perspective.

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III. Classical and Neoclassical Theory • Emphasize that the classical school emphasized free will and individual choice.

• When reviewing Beccaria and Bentham, explain their views on punishment as a form of deterrence, rather than retribution.

A. Cesare Beccaria: Crime and Punishment B. Jeremy Bentham: Hedonistic Calculus C. The Neoclassical Perspective • Explain how neoclassical criminology differs from classical criminology? Ask students why they think the distinction is important.

• Use a hypothetical crime incident to illustrate the basic logic and key elements of routine activities theory.

• Review the three key elements that routine activities theory states must converge for a crime to occur. Discuss the ways in which an individual’s routine activities affect the likelihood that these elements will come together.

• Discuss the implications of routine activities theory for crime prevention and control.

Point out that routine activities theory focuses on criminal opportunity and suggests that environments may be manipulated to reduce the likelihood that the three key elements will converge, thus reducing the risk of victimization and crime.

D. Social Policy and Classical Theories IV. Early Biological Theories • Explain how biological theories (and other positivist theories) differ from classical criminology, particularly in their move away from the belief in free will.

• Remind students that not all theories are equally valid and that many are no longer accepted by criminologists.

A. Franz Joseph Gall: Phrenology • Explain that, although phrenology may seem somewhat absurd today, it was an important step forward in theoretical development because it was based on scientific measurement rather than philosophical reasoning.

• Ask students to consider how the association of unattractiveness or disfigurement with evil is reflected in the media. For example, do certain actors always play “bad guys” on television or in the movies because they “look like a criminal”?

B. Cesare Lombroso: Atavism • Discuss Lombroso’s notion of a “born criminal.”

• Discuss the basic methodological flaws in the research of the early criminal anthropologists. For example, their control groups of “non-criminals” may have included offenders and some of the features identified as characteristic of offenders were clearly not inherited (e.g., tattoos) or could have been caused by environmental causes such as poor nutrition or a lack of adequate health care.

C. Criminal Families • Highlight Richard Dugdale’s examination of the Jukes family and Henry Goddard’s examination of the Kallikaks family. Discuss the significance that the study of these families could hold for criminology.

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D. William Sheldon: Somatotypes • Review the typology developed by William H. Sheldon.

• Explain that studies of juvenile delinquents conducted in the 1950s by Sheldon and Eleanor Glueck provided support for Sheldon’s theory linking mesomorphy and delinquent or criminal behavior.

E. Social Policy and Biological Theories • Discuss the U.S. Supreme Court case of Buck v. Bell, which upheld a state statute permitting involuntary sterilization of the mentally handicapped. Point out that this ruling has never been overturned by the Court.

• Some biological theories proposed that criminals could be identified by their appearance. Ask students to discuss whether our perceptions of how criminals “look” might affect our behavior toward some individuals and whether/how this might inform our laws and crime control policies.

• In February 2001, a resolution to express profound regret by the state for the eugenics movement was passed by the House of Delegates and the Senate in Virginia, making Virginia the first state to denounce this history. Point out that such efforts to discredit past practices can serve to further current biological initiatives that are based on sound scientific methods.

V. Biosocial Theories • Explain how biosocial theories differ from the biological theories discussed previously.

• Explain how biosocial theories of crime stress the interaction between biology and the physical and social environments as a key to understanding human behavior, including criminality.

A. The Gender Ratio Problem • Describe the gender ratio problem, and explain what it means for criminological theorizing.

• Explain why the gender ratio problem is only a problem if biological explanations for criminality are ignored.

B. Chromosome Theory • Explain why men with the XYY chromosomal makeup are identified as “supermales” and how the possession of an extra Y chromosome is said to be related to criminal activity. Explore the extent to which the XYY “supermale” is still part of the public consciousness.

• Discuss the recent research into the cognitive and behavioral development of children with extra sex chromosomes conducted by the Attention, Brain, and Cognitive Development program in the Department of Experimental Psychology at the University of Oxford.

• The XYY Man series of novels by Kenneth Royce focused on a criminal who, due to his extra “Y” chromosome, is genetically unable to go straight. The books were made into a television series, also titled The XYY Man. • Explain how contemporary biosocial researchers focus on studying gene deficits, enzymes, and hormones and review the findings relating to MAO-A. • Watch “Born to Rage: Inside the Warrior Gene” in class, or have students watch it at home (the documentary is available online). Put students in groups and have them 35 Copyright © 2021 Pearson Education, Inc.

discuss the implications of this research for criminal justice. They may want to read about the case of Bradley Waldroup who was convicted of voluntary manslaughter, rather than first degree murder, at least in part due to the introduction of genetic evidence. This could also be assigned as a topic for an out-of-class written assignment.

C. Biochemical Factors and Imbalances • Explain the various biochemical factors thought to be linked with behavior.

• Discuss the ways in which types of food and food additives can affect behavior.

• Lead a class discussion on the following issue: If diet can contribute to criminal behavior, should parents who do not provide children with a healthy diet, or who provide an excess of food items that have been implicated in the production of criminal violence, be liable for their children’s involvement in crime and delinquency?

D. Heredity and Heritability • Discuss the use of twins to study the impact of heredity versus the environment.

• Explain the research of James Q. Wilson and Richard Herrnstein in Crime and Human Nature.

E. Social Policy and Biological Theories • Explain that there are no genes for criminal behavior and no easy solutions – rather than determining behavior, genes may enable it.

VI. Psychological Theories • Explain what distinguishes psychological explanations of crime from other explanations.

• Review the general assumptions that underlie psychological theories of crime. Ask students whether some of these assumptions might be shared with other perspectives on crime causation.

A. Behavioral Conditioning • Discuss conditioning as a psychological theory. Relate the concepts of reward and punishment to the free will and hedonistic ideas of the Classical School. Discuss the implications of the conditioning approach for treatment strategies that might be based on it.

• Discuss Pavlov’s work with dogs that popularized the concept of conditioned behavior.

B. Freudian Psychoanalysis • Explain that Freud had many interests but did not engage in the systematic study of criminals.

• Discuss the ways in which Freud’s three components of personality relate to criminal behavior.

• Discuss sublimation and how it relates to criminality.

C. Psychopathology and Crime • Explain Hervey Cleckley’s description of a psychopath as a “moral idiot” whose defining characteristic is a lack of empathy. Explain how this affects their ability to engage in crime.

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• Explain that the causes of psychopathy are not clear and may include both somatogenic and psychogenic causes.

• Have the class discuss how society should deal with individuals who manifest characteristics of a psychopathic personality. If many of these individuals are likely to become involved in crime, should their personality issues be dealt with before this happens? What are the ethical implications of this?

D. The Psychotic Offender • Explain various ways in which psychoses may lead to crime.

• Point out that not all psychotic individuals become criminals.

E. Trait Theory • Explain the Five Factor Model in greater detail and provide examples of each of the five personality dimensions in the model. Discuss the empirical evidence that supports the model.

• Have students take “The Big Five Personality Test” (available online) and invite them to discuss the results.

• Explain Eysenck’s three supertraits and provide examples of personality traits characteristic of each.

• Explain why Eysenck believes psychotics have the greatest probability of engaging in criminal behavior.

F. Psychological Profiling • Define psychological profiling as the attempt to derive a composite picture of an offender’s social and psychological characteristics from the crime he or she committed and the manner in which it was committed. Explain how Adolf Hitler became the first subject for psychological profiling when the Allied forces sought to find possible weaknesses in his psyche.

• Distinguish between the “reality” and the “myth” of criminal profiling.

• Ask students to visit the FBI Web site and to compare the information they find there on criminal profiling with the students’ own ideas about criminal profiling taken from their everyday knowledge or exposure to the media.

• The movie The Silence of the Lambs deals with the connection between a cannibalistic serial killer, Dr. Hannibal Lecter, and an FBI profiler who seeks his help on another serial killer’s case. This film started the public fascination with profiling.

• The movie Copycat deals with a psychiatrist who has been housebound ever since she was almost killed by a serial killer whom she testified against in court. Two homicide detectives working another serial killer’s case bring her in to assist with finding the killer.

G. Neuroscience H. Social Policy and Psychological Theories • Discuss with students the difficulty in predicting the future dangerousness of a particular person in terms of criminal behavior.

• Describe the Psychological School’s orientation toward individual treatment, which is to expose the individual offender to various forms of therapy.

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VII. Sociological Theories • Explain how sociological theories differ from other perspectives on crime—especially psychological theories.

• Review the general assumptions or ideas that underlie the sociological approach to crime causation.

A. Social Ecology Theory • Explain concentric zones and the reasons for the high crime rate in zone 2 (the zone of transition) B. Anomie Theory • Explain the concept of anomie and why it is important to criminological theorists.

• Explain that Merton’s theory was developed to explain deviance in general, not just crime.

• Review Merton’s five categories, as shown in Table 3-2.

• Explain to students that while the factors producing strain in Merton’s model are sociological, strain itself is essentially a psychological concept.

• Explain to students that Merton considered financial success to be the goal prescribed for all and discuss whether it is really the main goal for all members of such a diverse society as ours. Have students list other goals they might have that do not necessarily require financial success.

• Tell the class that the original article that Merton wrote offering his theory on structural strain is the most frequently quoted article in sociology.

C. Subcultural Theory • Explain the concept of a subculture. Ask students whether they believe there are criminal subcultures.

• Remind students that although a subculture’s values may differ from those of the larger culture, this does not always mean that the subculture’s values encourage crime (e.g., the Amish).

• Provide students with examples of how subcultures characterize all types of social life, such as NASCAR fans or fans of rap music.

• Mention that Merton’s original article detailing his theory lay dormant for many years until Albert Cohen commented on the article. Note that Cohen’s ideas concerning reaction formation are built on an acceptance of Merton’s basic premise.

• Explain that subcultural theory does not explain crime that occurs outside of criminal subcultures, such as middle- and upper-class criminality.

• Discuss gangs and the gang lifestyle to illustrate subcultural theory.

• Explain Cohen’s concept of reaction formation and how it influences the formation and content of delinquent subcultures.

D. Social Policy and Sociological Theories VIII. Social Process Theories • Explain the differences between social process theories and the sociological theories discussed in the previous section.

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• Ask students why social process theories might be attractive to politicians and policymakers.

A. Differential Association Theory • Review the essential principles of Sutherland’s differential association theory.

• Give an example of how Sutherland’s principles might play out in the life of a criminal and in the life of a conformist.

• Hold a discussion of how Sutherland’s theory might explain some of the recent school shootings.

• Break the students into groups, and have them list ways in which they have been exposed to definitions both favorable to violating the law and unfavorable to violating the law. Link this to Edwin Sutherland’s sixth proposition to explain how it is not simply exposure to criminal peers that leads to involvement in crime.

B. Restraint Theories • Ask students why it is important to study the reasons why some people do not commit crime.

1. Containment Theory • Discuss the influence of psychology on containment theory by pointing to Walter Reckless’s notion of internal containment.

• Review the basic premise that underlies Reckless’s containment theory and explain the difference between internal and external containment.

• Ask students if they agree with Reckless’ belief that inner containments are more effective than external containments in the prevention of crime.

2. Social Control Theory • Explain the four components of the social bond and how they relate to involvement in crime.

• Remind students that Hirschi’s notion of “attachment” is similar to a conscience.

3. Neutralization Techniques • Provide examples of how offenders use techniques of neutralization to reduce feelings of guilt or responsibility when committing crimes. Consider discussing elder abuse, referring to the 1990 article by Susan K. Tomita in Violence and Victims C. Labeling Theory • Explain labeling theory as a product of the tumultuous 1960s. Ask students what form of “treatment” labeling theorists might suggest for convicted offenders.

• Describe how the criminal label produces consequences for labeled individuals that may necessitate their continued criminality.

• Ask students if they think society should continue to react negatively to offenders after they have “paid their dues”.

• Discuss what Howard Becker means by moral enterprise and what role this plays in his approach to labeling theory.

• Ask students to identify examples of current actions and programs associated with moral entrepreneurs.

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• Review the distinction between primary and secondary deviance. Ask students how this guides the adoption of a deviant identity.

• Discuss the various critiques of labelling theory.

D. Social Development and the Life Course • Explain that social development theory is a fairly recent perspective and discuss how it differs from the other theories already discussed in this chapter.

• Discuss Terrie Moffitt’s dual taxonomy theory and the two types of offenders identified by this theory: adolescent limited and life course persistent.

• Stress how criminal behavior follows an identifiable pattern throughout a person’s life cycle.

• Discuss the Program of Research on the Causes and Correlates of Delinquency and explain the three distinct pathways to delinquency. Discuss how they can converge.

• Have students visit the web page for the Causes and Correlates Study, found on the OJJDP Web site, and report back on the latest findings from the three studies.

IX. Conflict Theories • Explain that the other theories in this chapter are mainly based on a consensus view, as contrasted with the conflict perspective.

• Review the key elements of the conflict perspective.

A. Radical Criminology • Describe radical criminology. Explain how radical criminologists see the causes of crime as rooted in social inequities. Ask students what form of “treatment” radical criminologists might suggest for convicted offenders.

• Ask students how radical criminology differs from earlier more conservative conflict theories B. Peacemaking Criminology • Ask students why peacemaking criminology is considered to be a conflict theory.

• Ask students whether a peace model of crime control is realistic in today’s society, and why/why not.

• Ask students to discuss whether criminal justice programs based on peacemaking can still provide suspects and offenders with their constitutional rights.

C. Social Policy and Conflict Theories • Discuss the implications for crime policy that are suggested by the application of principles from radical criminology.

• Ask students why some radical criminologists are focusing on middle-range policy alternatives.

X. Emergent Perspectives A. Feminist Criminology • Discuss differences in criminal involvement by gender. Note that the number of female offenders is increasing faster than the number of male offenders.

• Explain that the development of feminist perspectives within criminology was furthered by the failure of radical theory to give attention to the role of gender in the production of crime and the response of the state to crime.

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• Break students into groups, and ask them to identify ways in which gender significantly organizes elements of social life. Ask them to link these to the likelihood of criminal behavior.

• Ask students whether men can be feminists and why/why not.

• Lead a discussion regarding why understanding the status of women as crime victims is considered important for understanding women as offenders.

• Discuss ways in which male and female criminality differ.

B. Postmodern Criminology • Explain that postmodern criminology challenges and debunks existing perspectives.

• Explain that some critics suggest that postmodern criminology primarily critiques other approaches but fails to offer anything new that is either relevant or practical. As academic criminology increasingly focuses on applied research and partnerships with practitioners, many of the insights of postmodern criminology seem too vague and obtuse to be of use.

• Ask students to discuss which of the emergent perspectives seems to hold the most promise.

• Break students into groups and have them discuss which theory of criminality described in this chapter they think is most useful for understanding criminal behavior. Have them consider whether some theories might be more applicable to certain forms of criminality than to others • Have students rate each major theoretical perspective in terms of its usefulness in understanding what motivates individual offenders who perpetrate particular crimes, such as the FBI’s Part I offenses.

• Have student discuss which of the theories described in this chapter are most likely to appeal to individual rights advocates and which are likely to appeal to public order advocates. Ask them to consider whether popular appeal makes the theories in question any more or any less valid and/or useful.

LIST OF CHANGES/TRANSITION GUIDE •

Discussion of rappers Jimmy Wopo and XXXTentacion have been added to the chapter, along with expanded coverage of Surge Night’s legal difficulties.

•

A new key term, “neuroscience,” has been added to the chapter and defined.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

As an introduction to this topic, show the class a picture of a well-known criminal (for example, Al Capone, Jeffrey Dahmer, Charles Manson). Describe his or her criminal activities and any background information you can find about him or her. In general terms, present and discuss how the various theoretical schools would attempt to explain that person’s behavior. For example, the biological theorists might argue that Jeffrey Dahmer was born to be a serial murderer. However, sociological theorists would argue that Dahmer was shaped by his environment.

•

Assign students to locate magazine pictures to illustrate each of the body types in Sheldon’s somatotype theory.

•

Have students arrange interviews (either in-person or online) with various representatives of the criminal justice system. During each interview ask students to briefly explain the theories 41 Copyright © 2021 Pearson Education, Inc.

of criminal behavior described in this chapter and ask the respondents which theoretical approach they think is most applicable to the kinds of offenders with whom they have dealt.

Find out why these professionals think as they do, and report back to the class.

•

Have students select a crime currently in the news and identify the theory that they think provides the best insight understanding the offender’s motivation.

•

Assign students to select a crime currently in the news and identify appropriate rehabilitative strategies for dealing with the perpetrator, based on each of the theoretical perspectives discussed in this chapter. Given the nature of the crime, which perspectives hold little hope for rehabilitation? Which perspectives hold the most hope of rehabilitation?

•

Assign students a specific criminal behavior (e.g., intimate personal violence, stalking, child molestation). Ask them to write an essay explaining which theory they believe is the most useful for explaining why offenders commit this type of crime. Have them propose a policy based on this theory that will help the criminal justice system more effectively respond to this type of crime and to offenders who commit it.

•

Have students research studies linking testosterone levels and crime commission. Ask them to consider if the researchers they identified would have focused on the role of testosterone as a possible explanation for crime if they did not already know from other sources, such as arrest rates, that males have greater involvement in crime than females. What does this say about the direction of science and explanations for crime?

•

Have students consider their own routine activities and identify which activities increase their vulnerability to victimization and which may reduce their risk. Have them consider which types of crimes they may be most vulnerable to.

•

Some prisons provide inmate speakers. These are usually “honor-grade” inmates who have progressed through a speaker’s training program and who can be depended on to provide a good classroom experience. If a prison in your area has such a program, arrange to have an inmate speaker brought to the classroom. Have students outline selected theories of criminal behavior from this chapter and be ready to present them briefly to the speaker during a question-and-answer session. Students can then ask which theoretical approach the inmate speaker finds most applicable in terms of his or her own experience.

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

What is a theory? Describe the steps in criminological theory building, and explain the role that social research plays in the development of theories about crime.

A theory is a set of interrelated propositions that attempt to describe, explain, predict, and ultimately control some class of events. The steps of criminological theory building are: • A correlation is observed.

• Questions are raised about causes.

• A theory is proposed.

• Theory-based understanding is achieved.

• A theory-based hypothesis develops.

• The hypothesis is tested.

• Theory-based social policy results.

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The role of social research serves to provide models that provide a better understanding of criminal behavior and that aid in the development of strategies to combat the crime problem.

2.

List the basic assumptions of classical theories of crime causation, and describe the neoclassical perspective.

Classical theories of crime assume the following: • Crime is caused by the individual exercise of free will.

• Pain and pleasure are the two central determinants of human behavior.

• Crime erodes the quality of the bond that exists between individuals and society.

• Punishment is sometimes required to deter law violators.

• Crime prevention is possible through swift and certain punishment.

The neoclassical perspective places greater emphasis on rationality and cognition, believing that criminality is largely the result of conscious choice.

3.

Describe the basic features of biological theories of crime causation. What shortcomings of the biological perspective can you identify?

The basic assumptions of early biological theories include: • Human behavior, including criminal tendencies, is genetically based.

• A penchant for crime may be inherited.

• Criminals and deviants are in more primitive developmental stages in the evolutionary process than most people.

A major shortcoming of traditional (early) biological theories is that they suggest the need for extreme social policies, such as the eugenics movement. In addition, there is little empirical support for biological theories of crime causation, and much of the early research on these theories was poorly designed.

4.

What is biosocial criminology? How do biosocial theories of criminality differ from other biological theories?

Unlike early biological theories, which focused on fundamental physical characteristics that are not easily changed, biosocial criminology sees the interaction between biology and the physical, cultural, and social environments as key to understanding human behavior, including criminality. Biosocial criminology recognizes the role that human DNA, environmental contaminants, nutrition, hormones, physical trauma, and body chemistry play in behavior that violates the law. The detailed mapping of human DNA and other recent advances in the field of recombinant DNA have rekindled interest in genetic correlates of criminal behavior.

5.

Describe the basic features of psychological explanations for crime. What are the shortcomings of this perspective?

Early psychological theories generally focused on behavioral conditioning or personality.

The basic features of psychological explanations of crime are: • The individual is the primary unit of analysis.

• Personality is the major motivational element in individuals.

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• Crimes result from inappropriately conditioned behavior.

• Defective or abnormal mental processes may have a variety of causes.

This perspective does have some shortcomings. Psychological theories tend to be mainly individualistic, focusing on ways of treating individual offenders to overcome that person’s propensity for crime. Additionally, many psychological explanations of explanation of crime are dependent on the ability to predict future behavior based on past behavior, with allowance for the effects of therapeutic intervention—an inexact science, at best. Profiling is incredibly challenging, but the very best profilers can reliably describe an offender’s social and psychological characteristics. It is, however, very difficult to predict the future dangerousness of an individual.

6.

Describe the basic features of sociological explanations for crime. What are the shortcomings of this perspective?

The basic features of sociological explanations for crime include: • Social groups, social institutions, the arrangements of society, and social roles all provide the proper focus for criminological study.

• Group dynamics, group organization, and subgroup relationships form the causal nexus out of which crime develops.

• The structure of society and its relative degree of organization or disorganization are important factors that contribute to the prevalence of criminal behavior.

While all sociological perspectives share these characteristics, individual theories may give more or less weight to certain aspects of social life, including: • The clash of norms and values among variously socialized groups • Socialization and the process of association between individuals • The existence of subcultures and varying types of opportunities One shortcoming of sociological theories is that it emphasizes the development of social programs to eliminate crime. These may be expensive and are sometimes ineffective.

However, most contemporary analysts would probably select sociological explanations of crime as having the most explanatory power because the sociological perspective recognizes the influence of culture and environment on both personality and individual choices.

7.

Describe social process theories of crime causation, including labeling theory and the life course perspective. What types of crime-control policies might be based on such theories?

Social process theories build on the premise that behavior (good or bad) is learned and suggest that bad behavior can be unlearned. Differential association theory explains crime as a natural consequence of the interaction with criminal lifestyles. Restraint theories primarily focus on why people do not break the law, supplying only half the causation formula.

Labeling theory sees continued criminal activity as a consequence of limited opportunities for acceptable behavior. The life course perspective is an approach to explaining crime and deviance that investigates developments and turning points in one’s life course. Social process theories are attractive to policymakers today because they place the responsibility on the offender for actively participating in rehabilitation efforts and because they are consistent with popular cultural and religious values centered on teaching right from wrong. Crime 44 Copyright © 2021 Pearson Education, Inc.

control policies based on these theories emphasize programs to combat criminal activity before a subject has a chance to participate in such activity. For instance, there are many community programs that involve health and human services professionals in an effort to divert criminal activity from a young age.

8.

Describe conflict theories of crime causation, including radical criminology and peacemaking criminology. What sorts of crime-control policies might be predicated on the basis of such theories?

The conflict perspective believes that conflict is a fundamental aspect of social life and can never be resolved. The key elements of the conflict perspective include: • Society is composed of diverse social groups, and diversity is based on distinctions that people hold to be significant.

• Conflict between and among groups is unavoidable because of their different interests and values.

• The fundamental nature of group conflict centers on the exercise of political power.

• Law is a tool of power that furthers the interests of those powerful enough to make it.

Radical criminology focuses on the unequal distribution of wealth, power, and other resources that is especially characteristic of capitalist societies and places blame for criminality and deviant behavior on officially sanctioned cultural and economic arrangements. Peacemaking criminology holds that crime control agencies and the citizens they serve should work together to alleviate social problems and human suffering and thus reduce crime. Since conflict theories see social inequality as the cause of crime, the only way to combat this is to change the balance of society through a redistribution of wealth and power. In reality, most agree that policy alternatives that change the present system incrementally will help.

9.

What is meant by “emergent perspectives”? List and describe two emergent perspectives on crime causation.

Emergent theories are new, developing criminological theories that challenge and/or expand existing theories that have dominated explanations of criminal behavior. Feminist criminology emphasizes gender issues and stresses the usefulness of applying feminist thinking to criminological analysis. Postmodern criminology builds on the tenets of postmodern thought. Because it challenges and debunks existing perspectives, it is considered deconstructionist.

Questions for Reflection 1.

Chapter 1 referred briefly to evidence-based practices. What evidence-based practices might be developed as a result of the studies discussed in this chapter?

Answers will vary.

2.

What is the relationship between punishment and classical and neoclassical thought?

With what types of offenders might punishment be the most effective in reducing recidivism?

Punishment is critical to both classical and neoclassical thought. It is fundamental to these theories that individuals are rational human beings, and thus it is thought that they will weigh 45 Copyright © 2021 Pearson Education, Inc.

the costs against the benefits of committing a crime. Answers will vary concerning the types of offenders for which punishment might be most effective.

3.

Do you think that biological theories successfully explain the causes of crime? Why or why not?

Answers will vary.

4.

How do biosocial theories of crime differ from early biological theories? What is the central feature of biosocial theories?

Biosocial criminology, a contemporary biological perspective, sees the interaction between biology and the physical, cultural, and social environments as key to understanding human behavior, including criminality. Traditional biological theories of crime posit a genetic or a physiological basis for deviant and criminal behavior. The notion of a “weak” gene that might predispose some people toward criminal activity has been expanded to include the impact of environmental contaminants, poor nutrition, and food additives on behavior. As research in this area grows, there is the potential that biosocial theories could influence crime-reduction strategies. The focus of a crime-reduction strategy that aligns with these theories would increase the role of the medical field in making diagnoses about particular “criminal problems” and recommending specific drug treatments and other types of procedures to potentially cure offenders. However, since research in this area is still in the process of being developed, these theories should play a minimum role in the development of crime-reduction strategies, and the focus should be on more research to refine our understanding of the relevance of these theories.

5.

Do you think that psychological theories of crime causation are sound? Why or why not?

Answers will vary.

6.

Do you think that sociological theories of crime causation are sound? Why or why not?

Answers will vary.

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Chapter 4 Criminal Law CHAPTER OVERVIEW Laws are rules of conduct, usually found enacted in the form of statutes, that regulate relationships between people and also between parties. One of the primary functions of the law is to maintain public order. Laws also serve to regulate human interaction, enforce moral beliefs, define the economic environment of a society, enhance predictability, promote orderly social change, sustain individual rights, identify wrongdoers and redress wrongs, and mandate punishment and retribution. Because laws are made by those in power and are influenced by those with access to power brokers, they tend to reflect and support the interests of society’s most powerful members.

The rule of law, which is sometimes referred to as the supremacy of law, encompasses the principle that an orderly society must be governed by established principles and known codes that are applied uniformly and fairly to all of its members. It means that no one is above the law, and it mandates that even those who make or enforce the law must also abide by it. The rule of law is regarded as a vital underpinning in Western democracies, for without it disorder and chaos might prevail.

This chapter identifies various types of law, including common law, criminal law, civil law, administrative law, case law, and procedural law. This chapter is concerned primarily with criminal law, which is that form of the law that defines and specifies punishments for offenses of a public nature or for wrongs committed against the state or against society.

Violations of the criminal law can be of many different types and can vary in severity. Six categories of violations are discussed in this chapter: felonies, misdemeanors, infractions, treason, espionage, and inchoate offenses.

The chapter also discusses eight general features of crime. These include actus reus (the guilty act); mens rea (the guilty mind); concurrence; causation; harm; legality; punishment; and necessary attendant circumstances. Recently there has been some discussion regarding the revision of federal laws to create uniform mens rea standards.

Written laws specify exactly what conditions are required for a person to be charged in a given instance of criminal activity. The elements of a crime are specific legal aspects of the criminal offense that the prosecution must prove in order to obtain a conviction. Guilt can be demonstrated, and criminal offenders convicted, only if all of the statutory elements of the particular crime can be proved in court.

The chapter concludes with a discussion of various types of defenses to a criminal charge, including alibi, justifications, excuses, procedural, and innovative. The alibi defense is very straightforward in that the defendant argues that he or she was nowhere near the crime when it happened. Defendants who offer a justification defense admit committing the act in question but claim that it was necessary to avoid some greater evil. Examples include self-defense, necessity, and defense of home. A defendant who offers an excuse defense claims that some personal condition or circumstance at the time of the act was such that he or she should not be held accountable under the criminal law. Examples include age, insanity, involuntary intoxication, and unconsciousness. Procedural defenses are defenses based on a violation of procedure, such as double jeopardy, collateral estoppel, selective prosecution, denial of speedy trial, prosecutorial misconduct, and police fraud.

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CHAPTER OBJECTIVES 1.

2.

3.

4.

5.

6.

7.

Summarize the purpose, primary sources, and development of law.

Define the rule of law, including its importance in Western democratic societies.

Summarize the various types of law, including the purpose of each.

Describe the six categories of crime and their characteristics.

Describe the eight general features of crime.

Explain what is meant by the elements of a specific criminal offense.

Compare and contrast the four broad categories of accepted criminal defenses.

CHAPTER OUTLINE I. Introduction II. The Nature and Purpose of Law • Discuss the importance of the common law to modern judicial decision-making.

• Review the various purposes of the law. Ask students to discuss which of these purposes individual-rights advocates would most likely agree and which would appeal most to public-order advocates.

• Hold a discussion as to whether laws that enforce moral beliefs serve any significant purpose today, and whether they are even enforceable given society’s increasing diversity.

• Point out the difference between laws intended to prevent harm and laws designed to promote social good. Ask students to identify instances of both in the criminal code of their home state.

• When discussing the purposes of law, question students regarding their preconceptions about what the law is supposed to be and what it is supposed to do.

• Explain what law is by referring to both statutory and case law.

• Explain how statutory law is the result of powerful interest groups that have succeeded in having their values formally endorsed. Link this back to the discussion of conflict and radical criminology in Chapter 3.

• Ask student why clichés like “ignorance of the law is no excuse” and “no one is above the law” are important to our concept of law.

III. The Rule of Law • Explain the rule of law and how society must be governed by established principles and codes.

• Discuss why the rule of law is so important.

IV. Types of Law • Distinguish among criminal, civil, and administrative law, and give reasons for the distinctions that we draw among these various categories of law.

A. Criminal Law B. Statutory Law • Explain the difference between substantive and procedural law.

C. Civil Law • Discuss the ways in which civil and criminal law overlap.

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• Discuss the consequences of “frivolous” litigation for the American system of civil law.

D. Administrative Law E. Case Law • Demonstrate the significance of the law of precedent, or case law, by pointing to past Senate hearings over Supreme Court nominees (such as Judges Robert Bork and Clarence Thomas) during which senators realized that the philosophical leanings of judicial nominees could impact the social order.

V. General Categories of Crime • When explaining how felonies, misdemeanors, and infractions differ, suggest that the distinction between these categories is an artificial one, and that all offenses are crimes with greater or lesser punishments specified for them by the criminal law.

• Discuss how the seriousness of a particular crime, as determined by the degree of punishment, can change over time. Good examples include drunk driving and changes in the seriousness of drug crimes.

A. Felonies • Remind students that most of the UCR Part I crimes are felonies.

B. Misdemeanors C. Infractions • Explain that infractions generally do not involve any type of custodial sentence.

D. Treason E. Espionage • Explain that only U.S. citizens can commit treason, but espionage can also be committed by noncitizens.

F. Inchoate Offenses • Explain how an incomplete act can still be a crime.

VI. General Features of Crime • Discuss the three features of a crime. Stress that there can be no crime unless all the features are present.

A. The Criminal Act (Actus Reus) • Explain that it is not a crime to be an alcoholic or drug addict.

• Explain that an omission, or failure to act, can also be a “criminal act”.

B. Guilty Mind (Mens Rea) • Have students locate current news articles on crime and discuss the type of mens rea that may have been present in each case.

• Ask students whether they agree with the doctrine of transferred intent and whether criminal liability in this type of situation should be reduced.

• Emphasize that mens rea is not the same as motive.

1. Reckless Behavior and Criminal Negligence 2. Strict Liability

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• Have students discuss the concept of strict liability crimes and debate whether an individual should be punished for a crime if he or she had no intent to violate the law.

• Ask students to create a list of strict liability crimes in your state and discuss whether punishment for these crimes is justified when there is no intent to cause harm.

3. Federal Criminal Justice Reform and Mens Rea C. Concurrence D. Other Features of Crime • After introducing the various features of crime, help students understand that there can be no crime unless all the features are present. Use a courtroom situation in which a prosecutor proves each element of a specific crime. Students can take turns using different crimes.

1. Causation 2. Harm 3. Legality 4. Punishment 5. Necessary Attendant Circumstances VII. Elements of a Specific Criminal Offense • Use the criminal code of your state to obtain examples of the elements of various crimes.

• Assign students a specific crime and have them research how the crime is defined in their state and in other states. Have them report on how the elements of a specific crime may differ depending on the state.

A. The Example of Murder • Distinguish between homicide (the killing of a human being) and murder or “criminal homicide” (the unlawful killing of a human being). Discuss justifiable and excusable homicide, both of which are non-criminal homicides. Refer back to the discussion of homicide in Chapter 2.

B. The Corpus Delicti of a Crime • Distinguish between the corpus delicti and the physical body of a murder victim.

Show that the two are not the same by demonstrating that it is possible to convict a person of murder even though the body of the victim is never recovered.

• Explain the difference between the corpus delicti of a crime and the statutory elements necessary to convict a particular person of having committed a specific crime.

VIII. Types of Defenses to a Criminal Charge • Explain the four categories of defenses recognized by the legal system. Point out that the category of “alibi” is actually a single defense, rather than an overarching category containing multiple types of defenses.

• Ask students how they can defend themselves in court by admitting that they committed the criminal act of which they are accused.

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A. Alibi • Explain that an alibi defense is the only defense in which the defendant actually claims that he or she did not commit the crime.

B. Justifications • Explain that justification defenses essentially claim that the defendant had to choose the lesser of two evils.

1. Self-Defense • Have students review the state self-defense statute (or assign each student or group of students a specific state to research) to determine what is considered to be “reasonable force” and identify under which situations an individual has the right to harm another person.

• Organize the students into groups and conduct a debate on whether the Florida “Stand Your Ground” law should be repealed.

2. Defense of Others 3. Defense of Home and Property • Explain the “castle exception” 4. Necessity 5. Consent 6. Resisting Unlawful Arrest C. Excuses • Explain the difference between a justification and an excuse.

1. Duress • Point out that duress is generally not a valid defense for crimes involving serious harm to another person. Ask students to discuss whether they agree with this restriction on the use of the defense of duress.

2.

3.

4.

5.

6.

7.

Age Mistake Involuntary Intoxication Unconsciousness Provocation Insanity • Explain the difference between insanity as a legal term and the medical concept of mental illness.

• Link the insanity defense to the concept of mens rea, and explain how insanity may negate intent.

• Explain the different rules and tests for insanity. Ask students which ones they feel make the most sense, and ask them to explain their reasoning.

• Ask students to research the form that the insanity defense takes in their state (or assign each student or group of students a state to research) and to determine which of the tests described in the textbook are closest to their state’s understanding of insanity as a criminal defense. Have them determine whether their state permits some form of the “guilty but mentally ill” finding.

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Ask them to tell the class whether they agree or disagree with their state’s position on the insanity defense and to explain why.

• Explain how the concept of “guilty but mentally ill” conflicts with conventional understanding about the mens rea component of criminal intent.

• Explain the social reaction to the acquittal of John Hinckley and the impact it had on insanity defense laws around the country.

• Lead a discussion on the ways in which changes and developments in the insanity defense reflect shifting conceptions of how to balance individual rights with the need to punish wrongdoers.

• Point out that the insanity defense is rarely used and when it is used, it is rarely successful.

• Discuss the ways in which the criminal justice system handles individuals who are found “guilty but mentally ill.”

8. Diminished Capacity 9. Mental Incompetence • Explain the difference between insanity and mental incompetence. Point out that an individual may have been legally sane at the time of the crime but still be found mentally incompetent to stand trial.

D. Procedural Defenses • Point out that procedural defenses do not address the question of whether or not the defendant who committed the crime had an excuse or justification. Instead, they focus on some failure by the criminal justice system to follow proper procedure. In other words, the defendant is released from criminal liability not because he or she has been shown to be innocent but because the system made a mistake.

• Ask students to discuss whether procedural defenses are reasonable; in other words, whether a guilty defendant should go free because the system made an error. Have them discuss how we can balance the defendant’s right to due process with the need to protect society.

1. Entrapment • Discuss the use of the entrapment defense by various well-known individuals (for example, automotive executive John DeLorean; Washington D.C. Mayor Marion Barry; and various members of Congress accused of taking bribes).

2.

3.

4.

5.

6.

7.

Double Jeopardy Collateral Estoppel Selective Prosecution Denial of a Speedy Trial Prosecutorial Misconduct Police Fraud

LIST OF CHANGES/TRANSITION GUIDE •

Information on the insanity defense has been updated.

•

In the list of types and levels of crimes, the word “infraction” has replaced “offense.”

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ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Point out that the rule of law holds that an orderly society must be governed by established principles and known codes that are applied uniformly and fairly to all members and ask students whether the U.S. is an orderly society, since every state (and the federal government) has an individual criminal code. To respond to this, have students select two neighboring states and research how several crimes (both felonies and misdemeanors) are defined. Have them report on the similarities and the differences and decide if the systems in the two states are similar enough that our society may be considered “orderly” or if the differences are so significant that a key fundamental principle of our society may be undermined.

•

Ask students to research the criminal code of their home state and create a list of public order offenses in their state (state criminal codes are available on the Internet). Have students identify the potential indirect victims in each “victimless crime” they discover. Ask students to compare the criminal code of their home state with the laws of other states to determine which jurisdictions have enacted the largest number of “victimless crime” statutes. Ask the class to discuss why some states have criminalized more of these kinds of offenses than other states.

•

Use the civil case examples in the textbook to illustrate the increases in the number of civil law cases filed in court, and discuss issues of compensatory damages, punitive damages, and gross negligence.

•

Have students research the criminal code of their home state and identify the laws relating to the eight Part I crimes. Remind students that the terminology used by the FBI may not be the same as that used by the state laws (e.g., rather than “rape,” many states use a term such as “sexual assault”). For each crime, students are the list the eight key features of the crime.

Consider pairing students up and asking them to compare the differences between two states regarding how the elements are defined by the criminal law.

•

Distinguish between the ideational “body of the crime” (the corpus delicti of an offense) and the physical body of a murder victim. One way to illustrate that the two are not the same is to show that it is possible to convict a person of murder even though the body of the victim is never recovered. In a case from the 1990s, for example, a military officer whose wife disappeared was convicted of her murder based on the discovery of a computer disk in his office entitled “Murder.” On it he described in detail how he planned to kill his wife and dispose of her body.

•

Describe the defense attorney’s role in proving the existence of a criminal defense. Explain that a defense to a criminal charge does not necessarily mean that a person denies committing the act in question. Use self-defense as an example of how one person can kill another and still be found not guilty.

•

Ask students to write an essay on the insanity defense in their home state (or assign students a state to research). Have students research the form that the insanity defense takes in their home state and examine the laws of criminal procedure or precedent to determine whether the historical roots of their state’s practice lie in the M’Naghten rule or in some other rule.

Ask them to decide which forms of the insanity defense described in the text the closest to their state’s view of insanity as a criminal defense. Have them determine whether their state makes possible some form of the “guilty but mentally ill” finding. Consider having students present their findings to the class and discuss whether they agree or disagree with their state’s position on the insanity defense and to explain why.

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•

Prior to class, visit an online law dictionary. Enter each of the key terms at the start of Chapter 4 into the dictionary. Prepare slides for classroom projection that show the definitions from the Web site and the textbook side by side. Ask your students to discuss what differences exist in the two definitions.

•

In class, visit the Web site for the National Law Journal or another similar major legal publication. Display the Web site to the class and have students discuss the various issues highlighted on the site.

•

When discussing the elements of a crime, these may be explained using the example of murder. Consider a case in which Joan killed her husband by stabbing him with a kitchen knife. Joan had been frequently subjected to beatings, some resulting in hospitalization, from her husband. Moreover, her husband had threatened to kill Joan on at least four prior occasions.

1. Actus reus (guilty act): The first general feature of crime is that there must be an act in violation of the law. Here, the act is murder. If Joan stabbed her husband and he survived, she could be charged with attempted murder. If Joan took steps to complete the murder but was unable to carry out her attempt, she could be charged with conspiracy to commit murder. If she approached an undercover police officer and asked him to commit a murder, she could be charged with solicitation to commit a murder.

2. Mens rea (guilty mind): This refers to the person’s state of mind when the act was committed and is probably the most complex feature because it involves subjective evaluation of the mind. Did Joan intend the consequences of her action?

3. Concurrence: The element requires that the act and intent occur together for a crime to occur. Joan’s actions have to be linked with her intent.

4. Causation: This element refers to legal cause; there must be a causal link between the crime and the harm resulting from it. If Joan shot her husband and he survived for a month but then died of complications related to a cancerous brain tumor, it would be difficult to convict Joan of murder because the act (the shooting) would not be linked to the harm (the death).

5. Harm: Harm occurs in any crime. The harm in this case is the death of another human being.

6. Legality: For a behavior to be a crime, a law against that behavior must exist. Murder is well defined in the criminal law.

7. Punishment: Not only must there be a law on the books, but that law must provide a punishment for the crime. Statutory punishments for murder are among the severest punishments available to judges.

8. Necessary attendant circumstances: This element refers to the facts surrounding the incident. Even if each of the statutory elements can be established, a defendant has the opportunity to raise defenses that could excuse his or her actions. For example, Joan might argue that she committed the act in self-defense as a battered woman who thought her life was in danger

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

What is the purpose of law? What would a society without laws be like?

The purpose of law is to regulate relationships between parties and between people. Without law, people would not know what to expect from each other (civil), would not feel safe 54 Copyright © 2021 Pearson Education, Inc.

(criminal), or be able to exercise their basic rights as a citizen (constitutional). Society needs laws to uphold fairness and to prevent the victimization of innocents.

2.

What is the rule of law? What is its importance in Western democracies? What does it mean to say that “nobody is above the law”?

The rule of law is essentially the belief that an orderly society must be governed by established principles and codes that are applied uniformly and fairly to all of its members.

The rule of law is central to Western democracies. It allows people to disagree with the law and ensures that due process has to be followed in any criminal prosecution. To say that nobody is above the law means that those who make or enforce the law must also abide by it.

3.

What types of law does this chapter discuss? What purpose does each serve?

• Criminal law is the rules and regulations that define what behaviors are criminal and specifies punishments. Such offenses are committed against society.

• Statutory law is written law. It includes both substantive and procedural criminal law.

• Substantive criminal law that defines crimes and specifies punishments.

• Procedural law specifies the methods to be used in enforcing substantive law.

• Civil law regulates relationships between parties. The focus of civil law is on noncriminal relationships.

• Administrative law focuses on the regulations created by government to control businesses, industries, and individuals.

• Case law provides a guide to court decision making because it includes the body of judicial precedent.

4.

What are the six categories of criminal law violations? Describe each, and rank the categories in terms of seriousness.

• Felonies are serious crimes, such as murder and rape. Offenders convicted of felonies can be incarcerated or sentenced to death and will lose certain privileges.

• Misdemeanors are relatively minor crimes, such as petty theft. Generally, misdemeanors are punishable by a year or less in prison.

• Infractions are minor violations of the law, such as spitting on the sidewalk and littering.

Offenders are usually ticketed.

• Treason is considered among the most serious felonies. Treason occurs when a U.S. citizen helps a foreign government overthrow, make war against, or injure the United States.

• Espionage is also considered among the most serious felonies. It is related to treason but can be committed by noncitizens. Espionage focuses on the gathering, transmitting, and losing of information related to national defense in such a manner that the information becomes available to enemies of the United States and may be used to their advantage.

• Inchoate offenses are incomplete offenses, or offenses that have not been fully carried out, such as conspiracy or an attempt. Inchoate offenses can still be serious (attempted murder), but they are less serious because the offense was not completed.

The rank order of seriousness will vary.

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5.

List and describe the eight general features of crime. What are the “three conjoined elements” that comprise the legal essence of the concept of crime?

(1) Actus reus is the guilty act or act in violation of the law.

(2) Mens rea is the guilty mind or the state of mind that accompanies a criminal act.

(3) Concurrence is the coexistence of (1) an act in violation of the law and (2) a culpable mental state (4) Causation means that the concurrence of mind and act must produce harm.

(5) Harm refers to the harm caused by the crime (6) Legality refers to the existence of a law that prohibits or mandates an action (7) Punishment refers to the sanctions imposed for violating the law. No crime can be said to occur where punishment has not been specified in the law.

(8) Necessary attendant circumstances are the facts surrounding an event.

The three conjoined elements that comprise the legal essence of the concept of crime are the criminal act, a culpable mental state, and a concurrence of the two.

6.

Explain what is meant by the elements of a specific criminal offense.

The elements of any specific crime are the statutory minimum conditions without which that crime cannot be said to have occurred. Because statutes vary across jurisdictions, the specific elements of a criminal crime may also vary from place to place. To convict a defendant of a particular crime, prosecutors must prove that all of the required statutory elements are present, and that the defendant was responsible for producing them. If even one element of an offense cannot be established beyond a reasonable doubt, the defendant will be found not guilty.

7.

What four broad categories of criminal defenses does our legal system recognize?

Under what circumstances might each be employed?

The four categories of criminal defense recognized include alibi, justification, excuse, and procedural defense. An alibi means that the defendant was somewhere else at the time of the crime. When a defendant offers a justification, he or she admits to the wrong but argues that it was necessary to avoid a greater evil. A defendant offering an excuse claims that a personal condition or circumstance was such that he or she should not be held accountable under the law. A defendant who makes a procedural defense claims that he or she was discriminated against in some way or appropriate procedures were not followed.

Questions for Reflection 1.

What is common law? What impact does common law have on contemporary American criminal justice?

Common law is a body of unwritten judicial opinion that is based on customary social practices of Anglo-Saxon society during the Middle Ages. It forms the basis of much of our modern statutory and case law and has often been called the major source of modern criminal law. Although largely supplanted in all U.S. jurisdictions by statutory (written) law, common law principles still serve as powerful interpreters of legal issues that arise in state codes and the dictates of state law.

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2.

How does the legal concept of insanity differ from psychiatric explanations of mental illness?

Legal insanity meets the needs of the judiciary and is used to determine guilt and innocence.

Psychiatry is concerned with the diagnosis and treatment of mental illness. Medical conceptions do not always fit into the legal categories to handle cases involving the mentally ill.

3.

Does the insanity defense serve a useful function today? If you could create your own rule for determining insanity in criminal trials, what would it be? How would it differ from existing rules?

Answers will vary.

4.

What is meant by the corpus delicti of a crime? How does the corpus delicti of a crime differ from the statutory elements that must be proved to convict a particular defendant of committing that crime?

Corpus delicti, a Latin term that means “the body of the crime,” refers to the set of facts that show that a crime has occurred. The term does not refer to the human remains of the victim of a homicide. The corpus delicti of an offense includes two aspects: (1) that a certain result has been produced and (2) that a person is criminally responsible for its production. Elements of the crime are the essential features of that crime as established by law or statute. Those elements specify exactly what conditions are necessary for a person to be charged in a given instance of criminal activity.

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Chapter 5 Policing: History and Structure CHAPTER OVERVIEW Chapter 5 begins with a discussion of the historical development of police departments in England and America. An organized police response to social problems in England did not occur until the 1700s. Prior to that time, a posse, led by a comes stabuli, would respond to assist victims. Later, bailiffs were assigned to maintain a night watch, which was used to detect fires and spot thieves. British police practices were codified in the 1285 Statute of Winchester. By the early 1800s, the bailiff system had broken down.

The modern English police began to evolve in the 1700s when Henry Fielding became the magistrate of the Bow Street region of London and developed the Bow Street Runners. In 1829, under the guidance of Sir Robert Peel, the new police (or the Metropolitan Police) was formed.

Characteristics of the new police can still be found in English and American police forces. For example, the new police operated under the belief that it was possible to discourage crime by patrolling the streets, they wore uniforms to make themselves accessible to the public, and they structured their departments much the same as a military organization.

American policing evolved similarly, and early police departments, such as those organized in New York City, Boston, and Cincinnati, studied Peel’s new police when deciding structure and police response. However, police departments in the United States also addressed the special and unique concerns of the country, such as managing the Western frontier.

American police departments have evolved considerably over the years. Recently, the police are increasingly relying on scientific research when deciding how to respond to crime most effectively. The text discusses how important research studies, such as the Kansas City Experiment, that have had a tremendous impact on the current structure and philosophy of police departments. Evidence-based policing is considered a very powerful force for change in policing today.

Chapter 5 also discusses the decentralized structure of policing in the United States, highlighting differences among federal, state, local, and privately owned law enforcement agencies. Federal law enforcement agencies are responsible for enforcing federal laws. There are dozens of federal law enforcement agencies; the most famous is the Federal Bureau of Investigation. State police agencies, whether centralized or decentralized, are responsible for patrolling state highways and conducting statewide criminal investigations. Local police includes both municipal and sheriff’s departments, as well as specialized police agencies. There is considerable diversity in the size and structure of local law enforcement agencies and local police officers have a more diverse job description than federal and state officers do.

The fourth level of law enforcement in the U.S. today is private protective services, which is much larger than the public police. The number of individuals employed in private security is higher than that in the other levels combined. Although the primary concern of the textbook is how local, state, and federal police respond to crime, discussion of private policing is important because of the growing influence of private security in criminal justice and the overlap of public and private security agencies.

58 Copyright © 2021 Pearson Education, Inc.

CHAPTER OBJECTIVES 1.

2.

3.

4.

5.

Summarize the historical development of policing in America.

Briefly describe federal law enforcement agencies, including the FBI. Identify the two major models of state law enforcement organization.

Describe the various kinds of local law enforcement agencies and their roles in enforcing the law.

Describe private protective services in the United States and their possible future roles.

CHAPTER OUTLINE I.

Introduction • Ask students to consider how the needs of contemporary society help to structure the activities of today’s law enforcement agencies.

II. Historical Development of the Police • Review the development of the modern police, beginning with law enforcement practices in early England, continuing with the growth of American police forces, and culminating with a description of contemporary American law enforcement agencies.

• Discuss how the changing needs of society have contributed to a variety of law enforcement models at different times throughout history. For example, use the “Wild West” model of law enforcement personified by Wyatt Earp and others to show how a “six-gun” culture gave rise to a peculiarly American enforcement style.

A. English Roots 1. The Bow Street Runners 2. The New Police B. The Early American Experience 1. The Frontier • Discuss early vigilante groups and the effect they had on frontier justice.

2. Policing America’s Early Cities • Discuss the impact of telephones, automobiles, and radios on crime and law enforcement. Point out that these are all examples of “new technology” and link the challenges faced by police then to those faced by police today.

3. Prohibition and Police Corruption • Review the origins and impact of the Eighteenth Amendment (Prohibition) and trace its effects on crime and law enforcement.

C. The Last Half of the Twentieth Century D. Evidence-Based Policing • Remind students that there is a difference between the kind of evidence gathered by law enforcement authorities seeking to prosecute criminal offenders and the kind of evidence used in evidence-based practice.

1. The Kansas City Experiment •

Discuss response time findings with students. The research in this area indicates that improving police response time does not increase the likelihood 59 Copyright © 2021 Pearson Education, Inc.

of apprehending suspects. Ask students to consider possible explanations for this finding.

• Revisit the research issues discussed in Chapter 3 and use the Kansas City Preventive Patrol Experiment to illustrate the controlled experiment as a type of research design.

2. Evidence-Based Policing Today • Explain the rise of scientific police-management studies, beginning with the Kansas City Preventive Patrol Experiment of 1974. Ask students how evidence-based policing represents a continuation of this earlier tradition.

• Explain the importance of systematic reviews, such as those conducted by the Campbell Collaboration.

• Discuss other research into policing practices and how research findings have impacted policing. For example, the Minneapolis Domestic Violence Experiment (and the replications), contributed to changes in legislation permitting warrantless arrest for domestic violence as well as to a move towards mandatory arrest. (The Campbell Collaboration will have examples of systematic reviews on policing practices).

• Divide the class into groups. Ask each group to develop a plan to research and evaluate some aspect of local law enforcement operations with a focus on cost-effectiveness. Have students decide on how their proposed evaluation would be structured, what they would measure, who would conduct it, and what kinds of difficulties they can anticipate.

• Explain the need to constantly continue to evaluate policing techniques to help police better meet their goals and to ensure limited resources are used wisely. Highlight the fact that reduced federal funding for scientific studies of the police has resulted in dramatically fewer studies today than in the heyday of public funding.

III. American Policing Today: Federal Agencies • Explain that the structure of modern-day American policing is very complex, with agencies functioning at the federal, state, and local levels. Ask students to identify various types of problems that might arise as a consequence of this complex structure and discuss ways to reduce or eliminate these problems.

• Describe the multidimensional structure of American law enforcement in terms of federal, state, local, and private agencies.

• Discuss the difference between police and law enforcement agencies. Explain why the U.S., unlike some countries, does not have a national police department.

A. The Federal Bureau of Investigation • Explain how the FBI’s function and primary activities have changed since the bureau’s early days and discuss how terrorist attacks on the United States have had a special impact on the FBI’s activities.

1. The FBI and Counterterrorism V. American Policing Today: State Agencies • Explain the advantages and the disadvantages of centralized and decentralized state police organizations.

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• Have students research the state policing model used in their state (or assign students or groups of students a specific state to research). Have students debate which model would be the best for their state.

VI. American Policing Today: Local Agencies • Ask students why they think the United States has so many local police departments?

Have the class discuss whether the United States might be better served by one national police agency, instead of so many separate local departments • Discuss the pros and cons of appointing vs. electing police chiefs and/or sheriffs.

• Gather information about the agencies in the jurisdiction of the college or university where you instruct and present it to the class. Discuss the number and types of law enforcement agencies in your jurisdiction.

VII. Private Protective Services • Ask students if they believe the rapid growth of private protective services can be expected to continue. Have students predict the problems as well as the benefits that continued expansion of private security services could entail for public law enforcement agencies.

• Ask students to discuss ways in which cooperation between private and public police agencies might be enhanced, particularly as the role of private security is continuing to expand.

• Discuss the ways in which the threat of terrorism has contributed to the growth of private security in the United States.

A. Integrating Public and Private Security

LIST OF CHANGES/TRANSITION GUIDE •

The boxed lists of police and private security agencies have been updated.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Divide the class into groups. Ask each group to develop a plan to scientifically evaluate some aspect of local law enforcement operations. Have students decide on how their proposed evaluation would be structured and who would conduct it. Ask them to anticipate any difficulties.

•

Break the class into small groups of four or five students. Assign each group one of the research studies mentioned in the text. You might want to request that they get abstracts or copies of the studies. Have each group discern the design of the study and its important findings; then have groups share information with the rest of the class. Alternatively, have students visit the National Criminal Justice Reference Service web site and locate recent research on law enforcement.

•

Have students visit the websites of several of the federal law enforcement agencies listed in the text and describe the history, mission, organization, and responsibilities of each agency.

•

Have students gather information about the agencies in the jurisdiction of your college or university and present it to the class. Discuss the number and types of law enforcement agencies within your jurisdiction.

•

Invite a speaker from a local law enforcement agency to address students on departmental structure and operations. Ask students to question the speaker about how his or her agency 61 Copyright © 2021 Pearson Education, Inc.

has responded to the threat of terrorism. You might wish to consider computer conferencing as an alternative to a classroom visit.

•

Have students visit the websites of several of the private security agencies listed in the text and describe the history and organization of each agency, as well as the types of security services each agency provides.

•

Invite a speaker from a private security firm to address students on agency structure and operations. Ask students to question the speaker about how his or her agency has responded to the threat of terrorism. You might wish to consider computer conferencing as an alternative to a classroom visit.

•

Prior to class, visit a number of private security agency sites on the Web. Gather information on each agency, including services offered, requirements for hiring, employment opportunities, and table of organization. Prepare a presentation for class containing the information you have gathered, organized by agency. Present and review in class.

•

Visit the Web sites of three different law enforcement agencies: one federal, one state, and one local. Summarize the characteristics of the different agencies. In class, have students view the information and assess the amount and type of information posted on the World Wide Web for each type of department.

•

For each of the agencies listed in Table 5-1: American Policing: Federal Law Enforcement Agencies, click on the links to read job descriptions and find a link to the agency’s job information website.

U.S. Forest Service https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/us_forest_service.html Bureau of Export Enforcement https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/bureau_of_export_enforcement.html National Marine Fisheries Administration https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/national_marine_fisheries_administration.html Air Force Office of Special Investigations https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/air_force_office_special_investigations.html Army Criminal Investigation Division https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/army_criminal_investigation_division.html

62 Copyright © 2021 Pearson Education, Inc.

Defense Criminal Investigative Service https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/defense_criminal_investigative_service.html Naval Criminal Investigative Service https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/naval_criminal_investigative_service.html National Nuclear Safety Administration https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/national_nuclear_safety_administration.html Office of Mission Operations https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/office_of_mission_operations.html Office of Secure Transportation https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/office_of_secure_transportation.html Food and Drug Administration, Office of Criminal Investigations https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/food_drug_administration.html Federal Law Enforcement Training Center https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/federal_law_enforcement_training_center.html Federal Protective Service https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/federal_protective_service.html Transportation Security Administration https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/transportation_security_administration.html U.S. Coast Guard 63 Copyright © 2021 Pearson Education, Inc.

https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/us_coast_guard.html U.S. Customs and Border Protection https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/us_customs_border_protection.html U.S. Immigration and Customs Enforcement https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/us_immigration_customs_enforcement.html U.S. Secret Service https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/us_secret_service.html Bureau of Indian Affairs https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/bureau_indian_affairs.html Bureau of Land Management https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/bureau_land_management.html Fish and Wildlife Service https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/fish_wildlife_service.html National Park Service https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/national_park_service.html U.S. Park Police https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/us_park_police.html Bureau of Alcohol, Tobacco, Firearms, and Explosives https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/bureau_alcohol_tobacco_firearms_explosives.html 64 Copyright © 2021 Pearson Education, Inc.

Bureau of Prisons https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/bureau_prisons.html Drug Enforcement Administration https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/dea.html Federal Bureau of Investigation https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/federal_bureau_investigation.html U.S. Marshals Service https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/us_marshals_service.html Office of Labor Racketeering https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/office_labor_racketeering.html Diplomatic Security Service https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/diplomatic_security_service.html Federal Air Marshals Program https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/federal_air_marshals.html Internal Revenue Service, Criminal Investigation Division https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/irs.html Treasury Inspector General for Tax Administration https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/treasury_inspector_general_tax_administration.html Office of Security and Law Enforcement 65 Copyright © 2021 Pearson Education, Inc.

https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/office_security_law_enforcement.html U.S. Postal Inspection Service https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/us_postal_inspection_services.html AMTRAK Police https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/amtrak_police_department.html Environmental Protection Agency, Criminal Investigations Division https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/epa.html Federal Reserve Board https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/federal_reserve_board.html Bureau of Engraving and Printing Police https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/bureau_engraving_printing_police.html U.S. Capitol Police https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/us_capitol_police.html U.S. Mint https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/us_mint_police_officers.html U.S. Supreme Court Police https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/us_supreme_court_police.html Washington, DC, Metropolitan Police Department https://media.pearsoncmg.com/ph/chet/chet_cj_revel/cjtoday14e/federal_law_enforcement _agencies/washington_dc_metropolitan_police_department.html 66 Copyright © 2021 Pearson Education, Inc.

•

For each of the agencies listed in Table 5-2: American Policing: State Law Enforcement Agencies, click on the links to read an example agency’s job information website.

Alcohol Law Enforcement Agencies https://www.ncdps.gov/index2.cfm?a=000003,000005 Fish and Wildlife Agencies http://www.mdwfp.com/ Highway Patrols http://statepatrol.ohio.gov/ Port Authorities http://www.asdd.com/ State Bureaus of Investigation http://oag.ca.gov/bi State Park Services http://cpw.state.co.us/ State Police http://www.oregon.gov/OSP/pages/index.aspx State University Police http://police.albany.edu/ Weigh Station Operations http://www.coopsareopen.com/illinois-weigh-stations.html

•

For each of the agencies listed in Table 5-3: American Policing: Local Law Enforcement Agencies, click on the links to read an example agency’s job information website.

Campus Police http://www.wou.edu/safety/ 67 Copyright © 2021 Pearson Education, Inc.

City/County Agencies http://police.arlingtonva.us/ Constables http://www.gilacountyaz.gov/government/constables/about_a_constable.php Coroner or Medical Examiner http://www.ct.gov/ocme/site Housing Authority Agencies http://police.arlingtonva.us/ Marine Patrol Agencies http://maine.gov/dmr/bmp/duties.htm Municipal Police Departments http://www.cityoforlando.net/police Sheriff’s Departments http://sheriffalleghenycounty.com/ Transit Police http://mbta.com/transitpolice/ Tribal Police http://www.srmt-nsn.gov/divisions/tribal_police

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

Describe the historical development of policing in America. What impact did the Prohibition era have on the development of American policing?

The rise of policing in America was shaped by many unique factors, including the huge expanse of unchartered Western territory, wealth, and a widely dispersed population. One of the major factors shaping American policing was the frontier. Since it was unsettled and wild, law and order was enforced primarily by citizen posses and vigilante groups. More structured law enforcement occurred in larger cities. Policing in these cities closely resembled the British model, paramilitary organizational structure, wearing police uniforms, 68 Copyright © 2021 Pearson Education, Inc.

and focusing on the prevention of crime. As society changed culturally and technologically, so did American policing. America’s experiment with Prohibition was a complete failure, and it impacted policing by creating opportunities for corruption and graft. The Wickersham Commission, after reviewing problems with law enforcement, established guidelines that have since impacted many aspects of law enforcement.

2.

What are the three levels of public law enforcement described in this chapter?

Law enforcement in the United States exists at the federal, state, and local levels. Legislative and jurisdictional limitations on the investigatory responsibilities of particular agencies, and the technical investigatory specialization of other agencies, serve to explain the existence of the widely varied types of public law enforcement agencies.

3.

Explain the role that federal and state law enforcement agencies play in enforcing the law, and describe the two major models of state law enforcement organization.

Federal law enforcement officers are defined as individuals who are authorized to conduct criminal investigations, execute search warrants, make arrests, or carry firearms. Federal law enforcement agencies are found in 14 U.S. government departments and 28 nondepartmental agencies. Many other federal government offices are involved in enforcement through inspection, regulation, and control activities.

State-level police agencies were created in the late nineteenth century to combat specific criminal activity, and prevent further criminal activity that crossed the boundaries of cities and counties within a specific state. For instance, the Texas Rangers were created prior to Texas becoming a state (1835) and in reaction to the abundance of Mexican cattle rustlers.

The centralized model combines major criminal investigations with patrolling the state’s highways. The decentralized model makes a clear distinction between traffic enforcement on state highways and other law enforcement functions by forming two distinct agencies. States that use the decentralized model have other adjunct state-level agencies with enforcement powers.

4.

What different kinds of local law enforcement agencies exist in the United States today?

What role does each agency have in enforcing the law?

Large and small municipal departments, county sheriff’s departments, and campus and transit police are only some of what can be considered local police. Sheriff’s departments are responsible for serving court papers, maintaining security within courtrooms, and running the county jails. Municipal departments are charged with enforcing the law and protecting the citizens within their specific jurisdiction. Similarly, campus and transit police have a different type of city in which to do their job. For campus police, their jurisdiction is the college campus; for transit police, their jurisdiction is the routes and associated properties of the district.

5.

Describe the nature and extent of private protective services in the United States today.

What role do you think they will play in the future?

Private protective services have had an incredible impact on law enforcement and safety in America. More people are employed in private security than in all local, state, and federal law enforcement agencies combined. It is estimated that there are nearly 2 million people working in private security and probably about 1 million working in public law enforcement.

69 Copyright © 2021 Pearson Education, Inc.

This gap will increase, as it is anticipated that the number of people employed in private security will increase at a faster rate compared to the number in public law enforcement.

Private police services will likely continue to expand as organizations and citizens seek to increase their sense of security in what they perceive to be an increasingly dangerous world.

Factors that can ensure high-quality delivery of private police services include thorough screening of applicants, standardized training in essential technical skills, professional certification processes, and state licensure.

Questions for Reflection 1.

Why are there so many different types of law enforcement agencies in the United States? What problems, if any, do you think are created by such a diversity of agencies?

Answers will vary.

2.

What is evidence-based policing? What assumptions about police work have scientific studies of law enforcement called into question? What other assumptions made about police work today might be similarly questioned or studied?

Evidence-based policing is the use of the best available research on the outcomes of police work to implement guidelines and evaluate agencies, units, and officers. It really refers to how decision making, in terms of both strategic initiatives and organizational procedures, should reflect best practices supported by empirical research findings.

Scientific research has questioned many assumptions about police work, including the effectiveness of routine police patrol, detective work, response time, gun law enforcement, police response to domestic violence, and incident-driven versus problem-oriented policing.

Answers regarding other assumptions that may be questioned will vary.

3.

Contrast the current deployment of private security personnel with the number of public law enforcement personnel.

Private protective services have had an incredible impact on law enforcement and safety in America. Private security personnel outnumber public law enforcement officers nearly three to one. This gap is expected to increase as it is anticipated that the number of people employed in private security will increase at a faster rate compared to the number in public law enforcement. An interesting development is the increasing collaborations that are occurring in the public–private arena.

4.

How can the quality of private security services be ensured?

Factors that can ensure high-quality delivery of private police services include thorough screening of applicants, standardized training in essential technical skills, professional certification processes, and state licensure.

5.

What is the relationship between private security and public policing in America today? How might the nature of that relationship be expected to change over time?

Why? The growth of the private security industry has certainly caused friction with public law enforcement. Sources of friction include the erosion of public law enforcement’s turf, moonlighting by public officers in private security, and different relationships and case 70 Copyright © 2021 Pearson Education, Inc.

priorities when interacting with a prosecutor’s office. This relationship is constantly evolving, and some scholars have noted that the distinction is “increasingly meaningless,” and there is a general recognition that both can benefit from cooperation.

Answers will vary.

71 Copyright © 2021 Pearson Education, Inc.

Chapter 6 Policing: Purpose and Organization CHAPTER OVERVIEW Chapter 6 discusses several areas of concern to the police organization. These areas include the police mission, operational strategies, management of police departments, policing styles, terrorism’s impact on policing, and ethnic and gender diversity in policing.

The basic purposes of policing in democratic societies include enforcing the law, apprehending offenders, preventing crime, preserving the peace, and providing services. Crime prevention is the anticipation, recognition, and appraisal of a crime risk and the initiation of action to eliminate or reduce it. The ability of the police to prevent crime relies in part on their ability to predict it, which has led to the development of tools such as CompStat, a process of crime analysis and police management built on crime mapping, and CrimeStat, a software program for analyzing crime-incident locations. Today, many police departments are focusing on quality-of-life offenses to help reduce crime and preserve the peace.

The mission of policing directly shapes the operational strategies departments use to accomplish their goals. The chapter discusses the five core operational strategies of police departments – preventive patrol, routine incident response, emergency response, criminal investigation, and problem-solving – as well as an ancillary operational strategy – support services. These operational strategies highlight how police work in a democratic society.

Importantly, this section also highlights the objectives, performance standards, and processes involved for each operational strategy.

Police management involves administrative activities that control, direct, and coordinate police personnel, resources, and activities. The chapter discusses the general structure of police organizations and highlights the chain of command.

Police departments have unique policing styles formed in response to community and organizational factors. James Q. Wilson identified three policing styles. Police officers employed in watchman-style departments are most concerned with maintaining order. These officers possess a considerable amount of discretion to resolve situations. Police officers in legalisticstyle departments are expected to enforce the letter of the law, meaning that their discretion to use a nonenforcement response is limited. These officers are likely to ignore other disruptive behaviors. Officers in a service-style department are most concerned with helping citizens rather than strictly applying the letter of the law. These officers would be familiar with community resources and use these resources to help solve community and individual problems. Many police departments are moving to the service style, using what are popularly known as community policing strategies. Community policing is a strategy that calls for police departments to develop community relationships and solicit citizen assistance in solving problems. The current movement toward community policing has its roots in the police–community relations programs advocated in the 1960s, as well as in the team policing ideas of the 1970s.

Terrorism has significantly impacted policing at all levels. Society generally, and law enforcement specifically, changed dramatically following the September 11 attacks. Although the core mission of the police has not changed, law enforcement agencies now devote more time and resources to preparing for possible terrorist attacks and gathering intelligence. Intelligence-led policing is a critical technique for police antiterrorism efforts and effective sharing of criminal intelligence across jurisdictions and between agencies is critical.

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Departments today have dramatically increased their complement of officers from underrepresented groups. Ethnic minorities are now employed in policing in numbers approaching their representation in the population, but women are still significantly underrepresented.

CHAPTER OBJECTIVES 1.

2.

3.

4.

5.

6.

Explain the police mission in democratic societies.

Discuss the five core operational strategies of today’s police departments.

Summarize the typical organizational structures of a police department.

Compare and contrast the three most common policing styles.

Compare the role of American police today in the post-9/11 environment with their pre-9/11 role.

Describe three ethnic and gender diversity issues in policing, including ways to resolve them.

CHAPTER OUTLINE I. Introduction II. The Police Mission • Explain that the mission of the police is subservient to the rule of law, discussed in Chapter 4.

• Discuss each of the five basic elements of the police mission. Explain how they may complement or conflict with each other at various times.

• Divide students into five groups and assign each group one of the five elements of the police mission. Have each group explain why its element should take precedence over the others in policing. If you like, you could set this up as a mock campaign, with each group campaigning for its element to be elected “most important” in the police mission.

A. Enforcing the Law • Discus the possible implications of the inability of the police to enforce all of the laws. Ask the class to discuss whether the police should strive to enforce all laws at all times. Who should be responsible for determining which laws should be prioritized for enforcement?

B. Apprehending Offenders C. Preventing Crime • Ask students to discuss which are more important: crime prevention techniques or crime prevention programs.

• Remind students about the material in Chapter 3 on crime prevention through environmental design.

D. Predicting Crime • Encourage students to visit LexisNexis Community Crime Map on the Web. They can type in their home or work (or any other) address and see details about crimes that have occurred nearby.

E. Preserving the Peace • Review the material on “broken windows” from Chapter 3 and explain how this relates to this element of the police mission.

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F. Providing Services • Describe some of the many and varied types of calls for service received by the police, many of which have little to do with crime and law enforcement. Explain how much time service provision may involve and discuss various methods police departments are adopting to deal with non-emergency calls for service, such as the use of 3-1-1 telephone systems.

III. Operational Strategies • Discuss each of the five core operational strategies and explain the unique features of each.

A. Preventive Patrol • Ask students whether they think routine patrol is the best way for officers to spend their time when not answering calls for service.

• Review the research into the effectiveness of preventive patrol discussed in Chapter 5 and ask students why the police continue to engage in patrol despite the research results.

B. Routine Incident Response • Review the research into the relationship between police response time and the likelihood of arresting a suspect that was discussed in Chapter 5. Ask students why so much importance is placed on response time given the research findings.

C. Emergency Response D. Criminal Investigation • Point out to students that, unlike their television counterparts, crime scene investigators generally focus on gathering evidence at a crime scene and analyzing that evidence in the lab (rather than on conducting follow-up investigations and arresting suspects) Explain that many crime scene investigators are not police officers but civilians with scientific backgrounds and special training.

E. Problem Solving • Explain problem solving in policing and present an example of a problem that was solved using SARA (or CAPRA). Information on a wide variety of police problemsolving efforts may be found at the website for the Center for Problem-Oriented Policing.

F. Support Services • Ask students why police departments use civilians for many support services activities, rather than sworn officers.

IV. Managing Police Departments • Discuss contemporary police management by focusing on the chain of command and on the distinction between line operations and staff operations.

• Explore the idea of police agencies as businesses to which general management principles can apply.

A. Police Organization and Structure • Discuss the difference between line and staff operations and explain why both are essential for a police agency to function.

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B. Chain of Command • How might the quasi-military structure of policing affect officer behavior and social views of the police?

V. Policing Styles • Discuss the concept of style of policing – how a particular agency sees its purpose and chooses the methods it uses to fulfill that purpose.

• Ask the class to describe the city or county police department that serves the community in which the university is located. Do they believe that the department is best characterized by the watchman, legalistic, or service style of policing? Explore the basis for this decision. In a distance learning class, students may describe the department in their individual home communities.

A. The Watchman Style of Policing • Describe the watchman style of policing as one in which officers are concerned primarily with order maintenance in the communities they police. Ask students what the watchman style would mean within the context of their home communities.

B. The Legalistic Style of Policing • Describe the legalistic style of policing as one in which officers adhere to the letter of the law in making enforcement decisions. Ask students what the legalistic style would mean within the context of their home communities.

C. The Service Style of Policing • Describe the service style of policing as one in which officers strive to meet the needs of the citizens they serve. Ask students what the service style would mean within the context of their home communities.

• Ask students what might happen when police administrators try to combine an ordermaintenance (watchman style) orientation with a service mandate. Have them consider the potential difficulties and how differences might be resolved.

D. Police–Community Relations 1. Team Policing • Ask students why they think team policing programs were not successful.

How might these programs be changed to become more successful?

2. Community Policing • Explain how community policing differs from traditional forms of policing.

Use Table 6-1 to help compare the two types of policing.

• Discuss the differences between the original concept of police–community relations and the more contemporary notion of community policing? Ask students which would appeal more to individual-rights advocates? To publicorder advocates? Why? 3. Critique of Community Policing VI. Terrorism’s Impact on Policing • Describe how the role of the police in the United States has changed since the events of 9/11.

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• Ask students if they think that the post-9/11 integration of military action and civil law enforcement may have contributed to the increasing number of incidents of use of deadly force by the police in recent years (as discussed in Chapter 1).

A. Intelligence-Led Policing and Antiterrorism • Explain the concept of intelligence-led policing and why it is considered so important today.

B. Information Sharing and Antiterrorism C. Fusion Centers • Discuss possible reasons why fusion centers are becoming less common. Explain some of the advantages and problems with using fusion centers.

D. The National Criminal Intelligence Sharing Plan IX. Ethnic and Gender Diversity in Policing • Identify some of the issues related to ethnic and gender diversity in policing, and suggest ways of addressing them.

• Ask students to discuss why it is important to ensure ethnic and gender diversity in policing.

• Ask students to discuss reasons why women are still so greatly underrepresented in policing, and ways of addressing this problem.

• Ask students to identify other groups (in addition to those discussed in the text) that might be underrepresented in policing.

A. Women as Effective Police Officers

LIST OF CHANGES/TRANSITION GUIDE •

A discussion of LEEP, the online gateway that provides law enforcement agencies and other criminal justice agencies with access to a wealth of beneficial resources has been added.

•

A new key term, “fusion center,” has been added.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Divide the class into five groups and assign each one of the five basic purposes of policing Have each group research the activities involved in their assigned purpose of policing and the importance of that activity to the police and to society. Lead a class discussion regarding the relative importance of each purpose and have the class rank them in order of importance.

•

Divide the class into six groups, each assuming one of the six operational strategies. After a small-group discussion on each strategy, a spokesperson from each group can be part of a panel discussion on police operational strategies

•

Have students research the police department in their home community and identify the style of policing that characterizes that department. Have them present evidence to support their decision.

•

Invite a local chief of police to speak to the class. Have students prepare and ask questions that will allow the class to discuss later the style of policing that is most characteristic of the local police department. Ask the chief how policing styles have changed, if at all, over the course of his or her career. Computer conferencing may be considered as an alternative to a classroom visit.

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•

Have students visit the Web sites of three police departments in different communities and obtain information on each department’s involvement in community policing. Have them discuss the relationship (if any) between the type and extent of involvement in community policing and the characteristics of the department (size, jurisdiction, etc.)

•

Have students visit the Web sites of three police departments that have posted agency organizational charts. Departments should include one sheriff’s department, one big-city police force, and one smaller police department. Compare the three organizational charts and identify similarities and differences.

•

Help students brainstorm a list of strategies that would stimulate more interest in law enforcement from women and minorities. Also have them consider how departments might work to retain these valuable employees after hiring and training them.

•

Click on the links below to investigate job descriptions in real police departments.

Chief of Police http://www.town.kensington.nh.us/police/Duties.htm Assistant to the Chief of Police http://www.town.kensington.nh.us/police/Duties.htm Secretary to the Chief of Police http://www.ci.pleasant-hill.ca.us/DocumentCenter/View/655 Operations Bureau of the Police Department http://www.sf-police.org/index.aspx?page=23 Patrol Division http://www.rosenet.org/598/Patrol-Division Investigations Division http://thecityofnewbrunswick.org/police/criminal-investigation-division/ Detective Unit http://www.lapdonline.org/detective_bureau Drug Enforcement Unit http://www.cityofelmira.net/police-department/drug-enforcement

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Traffic Unit https://www.dmgov.org/Departments/Police/Pages/TrafficUnits.aspx Administration Bureau https://portal.chicagopolice.org/portal/page/portal/ClearPath/About%20CPD/Bureaus/Bure au%20of%20Administration Community Services Division http://www.ci.frisco.tx.us/283/Community-Services Training Unit https://www.cambridgema.gov/cpd/policeunits/supportservicesdivision/academyandtrainin gunit Special Projects Unit http://www.waynesvillenc.gov/community-special-projects-unit Information Services Division http://www.sarasotapd.org/support-services-division/ Animal Control & Parking Unit http://www.edmondswa.gov/police/animal-control-parking-enforcement.html Evidence Unit http://www.raleighnc.gov/safety/content/Police/Articles/EvidenceUnit.html Office of Professional Accountability http://www.seattle.gov/opa Information Technology Unit http://www.clantonpd.org/information_technology.html Records Unit http://www.cityofchesapeake.net/government/City-Departments/Departments/PoliceDepartment/organization-staff/sections-units/Central-Records-Unit.htm 78 Copyright © 2021 Pearson Education, Inc.

Media Relations Unit http://www.mass.gov/eopss/agencies/msp/media-relations.htm

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

What is the police mission in democratic societies?

Sir Robert Peel, the founder of the British system of policing stated that the basic mission of the police is to reduce crime and disorder. Today, the basic purposes of policing are to enforce and support laws, investigate crimes and apprehend offenders, prevent crime, help ensure domestic peace and tranquility, and provide the community with needed enforcementrelated services. These purposes overlap in several ways. For example, police officers investigate crimes and apprehend offenders, which enforces and supports the laws of a society. However, these purposes can be inconsistent as well. In an effort to prevent crime, police officers might use overly aggressive patrol strategies, which could push the community away from the police, and the end result might be less domestic peace.

2.

What are the five core operational strategies that police departments use today? What is the ancillary operational strategy?

The five core operational strategies are preventive patrol, routine incident response, emergency response, criminal investigation and problem solving. Support services is the ancillary operational strategy.

3.

Describe the different types of organizational structures typical of American police departments.

Nearly all law enforcement organizations in the U.S. are formally structured among divisions and along lines of authority. The two main roles within police agencies are line and staff.

Line operations focus on field and supervisory activities related to daily police work. Staff operations include support roles, such as police administration.

4.

What are the three styles of policing described in this chapter? How do they differ?

Which one characterizes the community in which you live?

The three styles of policing are: watchman, legalistic, and service. The watchman style is typical of lower-class communities, and the primary concern is maintaining order. Officers working in such departments have considerable discretion in deciding when and how to enforce the law. The legalistic style is marked by enforcing the precise letter of the law.

Officers in these departments have limited discretion and generally ignore order maintenance situations unless the criminal law was broken. The service style focuses on a concern with helping rather than enforcing the law.

5.

What new responsibilities have American police agencies assumed since the September 11, 2001, terrorist attacks? What new challenges are they facing?

American police agencies have assumed new responsibilities since the 9/11 attacks in the areas of terrorism prevention and response. While the core mission of American police departments has not changed, law enforcement agencies at all levels now devote an increased amount of time and other resources to preparing for possible terrorist attacks and to gathering the intelligence necessary to thwart them. In particular, local police departments play an 79 Copyright © 2021 Pearson Education, Inc.

especially important role in responding to the challenges of terrorism. Not only must they help prevent attacks, but they must respond quickly when attacks occur, offering critical evacuation, emergency medical, and security services to help stabilize communities following an incident. Community policing programs have been adapted to the needs of terrorism prevention because community policing provides a natural conduit for information gathering and the development of counterterrorism intelligence.

6.

What issues related to gender and ethnicity are important in American policing today?

What problems still exist? How can these problems be addressed?

The two critical issues are the recruitment of women and minorities to policing and increasing the number of women and minorities in leadership positions. Even with increased numbers of minorities working in law enforcement, women are still underrepresented.

Existing problems can be addressed by involving underrepresented groups in departmental affirmative action and long-term planning programs, encouraging an open promotion system, and conducting periodic audits to ensure that female officers are not being underutilized.

Questions for Reflection 1.

Are there any aspects of the police mission that this chapter fails to recognize and that should be added to the basic purposes of policing identified here? If so, what are they?

Answers will vary.

2.

How are police organizations managed? Might participatory or democratic management styles or the organizational styles of innovative high-technology firms be effective in policing? Why or why not?

The model that is characteristic of most police departments is quasi-military, top-down command structure. In theory, policy and procedures are implemented by command staff, and line-level staff are expected to accomplish the basic mission of policing.

Answers will vary

3.

What is community policing? How does it differ from what some might call traditional policing?

Community policing focuses on a collaborative effort between the police and all elements of the community to identify problems and solutions in responding to crime and disorder. There are many ways that community policing differs from traditional policing. First, community policing agencies are willing to work with the public and other community agencies to solve problems. In contrast, the relationship between citizens and other community agencies and the police may be in conflict in traditional policing. Second, community policing focuses on solving problems, and traditional policing focuses on solving crimes. Third, community policing focuses on all types of problems, even minor incidents, and traditional policing tends to consider non-crime-related calls for service as low priority items. Finally, community policing is accountable to the community, and traditional policing is accountable to the law.

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4.

Does community policing offer an opportunity to improve policing services in the United States? Why or why not? Does it offer opportunities in the fight against terrorism? Why or why not?

Community policing certainly has the potential to improve policing services in the United States, but police organizations are very resistant to change. The philosophy that underlies community policing is promising. Police agencies should work with the community and community agencies, coordinating priorities and sharing responsibilities for community safety. If a department fully commits to community policing, and the community commits to the collaboration, policing services would certainly improve. Community policing is also critical in the fight against terrorism. Critical to the war on terrorism is the gathering, sharing, and disseminating of street-level intelligence about potential signs of terrorist activities. The bonds that should have been built for community policing will be helpful as community members hopefully will provide information important to the intelligence processes. Another important aspect of community policing is partnering with various community agencies and organizations, including business. Again, these partners will be helpful in the area of terrorism because some types of businesses will have contact with plotting terrorists because they provide important training and material.

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Chapter 7 Policing: Legal Aspects CHAPTER OVERVIEW Chapter 7 examines the legal constraints on police behavior. It discusses how law enforcement agents are constrained by procedural law, highlighting the legal rules that affect the search and seizure of evidence, arrest, and interrogation. Not even the police are above the law. The U.S. Constitution, particularly the Bill of Rights, is designed to protect citizens against abuses of police power. It does so by guaranteeing due process of law for everyone suspected of having committed a crime and by ensuring the availability of constitutional rights to all citizens, regardless of state or local law or procedure. The Constitutional requirement of due process mandates that all justice system officials respect the rights of accused individuals throughout the criminal justice process.

When conducting investigations, law enforcement officers rely heavily on physical evidence to substantiate criminal charges. The legal constraints on evidence collection (search and seizure) are found in the Fourth Amendment, which declares that people must be secure in their homes and in their persons against unreasonable searches and seizures. In general, law enforcement agents get a warrant to search and seize evidence when they can demonstrate probable cause to a neutral magistrate (a judge). Weeks v. U.S. established the exclusionary rule for federal cases; Mapp v. Ohio made this rule applicable to the states. The exclusionary rule holds that evidence illegally seized by the police cannot be used in trial. The fruit of the poisonous tree doctrine extends this to any evidence that later develops as a result of an illegal search and seizure also may not be introduced at trial.

There are many exceptions to the requirement that law enforcement agents obtain a warrant before collecting evidence, although most require probable cause. For example, when arresting a suspect, law enforcement agents can search the person and the area in the immediate control of that person without a warrant. The good-faith exception allows evidence obtained during an illegal search to be admitted in court if the officers seized the evidence in good faith, believing they were acting according to the law. If police officers are in a place where they are legally allowed to be, they can confiscate evidence without a warrant if it is in plain view, although the officers may not move an object to put it into plain view. Other exceptions include emergencies, stop-and-frisk situations, concern for public safety, vehicle searches, and consent searches.

The probable cause standard also applies to the law of arrest. Technically, arrest takes place whenever a law enforcement officer restricts a person’s freedom to leave. Arrests may occur when an officer comes upon a crime in progress, but most jurisdictions also allow warrantless arrests for felonies when a crime is not in progress, as long as probable cause can later be demonstrated. There are also situations where police officers might question a person of interest in a case without making an arrest. Reasonable suspicion, which requires a lesser degree of certainty than probable cause, is sufficient to permit brief investigative detention but is not enough for an arrest.

Information that is useful for law enforcement purposes is called intelligence. Intelligence gathering is vital to police work but there are legal constraints on intelligence gathering activities by the police. The successful use of informants to support requests for warrants depends on demonstrating the reliability of their information; the current test for this is known as a totalityof-circumstances approach. Police interrogation involves gathering information by directly questioning suspects. Courts have prohibited physically coercive techniques, inherent coercion, and sophisticated trickery when questioning suspects. When suspects in custody become subject 82 Copyright © 2021 Pearson Education, Inc.

to interrogation, they must be given the Miranda warning before any questioning. Suspects may waive their Miranda rights and there are a number of exceptions to Miranda, including an inevitable discovery exception and a public safety exception.

Electronic eavesdropping is currently being addressed by the courts, although it is not a new issue. The USA PATRIOT Act has made it easier for the police to intercept many forms of electronic communications.

CHAPTER OBJECTIVES 1.

2.

3.

4.

5.

Explain how the Bill of Rights protects Americans from police abuse.

Explain how the idea of due process and democratically inspired legal restraints on the police help to protect our personal freedoms.

Describe the circumstances under which police officers may conduct searches or seize property legally.

Describe detention, arrest, and types of searches.

Describe the intelligence function, including the roles of police interrogation and the Miranda warning.

CHAPTER OUTLINE I.

Introduction • Given the large number of cases presented in this chapter, it will be difficult for students to memorize the important holdings of each case. There are two strategies that may be used to help students learn these cases. First, consider limiting the number of cases students are expected to know. Have them focus on those cases you think are most important, and provide them with the list of cases before they read the chapter. Second, work with the class to construct a study sheet. With separate sections for Fourth and Fifth Amendment cases. Provide subcategories for each set of cases (such as search incident to arrest cases and emergency circumstance cases). Help students construct three- or four-word descriptions of each holding. For example, Mapp v. Ohio could be the “exclusionary rule for states case,” and Warden v. Hayden could be the “emergency search of property case.”

II. The Abuse of Police Power • Discuss the Rodney King case, which drew the spotlight of public attention to the abuse of police power – a spotlight that continues to shine over two decades later. Ask students if they remember learning about the case and, if so, what they learned. Discuss the possibility that the Los Angeles officers were tried by the media rather than by the courts and that these officers, too, may have a story to tell.

• Explain how the potential for police abuse of power is anticipated by the Bill of Rights and how restraints on the police must be constantly balanced against the need for the police to be able to do their jobs.

• Ask students to discuss how violent acts by the police, such as those described in this chapter, affect their views of the police, and of the criminal justice system in general.

A. A Changing Legal Climate • This would be a good place to revisit the issues discussed in Chapter 1. Recall that one of the important issues discussed in Chapter 1 was the tension between individual-rights advocates and public-order advocates. During the Warren Court era, the Court was stacked with individual-rights advocates. A new conservative 83 Copyright © 2021 Pearson Education, Inc.

philosophy has resulted since a higher percentage of public-order advocates have come on the Court. Discuss how the most recent judicial appointments might affect the court.

• Explain that the due process environment surrounding police action extends to three important areas: search and seizure of evidence, arrest, and interrogation. Refer to Table 7-1 to highlight the rights of criminal defendants.

• Explain how Supreme Court decision making has changed over time. Describe the growing conservatism of the U.S. Supreme Court. Begin with the liberal Warren Court era of the 1960s and move through the Burger, Rehnquist, and Roberts eras.

Alluding to confirmation battles in the U.S. Congress over Robert Bork, David Souter, and Clarence Thomas, describe how such battles are a reflection of the ideological stances of members of Congress and of the nominees themselves.

• Explain how the potential for police abuse of power is anticipated by the Bill of Rights and how restraints on the police must constantly be balanced against the need for the police to be able to do their jobs.

III. Individual Rights • Describe checks on police action by the courts. Explain that police agencies in foreign countries are often not constrained by “the rule of law,” and explain why citizens of such countries often live in fear of unbridled police action.

• Ask students to propose alternative ways of enticing officers to obey the law, without necessarily letting the guilty go free.

A. Due Process Requirements • Review the concept of “due process” as discussed in Chapter 1.

IV. Search and Seizure • Explain that the U.S. Constitution (through the Bill of Rights) requires law enforcement personnel to seek a warrant before making an arrest or executing a search. Note that warrants are generally issued by magistrates who check to see that the police have probable cause to believe that the person to be arrested is likely to be the person who committed the crime or that the place to be searched is the place where sought-after evidence is likely to be found.

A. The Exclusionary Rule • Review the 1914 case of Weeks v. U.S. and describe the ruling of the U.S. Supreme Court that led to the development of the exclusionary rule, which excludes illegally seized evidence from use at trial. Explain that illegally seized evidence often involves evidence that was obtained without a search warrant.

• Consider explaining the “silver platter doctrine” which was also established by the Weeks case. This was an exception to the exclusionary rule that covered situations in which local or state-level law enforcement officers handed over illegally obtained evidence to federal law enforcement officers “on a silver platter” for use in federal courts. As long as the federal authorities were not involved in obtaining the evidence, it was admissible in court. The silver platter doctrine was repealed by the U.S. Supreme Court in the 1960 case of Elkins v. U.S., one year before the Mapp case.

1. Problems with Precedent • Explain the influence that the Supreme Court can have on criminal justice policy.

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2. The Fruit of the Poisonous Tree Doctrine • When discussing the fruit of the poisonous tree doctrine, consider using the example of an illegally seized document that details the structure of an elaborate illegal drug operation. Tell the class that although the police may set up complex investigations based on the information in the list and may make hundreds of arrests over a period of months or years, the arrests themselves will be illegal, and the defendants will be set free, if it can be shown that the investigation was based solely on information from the illegally seized document.

• Have students discuss what they think American criminal justice would be like without the exclusionary rule and the fruit of the poisonous tree doctrine.

Have the class debate whether these rules should be repealed or at least scaled back.

3. Protective Searches • Discuss the way in which Chimel v. California (1969) defined what officers may search, when they may search, and why. Ask students why such directives are necessary and how they help individual suspects but may hinder police activity. Have them propose alternative methods of defining search parameters.

B. Judicial Philosophy and the U.S. Supreme Court • Ask students how the personal views of individual Supreme Court justices might affect the police and society as a whole. Have the class debate whether justices should allow their personal philosophy to influence their judicial decisions.

• Discuss the 1961 U.S. Supreme Court case of Mapp v. Ohio and explain that while the Weeks case applied the exclusionary rule to federal courts, Mapp extended it to the states as well.

1.

2.

3.

4.

5.

The Warren Court (1953-1969) The Burger Court (1969–1986) The Rehnquist Court (1986–2005) The Roberts Court (2005–today) Good-Faith Exceptions to the Exclusionary Rule • Describe the notion of good faith and good-faith exceptions to the exclusionary rule. Ask students what they think the impact of good-faith exceptions will be on American criminal justice and whether they think the Court should ever have created the good-faith exception.

• Discuss the wide variety of police investigative activities that have been approved by the courts over the years by referring to Table 7-3. Ask students which of the police powers identified by the table are exceptions to the exclusionary rule and which are not. Which do they find acceptable?

6. The Plain-View Doctrine • Describe the plain-view doctrine. Ask students what they think the ultimate impact of the plain-view doctrine will be on American criminal justice and whether they think the Court should ever have created it. Ask how hard this doctrine might be for police officers to keep in mind in their daily work.

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• Ask students to discuss whether the plain-view doctrine should apply to computer searches.

7. Emergency Searches of Property and Emergency Entry • Given the advent of good-faith exceptions to the exclusionary rule, the plainview doctrine, and the U.S. Supreme Court’s recognition of the need for emergency searches, ask students if it is realistically possible to argue that the exclusionary rule is still effective in contemporary American criminal justice or if the exclusionary rule has been so watered down by recent decisions that it is little more than a paper tiger.

• Divide the class into groups and hold a debate on whether the U.S. Supreme Court should have created exceptions to the exclusionary rule.

8. Anticipatory Warrants V. Detention and Arrest • Define arrest and describe how popular depictions of the arrest process may not be consistent with legal understandings of the term. Remind students that the police are not required to give Miranda warnings immediately upon arrest, although many officers do.

• Explain the difference between detention and arrest.

• Ask students why an arrest is considered a form of seizure, and therefore subject to the Fourth Amendment.

A. Searches Incident to Arrest • Compare and contrast probable cause and reasonable suspicion.

• Explain the rule regarding searches incident to arrest. Ask the class to discuss what limits they believe should be placed on such a search.

• Explain why the 1968 Supreme Court case of Terry v. Ohio is considered to be a landmark case.

• Ask students to consider the possible purposes of a search incident to arrest.

B. Emergency Searches of Persons • Review the four conditions that must apply for the police to conduct an emergency search of an individual without a warrant? Ask the class to discuss whether they agree with all four conditions, and to suggest other conditions that perhaps also should be required.

C. Vehicle Searches • Discuss the U.S. Supreme Court’s rationale for allowing warrantless vehicle searches in cases in which the vehicle might quickly leave the jurisdiction of the investigating officers. Note that because motor vehicles are highly mobile, officers may have the authority to search vehicles they have stopped without a warrant if they have reason to believe that the vehicles may harbor contraband or other evidence.

1. Roadblocks and Motor Vehicle Checkpoints • Explain that the police do not need reasonable suspicion to stop vehicles at checkpoints and roadblocks, as long as they treat all vehicles the same way.

2. Watercraft and Motor Homes

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D. Suspicionless Searches • Explain the U.S. Supreme Court’s rationale in allowing suspicionless searches in cases in which the need to maintain public safety may provide a compelling interest that can negate an individual’s right to privacy.

E. High-Technology Searches • Have the class discuss whether the use of high-technology devices such as thermalimaging devices violates the public’s right to privacy.

VI. The Intelligence Function • Explain intelligence and the importance of intelligence gathering in police work.

A. Informants • Explain that the Crime Stoppers program (discussed in the previous chapter) allows people to leave anonymous tips for the police and that the informants’ names are never revealed.

B. Police Interrogation • Begin a discussion of police interrogation with the 1936 U.S. Supreme Court case of Brown v. Mississippi, which outlawed the use of physical force in interrogative settings. Discuss how some forms of coercion are inherent rather than obvious and how psychological manipulation can be a form of unfair interrogation.

• Discuss the implications of the 1991 case of Arizona v. Fulminante, in which the U.S. Supreme Court held that under limited circumstances, the admission of a coerced confession into a criminal trial might be nothing more than a “trial error” that does not require the automatic reversal of a lower court’s conviction.

• Ask the class to consider the possible benefits and downsides to mandatory recording of police interrogations • Discuss the implications of the 1991 case of Arizona v. Fulminante, in which the U.S. Supreme Court held that under limited circumstances, the admission of a coerced confession into a criminal trial might be nothing more than a “trial error”— one that does not require the automatic reversal of a lower court’s conviction.

• Discuss the unreliability of eyewitness identification (the Innocence Project website has a section on eyewitness misidentification, including a video and information on research into factors affecting the accuracy of eyewitness identification).

1. Physical Abuse 2. Inherent Coercion 3. Psychological Manipulation C. The Right to a Lawyer at Interrogation • Explain that as a result of the 1964 U.S. Supreme Court case of Escobedo v. Illinois, suspects have the right to have a lawyer present during police interrogations.

• Point out to students that interrogation can be a subtle and complex process, wherein respect for individual rights and police mandates must be carefully balanced to ensure fairness and ultimately just trials and outcomes.

D. Suspect Rights: The Miranda Decision • Review the case of Miranda v. Arizona (1966) and discuss each of the five warnings that law enforcement officers are required to give to defendants. Ask the class to discuss what abuses each warning prevents and what police actions each warning 87 Copyright © 2021 Pearson Education, Inc.

hampers. Have the class debate whether the police should be required to provide each statement to criminal suspects.

• Divide the class into groups and have them debate the question of whether Miranda should be overturned.

• Examine the impact of Miranda warnings on American criminal justice. How might the justice system have functioned differently before 1966 (the date of the Miranda decision) than it does now as a result of this decision?

• Ask students what rights, if any, they would add to or remove from the Miranda rights.

• Ask the class to consider each of the rights statements that make up the Miranda decision. Have students debate the wisdom of having law enforcement officers provide each rights statement to criminal suspects.

1. Waiver of Miranda Rights by Suspects • Remind students that suspects may only waive their Miranda rights through a voluntary waiver that is knowing and intelligent. Ask students to discuss how we can determine if a waiver truly is voluntary, knowing, and intelligent.

2. Inevitable-Discovery Exception to Miranda 3. Public-Safety Exception to Miranda • Review the public safety exception to Miranda and ask students what other exceptions to Miranda they think might be reasonable.

4. Miranda and the Meaning of Interrogation • Explain the concept of Miranda triggers and discuss under what circumstances officers do not have to provide Miranda warnings. Ask students how the meaning of Miranda might change if the Court required only the first trigger (arrest).

• In the case of Salinas v. Texas, the Court stated that defendants must expressly invoke their Miranda rights to ensure that their silence is not used against them in court. Hold a debate regarding whether a defendant’s silence itself should be sufficient to indicate they are invoking their right to silence.

E. Gathering Special Kinds of Nontestimonial Evidence • Explain the concept of nontestimonial evidence and discuss why the collection of this type of evidence creates legal complications for law enforcement.

1. The Right to Privacy 2. Body-Cavity Searches • Explain that body packing involves the swallowing or insertion into body cavities of drug-filled containers for the purpose of drug smuggling.

• Review the case of U.S. v. Montoya de Hernandez (1985). Lead a discussion as to whether the investigating officers had sufficient reason to detain the suspect in this case.

F. Electronic Eavesdropping • Have students identify the various types of electronic information that the typical person generates in an average day. Discuss which types of information might form the basis for the criminal prosecution of those involved in illegal activities.

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• Discuss the ways in which electronic evidence differs from other types of evidence.

1. Minimization Requirement for Electronic Surveillance 2. The Electronic Communications Privacy Act of 1986 • Describe how the Electronic Communications Privacy Act limits the wiretapping and eavesdropping activities of law enforcement officers.

3. The Telecommunications Act of 1996 4. The USA PATRIOT Act of 2001 • Explain how the USA PATRIOT Act has affected the ability of police investigators to intercept various forms of electronic communication.

5. Cybersecurity Information Sharing Act (CISA) • Place students into groups and have them debate the pros and cons of the Cybersecurity Information Sharing Act (CISA).

6. Gathering Electronic Evidence • Explain that electronic evidence is similar in many ways to other forms of evidence and that crime scenes involving electronic evidence should be secured as soon as possible to avoid contamination or destruction of the evidence.

LIST OF CHANGES/TRANSITION GUIDE •

Two new key terms, “warrantless search” and “investigative detention,” have been added to the chapter.

•

The U.S. Supreme Court’s distinction between three types of Fourth Amendment policecitizen interactions has been added: (1) consensual encounters, (2) detentions, and (3) arrest.

•

The U.S. Supreme Court case of Carpenter v. U.S., involving police access to cell phone records, is now discussed.

•

A new U.S. Supreme Court case dealing with rental vehicles is now discussed. A graphic showing state wiretap authorizations is a part of the discussion.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Help students visualize the process of obtaining a warrant by walking them through the steps.

For example, a narcotics detective receives information from a reliable informant that a student is selling cocaine from his residence hall. The detective does three undercover buys over a two-week period, obtains a warrant by demonstrating these facts to a magistrate, and executes the warrant. Link this situation to the checks on police behavior. First, require the police to get the warrant before searching and seizing evidence. Second, if the arrested suspect’s case gets into the court system, his attorney would probably make a motion to suppress the evidence, arguing that the evidence was obtained in an unreasonable search and seizure. Be sure to explain such a motion.

•

Ask the class to list each of the Supreme Court decisions discussed in this chapter. Have students group the decisions according to the Court that rendered them (the Warren Court, the Rehnquist Court, and so on). Have class members assign a score to each decision, indicating whether it would likely appeal more to individual-rights advocates or public-order advocates. Decisions appealing most to individual-rights advocates could be scored a 0, and those with the greatest appeal to public-order advocates might be ranked 10 (or vice versa), with other rankings in between.

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•

Ask the class to consider each of the rights statements that make up the Miranda decision.

Have students debate the wisdom of having law enforcement officers provide each rights statement to criminal suspects. Are there any “rights” that students would add to, or remove from, the Miranda rights? If so, what would they be?

•

Have students keep a daily log of the kinds of electronic signals and the forms of electronic information they generate over a week. Ask them to decide how each item of information (and each type of media involved) might be useful to criminal investigators were the students to be involved in criminal activity

•

Assign each student one of the legal issues discussed in the chapter. Have them visit the Legal Information Institute’s Supreme Court Section and locate a recent case that is relevant to that issue. Students are to read the full text of the case, summarize the case, explain the decision of the Court and the reasons behind the decision, and discuss any dissenting views.

If the decision negates or contradicts anything in the textbook discussion, students should identify and explain the change.

•

Encourage students to listen to old time radio productions of police dramas such as Dragnet that were produced prior to the wave of court cases expanding individual rights and guaranteeing individual due process, and identify examples of how “times have changed.”

Many of these programs are available online free to stream.

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

Name some of the legal restraints on police action, and list some types of behaviors that might be considered abuse of police authority.

Legal restraints on the police help ensure individual freedoms in our society. They come primarily from the Bill of Rights, particularly the Fourth, Fifth, and Sixth Amendments and include safeguards against illegal searches and seizures and protections against arrest without probable cause.

Behaviors that might be considered abuse of police authority include an unjustified search without a warrant and the use of force and/or violence during an interrogation.

2.

Explain how the idea of due process and democratically inspired restraints on the police help to protect our personal freedoms.

Due process and democratically inspired legal restraints on the police are designed to ensure individual freedoms and protect citizens against abuses of police power. They show that the police are not above the law but must respect the rights of accused individuals. They also provide procedural guidelines that the police must follow and provide consequences if these guidelines are not followed. For example, police officers who which to conduct a search and seize the property of a criminal suspect must do so within the boundaries of the Fourth Amendment. If an officer violates the law, the evidence obtained as a result may be unusable.

These due process rights are central to democracy, and without them personal freedoms would suffer greatly.

3.

Describe the legal standards for assessing searches and seizures conducted by law enforcement agents.

The Fourth Amendment protects individuals from unreasonable searches and seizures. In most cases, the police must have a warrant before being legally permitted to conduct a 90 Copyright © 2021 Pearson Education, Inc.

search. The exclusionary rule holds that evidence that is illegally seized, or seized without regard to the principles of due process, may not be allowed as evidence in a criminal trial.

4.

What is arrest, and when does it occur? How do legal understandings of the term differ from popular depictions of the arrest process? How does detention differ from arrest?

An arrest is the act of taking an adult or juvenile into physical custody by authority of law for the purpose of charging the person with a criminal offense, a delinquent act, or a status offense, terminating with the recording of a specific offense. Technically, an arrest occurs whenever a law enforcement officer curtails a person’s freedom to leave.

Popular depictions of arrest differ significantly from legal understandings. When an arrest occurs in popular culture (often arrest is not necessary because deadly force was used by the police officer), it is usually after a high-speed chase or pursuit, the suspect resists the arrest, and then the officer reads the suspect his or her Miranda rights. In practice, such situations rarely occur, and a person is usually arrested after agreeing to be questioned by police officers.

Investigative detention is a temporary seizure of an individual by a police officer for investigative purposes. It differs from arrest in that the amount of time a person may be detained depends upon how long it would reasonably take to conduct an investigation of the facts at hand or to finish police business.

5.

What is the role of interrogation in intelligence gathering? List each of the Miranda warnings. Which recent U.S. Supreme Court cases have affected Miranda warning requirements?

Interrogation is one way that police can gather intelligence that leads police investigators to question both suspects and informants. It includes any behaviors by the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Interrogation frequently involves direct questioning of suspects but may also involve activities that go beyond verbal questioning, such as staged lineups, reverse lineups, positing guilt, minimizing the moral seriousness of crime, and casting blame on the victim or society.

The Miranda warnings are: •

You have the right to remain silent.

•

Anything you say can and will be used against you in a court of law.

•

You have the right to talk to a lawyer and to have a lawyer present while you are being questioned.

•

If you want a lawyer before or during questioning but cannot afford to hire a lawyer, one will be appointed to represent you at no cost before any questioning.

•

If you answer questions now without a lawyer here, you still have the right to stop answering questions at any time.

Moran v. Burbine and Colorado v. Spring describe the waiver of Miranda rights by suspects.

Brewer v. Williams and Nix v. Williams created the inevitable-discovery exception to the Miranda requirements. New York v. Quarles established the public-safety exception to the Miranda rule.

Kuhlmann v. Wilson permitted the passive gathering of information and Illinois v. Perkins permitted active questioning by an undercover officer posing as a fellow inmate in jail 91 Copyright © 2021 Pearson Education, Inc.

Questions for Reflection 1.

What is the Bill of Rights, and how does it affect our understanding of due process?

The Bill of Rights is the popular name given to the first ten amendments to the U.S. Constitution, which are considered especially important in the processing of criminal defendants. The Bill of Rights is critical to ensuring that police practices occur within the boundaries of the law. The Fifth, Sixth, and Fourteenth Amendments require due process, mandating that officials respect the rights of the accused. The critical applications of these ideas to policing are in the areas of search and seizure, interrogation, and arrest. Discussions about the fair and unfair application of the rules regarding these practices substantially influence public understandings of due process.

2.

On what constitutional amendments are due process guarantees based? Can we ensure due process in our legal system without substantially increasing the risk of criminal activity?

Due process generally focuses on the processes in place to protect individual rights. These rights are guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution.

Answers will vary regarding balancing due process and the risk of criminal activity.

3.

What is the exclusionary rule? What is the fruit of the poisonous tree doctrine? What is their importance in American criminal justice?

The exclusionary rule is the understanding, based on Supreme Court precedent, that incriminating information must be seized according to constitutional specifications of due process or it will not be allowed as evidence in a criminal trial. The fruit of the poisonous tree doctrine is a legal principle that excludes from introduction at trial any evidence later developed as a result of an illegal search or seizure. The exclusionary rule and the fruit of the poisonous tree doctrine are important because they essentially punish the police for violating due process guarantees. If police officers violate the Fourth Amendment in the processing of evidence, the exclusionary rule prevents the use of this evidence to obtain a conviction. Any evidence collected following a bad search is also lost because of the fruit of the poisonous tree doctrine.

4.

Under what circumstances may police officers search vehicles? What limits, if any, are there on such searches? What determines such limits?

Vehicle searches are problematic for police officers. The U.S. Supreme Court, however, has given officers some freedom because of the mobility of automobiles. In general, an investigatory stop is permissible if supported by reasonable suspicion, and a warrantless search of the vehicle is valid if based on probable cause. Warrantless searches may extend to any area of the vehicle, including the glove compartment, the trunk, and packages in the vehicle and trunk. Officers can also request that the motorist and passengers get out of the vehicle. There are some limits on the extent of such searches determined by case precedent.

Officers must have a reason to stop a vehicle. If conducting an inventory search, officers must follow standardized criteria authorizing the search. Finally, full search of a vehicle incident to the issuance of a citation is not permitted.

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5.

What are suspicionless searches? How does the need to ensure public safety justify certain suspicionless searches?

A suspicionless search is a search conducted by law enforcement personnel without a warrant and without suspicion. Suspicionless searches are only permissible if based upon an overriding concern for public safety. The court essentially ruled that the need to ensure public safety provided a compelling interest that negated the rights of individual privacy. The court has used several drug cases to define and expand this right, arguing that the public safety interests furthered by mandatory drug testing of employees outweighed privacy interests.

6.

What is electronic evidence? How should first-on-the-scene law enforcement personnel handle it?

Information and data of investigative value that are stored in or transmitted by an electronic device are called electronic evidence. The first officers on the scene should take steps to ensure the safety of everyone at the scene and to protect the integrity of all evidence. In addition to following general forensic and procedural principles, first responders should use special precautions when confronted with potential sources of electronic evidence. Experts emphasize five key points: • Don’t turn any electronic device on or off. Leave such devices as found and let specially trained technicians handle them.

• Immediately secure, document, and/or photograph perishable data found on pagers, cell phones, and similar devices.

• Identify and label telephone lines attached to modems and caller ID boxes.

• Preserve latent fingerprints on keyboards and other components for collection after completing the recovery of electronic evidence, to prevent data loss from the effects of chemicals used to process latent prints.

• Secure and preserve items that may assist in the examination of electronic evidence.

Calendars or software manuals, for example, may contain handwritten notes showing passwords or other crucial information.

93 Copyright © 2021 Pearson Education, Inc.

Chapter 8 Policing: Issues and Challenges CHAPTER OVERVIEW Chapter 8 discusses several important police issues, including police personality and culture, corruption, police use of force, professionalism and ethics, police discretion, the dangers of police work, and police civil liability.

One powerful influence on law enforcement officers is the police subculture. Informal socialization of new recruits has more impact than formal academy training on how rookies come to see police work. The police working personality includes characteristics essential for survival and effectiveness but not all characteristics are advantageous. Sources of the police personality include components existing in individuals that draw them to police work as well as the socialization into the police subculture.

Policing offers many opportunities for misconduct and corruption and the effects of corruption have broad impacts. Types of corruption range from accepting gratuities and playing favorites up to denying civil rights and engaging in violent crimes. The chapter discusses the historical pervasiveness of police corruption, factors in police work that may contribute to corruption, and various ways in which police departments have attempted to respond to police corruption.

Police professionalism requires officers have considerable specialized knowledge and adhere to the standards and ethics set out by the profession. It puts limits on officers’ discretionary activities. Training in police ethics is being incorporated into basic training. Accreditation of police departments, raising and standardizing police education and training, and improving recruitment and selection standards are all elements in making policing a true profession and addressing problem areas in policing.

Chapter 8 also discusses the dangers of police work. By its nature, police work is dangerous.

In 2012, 119 law enforcement officers were killed in the line of duty. Other dangers include the risk of disease and infected evidence; officers must take necessary precautions or risk being infected with AIDS, hepatitis B, or tuberculosis. Stress is a natural component of police work.

Long-term stress may be the least visible of police dangers, but it has an enormous impact on officers and on their families as well. Overtime assignments, shift work, and court appearances contribute to officer fatigue, which can also affect performance.

Police use of force involves the use of physical restraint by an officer when dealing with a member of the public. Police-civilian interactions rarely require the use of force. It is most typically used in arrest situations. Police are required to use only the amount of force that is reasonable in the circumstances; the use of excessive force can result in lawsuits by the public.

Deadly force is force likely to cause death or significant bodily harm. The unjustifiable use of deadly force creates potential civil liability. In Tennessee v. Garner, the Supreme Court specified the conditions under which deadly force can be used in the apprehension of suspected felons.

Relatively few officers ever fire their weapons at suspects during the course of their careers.

Another concern is suicide by cop, in which individuals deliberately engage in behavior that causes responding officers to resort to deadly force. Less-lethal weapons are designed to disable, capture, or immobilize suspects rather than kill them.

Police discretion refers to the exercise of choice by officers when carrying out their duties.

Officers frequently are not directly supervised, providing them with discretion to resolve incidents informally or formally. Potential factors that might influence officer discretion include 94 Copyright © 2021 Pearson Education, Inc.

the background of the officer, characteristics of the suspect, community interest, and pressures from the victim.

A recent concern in policing is racial profiling. Sometimes known as “driving while black” or “driving while brown,” racial profiling involves any police-initiated actions that rely on race, ethnicity, or national origin rather than the behavior of the individual or crime-specific information.

Civil liability lawsuits against the police may be brought in either state or federal courts.

Common sources of civil suits brought against police departments include failure to protect property, failure to render proper medical assistance, false arrest, false imprisonment, and inappropriate use of deadly force. Civil suits filed in federal court are often called 1983 lawsuits, because they are based on Title 42, Section 1983, of the U.S. Code. Bivens actions are civil suits brought against federal government officials for denying the constitutional rights of others.

Individual officers may have qualified immunity from constitutional lawsuits if their actions are reasonably believed to be lawful based on clearly established law and the information possessed by the officer. Most police chiefs today believe that lawsuits or the threat of civil litigation makes it more difficult for officers to do their jobs.

CHAPTER OBJECTIVES 1.

2.

3.

4.

5.

6.

7.

8.

Describe the police personality and police subculture.

Describe different types of police corruption and possible methods for building police integrity.

Summarize the importance of police professionalism and integrity as well as methods for building them.

Describe the dangers, conflicts, challenges, and sources of stress that police officer face in their work.

Summarize the guidelines for using force and for determining when excessive force has been used.

Explain how police discretion affects contemporary law enforcement.

Describe racial profiling and biased policing, including why they have become significant issues in policing.

Describe civil liability issues associated with policing, including common sources of civil suits against the police.

CHAPTER OUTLINE I. Introduction II. Police Personality and Culture • Describe the police subculture according to the values that this chapter says are characteristic of that subculture. Explain how the police subculture influences the development of the police personality through socialization, and review the characteristics of the police personality by referring to Table 8-1.

• Relate the police working personality to the police subculture.

• Ask students to discuss what elements of the police subculture and personality might lead to problems for female officers, both personally and in their underutilization in a police department?

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• Ask students to discuss the elements of the police subculture and identify each as desirable or undesirable. Ask students which aspects of the subculture they would change if they could, and discuss ways of effecting such changes.

III. Corruption and Integrity • Ask students what elements of the police subculture might be changed to fight police corruption and how such changes could be brought about.

• Explain the difference between police corruption and other forms of police misconduct or deviance.

• Ask students to identify pressures that officers are likely to face that might lead to corruption. Focus in particular on the potential of illegal drugs, and the large amounts of money associated with them, for corrupting law enforcement personnel.

• Explain the events leading up to the Knapp Commission. Review the concepts of grass eaters and meat eaters and the differences between them.

• Explain the characteristics of policing that create opportunities for corruption and discuss the concept of the “slippery slope.”

A. Money—The Root of Police Evil?

• Have students discuss whether increasing police officer pay would reduce police corruption.

B. Building Police Integrity • Explain that internal affairs divisions are charged with investigating wrongdoing by police officers, and discuss other methods departments can use to fight corruption.

• Discuss the importance of ethics training as a key element in the efforts to control police corruption.

• Review Garrity rights and lead a discussion as to whether police officers have these protections. Ask students how the special (non-civilian) status of the police affects their rights.

C. Drug Testing of Police Employees • Have students discuss whether police officers should be subject to random drug testing.

• Explain that the drug testing of police officers is important not just in keeping police departments drug free but also in fighting corruption.

IV. Professionalism and Ethics • Review the hallmarks of a profession. Then divide the class into groups and have them debate whether police work in America today is a profession.

• Have students read the Law Enforcement Code of Ethics in an “Ethics and Professionalism” box in this chapter and discuss whether they think the code is realistic and what elements should be added or removed.

• Have students research the CALEA accreditation requirements and the accreditation process. Have them discuss the pros and cons of accreditation and whether it is worth the effort for a police agency to go through the process.

A. Education and Training • Explain the importance of higher education to police officer training, especially in the era of community policing. Ask students how they think education might make a 96 Copyright © 2021 Pearson Education, Inc.

difference in their own approach to policing and if it has already changed their sense of the profession.

• Point out that police standards and training vary greatly among jurisdictions. Have students discuss whether there should be a national standard that all police officers in the U.S. must meet.

• Hold a debate regarding whether police applicants should be required to have a college degree.

B. Recruitment and Selection • Discuss August Vollmer’s comment regarding public expectations of the police. Ask students why they think he made this statement and whether or not they agree with it.

• Select a few professions (doctor, lawyer, teacher, etc.) and compare the entry-level requirements and continuing training/education requirements to those of police officers. Discuss the differences.

V. The Dangers of Police Work • Discuss what can be done to reduce danger to the police.

• Ask the class to suggest other (perhaps currently unrealized) dangers of policing that might occur in the future and suggest ways the police can protect against these dangers.

• Explain the dangers of police work by referring to the risk of violence on the job, the danger of infectious diseases such as AIDS, terrorism, and the possibility of infection at accident sites and when dealing with injured people. Use Figure 8-2 to highlight the kinds of situations in which law enforcement officers are most likely to be killed.

A. Violence in the Line of Duty • Point out that although the police do face a risk of violent death in the line of duty, the actual rate of such death is extremely small.

B. Risk of Disease, Drug Exposure, and Infected Evidence • Point out that casual contact will not lead to AIDS, that there must be contact with fresh blood or other body fluids, and that breaks in the skin or mucous membranes provide the most likely route for infection to occur. Note, however, that the Ebola virus is more infectious and that additional precautions should be taken when dealing with persons exposed to Ebola. Discuss the roles that accident scenes, rape crimes, cardiopulmonary resuscitation (CPR), bites, and cuts may play in Ebola or HIV transmission.

• Divide the class into groups and hold a debate regarding whether police officers should have the right to refuse to have physical contact with someone who is known to have an infectious disease.

C. Stress and Fatigue among Police Officers • Ask students to identify elements of the police subculture and working personality that may cause police officers and administrators to avoid acknowledging the psychological stress of using deadly force.

• Discuss police stress as a major occupational hazard for law enforcement personnel, and identify some of the stressors that police officers face. Ask students to discuss ways in which the police department might help to reduce some of these stressors.

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1. Stress Reduction • Outline some techniques for stress reduction, such as exercise, meditation, breathing exercises, prayer, music, subliminal conditioning, and diet. Discuss techniques that are most likely to work with law enforcement personnel and those that are least likely to be effective.

• Have students research support programs for police officers’ family members and present their findings in class. Compare the various programs and discuss whether police departments are doing enough or if more support for families of police officers is necessary.

2. Officer Fatigue VI. Police Use of Force • Describe the situations in which police officers are most likely to use force, and provide some guidelines for determining when too much force has been used.

• Discuss how the situation can affect whether an officer’s actions are considered to be excessive or not.

• Use Figure 8-5 to discuss the concept of force as a continuum. Explain how the officer’s perception of a situation affects his or her response to that situation.

• Explain the difference between excessive force, excessive use of force, and illegal use of force.

• Ask students to discuss who should be responsible for determining whether an officer used excessive force in a situation. Have the class discuss if someone who was not present at the scene can fully understand the officer’s decision to use force.

• Have the class discuss whether it is reasonable to compare an officer’s split-second decision to use force that was made during an emotionally-charged event with recommendations made by others who have repeatedly viewed a video of the event in a calm environment.

• Discuss the recent National Consensus Policy on Use of Force and explain when, according to this policy, the use of deadly force by police is justified. Ask students what guidance officers should be given to determine when they are justified in using deadly force.

A. Deadly Force • Ask the class to discuss how a community policing approach could affect police views of when deadly force is appropriate.

• Discuss the 1985 Supreme Court case of Tennessee v. Garner and explain how this case affected police use of deadly force.

• Discuss the problem of “suicide by cop” and the effects it might have on the police.

• Have students discuss what elements of the police subculture and personality cause police officers and administrators to avoid acknowledging the psychological stress of using deadly force.

B. Less-Lethal Weapons • Discuss the possible risks of using less-lethal weapons.

VII. Discretion and the Individual Officer • Discuss the implications of allowing officers to have discretion when carrying out official duties, including making the decision whether to arrest.

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• Ask students to discuss what might happen if police discretion was severely curtailed or was completely eliminated.

• Ask students to discuss whether police discretion violates the right to equal justice and to propose ways to control and guide discretion without eliminating it completely.

VIII. Racial Profiling and Biased Policing • Explain the difference between racial profiling and behavioral profiling. Ask students why behavioral profiling is considered to be acceptable while racial profiling is not.

• Discuss recent media, political, and research attention to this issue.

A. Racially Biased Policing • Introduce the findings from the Racially Biased Policing study by PERF and the recommendations to help police departments be free of bias.

IX. Police Civil Liability A. Common Sources of Civil Suits • Review the major sources of civil liability, as listed in Table 8-3. Have students discuss ways of reducing the potential for civil liability for individual officers, administrators, and departments as a whole.

• Explain the impact of department policy in reducing civil liability.

• Ask students how discretion could lead to civil liability. Have them discuss what departments might do to train officers to use discretion wisely and to avoid major sources of civil liability through the proper exercise of discretion/ • Discuss some of the main types of police officer behavior that may result in civil liability.

B. Federal Lawsuits • Discuss the concepts of sovereign immunity and qualified immunity and have students discuss whether police officers, police departments, and other government agencies should have any form of immunity.

LIST OF CHANGES/TRANSITION GUIDE •

Police subculture is now shown to be equivalent to police occupational culture, and the discussion of police subculture has been expanded.

•

The story is told about corruption among members of the Baltimore Police Department’s Gun Trace Task Force (GTTF).

•

Police training standards have been updated.

•

The 2018 Law Enforcement Mental Health and Wellness Act is now described.

•

A 2018 article published in the American Journal of Preventive Medicine that found that members of the police profession are more likely to sustain nonfatal work-related injuries than members of any other occupation is now discussed.

•

The proper handling of fentanyl at crime scenes is discussed.

•

Statistics and line art have been updated throughout the chapter.

99 Copyright © 2021 Pearson Education, Inc.

•

The 2017 Supreme Court case of White v. Pauly, in which the Court established that “Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” has been added.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Ask students to list police activities that might be regarded as corrupt. Discuss the list, deciding on a “final” list of activities that most students agree are forms of corruption. Then have the class rank each of the items in the list from the least serious to the most serious.

•

Huge monetary settlements in the LAPD’s Rampart scandal went to drug dealers, gang members, and other criminals who claimed that they had been framed, shot, beaten, or otherwise mistreated by police. Ask students if they agree with Los Angeles city councilwoman Cindy Miscikowski statement that, “Civil rights are civil rights, and they apply to everyone across the board.” Why or why not?

•

Have students research racial profiling (the web site of the American Civil Liberties Union – the ACLU – may be a good source of information) and present arguments for and against the use of racial profiling as a necessary tool for the police.

•

Have students locate newspaper articles on police corruption and identify the effect of each incident on the police department and the community.

•

Have students create a questionnaire designed to assess the degree of racial profiling by the police that respondents feel they have experienced, if any. Administer the questionnaire to people on campus, at a local shopping center, or on the Web.

•

Invite a human resource officer from a local police department to visit the class and discuss issues relating to officer stress and the ways in which the department assists officers and their families in dealing with stress. Computer conferencing may be considered as an alternative to a classroom visit.

•

Have students research the various screening methods used by police departments and decide which methods are more common and which are rarely used. Have them rank them in order of importance. Encourage them to consider the difficulties or problems involved in some of the screening methods (e.g., cost, time).

•

Have students research the education and training requirements in various departments in your state, or have each student (or group of students) research a different state. Discuss the wide variation in standards and the implications of this diversity.

•

Visit a number of police memorial Web sites. Prepare a display of the types of information displayed on these sites and discuss in class.

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

What is the police working personality? What are its central features? How does it develop? How does it relate to police subculture?

The working personality includes all aspects of the traditional values and patterns of behavior evidenced by police officers who have been effectively socialized into the police subculture. Characteristics of the police personality often extend to the personal lives of law enforcement personnel. Characteristics of the police working personality include authoritarianism, cynicism, conservatism, suspicion, hostility, individualism, insecurity, 100 Copyright © 2021 Pearson Education, Inc.

loyalty, efficiency, honor, secretiveness, and prejudice. American police officers develop a working personality through an informal socialization process wherein officers learn “appropriate” police behavior (that is, acceptable to fellow officers) from veteran members of the department. Once acquired, it creates a “streetwise” view of the world shared by members of the police ranks. The police working personality is a central component of police culture. Rookie officers are socialized into the police culture. Hiring practices, training, and interactions with supervisors, other officers, and citizens are all issues that impact this socialization process. The working personality is one by-product of this socialization process.

2.

What are the different types of police corruption? What themes run through the findings of the Knapp Commission and the Wickersham Commission? What innovative steps might police departments take to reduce or eliminate corruption among their officers?

Police corruption ranges from minor violations to serious violations of the law. The main types of police corruption include accepting gratuities, playing favorites, taking minor or major bribes, being above “inconvenient laws,” role malfeasance, committing property crime, engaging in criminal enterprise, denying civil rights, and committing violent crime.

Researchers have also provided more specific categories of police corruption. Barker and Carter, for example, distinguish between occupational deviance and abuse of authority, and the Knapp Commission report distinguished between grass eaters and meat eaters. Both the Knapp and Wickersham Commissions found existence of the infamous “blue wall,” a contributing factor in police corruption. The willingness of police officers to tolerate corrupt behavior known to them rather than to report it baffles most observers. Another important theme is that when huge sums of money are available with which to tempt police officers, some yield. That is less a function of their status as police officers and more the result of their status as human beings. While controlling corruption is difficult, there are several ways police administrators may attempt to minimize it. Ethics training must be emphasized.

Additionally, formal and informal leaders within police ranks must create a culture in which the intolerance of behavior that diminishes the group is valued above misplaced loyalty toward a corrupt fellow officer.

3.

What is police professionalism? How can you tell when police action is professional?

Why are professionalism and ethics important in policing today?

Police professionalism is the increasing formalization of police work and the accompanying rise in public acceptance of the police. Police action is generally professional when it is rational, fair, and unbiased. Professionalism is important in policing because it legitimizes the police role in society. A commitment to ethical guidelines, professional associations, and accreditation sends a clear message about the quality of a profession.

4.

What are the dangers of police work? What can be done to reduce those dangers?

The dangers of police work include violence in the line of duty, the risk of exposure to disease and biological or chemical toxins, stress, and fatigue. Many police departments have taken proactive steps to reduce these dangers, improving training, developing support programs, and making organizational adjustments. It may be that the most important step that has been taken by departments is the acknowledgement these dangers exist.

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5.

In what kinds of situations are police officers most likely to use force? When has too much force been used?

The use of force is a relatively rare occurrence; police use force in less than 20% of all adult custodial arrests. Police are most likely to use force when making arrests, dealing with disturbances, handling domestics, and making traffic stops.

The amount of force used is considered to be excessive when it is greater than that required to compel compliance from a willing or unwilling subject. This may be as simple as pushing a suspect when grabbing the suspect would have been sufficient.

6.

What is police discretion? How does the practice of discretion by today’s officers reflect on their departments and on the policing profession as a whole?

Police discretion is the opportunity for law enforcement officers to exercise choice in their daily activities. Discretion is essential to policing in America. Because police agencies receive too many calls and departmental priorities are influenced by a number of external factors, flexibility in police response is critical to police legitimacy. If, however, police discretion results in unpredictable and discriminatory practices, such as racial profiling, then the reputation of police departments and the policing profession is damaged.

7.

What is racial profiling? What is racially biased policing? Why have they become significant issues in policing today?

Racial profiling is any police-initiated action that is based on the race, ethnicity, or national origin rather than on the behavior of an individual, or on information that leads the police to a particular individual who has been identified as being, or having been, engaged in criminal activity. Racially biased policing is based on race alone. For example, noting a white male in a predominately African American neighborhood might be routine observation, but by itself is not sufficient to investigate further. These have become significant issues in policing today for several reasons. First, several research reports have indicated that racial profiling is a significant problem. Second, media coverage of these reports and the publicity of specific profiling incidents increased public awareness and concern about this problem.

8.

What are some of the civil liability issues associated with policing? What are some of the common sources of civil suits against the police? How can civil liability be reduced?

There are several civil liability issues associated with policing. First, there have been an increasing number of suits brought in federal courts against police departments. Second, such cases generate a good deal of media publicity and criticism directed at the police department.

Third, in general, the U.S. Supreme Court has supported a type of qualified immunity for individual officers.

The most common sources of civil lawsuits include assault, battery, false imprisonment, and malicious prosecutions. Departments may protect themselves from lawsuits to a significant degree by providing proper and adequate training to their personnel, and by creating regulations limiting employee authority. Because civil lawsuits against police probably will not decline in number, most police departments have started to carry liability insurance to protect themselves against the financial damages of losing a large civil suit.

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Questions for Reflection 1.

Do you think that this chapter has accurately described the police personality? Why or why not? Can you identify any additional characteristics of the police personality? Are there any listed here that you do not think are accurate?

Answers will vary.

2.

What strategies can you think of for helping build police integrity? How might those strategies differ from one agency to another or from the local to the state or federal level?

Answers will vary.

3.

What is it about racial profiling that most people find unacceptable? Are there any situations in which law enforcement’s use of racial features or ethnic characteristics may be appropriate in targeting suspected criminals? If so, what would those situations be?

Answers will vary.

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Chapter 9 The Courts: Structure and Participants CHAPTER OVERVIEW Chapter 9 provides an introduction to the American court system. It discusses the history of the dual-court structure in America, highlighting the decisions made at the various state and federal court levels. The text also describes the roles and responsibilities of “professional” and “nonprofessional” members of the courtroom work group.

In the United States, there are two judicial systems. One consists of state and local courts established under the authority of state and local governments. The other is the federal court system, created by Congress under the authority of the U.S. Constitution. This dual-court system historically results from general agreement among the nation’s founders about the need for individual states to retain significant legislative authority and judicial autonomy separate from federal control.

Most state court systems today have a three-tiered court structure, including two levels of trial courts and an appellate tier. The lowest level contains trial courts of limited or special jurisdiction, also known as lower courts, which hear only cases involving very minor crimes, such as misdemeanors and traffic violations. A judge, rather than a jury, usually resolves these cases. The second tier includes trial courts of general jurisdiction, which can hear any criminal case. Finally, the appellate division is where people can appeal a decision against them.

Appellate courts are concerned with reviewing the case on the record and will not conduct a new trial. Trial courts of general jurisdiction provide the first level of appeal for cases decided in a court of limited jurisdiction. Cases tried in a court of general jurisdiction are appealed to the state intermediate appellate court. Finally, all states have supreme courts, generally referred to as courts of last resort. Dispute-resolution centers are programs where minor disputes may be resolved without formal court hearings. There are also a variety of specialized courts which may handle special populations or address special issues, such as drug courts, domestic violence courts, and so on.

The federal court system was created by the U.S. Constitution and includes three levels of courts. The 94 district courts are the trial courts of the federal system. The 13 U.S. courts of appeals, or circuit courts, provide the first level of appeal in the federal system and are responsible for reviewing decisions from the federal district courts. The U.S. Supreme Court is the most powerful court in the United States. This Court reviews decisions from U.S. courts of appeals and from state supreme courts.

The courtroom work group includes a variety of professional courtroom personnel, including the judge, the prosecutor, the defense counsel, the bailiff, the trial court administrator, the court reporter, the clerk of court, and expert witnesses. The courtroom work group is guided by statutory requirements and ethical considerations, and its members are generally dedicated to bringing the criminal trial and other courtroom procedures to a successful close.

Also present in the courtroom during a criminal trial are a number of outsiders, or nonprofessional courtroom participants. These may include lay witnesses, jurors, the victim, the defendant, and spectators and members of the press. Nonprofessional or nonjudicial courtroom personnel may be unwilling or inadvertent participants in a criminal trial.

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CHAPTER OBJECTIVES 1.

2.

3.

4.

5.

Summarize the development of American courts, including the concept of the dual-court system.

Describe a typical state court system, including some of the differences between the state and federal court systems.

Describe the structure of the federal court system, including the various types of federal courts.

Identify all typical job titles of the courtroom work group members.

Describe the roles of outsiders, or nonprofessional courtroom participants.

CHAPTER OUTLINE I. Introduction II. History and Structure of the American Court System • Explain the differences between state and federal courts, and provide a brief overview of how our country’s system of separate state and federal courts developed.

• Ask students whether they agree with the move towards increasing the power of the federal government in comparison to the states.

III. The State Court System A. The Development of State Courts • Outline state court development, beginning with the General Court of the Massachusetts Bay Colony and continuing to the present day. Use Figure 9-2 to demonstrate the general state court structure.

• Discuss the concepts of original and appellate jurisdiction. Explain that early courts did not distinguish between these concepts but that today courts generally have either original or appellate jurisdiction.

B. State Court Systems Today • Outline the structure of a typical state court system and describe the jurisdiction of various types of state and local courts.

• Explain that most state judicial structures encompass courts at three levels: trial, appellate, and supreme. Mention that a state supreme court is also called a court of last resort.

• Ask students to theorize as to why most state court systems have two levels of trial courts and two levels of appellate courts.

1. State Trial Courts 2. State Appellate Courts • Explain that the function of appellate courts is to review decisions made by lower courts within their jurisdiction. Tell the class that defendants convicted in a lower court generally have a right to appeal and that most convictions are confirmed upon appeal.

3. State Court Administration 4. Dispute-Resolution Centers and Problem-Solving Courts • Discuss the goals of problem-solving courts and explain how they differ from other criminal courts.

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• Describe the high workloads facing many criminal courts today. Discuss the fact that many simple disputes, even if they involve minor crimes, may not need formal resolution before a formal court of law.

• Describe the relatively recent evolution of dispute resolution centers as informal mechanisms for the mediation of conflicts. Consider using the example of a dispute over a parking space on a crowded residential street leading to a minor act of vandalism, such as a broken car antenna or a punctured tire, to illustrate the type of disagreement that might benefit more from mediation than from formal intervention by a court of law.

IV. The Federal Court System • Discuss the rise of federal courts by referring to Article III, Section I, of the U.S. Constitution as well as the Judiciary Act of 1789.

• Identify the three levels of the federal judiciary, and describe some of the differences between state and federal court systems.

• As you move through the section on federal courts, compare each federal court to the corresponding level of state courts.

• Unlike judges in state courts, federal judges and justices serve for life. Have students discuss the pros and cons of life tenure. Dive the class into groups and hold a debate regarding whether federal judges and justices should serve life terms.

A. U.S. District Courts • Tell the class that there are 94 federal district courts. Explain that federal district courts have original jurisdiction over all cases involving alleged violations of federal statutes.

• Discuss Justice Roberts’ concern regarding the pay of federal district court judges.

Ask students whether federal district court judges should be paid a salary similar to what they could earn in private practice, as a way of attracting more highly-qualified judges to the federal bench.

B. U.S. Courts of Appeals • Explain that the U.S. Constitution created a Supreme Court and gave Congress the power to create inferior courts. Ask students why they think Congress felt it necessary to create a second level of appellate courts.

• Refer to Figure 9-3 to describe the geographic boundaries of federal judicial circuits.

C. The U.S. Supreme Court • Discuss the power of judicial review and explain that the U.S. Supreme Court wields immense judicial power by virtue of its role as interpreter of constitutional mandates.

• Highlight the case of Marbury v. Madison (1803) as significant because it was through this case that the U.S. Supreme Court first asserted its power and laid claim to its continuing role as the ultimate arbitrator of constitutional issues. The case is available online for students to read.

• Have students examine the changing composition of the Supreme Court since the Reagan-Bush era. Ask them to discuss how the daily activities of police officers, lower court functionaries, and prison administrators could be affected by the changing makeup of the Court.

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• Ask students to identify whether the current makeup of the Supreme Court more reflects the individual rights or public order viewpoint.

• Students may have a difficult time understanding how the state and federal court systems interact in practice. One way to illustrate state and federal court decisionmaking processes is to walk a case through the various levels. For example, you can discuss a felony murder trial that receives a significant amount of pretrial publicity.

Discuss how the defendant would be tried first in a state court of general jurisdiction.

Then explain the process of appeal from the state intermediate appellate court to the court of last resort. Explain in what circumstances the case could be appealed directly to a federal district court or to the U.S. Supreme Court (for example, if there was a claim that the defendant’s due process right to a speedy trial was violated).

1. The Supreme Court Today V. The Courtroom Work Group • Consider using a well-known and highly-publicized criminal case as an example when discussing the roles of the various professional courtroom actors, including the judge, prosecutor, defense attorney, bailiff, local court administrator, court reporter, clerk, and expert witness.

A. The Judge • Explain the general responsibilities of the trial judge by referring to the American Bar Association’s Standards for Criminal Justice. Stress the judge’s role as mediator within an adversarial setting.

1. Judicial Selection • Point out that the chapter describes three systems of judicial selection. Ask students to discuss which of the three would be most favored by public-order advocates and which by individual-rights advocates.

• Explain the various kinds of processes used in different jurisdictions for the selection of judges. Describe the problems associated with both political appointment and popular election, including the fact that appointed judges may unfairly represent the interests of those who appoint them.

• Class Activity: Divide the class into groups and assign each group a selection method to research and support (election, appointment, or the Missouri Plan).

Conduct a debate on which is the best method.

2. Judicial Qualifications 3. Judicial Misconduct B. The Prosecuting Attorney • Explain the role of the prosecuting attorney as the primary representative of the state or the people. Stress the fact that within the adversarial context of a criminal trial, the prosecuting attorney is expected to argue the state’s case effectively.

• Discuss the prosecutor’s law enforcement role and the need for close cooperation and communication with the police.

• Ask students whether the prosecutor’s role as an advisor to the police might create bias.

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1. Prosecutorial Discretion • Explain prosecutorial discretion. Demonstrate that the discretionary decision of a prosecutor as to whether a suspect should be charged with a crime makes the prosecutor one of the most powerful actors in the criminal justice system.

• Point out that the discretionary decision of a prosecutor as to whether a suspect should be charged with a crime makes the prosecutor one of the most powerful actors in the criminal justice system.

2. The Abuse of Discretion 3. The Prosecutor’s Professional Responsibility C. The Defense Counsel • Compare and contrast the two major categories of criminal defense attorneys: retained counsel and indigent defense.

• Explain that as a result of the Supreme Court decision in the case of Gideon v.

Wainwright (1963), criminal defendants are now entitled to have a lawyer to represent them in court. Ask what impact the Gideon decision probably had on the legal profession in this country.

• Be sure to explain to students why defendants need the assistance of counsel. Discuss the complexity of court proceedings. Point out that the majority of defendants are poor and uneducated. In the same way that we rely on doctors when we need medical treatment, defendants need attorneys, as educated and trained professionals, to cut through legal complexities on their behalf.

1. Retained Counsel 2. Indigent Defense • Divide the class into groups and lead a debate as to which of the three systems used to deliver legal services to indigent defendants is the best.

• Assign students one of the three systems used to deliver legal services to indigent defendants and have them create public service announcements or other advertisements supporting their system.

3. Problems with Indigent Defense 4. The Ethics of Defense • Describe the ethical concerns of the defense lawyer by referring to the “Ethics and Professionalism” box in this chapter, which highlights the ABA’s Model Rules of Professional Conduct. Ask students how the adversarial model (and the win-lose scenario) creates temptations for defense attorneys to violate these standards.

D. The Bailiff E. Trial Court Administrators F. The Court Reporter G. The Clerk of Court H. Expert Witnesses • Describe an expert witness as someone who is recognized as having special knowledge and skills in an area of concern to the court. Explain that expert witnesses, unlike lay witnesses, may express opinions and draw conclusions in their areas of expertise.

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• Most authorities agree that jurors usually view expert testimony as more trustworthy than other forms of evidence. Ask students to discuss the implications of this and how it might affect the way prosecutors and defense attorneys approach a case.

VII. Outsiders: Nonprofessional Courtroom Participants • Explain what the textbook means by describing nonprofessional participants in criminal trials as providing “grist” for the judicial mill.

A. Lay Witnesses • Explain that lay witnesses may testify only about things they know from personal experience to be true.

• Describe some of the hardships endured by witnesses in criminal trials, such as uncertainty of what is expected of them, anxiety about having to testify, possible fear of the defendant, and lack of knowledge of courtroom procedure.

• Explain how lay witnesses and expert witnesses differ and stress the importance of both to the judicial process.

B. Jurors • Point out that jury duty is the one remaining way in which members of the public can be involved in the judicial process today.

• Define a peer jury as a jury composed of a representative cross section of the community. Explain that the right to a jury of one’s peers is not guaranteed by the U.S. Constitution but by a Supreme Court decision.

• Ask students to discuss the ways in which our jury system does and does not serve individual-rights and public-order needs.

• Explain that one of the biggest challenges for jurors is to remain objective and to avoid making up their minds about guilt or innocence until all evidence has been heard.

• Stress that juries can be unpredictable. Even in cases in which there is overwhelming evidence in support of a conviction, jurors have been known to return not guilty verdicts, reacting more to emotional testimony than facts. One of the best movie portrayals of jury decision making is 12 Angry Men. C. The Victim • Point out that the victim’s role in court processing (trial and sentencing) is much more limited today than in the past, and that many victims today have little if any input or involvement.

• Encourage students to students imagine what it would be like for a victim to testify at trial. Explain that many victims have to sit outside the courtroom waiting to be called as witnesses. Explain that the process is intimidating, frightening, and overwhelming for victims. Remind students that it is the responsibility of the defense attorney to raise some doubt in the minds of jurors about the suspect’s guilt. This can often result in a very painful cross-examination for the victim.

• Ask students to consider how court processes may potentially cause harm to crime victims of crime and to discuss ways in which the courts could work to reduce secondary injury.

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D. The Defendant • Describe the role of the defendant in the criminal trial. Highlight the choices the defendant makes as the trial proceeds, including the selection of an attorney, the choice of a plea, and the decision about whether to testify.

• Point out that the defendant has considerably more influence over the court process than the victim does. Ask students whether they agree with this or if they believe victims should have more input.

E. Spectators and the Press • Discuss the ways in which pretrial news coverage may be damaging to the objective outcome of a criminal trial? Given the emphasis that our society places on freedom of the press and freedom of speech, ask students whether they agree that judges should be allowed to issue gag rules restricting the ability of trial participants to discuss a case outside of court.

• Divide the class into groups and hold a debate as to whether video cameras should be permitted in criminal courtrooms.

LIST OF CHANGES/TRANSITION GUIDE •

A discussion of the trial of drug lord “El Chapo” Guzman is now a part of the chapter.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Students may have a difficult time understanding how the state and federal court systems interact in practice. One way to illustrate state and federal court decision-making processes is to follow a case through the various levels. For example, you can discuss a felony murder trial that receives a significant amount of pretrial publicity. Discuss how the defendant would be tried first in a state court of general jurisdiction. Then explain the process of appeal from the state intermediate appellate court to the court of last resort. Also, since there may have been a Sixth Amendment due process issue, describe how the case could be appealed directly to the U.S. Supreme Court or to a federal district court.

•

Have the class research the congressional confirmation hearings of selected Supreme Court nominees, including Robert Bork, David Souter, Clarence Thomas, John Roberts, Sonia Sotomayor, and Neil Gorsuch. Ask them to identify the issues raised by both sides in the debates over the candidates. Have the class decide, on the basis of the confirmation hearings, which of these nominees would make the best justice, and have them provide the reasoning behind their decision. Which of these candidates would probably be the favorite of individual-rights advocates? Of public-order advocates? Why?

•

Have students research the various judicial selection processes and lead a debate regarding which is the best method.

•

Invite a criminal court judge to speak with the class. Have the judge outline his or her responsibilities and discuss the adversarial process. Ask the judge to discuss the greatest challenges he or she faces.

•

Invite a federal judge to speak with the class. Have the judge outline his or her responsibilities and discuss the differences between being a federal judge and a judge in a state court.

•

Invite a local or federal magistrate to speak with the class. Have student prepare questions in advance about the challenges of the magistrate’s role in the criminal justice process.

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•

Invite a prosecutor and a defense attorney to speak with the class (either separately or together). Ask them to describe their respective roles and to comment on what they believe are the pros and cons of the adversarial process in criminal trials.

•

Invite a court administrator to speak with the class. Ask the administrator to outline his or her responsibilities and to discuss the complexities involved in ensuring the courts run smoothly.

Have students prepare questions regarding juror management and about possible strategies for making the system run more efficiently and more humanely.

•

Ask students to imagine what it would be like for a victim to testify at trial. Explain that many victims have to sit outside the courtroom waiting to be called as witnesses. Explain that the process is intimidating, frightening, and overwhelming for victims. Remind students that it is the responsibility of the defense attorney to raise some doubt in the minds of jurors about the suspect’s guilt. This can often result in a very painful cross-examination for the victim.

•

Locate a detailed description of a state court system (possibly the court system in your home state) online. Outline the functions of the various courts that comprise the system, the staff roles, and the administrative agencies (for example, the administrative office of state courts).

Display during class as a discussion starter.

•

Visit the Web site of the U.S. Supreme Court. In class, view the various sections of the web site and have students develop a list of ten facts that they learned about the Supreme Court from this exercise.

•

Assign students (or groups of students) a specific state and have they research the use of dispute resolution and specialized courts. Have each student/group present their findings to the class. Lead a discussion on how state systems are similar and how they vary.

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

How did the American court system develop? What is the dual-court system? Why do we have a dual-court system in America?

The dual-court system is the result of general agreement among the nation’s founders about the need for individual states to retain significant legislative authority and judicial autonomy separate from federal control. States, when joining the union, were assured of limited federal intervention into their affairs. States were free to create laws and create a court system to interpret such laws. Unique features include the fact that state courts do not hear cases of federal law and the federal courts only decide issues of state law when there is a conflict between state statutes and constitutional guarantees. The dual-court system in America is comprised of courts on two levels—federal and state. The dual-court system results from America’s adoption of the federal system of governance. The federal government holds to itself power over matters that are national in scope while relinquishing power to the states over other matters. This structure necessitates the existence of court systems in each resulting jurisdiction that are empowered to rule on matters from the unique perspective of that jurisdiction’s constitution.

2.

What is a typical state court system like? What are some of the differences between the state and federal court systems?

Most state court systems involve a three-tiered structure of two trial courts and an appellate tier. Lower courts are trial courts of limited or special jurisdiction. They are authorized to hear less serious criminal cases or to hear special type of cases, such as traffic violations, 111 Copyright © 2021 Pearson Education, Inc.

family disputes, and small claims. Trial courts of general jurisdiction are authorized to hear any criminal case and may also provide the first appellate level for courts of limited jurisdiction. The state appellate division includes a high-level appellate court, or court of last resort, and may also include an intermediate appellate court, or court of appeals.

There are several differences between federal and state courts. First, the two court systems have different jurisdiction over various issues of law. Second, the number of cases processed by the two systems is very different. Far more cases are processed through state court systems than the federal court system. Third, the types of cases processed by the two systems are different, as many more misdemeanors and offenses are processed in state court systems.

Finally, state court systems are much more likely to have instituted some informal type of court, such as dispute resolution centers, to handle some cases.

3.

How is the federal court system structured? What are the various types of federal courts?

Federal courts were created by the U.S. Constitution, which provides for one Supreme Court and inferior courts which Congress may establish. The federal court system has jurisdiction over cases arising under the Constitution, federal laws, and treaties. Federal courts are also where disputes are settled between states or when one of the parties in a case is a state. The federal judiciary consists of three levels: U.S. district courts, U.S. courts of appeal, and the U.S. Supreme Court. The 94 U.S. district courts are the trial courts of the federal court system and have original jurisdiction over all cases involving alleged violations of federal statutes. The 13 U.S. Courts of Appeals hears appeals from district courts within their individual circuits. The highest court in the nation is the U.S. Supreme Court, which has the power of judicial review and may hear appeals from U.S. Courts of Appeals and from state supreme courts.

4.

What is meant by the courtroom work group? Who are the professional members of the courtroom work group, and what are their roles?

The courtroom work group refers to the professional courtroom actors, including judges, prosecutors, defense attorneys, public defenders, and others who earn a living serving the court.

• The judge ensures justice, balancing the rights of the accused and the interests of society, and holds ultimate authority.

• The prosecuting attorney is responsible for presenting the state’s case against the defendant and also is a quasi-legal advisor to police departments.

• The defense counsel is responsible for representing the accused as soon as possible after arrest and through all stages of the court process.

• The bailiff is responsible for ensuring order in the court.

• The trial court administrator is responsible for facilitating the smooth functioning of the court.

• The court reporter is responsible for creating a record of all that occurs during a trial.

• The clerk of court maintains all records of criminal cases, creates a pool of potential jurors, and marks physical evidence during a trial.

• Expert witnesses testify at trial about scientific evidence.

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5.

Who are the nonprofessional courtroom participants, and what are their roles?

• Lay witnesses provide nonexpert testimony, such as eyewitness testimony.

• Jurors have the role of the arbiters of facts presented at trial.

• The victim works with the prosecutor to obtain a conviction.

• The defendant wants to defend himself or herself against the charges.

• Spectators and the press may be present at trial but have no formal role.

Questions for Reflection 1.

What are the three forms of indigent defense used in the United States? Why might defendants prefer private attorneys over public counsel?

The three forms of indigent defense are assigned counsel, public defenders, and contractual arrangements. Attorneys who serve as public counsel often carry notoriously large caseloads and have limited funding for conducting a defense. They often focus on plea bargaining as a means of expediting cases through the system. Many defendants believe that the degree of effort they receive from assigned counsel is less than they would receive from paid counsel.

2.

What is an expert witness? What is a lay witness? How might their testimony differ?

What are some of the issues involved in deciding whether a person is an expert for purposes of testimony?

An expert witness possesses special knowledge and skills that are recognized by the court as being relevant to the determination of guilt or innocence. A lay witness is anyone called as an eyewitness, character witness, or for some other explanatory purpose who is not an expert on relevant topics. An expert witness’s testimony may include opinions or drawn conclusions. A lay witness, on the other hand, must testify to facts alone and is precluded from offering opinions or conclusions on the possible meaning of those facts relevant to the case at trial.

Expert witnesses can opine and conclude based on their interpretation of the evidentiary material. Conflicting interpretations can lead to opposing opinions and conclusions. The testimony of a single expert witness might give those who hear it a greater degree of understanding. However, when two expert witnesses testify with strongly held and convincingly expressed opinions that disagree, it tends to confuse the typical listener. The resulting lack of clarity most often translates to doubt in the minds of the jurors.

3.

How do the professional and nonprofessional courtroom participants work together to bring most criminal trials to a successful close? What do you think a “successful close” might mean to the judge? To the defense attorney? To the prosecutor? To the jury? To the defendant? To the victim?

Both the professional and nonprofessional courtroom participants work together to bring cases to a successful close by understanding their respective roles. Each party has responsibilities that must be met so that cases can be processed in a way that is in accordance with the law. A judge might define success as the closure of a trial with all legal requirements met and a verdict rendered. Understandably, the defense attorney and his or her client (the defendant) might define success as an acquittal, while both the prosecutor and the victim would consider a conviction a successful conclusion. For the jury, success might mean arriving at a verdict that left each jury member feeling as if he or she had contributed to the achievement of justice for all parties involved.

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Chapter 10 Pretrial Activities and the Criminal Trial CHAPTER OVERVIEW A fundamental concept of criminal justice in the United States is that the criminal justice system is an adversarial system. Justice is achieved when a talented adversary is able to convince a judge or jury that his or her perspective is the correct one. Chapter 10 focuses on this adversarial process, describing pretrial activities and the trial process.

Pretrial activities are court-related activities that routinely take places before trial can begin.

A suspect usually appears before a judge within 48 hours of arrest for his or her first appearance. During this stage, defendants are given formal notice of the charges, are advised of their rights, are given the opportunity to obtain legal counsel, and may be given an opportunity for bail. The first appearance may also involve a probable cause hearing. Some states waive this stage and proceed directly to arraignment. During the first appearance, the judge may consider pretrial release. Judges have several bail options as well as a number of alternatives to bail, including release on recognizance (ROR), property bonds, deposit bail, conditional release, third-party custody, unsecured bonds, and signature bonds. Suspects then experience either a grand jury hearing or a preliminary hearing. There are significant differences between these two types of hearings, but the purpose of both is to filter cases out of the system if there is insufficient evidence to pursue the charges. Finally, defendants attend an arraignment, where they are again informed of the charges and asked to make a plea at the arraignment stage. Defendants will plead either guilty, not guilty, or nolo contendere (no contest).

This chapter also provides a discussion of plea bargaining. Plea bargaining is essentially a negotiation process that involves the defendant, the defense counsel, and the prosecutor.

Defendants frequently waive their right to a trial and plead guilty, hoping to get something in return, such as a reduced sentence. Prosecutors and defense attorneys also benefit from the pleabargaining process because it helps keep cases moving through the court system.

The criminal trial involves an adversarial process that pits the prosecution against the defense. Trials are peer-based fact-finding processes intended to protect the rights of the accused while disputed issues of guilt or innocence are resolved. The primary purpose of a criminal trial is to determine the defendant’s guilt or innocence. The trial must be initiated within a limited period of time to meet the constitutional requirement of a speedy trial. Once the trial is initiated, the first step is jury selection. Attorneys, and in some jurisdictions the judge, select members of the jury through the voir dire process. Potential jurors can be dismissed by using challenges for cause and peremptory challenges. After the jury is selected, the prosecution and defense will make opening statements. After these statements are completed, the prosecution and the defense present various types of evidence, such as real, circumstantial, and direct. Witness testimony is the primary way evidence is introduced at trial. When both sides have presented evidence, they make closing arguments, which provide the jury with a review and a summation of the evidence.

The judge then charges the jury and provides instructions on deliberation. Finally, the jury deliberates on the evidence presented during the trial and returns to the court with a verdict.

CHAPTER OBJECTIVES 1.

2.

Describe the pretrial steps and activities.

State the purpose of the criminal trial.

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3.

4.

Describe the criminal trial process.

Describe ways of improving the adjudication process.

CHAPTER OUTLINE I. Introduction II. Pretrial Activities • Figure 10-1 outlines the common pre-trial activities. If any of these have different names in your state, explain this to students. For distance learning classes, consider asking students to research the procedures in their home states to identify any variations in the pre-trial process.

A. The First Appearance • Describe the role of the magistrate in terms of deciding whether an arrest was properly made. Discuss what might be a reasonable period of time for a first appearance before a magistrate. Explain the necessity for a quick appearance in terms of the potential for abuse, the detention of political prisoners, and so on.

• Explain the significance of the first appearance before a magistrate as an opportunity for release via the setting of bail, release on recognizance, and so on. Explain that a high percentage of all criminal defendants are released from custody before trial.

1. Pretrial Release • The U.S. Constitution states that all defendants are presumed innocent until proven guilty. Divide the class into groups and lead a debate regarding whether the pretrial detention of unconvicted defendants violates the presumption of innocence requirement.

2. Bail • Class Activity: Have students research how bail works in other countries (for example, in England, bail generally is not financial, and defendants do not have to post money to get bail) and report back to the class. Lead a discussion as to the pros and cons of the various methods.

3. Bail Alternatives and Noncash Bail • Describe the various alternatives available for the setting of bail: release on recognizance, property bond, deposit bail, conditional release, third-party custody, unsecured bond, and signature bond.

4. Bail Reform 5. Pretrial Release and Public Safety • Discuss danger laws, which are designed to prevent the pretrial release of criminal defendants judged to represent a danger to others.

• Have students research the proportion of criminal defendants who are released before trial on the federal and state levels. Lead a discussion as to how the community might be reasonably protected, given the release of so many criminal suspects.

B. The Grand Jury • Explain the role of the grand jury in returning criminal indictments. Comment on the fact that not all states use the grand jury system, although all make use of some form of indictment or information.

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• Point out that very few countries other than the U.S. still use the grand jury system.

Consider leading a class debate regarding whether the U.S. should abolish the grand jury system.

C. The Preliminary Hearing • Explain the purpose of a preliminary hearing and its similarity to a trial.

D. Arraignment and Plea • Discuss the various pleas that are allowed. Explain the difference between a plea of guilty and one of nolo contendere and what advantages there may be for a defendant to plead “no contest” instead of guilty.

E. Plea Bargaining • Describe plea bargaining by highlighting how the process serves the interests of the defendant, the prosecutor, and the court. Ask students to identify those interests, and ask whether plea bargaining might circumvent other community interests.

• Ask the class to discuss the pros and cons of plea bargaining, and to consider whether it might be harmful to the defendant and to society.

• Ask students whether victims should have the right to have input in the plea bargaining process, and if they should be able to veto a plea bargain.

III. The Criminal Trial A. Nature and Purpose of the Criminal Trial • Explain the importance of the advocacy model to the adversarial system. Review the pros and cons of the adversarial system.

• Explain that although the criminal trial depends on an adversarial process, it is not a free-for-all. Explain that the adversarial model relies on well-defined rules of procedure that have evolved through years of common practice and that are often codified.

IV. Stages in a Criminal Trial • Have students research the trial chronology in their state (or assign students or groups of students specific states to research) and identify how these processes may differ from those outlined in the book. For distance learning classes, students may research the processes in their home states to identify variations.

A. Trial Initiation: The Speedy Trial Act • Cite the federal Speedy Trial Act as typical of the attempt by states and the federal government to comply with the Sixth Amendment’s requirement of a fast trial.

Explain that the intent of the Sixth Amendment was to prevent innocent people from languishing in jail before trial.

B. Jury Selection • Discuss the process of jury selection. Ask why one side in the adversarial process might prefer jurors with certain characteristics, while the other side might not. Ask what characteristics might be relevant in this regard.

• The textbook states that some prospective jurors deliberately try to be get excused from jury duty. Ask students why they think this is so. Have them discuss whether they would want to serve on a jury, and consider the difficulties that jury service might create for them.

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• Class Activity: Many jurisdictions have developed an orientation video for prospective jurors that explains the process of jury service, including jury selection.

Many of these are available online. Have students locate the orientation video for their local jurisdiction (if not available suggest they use one prepared for a neighboring jurisdiction) and watch it. Ask them how they would feel if they were watching it as a prospective juror.

• Explain that peremptory challenges can be used to remove potential jurors without having to cite a reason. Ask whether peremptory challenges based on race should be allowed.

• Discuss some of the methods used in scientific jury selection, as well as the pros and cons of this process. Review the use of shadow juries.

• Ask students to discuss whether some jurors, such as those with small children, should have the right to refuse to participate in a trial that will require them to be sequestered for a long period of time. Have them consider what might be the pros and cons of permitting this.

1. Jury Selection and Race • Tell the class that in the 1991 case of Powers v. Ohio, the Supreme Court determined that the rights of a white defendant had been infringed when African Americans were excluded from his jury through the use of peremptory challenges. Ask students whether they believe that the exclusion of African Americans from a jury about to try a white defendant is as significant a form of discrimination as their exclusion from a jury about to try an African-American defendant.

C. Opening Statements • Discuss the purpose of the opening statement. Identify which attorney presents first in your state. In distance learning classes, consider asking to students to determine this for their home states.

D. The Presentation of Evidence • Refer to the “CJ Issues” box titled “Pretrial and Post-Trial Motions” to discuss the wide variety of pretrial and post-trial motions available to both sides during a criminal trial.

1. Types of Evidence • Describe the various kinds of evidence that may be used in court. Explain the difference between direct evidence and circumstantial evidence by underscoring how the latter requires the judge or jury to reach conclusions, whereas the former needs no interpretation for its significance to be understood.

2. The Evaluation of Evidence 3. The Testimony of Witnesses • Refer to the types of testimony: direct, cross, redirect, and recross. Explain that prosecutors and defense attorneys can continue asking questions as long as necessary to get all the information from a witness.

• Explain perjury and discuss the possible penalty for perjury in your state.

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4. Children as Witnesses • Highlight the problems involved when children are used as witnesses, including issues such as children may not tell the truth, may confuse fact with fiction, may not appreciate the seriousness of the trial process, and may fear a direct confrontation with the defendant.

5. The Hearsay Rule • Describe hearsay as anything not based on the personal knowledge of a courtroom witness. Explain the hearsay rule as a constraint against accepting evidence based on hearsay. Observe that some exceptions to the hearsay rule do exist, such as allowing a witness to repeat the final statements of a dying person.

E. Closing Arguments • Discuss the purpose of the closing statement. Identify which attorney presents first in your state. In distance learning classes, consider asking to students to determine this for their home states.

• In most states, the defense attorney presents closing arguments before the prosecutor.

Ask students to discuss whether they think the order of presentation matters, and why or why not.

F. The Judge’s Charge to the Jury • Explain the importance of the judge’s charge to the jury, and describe how it could affect the outcome of a trial.

• Point out that the reasonable doubt standard only applies in criminal courts and that the standard of proof is lower in civil courts. Give examples of cases in which a defendant has been found not guilty in a criminal court but has been found responsible in civil court.

G. Jury Deliberations and the Verdict • The U.S. Supreme Court has ruled that unanimous jury verdicts are not required in noncapital cases. Divide the class into groups and conduct a debate as to whether all jury verdicts should have to be unanimous.

1. Problems with the Jury System • Highlight some of the problems that attend the current jury system, including the ignorance of many jurors of the law and of legal precedent.

• Divide the class into groups and conduct a debate on whether the United States should use professional jurors rather than requiring jury service as a responsibility of citizenship.

V. Improving the Adjudication Process • Ask students whether they think that high-technology courtrooms might have an impact on the outcome of the trial and if there any situations in which these courtrooms might have some type of negative effect on the trial or the participants.

• Ask students how they would improve the adjudication process in criminal cases. Have them propose suggestions for streamlining the system, reducing delays, and increasing the quality of “justice” that results.

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LIST OF CHANGES/TRANSITION GUIDE •

The bail reform movement that is currently underway in the U.S. is discussed.

•

The discussion of recidivism has been expanded and clarified.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Invite a local trial court judge to speak to the class. Have students prepare questions about the challenges of the judge’s role in the criminal justice process. Be sure they include questions about the practice of plea bargaining. Later, ask students whether the judge’s description of the process differed from their expectations

•

Invite a prosecutor and/or defense attorney to speak to the class (either separately or together). Have students prepare questions about jury selection and about the process of the trial from the view of each type of attorney.

•

Have students attend a session of the local criminal court to observe the court in action. Tell them to keep a log of their observations. Have them report back to the class on their impressions.

•

Visit the Web site of Cornell University Law School’s Legal Information Institute. In class, display the features of the site. After exploring each resource, lead a discussion of those the class finds most useful and why they find some more useful than others.

•

This exercise may be challenging and time-consuming, but it is an effective way to highlight the stages of the criminal trial. Using the Web, compile the facts and witness information for a specific criminal trial. Highlight the key facts for the class. Ask students which facts they think will be emphasized by the prosecutor and by the defense. Ask students to decide which witnesses best support the prosecution’s case and which witnesses support the defense’s case. Walk the case through the trial process, giving examples of opening and closing statements and the types of questions asked on direct examination, and highlight important points for cross-examination.

•

Have students visit a local courtroom and evaluate the various types of technologies that are integrated into the courtroom or that could be otherwise made available.

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

What activities are typically undertaken during the pretrial period (that is, before the start of a criminal trial)?

A number of courtroom activities routinely take place prior to the actual trial of a criminal defendant. These activities might involve the following: • First appearance, which includes formal notice of charges, advisement of rights, appointment of counsel, and opportunity of bail • Grand jury or preliminary hearing, which determines if an indictment will be issued before the defendant will stand trial • Arraignment and plea, which again inform the defendant of the charges and allow the defendant to enter a plea • Plea bargaining, which involves negotiations between the prosecutor and the defense counsel to circumvent the trial process 119 Copyright © 2021 Pearson Education, Inc.

2.

3.

4.

Depending on the nature of the alleged offense, some defendants might be at risk to escape or injure others. For example, a defendant might be alleged to have committed a violent sexual assault and is determined to actually reside in another state far from the local venue.

Hence, it might be best that the defendant be detained until trial to provide for the safety of the victim and other citizens and to ensure the defendant does not leave the state.

What is the purpose of a criminal trial? What is the difference between factual guilt and legal guilt? What do we mean by the term adversarial system?

The primary purpose of a criminal trial is to determine the defendant’s guilt or innocence.

Factual guilt deals with the issue of whether the defendant is actually responsible for the crime for which he or she is charged. Legal guilt is established when the prosecutor presents evidence to convince the judge or jury that the defendant is guilty as charged. The adversarial system is the two-sided structure under which American criminal trial courts operate. It pits the prosecution against the defense and, in theory, justice is done when the more effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one.

What are the various stages of a criminal trial? Describe each one.

• Trial initiation: during this stage, it is important to meet all requirements for a speedy trial.

• Jury selection: during this stage, jury members are selected from the public for jury duty.

Prosecuting and defense attorneys question (voir dire) prospective jury members and eliminate them by making peremptory and for-cause challenges.

• Opening statements: during this stage, the attorneys begin the presentation of information to the jury. Opening statements provide an opportunity for the prosecution and defense to describe what they intend to prove.

• Presentation of evidence: during this stage, the state presents its evidence, and then the defense follows. Evidence presented includes direct, circumstantial, real, and hearsay.

• Closing arguments: during this stage, the attorneys give an oral summation of the case.

• The judge’s charge to the jury: during this stage, the judge instructs the jury about the evidence presented and the matters of law and describes the deliberation process.

• Jury deliberations and the verdict: during this stage, the jury discusses the case, takes votes, and ultimately reaches a verdict.

How might the adjudication process be improved?

There have been several proposals for improvement. These include court unification to eliminate the overlapping and fragmented jurisdictions of court decision making; court-watch citizen groups; and statistical measurement of court performance.

Questions for Reflection 1.

Before trial, courts may act to shield the accused from the punitive power of the state through the use of pretrial release. In doing so, how can they balance the rights of the defendant against the potential for future harm that he or she may represent?

Answers will vary.

2.

A significant issue facing pretrial decision makers is how to ensure that all defendants, rich and poor, black and white, male and female, are afforded the same degree of protection from unfair processing by the criminal justice system. How can that be achieved?

Answers will vary.

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3.

What is plea bargaining, and what is its function? To what kinds of cases is it most suited?

Plea bargaining is the negotiation process that occurs among defendant, prosecutor, and defense counsel. Its purpose is to provide a mutual agreement of these parties and the disposition of the case. Although plea bargaining is used in all types of cases, it is most suited for less serious crimes as well as cases lacking strong evidence. For example, a prosecutor with a weak case will be much more likely to accept a plea because of the inability to establish guilt beyond a reasonable doubt.

4.

What purpose does plea bargaining serve for the defense? For the prosecution? Given the criticisms leveled against plea bargaining, do you believe that it’s an acceptable practice? Explain.

Plea bargaining is essential to case processing. It is beneficial to defendants because they are given a reduction in sentence. The defendant’s attorney benefits because the case is processed quickly and trial preparation time is decreased. Prosecutors are able to get convictions, even if they have weak evidence, because of plea bargaining. The adversarial standard of proof beyond a reasonable doubt is difficult to achieve, and thus plea bargaining provides a “sure thing.” It also is beneficial to the entire court process as plea bargaining saves time and resources of all parties since case preparation for trial is not completed.

Answers will vary.

5.

Might recent advances in technology, such as DNA fingerprinting, possibly supplant the role of advocacy in the fact-finding process that is today regarded as central to criminal trials? If so, how? If not, why not?

Answers will vary.

6.

What exceptions to the hearsay rule have courts recognized? Describe the reasoning behind these exceptions.

The hearsay rule is the long-standing precedent that hearsay cannot be used in American courtrooms. Rather than accepting testimony based upon hearsay, the court will ask that the person who was the original source of the hearsay information be brought into court to be questioned and cross-examined. A dying declaration is one exception. It is a statement made by a person who is about to die. When such statements relate to the cause and circumstances of the impending death, they may usually be repeated at trial (by those who heard them).

Most courts accept the truth of such statements on grounds that in the face of impending death, the dying individual would be unlikely to lie because he or she wishes to have a clear conscience. Spontaneous statements and out-of-court statements are other exceptions.

Although very rare, there are circumstances where hearsay evidence will be introduced into a trial. There are often difficult circumstances that arise, such a long period of time has passed from the commission of a trial to the prosecution of it. Hearsay evidence allows for the introduction of important evidence that would have been otherwise lost.

7.

Do you think the present jury system is outdated? Why? How might a professional jury system be more effective than the present system of peer jurors?

Answers will vary.

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Chapter 11 Sentencing CHAPTER OVERVIEW Chapter 11 focuses on issues relating to the philosophy and practice of sentencing, and discusses issues related to victimization and victims’ rights. There are five main goals of contemporary sentencing: retribution, incapacitation, deterrence, rehabilitation, and restoration. Retribution corresponds to the just deserts model of sentencing and is best understood from the biblical reference to “eye for an eye, tooth for a tooth.” Incapacitation seeks to isolate offenders from society. Deterrence, both specific and general, focuses on preventing crimes. Rehabilitation seeks to change the offender, and restoration seeks to make the victim “whole again.”

Different sentencing practices are linked to each of the sentencing goals. An indeterminate sentencing model encourages rehabilitation through the use of general and relatively unspecific sentences. Judges in states using this model have the most discretion, as they are expected to assess the differences among cases, situations, and offenders in an attempt to tailor each sentence to be appropriate and proportionate. It is also believed that offenders will be more likely to participate in rehabilitation programs if they can reduce the amount of time served. There are some problems with the indeterminate sentencing model. The most significant criticism is sentencing inequality; two offenders who committed similar crimes could receive vastly different sentences from different judges. The personality of the judge, the race of the offender, the race of the victim, and social class have all been shown to be factors contributing to disparities in sentences. Another concern is sentencing dishonesty due to gain time, good time, and other special allowances.

In response to the various problems of indeterminate sentencing systems, many states and the federal government have revised sentencing practices in order to structure sentencing more precisely. For example, some states have adopted a determinate sentencing model that requires offenders to be sentenced to a fixed term. Other states have developed voluntary/advisory sentencing guidelines, while some have adopted presumptive sentencing guidelines.

Sentencing guidelines specify a presumptive sentence for an offense, but also allow the judge to consider aggravating and mitigating factors. The federal government has adopted presumptive sentencing as well as addressing the issue of truth in sentencing, which calls for a close correspondence between the sentence imposed and the time actually served. Three-strikes laws, which generally mandate very severe sentences for third-time offenders, first appeared in California in 1994 and spread to about half the states, as well as the federal system. However, there are questions about the effectiveness of these laws. Another form of structured sentencing is mandatory sentencing, which differs from presumptive sentencing in that it does not permit any judicial discretion.

The various get-tough policies implemented over the last thirty years have significantly increased the use of incarceration. Despite falling crime rates, prison populations have continued to rise, creating huge financial burdens on state and federal governments. Today, judges are increasingly turning to alternative sentencing strategies and imposing more unique or innovative punishments, such as shaming.

In general, judges try to make informed and fair sentencing decisions. The presentence investigation (PSI) report assists judges by providing information about the defendant and the crime; it may also include a recommendation from the probation officer. The PSI report may be provided as a detailed written report, an abbreviated written report, or a verbal report to the court.

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The needs of the victims may also be considered by judges when determining sentences.

Until recently, the victim was frequently ignored by the criminal justice system but the development of a victims’ movement in the 1970s has led to an increased focus on victims and their needs. Since then, considerable federal and state legislation has given victims many rights in the criminal justice system. One of these is the right to make a victim-impact statement before sentencing. This gives crime victims or the surviving family members of a victim the opportunity to describe the suffering caused by the crime.

Finally, the text discusses the typical sentencing options available to the judge. The four traditional sanctions are fines, probation, imprisonment, and death. The sentencing model used in the jurisdiction affects a judge’s sentencing choices. Imprisonment and probation are discussed in more detail in later chapters of the text.

Fines are one of the oldest forms of punishment, but the use of fines suffers from built-in inequities and a widespread failure to collect them. However, today they are becoming a more popular sentencing alternative. The concept of day fines, which are used in Scandinavia, is discussed as a way to deal with the effect of economic status on the punitive impact of fines.

The chapter concludes with a discussion of capital punishment. Currently 34 states and the federal government use the death penalty. The number of federal capital crimes increased significantly due to the 19984 Violent Crime Control and Law Enforcement Act and the 2001 USA PATRIOT Act. There are over 3,000 offenders on death row. The most common method of imposing death is lethal injection. There is a lengthy delay between the imposition of a death sentence and execution. However, Supreme Court rulings on habeas corpus review are designed to reduce delays by limiting appeals. The use of capital punishment has generated considerable debate. Many people oppose the death penalty because they believe it is not an effective deterrent to crime, is not applied fairly, is costly, and presents a risk of killing an innocent person. The key supporting arguments of those favoring capital punishment include revenge, just deserts, and protection.

LEARNING OBJECTIVES After reading this chapter, you should be able to 1.

2.

3.

4.

5.

6.

7.

8.

9.

Describe the five goals of contemporary criminal sentencing.

Define indeterminate sentencing, including its purpose.

Describe structured sentencing models that became so popular during the late twentieth century, using the federal model as an example.

Tell how get-tough-on-crime sentencing practices led to significant prison overcrowding in the United States.

Describe alternative sentences and their relationship to justice reinvestment strategies.

Explain the purpose of presentence investigations and presentence investigation reports.

Describe the history of victims’ rights and services, including the growing role of the victim in criminal justice proceedings today.

List the four traditional sentencing options.

State the arguments for and against capital punishment.

CHAPTER OUTLINE I.

Introduction • Ask students to discussion whether they consider the sentencing decision or the determination of guilt or innocence to be the more difficult decision.

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II. The Philosophy and Goals of Criminal Sentencing • Stress that the dominant philosophies guiding sentencing decisions today are incapacitation and deterrence. An effective way to demonstrate the predominance of these philosophies is to show a graph illustrating the number of incarcerated prisoners over time. Even with declining crime rates, the number of defendants sentenced to incarceration continues to grow.

A. Retribution • Explain that retribution is similar to the notion of “an eye for an eye, a tooth for a tooth.” Add that during Old Testament times, “an eye for an eye” often reduced the punishment offenders experienced.

• Ask students to discuss whether or not they agree with the just deserts model of sentencing.

B. Incapacitation • Explain incapacitation as society’s interest in making the offender incapable of immediately committing other crimes.

C. Deterrence • Explain deterrence as an attempt to convince either the offender or others that criminal activity is not worthwhile. Discuss how deterrence might be measured or studied.

• Have the class consider the difference between general and specific deterrence and discuss whether they are equally important goals of sentencing. Ask students which should take priority, if both cannot be achieved equally.

• When discussing deterrence, refer back to the discussion of classical and neoclassical criminology in Chapter 3.

• Contrast deterrence and retribution and point out that retribution focuses on the past while deterrence focuses on the future.

D. Rehabilitation • Explain rehabilitation as an attempt to change the offender into a law-abiding citizen.

Discuss how rehabilitation might be measured or studied.

• Lead a class discussion on whether rehabilitation is possible.

E. Restoration • Explain restoration as an attempt to make victims “whole again,” insofar as possible.

Discuss how restoration might be measured or studied.

• Using Table 11-2, compare and contrast restorative and retributive justice. Discuss whether the two models are compatible.

• Have students discuss which of the goals of criminal sentencing individual-rights advocates would most likely find attractive and which goals would public-order advocates favor.

• Ask students to consider whether the goals of criminal sentencing are compatible?

Divide the class into groups and have each group formulate a situation in which a sentence that is designed to achieve one goal could negatively affect the attempt to achieve another goal.

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• Place students in groups and ask them to consider the five goals of criminal sentencing. Have them rank them in order of importance and identify which goals are compatible and which are contradictory.

III. Indeterminate Sentencing A. Explanation of Indeterminate Sentencing • Describe the nature of indeterminate sentencing, and explain its purpose.

• Explain that the indeterminate sentencing model, the most common model in the United States for most of the twentieth century, assumed that sentenced offenders would take part in their own rehabilitation if offered the chance at early freedom. Ask students what assumptions this model makes about human behavior • Provide students with sample sentencing options when operating under an indeterminate sentencing model. For example, a defendant convicted of burglary could be sentenced to a fine, probation, 5 to 10 years in prison, or 10 to 25 years, depending on the judge’s decision. Use examples like this to highlight the problems with the indeterminate sentencing model.

B. Critiques of Indeterminate Sentencing • Discuss the problems with the indeterminate sentencing model. Explain that most states no longer use this model and review the reasons why this is the case.

• Explain that the indeterminate model failed due to the high rates of recidivism of those sentenced under it. It was replaced in most jurisdictions by the determinate model of sentencing.

• Thematic Question: Divide the class into groups and lead a debate focusing on whether good time and gain time programs should be expanded, limited, or abolished altogether.

IV. Structured Sentencing • Describe the differences between indeterminate and structured sentencing, alluding to the fact that the structured approach generally sets a predetermined term in prison, whereas the indeterminate model sets only minimums and maximums.

• Describe the nature of structured sentencing, and describe the different types of structured sentencing models in use today. Discuss which (if any) are used in your state.

In a distance learning environment, consider asking students to identify the sentencing model used in their home state.

• Explain that the determinate model of criminal sentencing establishes fixed terms of confinement, with dramatically reduced possibilities for parole.

• Discuss the role of aggravating and mitigating circumstances in criminal sentencing. Use CJ Exhibit 9-1 to provide examples of such sentencing considerations.

• Ask students to consider the aggravating and mitigating circumstances listed in the CJ Issues box and identify any additional items they would like to add, and any items they believe should be removed from the list.

• Death-penalty legislation provides an effective illustration of the differences between aggravating and mitigating circumstances. For example, some aggravating circumstances that might be considered during the sentencing phase of a death-penalty trial include the number of victims who were murdered, whether the murder occurred during the commission of another crime (felony-murder), how heinous the murder was, and whether the victim was a law enforcement officer. Mitigating factors include the defendant’s age, 125 Copyright © 2021 Pearson Education, Inc.

the defendant’s mental state at the time of the offense, the defendant’s prior record, and the defendant’s use of drugs or alcohol at the time of the offense.

• Explain that structured sentencing can result in sentences that mislead the public because inmates in some jurisdictions are still released early for good behavior and other reasons.

A. Federal Sentencing Guidelines • Describe the federal government’s adoption of determinate sentencing under the 1984 Comprehensive Crime Control Act. 1. Federal Guideline Provisions • Explain how federal structured sentencing, which has become largely advisory because of recent U.S. Supreme Court decisions, involves two main components: the level of the offense and the criminal history of the offender.

Give examples of various offense levels and criminal history categories to give students a clear sense of how this model works.

2. Plea Bargaining Under the Guidelines • Mention that plea bargains, which account for most of the criminal sentences handed down in federal courts, were relatively unaffected by the structured sentencing guidelines adopted in 1984.

B. The Legal Environment of Structured Sentencing • Discuss the impact that the adoption of structured sentencing has had on federal prison populations and on other aspects of the federal criminal justice system.

• Explain that some critics of structured sentencing charge that the model does little to promote rehabilitation. Ask students what aspect of the model might lead to such criticism.

C. Three-Strikes Laws • Explain the purpose of three-strikes laws and provide information on any threestrikes legislation in your state. In a distance learning environment, consider asking students to research three-strikes legislation in their home states.

• Ask students how three-strikes laws may affect state and federal spending on the criminal justice system and whether such spending can be justified.

• Ask students whether they believe three-strikes laws serve a useful purpose, and if so, what is that purpose. Have them consider what other possible sentencing arrangements might also meet that purpose.

D. Mandatory Sentencing • Discuss the problem of sentencing disparity and the effect of mandatory sentencing on this problem.

• Explain the difference between mandatory sentencing and presumptive sentencing.

• Point out that three-strikes laws are a form of mandatory sentencing.

V. Sentencing and Today’s Prison Crisis • Discuss the impact of get-tough-on-crime policies, including various sentencing policies, on the prison population today. Point out that while crime rates are decreasing, incarceration rates are increasing. Ask students whether they think that the increasing rates of incarceration may have caused the reduced crime rates and explain why this may not actually be the case. For example, point out that many offenders currently are being incarcerated for violations of drug laws, rather than violent or property crimes.

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VI. Innovations in Sentencing • Explain that innovative judges are using their discretion to impose unique punishments and discuss the use of shaming as a punishment strategy.

• Ask students to discuss whether they agree with the use of shaming as a form of punishment.

A. Justice Reinvestment VII. The Presentence Investigation • Describe the nature and importance of the presentence investigation report.

• Discuss the concept of offender risk and needs assessment (RNA) and review the key high-risk factors that have been identified.

• Describe the usefulness of presentence reports in assisting judges in determining the appropriate kind and length of sentence for convicted offenders.

• Have the students brainstorm to identify the factors that they think are relevant for a judge to know to make an accurate sentencing decision.

VIII. The Victim—Forgotten No Longer A. Victims’ Rights • Discuss the growing victims’ rights movement, and draw students’ attention to the ongoing debate regarding the addition of a victims’ rights amendment to the U.S. Constitution.

• Break the class into groups and organize a debate regarding the passage of a federal victims’ rights amendment.

• Have students discuss the provisions that a victims’ rights amendment should contain and possibly have them draft a proposed victims’ rights amendment.

• Point out that in some cases, the rights of the suspect and victim could conflict in some way. Have students discuss whose rights should have a higher priority – the suspect or the victim – and whether this would change if the victim’s rights conflict with those of a convicted offender (as compared to an unconvicted suspect).

• Assign each student (or group of students) a specific state. Have students research the rights provided to victims in that state and report back to the class. Lead a discussion about the similarities and differences among the states. Consider have students debate whether victims’ rights should be standardized nationally.

B. Victim-Impact Statements • Discuss the purpose of victim-impact statements and the role they play during a sentencing hearing. Discuss the possibility that victim-impact statements might result in the imposition of inequitable sentences.

• Ask students what individual rights might be supported by victim-impact statements and what might be harmed.

• Tell the class that victim-impact evidence is simply another form of guidance available to sentencing judges. Discuss the possibility that victim-impact statements might result in sentencing disparity.

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IX. Traditional Sentencing Options A. Sentencing Rationales • Review the four contemporary sentencing practices and discuss why these are still the most commonly used types of punishments. Discuss some other types of sanctions that might be used today, such as community service.

B. Sentencing Practices • Discuss Figure 11-6. Ask the class to identify likely reasons for the increase in courtordered prison commitments between 1960 and 2010, as well as reasons why prison admissions have declined recently.

C. Fines • Review the usefulness of monetary fines as criminal sanctions in terms of the advantages identified in this chapter.

• Review the objections to the use of fines. Discuss whether these objections might be more appropriate for certain classes of offenders (drug dealers, for example) than for others.

• Discuss the concept of day fines: Fines should be proportionate to the severity of the offense and the financial resources of the offender.

• Identify three offenses usually punishable by a fine in your state. Have the class discuss other appropriate sanctions that might be applied and decide whether fines are the most effective way to deal with each type of offense.

X. Death: The Ultimate Sanction • Review the historical imposition of the death penalty, beginning with the early Greeks.

A. Habeas Corpus Review • Discuss the fact that an average of over 15 years typically elapses between the time a sentence of death is imposed and the time it is carried out. Discuss why the delay is so lengthy. Ask whether that is too long. Ask how it might be reduced.

• Explain the purpose of a writ of habeas corpus and why then-Chief Justice Rehnquist and others have called for reforms to the federal habeas corpus system.

B. Opposition to Capital Punishment • List and explain the various arguments for and against the death penalty as a form of criminal sentencing. Engage the class in a discussion as to the relative merits of each of these arguments.

1. The Death Penalty and Innocent People • Discuss the decision by the governor of Illinois in February 2000 to conduct an investigation of the death-penalty system in that state. One factor that motivated the governor was that 13 individuals have had to be released from death row because they were found to be wrongfully convicted.

2. The Death Penalty and Deterrence • Discuss the research into the deterrent effect of the death penalty. Ask students how the deterrent effect might be improved.

3. The Death Penalty and Discrimination • Discuss the evidence regarding the question of whether the death penalty discriminates against blacks and other minorities.

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C. Justifications for Capital Punishment • Explain that justifications for the death penalty are collectively referred to as the retentionist position.

• Discuss the five main retentionist arguments: just deserts, revenge, protection, closure, and victim representation.

D. The Courts and the Death Penalty • Review the key Supreme Court decisions regarding the death penalty and related issues. Explain the impact that Furman v. Georgia and Gregg v. Georgia had on death penalty statutes around the country.

• Stress that when the Court invalidates a state’s death penalty procedures, as in the recent case of Hurst v. Florida, this does not mean that capital punishment in that state is abolished.

E. The Future of the Death Penalty

LIST OF CHANGES/TRANSITION GUIDE •

A new section, “Explanation of Indeterminate Sentencing,” has been added.

•

Details of a new report from the National Council on Crime and Delinquency (NCCD) have been added.

•

Proposed federal laws that would reduce sentences for many inmates are discussed.

•

The concept of justice reinvestment has been moved to this chapter.

•

Discussion of the death penalty has been updated to include a 2019 U.S. Supreme Court case that better defined the concept of intellectual disability.

•

The idea of sentencing as a risk management strategy is discussed.

•

The federal 2017 Rapid DNA Act is discussed.

•

Two new key terms, “wrongful conviction” and “exoneration,” have been added and are discussed.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Discuss the five goals of sentencing. Have students rank them in order of importance and justify their ranking. Lead a class discussion or debate regarding the relative importance of the goals.

•

Provide students with the sentencing options when operating under an indeterminate sentencing model. For example, a defendant convicted of burglary could be sentenced to a fine, probation, 5 to 10 years in prison, or 10 to 25 years, depending on the judge’s decision.

Use examples like this to highlight the problems with the indeterminate sentencing model.

•

Use death penalty legislation to illustrate the differences between aggravating and mitigating circumstances. Identify the aggravating circumstances that might be considered during the sentencing phase of a death penalty trial, such as whether the murder occurred during the commission of another crime (felony murder), the heinousness of the murder, and whether the victim was a law enforcement officer. Identify mitigating factors such as the age of the defendant, his or her mental state at the time of the offense, prior record, and whether drugs or alcohol contributed to the offense. Ask students if they can think of any other aggravating or mitigating factors that should be considered.

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•

Invite a victims’ rights advocate to speak with the class, either in person or through virtual conferencing. Ask the advocate to describe the important issues represented by the victims’ rights movement and to discuss how the structure of criminal trials currently overlooks the interests of victims Computer conferencing may be considered as an alternative to a classroom visit.

•

Invite a trial court judge to speak with the class. Ask the judge to discuss the sentencing model used in the state and to explain how sentencing decisions are made. Encourage the judge to talk about situations in which he or she used judicial discretion in handing down sentences and to explain why. Computer conferencing may be considered as an alternative to a classroom visit.

•

Present students with sample cases and have them prepare a presentence investigation report, including recommendations for an appropriate sentence. Sample cases should include the crime(s) of which the offender was convicted, the offender’s criminal history, and relevant personal circumstances (employment status, job qualifications, education, etc.)

•

Ask the class to undertake an on-campus inquiry into opinions about the death penalty. Have students construct a survey instrument and conduct personal interviews to gauge the degree of opposition to or support for the death penalty. Have students use different offender characteristics (for example, race and gender) as well as different offenses (for example, rape-murder, terrorism, or school shooting) in the survey to see how support varies.

•

Have students research wrongful convictions and discuss the risk of convicting and punishing innocent people. Have them brainstorm ways of reducing this risk.

•

The text mentions an appeal to the U.S. Supreme Court regarding the admission of a victimimpact video in a capital case; the Court rejected the appeal. Have students view the video and read the statements by Justice Stevens, who agreed with the rejection but expressed concerns, and Justice Breyer, who dissented (The video and statements are available on the U.S. Supreme Court website under the case Kelly v. California). Have students discuss whether they think the video in the Kelly case was appropriate, whether victim-impact videos are appropriate in capital cases, and whether victim-impact videos should be allowed at sentencing in non-capital cases.

•

Visit the Web site of the U.S. Sentencing Commission and review the material in the Interactive Sourcebook. Select some of the tables and figures to display in class to accompany a discussion of federal sentencing.

•

Visit the Web site of the Death Penalty Information Center. Review the various topics found in the “Issues” section and discuss these topics in class. Ask the class which subareas seem the most interesting and why.

•

Divide the class into groups, each taking a position on the death penalty. In class, display three or four Web sites for evidentiary support for various positions. Allow the class to participate in a debate on the issue.

•

Assign each student a state that permits the use of the death penalty and have them research current statistics on capital punishment in that state. Have them obtain information on the types of crimes punishable by death in that state, the method(s) of imposing death used, the number of offenders on death row, the demographics of death row inmates, and so on. In class, compare the information on the different states.

•

Have students research examples of sentencing innovations and report back to the class. Lead a discussion on the appropriateness of various “unique” punishments.

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SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

Describe the five goals of contemporary criminal sentencing discussed in this chapter.

Which of these goals do you think ought to be the primary goal of sentencing? How might your choice vary with the type of offense committed? In what circumstances might your choice be less acceptable?

The five goals of contemporary criminal sentencing are retribution, incapacitation, deterrence, rehabilitation, and restoration. Retribution is the taking of revenge on an offender for his or her criminal act(s). Incapacitation seeks to deny a criminal the opportunity to commit an offense. Deterrence is the effort to prevent others from committing a criminal act similar to the one for which an offender is being sentenced. Rehabilitation is the effort to reform an offender. Restoration attempts to make the victim of a criminal act “whole again.”

Many factors must be considered in determining the primary goal of sentencing. Among them are the prevailing public attitude toward crime and punishment and the severity of the crime for which the offender is being punished. Sentencing goals must be individualized for the crime and the offender. For example, it would be unjust to focus on retribution with a first offender convicted of committing a relatively minor property offense while emphasizing rehabilitation for a repeat offender convicted of a violent crime.

Answers will vary.

2.

Illustrate the nature of indeterminate sentencing, and explain its positive aspects. What led some states to abandon indeterminate sentencing?

Indeterminate sentencing seeks to rehabilitate by affording the offender an opportunity to reduce his or her sentence. Under indeterminate sentencing, offenders receive unspecified sentences (e.g., one to ten years of imprisonment) and the offender’s performance while incarcerated significantly affects the point at which he or she is paroled. In addition to good time, the offender can accelerate his or her release through participation in various rehabilitation programs.

Critics of the indeterminate model called for the recognition of the basic sentencing principles of proportionality, equity, and social debt. These criticisms led many states to adopt some form of structured sentencing, such as determinate sentencing (convicted offenders are sentenced to a fixed term reduced by good time), or sentencing guidelines (general guidelines based on past sentencing practices).

3.

What is structured sentencing? What is the status of the federal structured sentencing model today?

Structured sentencing is a model of criminal punishment that includes determinate sentencing, voluntary/advisory sentencing guidelines, and presumptive sentencing. Although each structured sentencing model has some advantages in better accomplishing proportionality, equity, and social debt when compared to indeterminate sentencing, these models are not without criticism, and there is little evidence to indicate that any of these models will be effective long-term crime-reduction strategies.

The federal structured sentencing model was adopted in 1984 with the passage of the Comprehensive Crime Control Act. In the 2005 combined cases of U.S. v. Booker and U.S. v.

Fanfan, the U.S. Supreme Court ruled that the guidelines were merely advisory and gave 131 Copyright © 2021 Pearson Education, Inc.

federal judges wide latitude in imposing punishments. Federal judges must take the guidelines into consideration in reaching sentencing decisions but do not have to follow them.

4.

How did get-tough sentencing policies lead to the overcrowding that we see in our prisons today?

Over the past 40 years, mandatory sentencing laws, three-strikes laws, and other get-tough policies significantly increased the use of incarceration as a sentencing option. As a result, even though crime rates began to decrease in the U.S. in the mid-1990s, the number of convicted offenders being sent to prison continued to increase. The rising incarceration rates led to significant prison overcrowding problems at both the state and federal correctional levels and placed huge financial burdens on both state and federal governments.

5.

What are alternative sanctions? Give some examples of alternative sanctions, and offer an assessment of how effective they might be.

Alternative sanctions utilize nontraditional sentences in lieu of imprisonment and fines.

Examples of alternative sanctions are community service, in-home detention, day reporting, drug treatment, and victim–offender programming. Due to the size of prison populations, alternative sanctions are likely to become more popular. However, there are a number of questions regarding their safety and effectiveness.

6.

What is a presentence investigation? How do presentence investigations contribute to the contents of presentence reports? How are presentence reports used?

Presentence investigations include the examination of a convicted offender’s background prior to sentencing. Presentence examinations are generally conducted by probation or parole officers and are submitted to sentencing authorities. The investigation is critical to the quality of the report, as probation officers rely on official records and information provided by the offender and victim. The more thorough the investigation is, the better the report.

Presentence reports are used by judges to make more informed sentencing decisions, and generally a judge follows the report writer’s recommendation.

7.

Describe the history of victims’ rights and services in this country. What role does the victim play in criminal justice proceedings today?

Victims historically have been marginalized in the criminal justice process. This began to change in the 1970s as grassroots organizations worked to inform the public and politicians about the plight of crime victims. One result of this pressure was the 1982 President’s Task Force on Victims of Crime. The Task Force opened a floodgate of legislative changes that have since been implemented to assist crime victims. Among the changes is an expansion of the role of the victim in criminal justice proceedings. Victims, for example, are able to provide victim-impact statements, and the constitutional amendments being considered will increase their involvement in the process even further.

8.

What are the four traditional sentencing options? Under what circumstances might each be appropriate?

The four traditional sentencing options are fines, probation, imprisonment, and death. The option selected depends usually on the severity of the offense and background characteristics of the defendant. Often two or more of these options are combined.

Answers will vary 132 Copyright © 2021 Pearson Education, Inc.

9. Outline the major arguments on both sides of capital punishment debate.

The main arguments against capital punishment include: • Innocent people have been executed • There is a lack of proven deterrence • The imposition of the death penalty is arbitrary • The death penalty discriminates against certain ethnic and racial groups • It is expensive • Human life is sacred The main arguments in favor of capital punishment include: • Just deserts • Revenge and retribution • Social protection and deterrence • It provides closure for the family and friends of the victim • It speaks for the victim.

Questions for Reflection 1.

Of the different kinds of sentencing practices described in this chapter, which do you think makes the most sense? Why? Answers will vary.

2.

If you could set sentencing practices in your state and had to choose between a determinate and an indeterminate scheme, which would you select? Why? Answers will vary.

3.

What is truth in sentencing? Do you agree that it is an important concept? Why or why not?

Truth in sentencing is when there is a close correspondence between the sentence imposed upon an offender and the time actually served prior to release from prison.

Answers will vary.

4.

Explain the development of federal sentencing guidelines. What have recent court decisions said about the applicability of those guidelines?

The Sentencing Reform Act of 1984 created the nine-member U.S. Sentencing Commission.

This commission was provided general guidelines to follow and then analyzed thousands of cases to enact a scale of punishment considered typical for specific offenses. The commission also considered federal law, parole guidelines, and the impact on federal prison populations. The key factors considered in deciding sentences within the guidelines are the seriousness of the offense and prior record of the offender. The guidelines provide one model for states to consider when revising state sentencing statutes. Some court cases include

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Mistretta v. U.S., which found that Congress acted appropriately in the creation of the federal sentencing guidelines and that the guidelines could be applied in federal cases nationwide. In Melendez v. U.S., federal judges are allowed to depart from the guidelines, but they are not allowed to accept plea bargains that would have resulted in sentences lower than the minimum required by law.

5.

Is there a way to be tough on crime without further increasing prison populations?

Answers will vary.

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Chapter 12 Probation, Parole, and Reentry CHAPTER OVERVIEW Chapter 12 focuses on the topic of community corrections, particularly probation and parole, as well as intermediate sanctions. Probation is a sentence served in the community under supervision and is the most common form of criminal sentencing in the U.S. today. It gives offenders the opportunity to continue to work or remain in school, maintain family and social ties, and use treatment programs available in the community. If offenders abide by the specific and general conditions of probation imposed by the courts, they will serve their entire sentences in the community; violations can lead to probation revocation. Even offenders convicted of serious crimes are eligible for probation. Federal probation is administered through the Administrative Office of the U.S. Courts and uses a results-based management and decision-making framework.

Parole is often mistaken for probation, but the two are different. Probation is a sentence imposed by the court, while parole is the conditional release of a convicted offender into the community under supervision before the expiration of his or her sentence. In some cases, parole is granted by parole; in other situations it may be mandated by statute. Conditions of parole are similar to those of probation and violations may result in parole revocation. Federal parole decisions are made by the U.S. Parole Commission Advantages of probation and parole include lower cost than imprisonment, increased employment opportunities, opportunities for restitution, opportunity for community support, the reduced risk of criminal socialization, an increased use of community services, and opportunities for rehabilitation. Disadvantages include concerns about the relative lack of punishment, increased risk to the community, increased social costs, and discriminatory and unequal effects. A series of key U.S. Supreme Court decisions provide the legal framework for probation and parole supervision.

The tasks of probation and parole officers are frequently very similar and some jurisdictions merge these into one job. There are four main functions of probation/parole work: intake procedures, diagnosis and needs assessment, client supervision, and presentence investigation. A key challenge faced by probation and parole officers is the need to balance two conflicting and inconsistent sets of duties – the provision of quasi-social work services and custodial responsibilities. Other challenges include large caseloads, a lack of opportunity for career mobility, and high stress levels.

Judges have a variety of intermediate sanctions at their disposal as well. The philosophy behind intermediate sentencing is to offer alternatives to incarceration to offenders who appear to represent little or no threat to the community, thus reducing the likelihood of a prison sentence.

Advantages include reduced expense, social cost-effectiveness, and flexibility. A split sentence requires the offender to serve a period of confinement followed by a period of probation. Similar to this type of sentence, shock probation (or shock parole) involves sentencing an offender to prison but then allowing him or her to apply for early release; the key difference between this and a split sentence is the need for the offender to apply rather than being certain of release. Shock incarceration is uses military-style boot camp prisons; these programs generally are designed for young first-time offenders. Mixed sentences allow offenders to spend weekends in jail and receive probation supervision during the week. Community service is an adjunct to a correctional sentence and is compatible with probation and parole. Intensive probation supervision is the strictest form of probation and provides greater control in the community over offenders who would otherwise go to prison. Home confinement confines offenders to their 135 Copyright © 2021 Pearson Education, Inc.

homes instead of incarcerating them in a facility. They usually are allowed to leave their homes during working hours to attend work or school. They may be monitored using remote location monitoring systems.

Parole has been widely criticized, particularly because of concerns about parole violations and recidivism while on parole. Another concern is the lack of prison reintegration into the community. However, the need to reduce prison populations is encouraging a focus on the development of reentry programs that emphasize offender transition.

LEARNING OBJECTIVES After reading this chapter, you should be able to 1.

2.

3.

4.

5.

6.

7.

Describe the history, purpose, and characteristics of probation.

Describe the history, purpose, and characteristics of parole.

Compare the advantages and disadvantages of probation and parole.

Identify significant court cases affecting probation and parole.

Compare and contrast the work of probation and parole officers.

Describe various intermediate sanctions.

Describe the likely future of probation and parole.

CHAPTER OUTLINE I.

Introduction • Although all of the sentencing options discussed in Chapter 12 can be considered community-based sentences, stress that the type of restriction varies depending on the sentence. For example, house arrest is more restrictive than straight probation, electronic monitoring is more restrictive than house arrest, and shock incarceration is more restrictive than electronic monitoring.

II. What Is Probation?

• Explain the history, nature, and purposes of probation.

• Stress that probation is a sentence of imprisonment that is suspended. Tell the class that offenders who violate the conditions of probation may be sent to prison to serve the remainder of their sentences.

A. The Extent of Probation • Referring to Figure 12-1, describe the percentages of individuals under the various types of correctional supervision in the United States. Ask why probation is such a commonly used alternative.

• Ask the class to discuss the merits of granting probation to violent offenders. Explain that probation may result when the prosecutor’s evidence is especially weak or when a plea bargain is accepted in lieu of a jury trial.

B. Probation Conditions • Discuss the various conditions of probation that may be imposed by the court.

Explain that general conditions apply to all probationers in the jurisdiction while special conditions may be imposed on individual probationers at the discretion of the sentencing judge.

• The following example can help you describe the general and specific conditions of probation. Alice was convicted of drunk driving (her second offense) and the judge 136 Copyright © 2021 Pearson Education, Inc.

sentenced her to probation. She had to abide by the general conditions of probation in that jurisdiction, which included meeting with her probation officer once a month, obeying all laws, and maintaining employment. The judge added two specific conditions to her probation. First, she was required to attend Alcoholics Anonymous meetings once a week. Second, she had to attend a victim-impact panel. At these panels, offenders listen to survivors of drunk-driving accidents talk about the harm caused by the crime.

C. Federal Probation III. What Is Parole?

• Explain the history, nature, and purposes of parole.

• Explain the differences between parole and probation and stress that probation is a sentence while parole is a corrections strategy.

• Stress that parole is not a sentence. Explain that parole is supervised early release from prison. Tell the class that, as with probation, offenders who violate the terms of parole may be returned to prison to complete the remaining portions of their sentence.

• Have students discuss the similarities and differences between probation and parole.

• Discuss the current movement away from discretionary parole release and ask students whether they agree with this.

• Point out that medical parole is on the increase and ask the students to discuss whether they agree with this trend.

• Have students discuss who would be most likely to favor parole, individual rights advocates or public order advocates, and who would be most likely to favor probation.

A. The Extent of Parole B. Parole Conditions • Discuss the conditions of parole that may be imposed and compare them to those imposed on probationers.

• Explain that, in most cases, probation or parole revocation orders can be issued only after a hearing in front of a neutral body and that certain procedures must be followed.

C. Federal Parole IV. Probation and Parole: The Pluses and Minuses • Ask students to discuss how well parole and probation serve the rights of individuals and the needs of the community. Are there any additional issues or needs that should be addressed?

• Remind students of the various goals of sentencing that were identified in Chapter 11.

Ask the class to discuss which of these goals are most likely to be met through the use of probation and which through the use of parole.

• Divide the class into groups and lead a debate on the following issue? Do communities and/or victims have the right to be informed when convicts are released from prison or when offenders are placed on probation in the community? How can we as a society balance the community’s right to self-protection with individuals’ right to live where they choose, even those with criminal records?

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• List and discuss the disadvantages of probation and parole. Ask students to decide whether the advantages outweigh the disadvantages and how such a decision might be reached in individual circumstances.

• After reviewing the advantages and disadvantages of probation and parole, lead a debate regarding the use of correctional supervision in the community.

A. Advantages of Probation and Parole B. Disadvantages of Probation and Parole V. The Legal Environment • You may want to review some of the important legal aspects discussed in Chapter 5.

Remind students about the purpose of the exclusionary rule and Miranda protections.

You can also use this discussion as an opportunity to demonstrate how conviction changes an offender’s legal status.

• Describe the legal environment surrounding the use of probation and parole, and review the significant U.S. Supreme Court decisions. Use Table 12-1 for reference.

• Explain that the courts have not held probation and parole officers to the same standards as police officers in the gathering of evidence. Discuss the fact that probation and parole officers may turn incriminating statements made by clients over to prosecutors and that officers may enter a client’s home without a warrant.

• Describe probation and parole revocation. Explain that, in most cases, revocation orders can be issued only after a hearing in front of a neutral body and that certain procedures must be followed.

• Tell the class that members of parole boards have generally been immune to lawsuits arising from “bad” release decisions. Ask students whether they think parole decision makers should be held personally liable for the decisions they make.

• Divide the class into groups and lead a debate on whether nonrevocable parole should be permitted.

• Ask students to consider the various competing needs and rights that parole boards must weigh and have them discuss whose rights or needs should be given the greatest consideration.

• Point out that offenders are given certain procedural considerations in probation or parole hearings but that these stop short of introducing an adversarial element into the proceedings. Have students discuss the appropriateness of this.

VI. The Job of Probation and Parole Officers • Explain the nature of the job of probation and parole officers. Point out that the tasks of probation and parole officers are very similar and explain that some jurisdictions combine both roles into one job.

A. The Challenges of the Job • Describe the job of a probation or parole officer in terms of both its difficulties and its rewards. Ask students if they would consider careers in the field of probation and parole. Discuss their choices.

• Divide the class into groups and lead a debate as to which of the two models (social work and correctional) should take priority.

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VII. Intermediate Sanctions • Explain what intermediate sanctions are, and list the advantages of intermediate sanctions over more traditional forms of sentencing.

• Explain that intermediate sanctions resulted from the desire to improve the effectiveness of rehabilitative efforts. Ask students which of these sanctions would be most likely to be effective in rehabilitating offenders?

• Remind students of the goals of sentencing identified in Chapter 11. Ask students which of these goals each of the intermediate sentencing options discussed here are likely to achieve.

A. Split Sentencing B. Shock Probation and Shock Parole • Explain the difference between a split sentence and shock probation – point out that shock probation clients must apply for probationary release and cannot be certain of the judge’s decision.

C. Shock Incarceration • Explain why boot camp programs are no longer popular in most states.

D. Mixed Sentencing and Community Service • Link community service to restorative justice.

E. Intensive Supervision of Probationers and Parolees • Explain the difference between standard probation and intensive probation supervision. Ask students what goals of sentencing, if any, might be more effectively met by intensive supervision as compared to incarceration?

F. Home Confinement and Remote Location Monitoring • Discuss home confinement as a sentencing option with built-in inequities. Explain how some offenders are better able to afford the court-ordered costs associated with this alternative and how some homes are obviously more comfortable “prisons” than others.

• Consider discussing cases involving high-profile offenders such as Bill Cosby and ask students whether home confinement might be an appropriate sentencing option in these cases.

• Discuss the value of each of the intermediate sanctions described in this chapter and ask students which they consider to be the most fair, and why.

VIII. The Future of Probation and Parole • Discuss the criticisms of parole, including unfair reduction of sentences of serious offenders, public safety, the questionable effectiveness of parole in reducing recidivism, and questions of fairness.

• Describe the likely future of probation and parole.

• Ask the class to discuss ways in which they believe probation and parole should change in the future.

A. Changes in Reentry Policies • Explain the use of desistance as a measure of the success of reentry and post release supervision programs.

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• Describe reentry courts and refer back to the discussion of specialized courts in Chapter 9.

• Discuss the barriers to successful reentry and the need for increased focus on reentry.

• Discuss the focus on developing programs designed to facilitate the transition from incarceration back into the community.

B. The Reinvention of Probation and Evidence-Based Practices • Discuss the use of evidence-based practices in probation and parole.

LIST OF CHANGES/TRANSITION GUIDE •

A discussion of Meek Mill, born Robert Rihmeek Williams, has been added. Mill is the Philadelphia hip-hop recording artist who became the focal point of a justice reform movement that began in Philadelphia.

•

The concept of a term of supervised release (TSR) is more clearly defined.

•

Bill Cosby’s use of an ankle bracelet while awaiting the conclusion of his trial is discussed.

•

Efforts made by the federal government to strengthen BOP reentry efforts are discussed.

•

The 2018 federal First Step Act is discussed, as is the federal Second Chance Act.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Have students visit a local criminal court and observe the sentencing choices of individual judges. Are some judges more likely to order probation than others? If so, how great is the difference?

•

Invite a probation or parole officer to speak with the class. Have students prepare questions to ask the speaker about the use of alternative sentencing options in the local area and about the rewards and difficulties associated with his or her job. Computer conferencing may be considered as an alternative to a classroom visit.

•

Have students identify what intermediate sanctions are used in their home state (or assign each student or group of students a state to research). Consider having them research the relative use of each sanction – which ones are most popular, and why?

•

Visit the website of the American Probation and Parole Association and locate information on the Association’s various position statements. Use this information as a discussion starter.

•

Visit the Dispute Resolution section of the American Bar Association’s Web site. It presents essays on mediation and dispute resolution. Read and summarize some of the essays posted, and provide a summary of their key ideas to display and discuss in class. Lead the class in a discussion to compare and contrast the findings from the different essays.

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

What is probation? How did it develop? What purpose does it serve?

Probation is a prison sentence that is suspended. English courts in the fourteenth century entrusted prisoners to willing citizens based on good behavior. In Boston in the late 1700s, prisoners were taken home by John Augustus as an alternative to incarceration. Later, Massachusetts authorized the city of Boston to hire a salaried probation officer. Missouri, Vermont, and Rhode Island followed with similar enactments. By the end of the nineteenth 140 Copyright © 2021 Pearson Education, Inc.

century, probation was widely accepted. The purpose of probation is to retain control over offenders while using community programs to help rehabilitate them.

2.

What is reentry and how is it associated with parole? How do probation and parole differ? How are they alike?

Reentry involves the managed return to the community of individuals released from prison. It also refers to the successful transitioning of a released inmate back into the community.

Parole, which is a period of conditional supervised release in the community following a prison term, is a strategy of prisoner reentry. Both probation and parole involve supervising offenders in the community. They both impose conditions on offenders, and if an offender fails to abide by the conditions, then the offender’s probation or parole can be revoked. The key difference between probation and parole is that probation is a sentence imposed by a judge while parole is conditional release from incarceration prior to the completion of the sentence. While probationers generally do not serve any time in prison, parolees have already been incarcerated.

3.

List and explain the advantages and disadvantages of probation and parole.

The advantages of parole and probation include lower cost, increased employment, opportunities for restitution, community support, a reduced risk of criminal socialization, an increased use of community services, and increased opportunities for rehabilitation.

The main disadvantages include a relative lack of punishment, an increased risk to the community, increased social costs, and discriminatory and unequal effects.

4.

Describe significant court cases that have had an impact on the practice of probation and parole.

• Escoe v. Zerbst: Argued that the revocation of probation without notice or hearing was permissible.

• Mempa v. Rhay: Notice and a hearing are required before probation may be revoked and probationers should have the opportunity for representation by counsel.

• Morrissey v. Brewer: Procedural safeguards are required at parole revocation hearings.

• Gagnon v. Scarpelli: Extended the safeguards identified in Morrissey v. Brewer to probationers.

• Greenholtz v. Nebraska: Established that parole boards do not have to specify the evidence used in deciding to deny parole.

• Bearden v. Georgia: Established that probation cannot be revoked for failure to pay a fine and make restitution if it cannot be shown that the defendant is responsible for the failure.

• Minnesota v. Murphy: States that incriminating statements to a probation officer may be used as evidence if the probationer does not specify a right against self-incrimination.

• Griffin v. Wisconsin: The Supreme Court held that probation officers may conduct a search of a probationer’s residence without a warrant or probable cause.

• Pennsylvania Board of Probation and Parole v. Scott: The Griffin decision was applied to parolees.

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• U.S. v. Knights: Extended the warrantless search authority reserved for probation and parole officers to the police when supported by reasonable suspicion and authorized by the conditions of probation.

• Samson v. California: Police officers may conduct warrantless searches of individuals subject to parole search conditions.

5.

What do probation and parole officers do? What role do probation officers play in the sentencing of convicted offenders?

The work of probation and parole officers consists generally of the following four functions: intake procedures, needs assessment and diagnosis, client supervision, and presentence investigation. Probation officers play an important role in the sentencing of convicted offenders because after completing a presentence investigation, the probation officer makes a recommendation to the judge.

6.

What are intermediate sanctions? How do they differ from more traditional forms of sentencing? What advantages do they offer?

Intermediate sanctions employ sentencing alternatives that fall between outright imprisonment and simple probationary release to the community. They include the use of split sentencing, shock probation or parole, shock incarceration, community service, intensive supervision, or home confinement in lieu of other, more traditional sanctions, such as imprisonment and fines. They differ from more traditional forms of sentencing options in that they are generally considered a compromise between the lack of punishment for some sentences (probation) and the excessive punishment of other sentences (such as imprisonment). The major advantage of intermediate sentences is that they give judges more options when deciding an appropriate sentence. Other advantages include that they are less expensive than imprisonment and they are socially cost-effective.

7.

How are probation and parole changing? What does the future hold for them?

Both probation and parole are frequently attacked for being ineffective and allowing offenders to get off easy for their crimes. These concerns are reflective of a broader social attitude that we must get tough with offenders. There has been significant pressure to abolish parole as well as significantly revise probation. Although the future is unclear, probation and parole will continue to play vital roles in the punishment of offenders. The reality of the imprisonment binge is that it is impossible for states to build prisons fast enough and many states’ prison systems are overcrowded. Probation and parole are necessary to deal with this overcrowding issue. It may not be wise to eliminate parole, but certainly the administration of parole can be improved.

Questions for Reflection 1.

What significance does the contemporary concept of prisoner reentry hold for today’s corrections administrators? For society? How do the terms reentry and parole differ?

Prisoner reentry is the current buzzword among corrections administrators, but in many ways it does not differ significantly from parole. The focus of both is the return of an incarcerated offender back into the community. It is a significant issue, however, because of increased use of incarceration over the last 25 years. The concept has little significance for the corrections administrators. Although one might hope that the focus of incarceration is to best prepare the offender for successful reentry, the nature of correctional institutions is safety and security.

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For society, however, prisoner reentry is of much significance. If offenders can more successfully reenter society, then community safety will increase.

Answers will vary.

2.

What corrections philosophy originally supported the idea of indeterminate sentencing and parole? Does that philosophy still have merit today? Why or why not?

The key corrections philosophy is rehabilitation: the hope that an offender will change.

Parole is in theory the chance for a reformed offender to again make positive contributions to the community.

Answers will vary.

3.

Do you believe, as some do, that traditional parole has been a failure? Explain.

Answers will vary.

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Chapter 13 Prisons and Jails CHAPTER OVERVIEW Chapter 13 focuses on topics related to imprisonment in the United States. The use of prisons as a form of punishment is a relatively new concept. Most early punishment was corporal punishment that generally fit the doctrine of lex talionis. Early punishments included flogging, mutilation, branding, public humiliation, workhouses, and exile.

Prisons first emerged in the United States in the early 1790s when the Pennsylvania Quakers sought an alternative to corporal punishment. The Pennsylvania system made use of solitary confinement and also encouraged rehabilitation. The Pennsylvania system dominated prison construction until the 1820s. One of the first prisons to abandon the Pennsylvania model was Auburn prison in 1825, marking the beginning of the mass prison era. The Auburn system used mass prisons, where prisoners were held in congregate fashion and required to maintain silence.

The reformatory style emerged in 1876 as a result of the work of Captain Alexander Maconochie in Australia and Sir Walter Crofton in Ireland. Their efforts influenced the practices at New York’s Elmira Reformatory. The reformatory era of prisons (1876–1890) gave way to the industrial prison era (1890–1935). Industrial prisons attempted to capitalize on convict labor but the 1935 Ashurst-Sumners Act, which restricted interstate commerce in prison-made goods, severely limited the use of prison industries. As a result, prison administrators began to focus on custody and security during the punitive era (1935–1945), and large maximum-security institutions flourished. Interest in offender reformation and rehabilitation developed after World War II, leading to the treatment era (1945–1967), which was based on a medical model. Staring in the 1960s, problems of prison overcrowding led to a move away from institutionalized corrections. The community-based era (1967–1980) emphasized treating offenders in the community. However, the failure of the rehabilitative model led to the warehousing era (1980– 1995), a period during which the number of incarcerated inmates nearly tripled. The just deserts era (1995–2012) was based on the justice model, which emphasized individual responsibility.

Finally, the current evidence-based era (2012-present) is built around the need to employ costeffective solutions to correctional issues.

Today, the rate of new prison construction is slowing, as is the growth of the prison population. The vast majority of inmates are men and there are clear racial disparities. Most inmates in state prisons are convicted of violent crimes while federal inmates are most likely to be sentenced for drug-law violations. Incarceration rates vary greatly by state. Overcrowding is still a serious concern, particularly in the federal prison system. Prison characteristics vary by security level (maximum, medium, and minimum-security). Most states use a classification system to assign new prisoners to a custody level.

The federal prison system is operated by the Federal Bureau of Prisons (BOP). The federal system’s growth since the mid-1980s is mainly due to the Sentencing Reform Act of 1984 and various mandatory minimum sentencing laws. The BOP uses five security levels: administrative maximum, high security, medium security, low security, and minimum security.

Jails, the responsibility of local governments, primarily house pretrial detainees; probation, parole, and bail-bond violators; individuals waiting to be transferred to appropriate facilities; and inmates sentenced to a term of less than one year. While most jails are small, a small number of facilities (about 6 percent) house the vast majority of jail inmates in the U.S. today. Women are the largest growth group in jails nationwide. Women in jails pose unique challenges to jail 144 Copyright © 2021 Pearson Education, Inc.

administrators because most jurisdictions do not have separate housing for female inmates. Other issues include drug abuse and pregnancy. Women working in corrections are also a key issue for jails today; while women make up over 20 percent of correctional officers in jails nationwide, the deployment of female personnel is disproportionately skewed towards jobs in the lower ranks.

Direct supervision jails attempt to solve a number of the problems jails have experienced.

Regional jails use the combined resources of a number of local jurisdictions and are beginning to replace smaller antiquated local jails.

While state-run systems have always contracted with private industries for the provision of specific services, such as food, psychological testing, training, and so on, the privatization movement is growing. Private prisons involve a private firm operating a correctional institution on behalf of the local or state government. However, various legal issues are creating barriers to privatization. Additional, the federal government is now moving to phase out the federal use of private prisons.

LEARNING OBJECTIVES After reading this chapter, you should be able to 1.

2.

3.

4.

5.

Describe early criminal punishments.

List major milestones in the historical development of prisons.

Describe the purpose and major characteristics of today’s prisons.

Summarize the role jails currently play in American corrections, and issues jail administrators face.

Describe the current and likely future roles of private prisons.

CHAPTER OUTLINE I. Introduction II. Early Punishments • Explain that prisons are a relatively new invention and that before the advent of imprisonment, physical punishments were primarily used to penalize criminal offenders.

• Explain that before the development of prisons, criminal offenders commonly received physical punishments. Lead a discussion as to whether corporal punishment might serve a purpose in the modern criminal justice system.

A. Flogging • Discuss recent efforts in the U.S. to endorse whipping or paddling as a criminal sanction.

B. Mutilation C. Branding D. Public Humiliation • Point out that early punishments often included public humiliation, or shame. Link this back to the modern day use of shaming as a punishment, discussed in Chapter 11.

E. Workhouses • Explain that in the United States, workhouses were more commonly known as poorhouses. Many were combined with poor farms, which were widespread throughout the country up through the early part of the 20th century.

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F. Exile III. The Emergence of Prisons • Describe prisons as long-term confinement facilities in which convicted criminal offenders serve out their sentences. Explain the differences between prisons and jails.

• Briefly outline the stages of prison development in the U.S., as described in Figure 13-1.

• Ask students to consider what textbook means when stating that imprisonment as punishment differs from the concept of imprisonment for punishment?

A. The Penitentiary Era (1790–1825) •

Explain that the penitentiary concept was developed by Pennsylvania Quakers around 1790 as a humane alternative to corporal punishment. Discuss the use of the term “penitentiary” as it relates to the concept of prison as a place of penance.

• Explain that early penitentiaries were built around the Pennsylvania style of imprisonment, which incorporated solitary confinement, handicrafts, and opportunities for reflection into a rehabilitative model.

B. The Mass Prison Era (1825–1876) • Describe the Auburn system of “congregate-but-silent” imprisonment, which developed around 1820 as an alternative to the Pennsylvania system.

• Compare and contrast the Pennsylvania and Auburn styles of imprisonment.

• Divide the class into groups. Have one group defend the Pennsylvania system and the other group defend the Auburn system. This could be done through an in-class debate or by having the groups prepare presentations, create public service announcements, or other audio-visual materials in support of their assigned system.

• Use the letter by Chaplain James Finley as an example of the differences between the Pennsylvania (separate) and Auburn (congregate) systems.

C. The Reformatory Era (1876–1890) 1. Captain Alexander Maconochie and Norfolk Island • Describe the development of indeterminate sentencing through the work of Captain Alexander Maconochie and Sir Walter Crofton. Connect this to the goals of sentencing described in Chapter 11.

• Have student suggest possibly reasons why there was so much opposition in England to Maconochie’s new system.

2. Sir Walter Crofton and the Irish System • Explain that Sir Walter Crofton’s program was the first rehabilitative approach that included progressive stages to move prisoners back toward being productive members of the community.

3. The Elmira Reformatory • Discuss the development of the Elmira Reformatory as an alternative to both the Pennsylvania and the Auburn systems. Explain how the reformatory concept depended on the idea of earned early release inherent in indeterminate sentencing, which assumed that an inmate could “reform” him- or herself.

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D. The Industrial Era (1890–1935) • Explain how strong union interests during the Great Depression led to a decline in industrial prisons. Ask students whether they would favor a return to greater industrialization in our nation’s prisons.

• Describe the types of prison labor programs used by your state’s correctional department. In a distance-learning environment, consider asking students to research prison labor in their home states.

• Ask students to discuss whether or not the benefits of prison labor outweigh the possible effect it may have on employment opportunities for civilian workers.

1. Prison Industries Today E. The Punitive Era (1935–1945) • Explain the impact of the moratorium on prison industries on prisons and how this contributed to the move to a more punitive prison environment.

• Ask students to consider how the trend toward a punitive approach in imprisonment reflected social trends, and discuss how the balance between individual rights and public order may have shifted during the punitive era.

F. The Treatment Era (1945–1967) • Explain that the medical model of corrections, operative during the 1940s and 1950s, viewed criminals as patients needing treatment rather than punishment.

• Point out that treatment was more of an ideal than a reality.

• Point out how the resistance of inmates to treatment highlights issues of individual rights and public order. Have students discuss how (or if) these can be balanced.

G. The Community-Based Era (1967–1980) • Discuss the community-based correctional model of the 1960s and early 1970s as being based on the notion that offenders could best be rehabilitated via contact with the community, including treatment in available community programs. Ask how probation and parole today reflect the community-based model’s assumptions.

H. The Warehousing Era (1980–1995) • Explain warehousing as a correctional strategy that developed during the 1980s when sentencing authorities, disillusioned with high rates of recidivism, turned to a “lock’em-up” approach to reducing crime.

• Discuss the work of Robert Martinson, who formulated the nothing-works doctrine.

Explain that Martinson’s impact on sentencing strategies was significant because he was able to show that no correctional programs could consistently and significantly reduce the rate of repeat criminality.

• Refer students to Figure 13-2 and lead a discussion on what factors have contributed to the huge increase in prison populations during recent decades.

• Discuss the work of Robert Martinson, who formulated the nothing-works doctrine.

Explain that Martinson’s impact on sentencing strategies was significant because he was able to show that no correctional program could consistently and significantly reduce the rate of repeat criminality.

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I.

The Just Deserts Era (1995–2012) • Point out that the just deserts era continued the emphasis on incarceration that began during the warehousing era and have students discuss ways in which these two eras differed.

J. The Evidenced-Based Era (2012–Present) IV. Prisons Today • Describe prisons as long-term confinement facilities in which convicted criminal offenders serve out their sentences. Differentiate prisons from jails.

• Describe the main types of prisons found in a typical prison system.

• Ask the class to examine Figure 13-3 and to propose reasons why states differ so greatly on the use of imprisonment.

• Review the demographic characteristics of prison inmates and discuss the obvious racial disparities. Ask students whether they believe the racial disparities among prison inmates are due more to differences in offending or to disparate treatment by the criminal justice system.

A. Overcrowding • Discuss the various causes of prison overcrowding and the legal problems that overcrowding may create for a prison system.

• Ask students if they agree with the Supreme Court’s ruling that overcrowding on its own is not cruel and unusual punishment.

1. Selective Incapacitation: A Contemporary Strategy to Reduce Prison Populations • Lead a class discussion on selective incapacitation and whether the “false positive” problem is too great for the policy to work.

B. Security Levels • Review the various levels of prison security and explain that the same facility may combine multiple custody levels.

• If you are able to organize a field trip to a tour a local jail or state prison, be sure to point out to students the level of security imposed by the institution you choose to tour.

C. Prison Classification Systems •

Discuss the purpose of prison classification systems and review the Supreme Court’s ruling that classification criteria must be relevant to legitimate security needs. Ask students whether they agree with this ruling and why/why not.

D. The Federal Prison System • Describe the various levels of security used by the Bureau of Prisons.

• Have students compare the federal ADMAX facility at Florence to the Pennsylvania system originally used at Eastern State Penitentiary. Ask students to consider the problems with the Pennsylvania system and discuss whether the use of ADMAX facilities today is justified.

E. Recent Improvements • Discuss the accreditation program that has been developed for correctional institutions and link this back to the discussion of police accreditation in Chapter 8.

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V. Jails • Describe jails as temporary confinement facilities originally intended to hold defendants awaiting trial or to house convicted offenders awaiting sentencing. Explain that many jurisdictions now use jails in lieu of prisons for offenders sentenced to short terms of imprisonment.

• Explain the role that jails play in American corrections and discuss the issues that jail administrators currently face.

• Review the various purposes of jails and discuss the possible problems inherent in placing so many responsibilities on one institution.

• Ask students to discuss the unique qualities of jails as compared to prisons.

A. Women and Jail • Tell students that the proportion of women in jails across the nation has risen steadily during the past two decades. Ask students to name some of the reasons for that increase.

B. The Growth of Jails • Discuss the problem of jail overcrowding and ask students how the prison overcrowding problem may affect jail populations.

C. Direct-Supervision Jails • Lead a discussion as to whether direct-supervision jails are superior to their predecessors.

D. Jails and the Future • Ask students to review the American Jail Association Code of Ethics and discuss how the Code seeks to balance the individual rights of inmates and correctional officers with public-order concerns.

• Discuss the advantages and disadvantages of regional jails.

VI. Private Prisons • Describe the role of private prisons today, and assess their future.

• Explain the advantages and disadvantages of private prisons.

• Divide the class into groups and lead a debate regarding the use of private prisons. One group could represent the Obama administration’s view of private prisons in the federal system while the other could represent the views of the Trump administration.

LIST OF CHANGES/TRANSITION GUIDE •

A new figure, Figure 13-4, “Prison and Jail Populations in the United States,” has been added.

•

Statistics have been updated throughout the chapter.

•

The term “new generation jail” has been changed to “direct-supervision jail.”

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Have students collect data on prison populations in your state and compare the growth of those inmate populations to the national trend. Discuss the issue of prison overcrowding as it pertains to your state system.

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•

Invite a corrections administrator (warden, program director, shift supervisor, etc.) to speak with the class. Ask him or her to comment on the ideas discussed in this chapter, such as warehousing and rehabilitation. Ask the speaker whether he or she believes that rehabilitation can occur effectively in a prison setting and what elements are necessary for successful rehabilitation. With what kinds of inmates has the speaker seen rehabilitation succeed or fail. Computer conferencing may be considered as an alternative to a classroom visit.

•

Schedule a tour of a local prison. Ask to see as many facilities as possible, including dormitories, shops, the cafeteria, segregation units, religious assembly areas, and so on. Ask students what they think of the prison’s living conditions and the facilities provided. If students also visited a jail, ask them to compare their observations of the prison with those of the jail and identify the major similarities and differences.

•

Schedule a tour of a local jail and visit as many facilities as possible. Ask students what they think of the living conditions and the facilities provided. If students also visited a prison, ask them to compare their observations of the jail with those of the prison and identify the major similarities and differences.

•

Visit the Website of a major correctional industry publication, such as Correctional News or Prison Legal News. Display the sites in class, and ask students to summarize and discuss the articles in class.

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS 1.

What types of criminal punishments were used before the advent of imprisonment as a criminal sanction?

Most early punishments were cruel and inhumane and involved corporal punishment. Types include flogging, mutilation, branding, public humiliation, workhouses, and exile. While it has been suggested that the United States return to physical punishments and public humiliation, most consider these options unacceptable. Opponents argue that these punishments would not deter offenders but would instead provoke them to engage in more crime.

2.

Trace the historical development of prisons in the United States, beginning with the Pennsylvania system. How has correctional practice in America changed over time?

What changes do you predict for the future?

The use of prisons as a way of punishing convicted offenders is a relatively new concept in the United States. Imprisonment in the U.S. began with the Penitentiary Era in 1790. This began with the conversion of Philadelphia’s Walnut Street Jail into a penitentiary by Quakers living in Pennsylvania. The Quakers saw prisons as places where offenders could accept responsibility for their offenses and make amends with society. This led to the Pennsylvania system, which used solitary confinement in individual cells.

The Mass Prison Era began in 1825 when a number of states began building institutions modeled after Pennsylvania’s penitentiaries. However, the growth of prison populations made solitary confinement too expensive and led to the development of New York’s Auburn Prison, which used a congregate but silent system.

The Reformatory Era began in 1876, with the opening of the Elmira Reformatory in New York, after the state passed an indeterminate sentencing bill that permitted the early release

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of inmates who earned it. However, the reformatory concept was not successful, as many inmates recidivated after release.

The failure of the reformatory style of prison led to an emphasis on security and discipline in American prisons, particularly as inmate populations and prison costs increased.

A focus on the potential profitability of inmate labor led to the Industrial Prison Era, which began in 1890. Many prison industries were quite profitable and contributed significantly to state treasuries. However, during the Great Depression, labor unions used their political might to end prison industries, which they saw as unfair competition because of “free” inmate labor. The 1935 Ashurst–Sumners Act, which specifically prohibited the interstate transportation and sale of prison goods where state laws forbade them, effectively ended prison industries.

Prison administrators then began focusing on custody and institutional security as the central purposes of the correctional enterprise, which led to a Punitive Era. This was characterized by the belief that prisoners owed a debt to society that only a rigorous period of confinement could repay.

After World War II, a new interest in reformation led to the Treatment Era, based on a medical model of corrections which implied that the offender was sick, and that rehabilitation was only a matter of finding the right treatment. Inmates became seen more as “clients” or “patients” rather than as offenders. While this era ended in 1967, many correctional rehabilitation programs survived.

In the 1960s, prison overcrowding problems combined with the treatment era’s belief in the possibility of behavioral change led to the Community Corrections Era. This era was based on the premise that rehabilitation could not occur in isolation from the free social world to which inmates would eventually return. It was characterized by a movement away from institutionalized corrections and toward the creation of opportunities for reformation within local communities.

In the 1980s, the drug epidemic and concerns about community protection led to increasingly strict laws that put more and more people into prison. This period was known as the Warehousing Era because it was based on a policy of warehousing serious offenders to protect society.

One concern with warehousing was the lack of a clear-cut philosophy. In the late 1990s, during the Just Deserts Era, a new philosophy became the operative principle underlying many correctional initiatives. This new philosophy was based on the concept of just deserts, in which imprisonment is seen as a fully deserved and proper consequence of criminal and irresponsible behavior. This era represented a kind of return to the root purpose of incarceration: punishment.

While the just deserts philosophy provided may with an acceptable rationale for continued prison expansion, the Great Recession of the early twenty-first century required states to save money and cut their budgets, leading to an end of the just deserts era around 2012. As a result of the need for financial austerity, many state legislatures began to question the wisdom of incarcerating nonviolent, elderly, and seriously ill offenders for long periods of time, and prison populations began to decline. This new era in corrections, the EvidenceBased Era, is built around the need to employ cost-effective solutions to correctional issues.

Evidence-based corrections represents a rational science-based approach to corrections because it employs social scientific research in determining what practices to implement.

Answers will vary regarding future changes.

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3.

What are today’s prisons like? What purposes do they serve?

Prisons today house an extremely large number of inmates, although the growth of the prison population has been slowing in recent years and in some states prison populations are starting to decrease. The vast majority of inmates are male. Inmates are overwhelmingly uneducated, drug abusers, often illiterate, often have weak and troubled job histories and strained family ties, are likely to suffer mental illness, and lack the basic skills to survive. There are clear racial and gender disparities.

Prisons have been influenced by a long history of using prisons to primarily punish. One goal of prisons is to reform offenders—the hope that through isolation and treatment the offender will change. Such efforts to rehabilitate are adversely influenced by the bureaucratic realities of prison organizations as well as changing attitudes about crime and punishment in the United States. The public has come to expect that prisons are places of punishment, and there has been public and political pressure to remove various types of treatment programming. The number of prisons, and the size of prison populations, has grown dramatically in the last 25 years. Many prisons are overcrowded because of the emphasis on just deserts. Prisons certainly punish and isolate offenders from society, but they are not very effective at rehabilitating offenders.

4.

What role do jails play in American corrections? What are some of the issues that jail administrators currently face?

• Receive individuals pending arraignment and hold them awaiting trial, conviction, or sentencing.

• Readmit probation, parole, and bail-bond violators and absconders.

• Temporarily detain juveniles, the mentally ill, and others pending transfer.

• Hold individuals for the military, for protective custody, for contempt, and for the courts as witnesses.

• Transfer inmates to federal, state, and local authorities.

• House inmates from federal, state, or other authorities because of overcrowding.

• Operate community-based programs.

• Hold inmates sentenced to short terms of incarceration.

One issue for jail administrators is dealing with the growing population of women who are confined in jails. Jails were not designed to meet the unique needs of female offenders. Jails are also significantly overcrowded. Other issues include antiquated architectural design and organizational problems.

5.

What will be the likely state of private prisons two or three decades from now?

Answers will vary.

Questions for Reflection 1.

What are the demographics (social characteristics) of today’s prisoners? What gender and racial disparities, if any, exist in today’s prison populations?

Most people sentenced to state prisons have been convicted of violent crimes; most federal prisoners were convicted of drug-law violations. Imprisonment varies considerably between states. Almost 93 percent of incarcerated offenders are men; the rate of imprisonment for 152 Copyright © 2021 Pearson Education, Inc.

men is 13 times higher than the rate for females. There is a huge disparity between blacks and whites in prison. Almost 17% of adult black men in the U.S. have served time in prison, compared to only 7.7% of adult Hispanic males and only 2.6% of adult white males. The incarceration rate of black men is nearly 6 times greater than that of whites.

2.

What is the just deserts model of corrections? Explain the pros and cons of this model.

How did it lead to an increased use of imprisonment and to prison overcrowding?

The justice model emphasizes individual responsibility, and imprisonment is seen as a fully deserved and proper response for criminal behavior. The just deserts model clearly achieves the sentencing goals of retribution, incapacitation, and deterrence. Society feels safer with so many of its predators locked away, and theoretically the pool of offenders available to commit crimes is reduced. The downside, of course, is the high cost of housing, feeding, treating, training, and supervising an ever-growing prison population. And the pool of available offenders has not declined as anticipated, as new candidates move in to seize criminal opportunities vacated by incarcerated offenders.

3.

What is the relationship, if any, between changes in the rate of criminal offending and changes in the rate of imprisonment in America during the last decade? What is the reason for that relationship?

Answers will vary.

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Chapter 14 Prison Life CHAPTER OVERVIEW Chapter 14 describes the realities of life in prison. The chapter focuses on the various social realities that coexist among corrections officers and inmates in male and female institutions, including security threat groups and prison riots, prisoners’ rights, and other issues facing prisons today. Prisons are total institutions, small societies with their own values and lifestyles.

The discussion of the realities of the male inmate’s world revolves around the discussion of prison subcultures. Since inmates share all aspects of their lives on a daily basis, prison life is shaped by both the official structure and rules and the values and behavioral patterns of the inmates. New inmates undergo a process of prisonization, learning the values, language (prison argot), and rules of the institution. The text also describes ten types of prisoners, differentiating them based on their choice of a prison lifestyle. Sexual behavior within prison is regulated by the subculture and prison rape is becoming a major concern.

Although women account for a small percentage of the U.S. prison inmate population, the number of women in prison is growing rapidly. Black women are clearly overrepresented in correctional populations. The vast majority of women in prison are mothers, and most had custody at the time of admission. Children of female prisoners are significantly affected by the separation. Gender responsiveness is a major concern of correctional facilities today, as prison systems generally are designed for male inmates and primarily run by men. Although there is some disagreement among scholars attempting to describe the social structure of women’s prisons, many researchers find that females are more likely to be involved in prison “families.”

Also, the amount and type of violence and sexual activity in female institutions is significantly different from that in male institutions.

Like prisoners, corrections officers undergo a socialization process that helps them function by the official and unofficial rules of staff society. Prison staffers are most concerned with custody and control. However, professionalism is playing a growing role in corrections today, and today’s corrections personnel are better trained and more proficient than ever before.

American prisons are relatively calm, compared to those in some other countries, but the period from 1970 to 1980 is known as the “explosive decade” of prison riots. Several significant riots occurred during this decade, beginning with the Attica prison riot in 1971 and ending with the Santa Fe prison riot in 1980. One factor that increases the risk of prison riots is the presence of security threat groups (STGs) within a prison. These are inmate groups or organizations whose members act together to pose a threat to the safety of corrections staff or the public, who prey upon other inmates, or who threaten the secure and orderly operation of a correctional institution. American prisons contain a number of well-organized STGs whose influence extends between prisons and out into the general public.

Historically, the courts adhered to a policy of nonintervention with regard to prison management. However, the “hands-off doctrine” was abandoned in the late 1960s. Courts have since addressed a number of areas important to life in prison, including communications, religious practice, visitation, legal access to courts, privacy, medical care, and disciplinary proceedings. The balancing test, applied to corrections in the case of Pell v. Procunier, attempts to weigh the rights of an individual against the authority of states to make laws or otherwise restrict a person’s freedom. High Court decisions have generally established that prison inmates retain those constitutional rights that are not inconsistent with their status as prisoners or with the 154 Copyright © 2021 Pearson Education, Inc.

legitimate penological objectives of the correctional system. In other words, inmates have rights, much the same as people who are not incarcerated, provided that the legitimate needs of the prison for security, custody, and safety are not compromised. The era of prisoners’ rights was sharply curtailed in 1996 with the passage of the Prison Litigation Reform Act, which restricts inmate filings in an attempt to reduce the number of lawsuits brought by state prisoners in federal courts.

Several other important social issues also create problems for prisons today. The growing number of geriatric offenders in prison is a serious problem affecting prisons. Geriatric inmates have special needs that few prisons are equipped to handle. Mentally ill and intellectually disabled inmates also have special needs that prisons must address. Finally, corrections personnel may have an important role to play in preventing future terrorist attacks. Outside terrorist activities may affect inmate and staff populations and personnel must also consider the threat of terrorist acts by inmates within the facility.

LEARNING OBJECTIVES After reading this chapter, you should be able to 1.

2.

3.

4.

5.

6.

7.

Describe early research on prison life, including the development of the concept of total institutions.

Describe the realities of prison life in male correctional facilities.

Differentiate between men’s prisons and women’s prisons.

Describe prison life from the corrections officer’s point of view.

Describe the nature of security threat groups and summarize the causes of prison riots.

Discuss the legal aspects of prisoners’ rights, including the consequences of related, precedent-setting U.S. Supreme Court cases.

Describe the major issues that prisons face today.

CHAPTER OUTLINE I. Introduction II. Research on Prison Life—Total Institutions • Describe total institutions as enclosed places where residents share all aspects of their daily lives. Explain that inhabitants of total institutions work, recreate, worship, eat, and sleep together.

• Ask students whether prisons might be better at rehabilitating inmates if they were more open to the outside world, rather than being total institutions.

III. The Male Inmate’s World • Describe the realities of prison life and prison subculture from the inmate’s point of view.

• Define prisonization as the socialization of new inmates into prison subculture. Use the five elements of the prison code discussed in the text to describe the realities of that subculture.

• Use CJ Exhibit 14-1 to explain prison argot, the slang used by inmates. Relate it to the slang used by other groups, such as the language used to describe activities on the Internet.

• Ask students to identify similarities between prison society, as described in this chapter, and free society, and to identify differences. Lead a discussion as to what might account for these similarities and differences.

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• Describe prison subculture as a lifestyle that reflects criminal values and behavior patterns characteristic of incarcerated offenders. Note that prison subculture shows amazing consistency among prisons across the United States.

• Explain that subcultures can be found in many occupations and different human environments. For example, when discussing law enforcement, the text describes the police subculture. Similarly, many cultures and subcultures, such as the fraternity and sorority subcultures, exist on college campuses. Have students try to identify different subcultures in a class discussion.

A. The Evolution of Prison Subcultures • Describe the evolution of prison subculture as new generations of convicts arrive.

Explore some of the differences between traditional and emerging subcultural values.

B. The Functions of Prison Subcultures • Explain the deprivation and importation models of the prison subculture. Ask students which one they think best explains the development and evolution of prison subcultures in the United States.

C. Prison Lifestyles and Inmate Types • Describe inmate types as adaptive roles inmates take on to define themselves in prison society. Ask the class what personality characteristics, criminal history, or background might lead a prisoner to adopt a particular style. How might prison staff respond to each of the types listed in this chapter?

• The text describes nine inmate types. Ask students to develop a hierarchy based on the descriptions of these inmate types. What inmate types have the most power in prison society? Who would have the least amount of power? Through this exercise, students will develop an appreciation for the different types. It will also help them understand various aspects of inmate society.

D. Homosexuality and Sexual Victimization in Prison • Discuss homosexuality in prison, and ask why it appears to be so common. Describe the difference between prison homosexuality and homosexual behavior in the free society as the contrast between limited opportunity and free choice. Note that relatively few offenders involved in homosexual activities in prison will continue them upon release. Explain that at least some homosexuality in prison is a form of adaptive behavior.

• Discuss the problem of prison rape and explain the characteristics of offenders. What effects can sexual assault in prison have on victims?

IV. The Female Inmate’s World • Illustrate the significant differences between men’s prisons and women’s prisons.

• Point out that Figure 12-1 shows that the number of incarcerated women has been growing much more quickly than the number of men. Ask students what might account for this.

• Discuss the relative proportions of ethnic groups in the women’s prisons. Ask students how they might account for the fact that these proportions do not even approximate the proportions of racial and ethnic groups in the wider society? Should society strive to create a more racially and ethnically “balanced” prison population? If so, how?

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A. Parents in Prison • Explain that the vast majority of women in prison are parents, and most are custodial parents. Discuss the economic impact this may have on society. Point out that many children of female inmates never visit their mothers during the period of incarceration, explain the various reasons for this, and ask students how they think having an incarcerated parent may affect children.

B. Gender Responsiveness • Discuss the concept of gender responsiveness and why it is important to correctional facilities.

• Review the mother/baby program described in the chapter and lead a debate about the issue of allowing infants and toddlers in prison.

• Ask the class to consider how prisons should handle inmates who are nonbinary or transgender. Should these inmates be placed in the prison that matches their biological gender? Should transgender inmates who have fully transitioned be handled differently from those who may not have completely transitioned before being incarcerated?

C. Institutions for Women • Direct students’ attention to the recommendations of the Task Force on the Female Offender. Ask students to identify the rationale behind each recommendation.

D. Social Structure in Women’s Prisons • Explain the “family” structures so frequently found in prisons for women. Note that “families” are found cross-culturally and nationwide in women’s institutions. Ask the class to explain the phenomenon.

• Discuss the issue of sexual victimization of prison inmates and why women are at greater risk of inmate-on-inmate sexual victimization than males.

E. Types of Female Inmates • Have students compare the types of female inmates described in this chapter to the types of male inmates and discuss the ways in which they do or do not reflect male and female roles in the larger society.

F. Violence in Women’s Prisons IV. The Staff World • Describe the realities of prison life from the correction officer’s point of view.

• Describe the jobs and roles prison staff members fulfill. Explain that one staffer may wear many different hats.

• Explain that custody and control are still the major concerns of corrections staffers, just as they have been since the inception of imprisonment A. The Professionalization of Corrections Officers • Discuss how the ACA Code of Ethics is designed to uphold both the standards of the profession and the values of society. Ask students what social values the code embodies.

• Point out that the amount of training required for correctional officers is generally much less than that required to become a police officer. Ask students if they agree or if more training should be required of individuals before they are allowed to work in corrections.

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• Read about the job requirements for a Federal Bureau of Prisons Correctional Officer at https://www.bop.gov/jobs/positions/index.jsp?p=Correctional%20Officer VI. Security Threat Groups and Prison Riots • Explain that the 1970s were once called the “explosive decade” of prison riots. Suggest that the frequency of riots in prison may reflect the frequency of public protests in the wider society of which prisons are a part.

• Discuss the importance of informal controls within the prison subculture in keeping order and preventing riots.

• One of the interesting aspects of the Attica prison riot was that inmates requested, and were granted permission, to have the news media present during negotiations with correctional administrators. A substantial amount of riot footage exists because television cameras were present. For example, some very powerful footage can be seen in the Eyes on the Prize video series. Consider showing some of this in class or assigning it for outof-class viewing.

VII. Prisoners’ Rights • Explain the hands-off doctrine as a nonintervention policy that American courts assumed with regard to prisons before the late 1960s. Explain that widespread abuses of power by correctional staff, combined with an increasingly sensitive Supreme Court, led to many decisions concerning correctional administration during the past two decades.

• Lead a discussion as to whether the U.S. should return to a hands-off policy. Ask students whether the hands-off doctrine would be more likely to appeal to public-order advocates or to individual-rights advocates.

• Explain the concept of civil death and discuss those aspects that still exist in the modern correctional system today.

A. The Legal Basis of Prisoners’ Rights • Discuss the legal aspects of prisoners’ rights, and explain the consequences of precedent-setting U.S. Supreme Court cases in the area of prisoners’ rights.

• Explain that the Eighth and Fourteenth Amendments have been used as the basis for most inmate suits against the conditions of confinement.

• Review the conditional rights of inmates listed in Table 14-3. Ask students which of these rights they believe are absolutely necessary. Which do they think should be curtailed?

B. Grievance Procedures • Review the grievance procedures used in the prisons in your state. In a distance learning environment, consider having students research the procedures in their home states.

C. A Return to the Hands-Off Doctrine?

• Comment on the observation made in the text that the U.S. Supreme Court may have signaled at least a partial return to the hands-off doctrine. Use the case of Wilson v.

Seiter (1991) as the basis for a discussion of the issue.

• Point out that offenders are sentenced to prison as punishment, not for punishment.

Explain that incarcerated individuals may not be physically or mentally abused and that their basic needs, including protection from harm, must be met.

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VIII. Issues Facing Prisons Today • Identify some of the major issues facing prisons today, including geriatric offenders, mentally ill and intellectually disabled inmates, and terrorism. Ask students whether they can envision any additional types of issues that might be on the horizon, waiting to emerge.

A. Geriatric Offenders • Discuss the factors leading to a higher incidence of geriatric offenders. How does this situation affect prisoners’ rights to medical treatment, which was discussed earlier in this chapter?

• Discuss the problems that geriatric inmates create for prisons. In additional to the cost of medical care, problems include prison structures, which generally are not designed for disabled individuals; security risks due to the use of canes and crutches, which could also be used as weapons; and the stress that caring for elderly inmates may place on corrections staff.

• Lead a discussion as to whether geriatric inmates incarcerated for nonviolent crimes should be released to the community.

C. Mentally Ill and Intellectually Disabled Inmates • Link the situation of inmates with mental illness and intellectual disabilities to that of geriatric inmates and point out that most correctional institutions do not have the ability to care properly for these inmates.

D. Terrorism and Corrections • Ask the class to consider what kinds of terrorist activity might occur in prison and to discuss possible steps corrections personnel might take to reduce the threat of terrorist activity in their facilities.

LIST OF CHANGES/TRANSITION GUIDE •

The list of terms known as “inmate argot” has been updated and revised.

•

The data on prison sexual victimization has been updated, as has the discussion.

•

The discussion of prison libraries has been updated to include digital materials.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Invite a corrections officer to speak with the class. Ask the officer to explain the selection and training process for correctional officers and to discuss the institutional work environment. Encourage the officer to talk about staff culture and priorities. Computer conferencing may be considered as an alternative to a classroom visit.

•

Invite a corrections administrator (warden, program director, shift supervisor, etc.) to speak with the class. Ask him or her to comment on the ideas discussed in this chapter, such as inmate typology. Does the speaker believe that these concepts adequately describe prison reality as he or she has experienced it? Ask about the use of prison argot and how it compares to the list of terms given in the textbook. Computer conferencing may be considered as an alternative to a classroom visit.

•

Ask students to develop a hierarchy of inmate types based on the descriptions in the text.

Which inmate types have the most power in prison society? Who would have the least amount of power? Through this exercise, students will develop an appreciation for the different types. It will also help them understand various aspects of inmate society.

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•

Have students visit the Stanford Prison Experiment website. Conduct a discussion regarding how the results of this study might be useful in selecting and training correctional officers.

•

Search the World Wide Web for stories about life in prison from the perspective of a correctional officer or from the perspective of an inmate. After displaying an overview of this information, lead a discussion on the different prison life perspectives.

•

If you did not do so while discussing Chapter 13, now would be a good time to schedule a tour of a local prison. Ask to see as many facilities as possible, including dormitories, workshops, cafeterias, segregation units, religious assembly areas, and the like. If possible, ask to speak with inmates about the challenges of prison life. Ask if there are any positive aspects to “being on the inside.”

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

Describe early research on prison life, including the development of the concept of total institutions.

One of the earlies studies of prison life was conducted in 1935 by Hans Reimer, who served three months in prison as an incognito participant-observer. Reimer reported the results of his studies to the American Prison Association, leading to other efforts to examine prison life.

Most of these studies focused primarily on maximum-security prisons for men. They treated correctional institutions as formal or complex organizations and used the analytic techniques of organizational sociology, industrial psychology, and administrative science.

Erving Goffman described total institutions as places where the same people work, eat, sleep, recreate, and worship together every day. They include prisons, concentration camps, mental hospitals, and other facilities where residents are cut off from the larger society, either willingly or by force. Total institutions are small societies with their own values and lifestyles. Goffman and other researchers found that any group with similar characteristics confined in the same place at the same time eventually develops its own subculture. This led to a focus on the study of prison subcultures and the way by which they communicate prison values and expectations.

2.

What are prison subcultures, and how do they influence prison life? How do they develop, and what purpose do they serve?

Prison subcultures reflect the values and behavioral patterns characteristic of prison inmates.

They are the mechanisms that inmates develop in the population to cope with the realities of prison life. Subcultures change constantly, evolving to reflect the concerns and experiences of the wider culture, reacting to new crime-control strategies, and embracing novel opportunities for crime.

Subcultures may be an adaptation to deprivation and confinement. They are a way of addressing the needs of prisoners living within a highly controlled and regimented institutional setting. Because prison authorities control all aspects of an inmate’s life in the conventional world, the development of subcultures that cannot be controlled by those authorities gives inmates a means of exercising control in their “real” world.

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3.

How do women’s prisons differ from men’s? Why have women’s prisons been studied less often than institutions for men?

Although there are far more males in prison than females, the number of female inmates is increasing at a rater greater than that of male inmates. The most significant difference between male and female prisons is in the social structure. Research has produced inconsistent results, but many scholars argue that women inmates construct pseudofamilies.

The sexual relationships between inmates also differ, and staff and inmates are significantly more likely to have sexual relationships in women’s prisons. Finally, violence in women’s prison is less frequent.

Reasons for not studying women’s prisons as frequently include differences in the size of prison populations and differences in their involvement in criminal activities. In addition, the fact that the field of criminal justice was male-dominated during the early days of the development of the discipline also had an impact.

4.

What are the primary concerns of prison staff? What other goals do staff members focus on?

Custody and control remain the primary concerns of prison staff. Society expects correctional staff to keep inmates in custody, so it is necessary before any other correctional activities, such as instruction or counseling, can be undertaken. Control ensures order and an orderly prison is thought to be safe and secure. Other goals may include the maintenance of fairness in prison operations and the creation of an environment that encourages rehabilitative efforts by the inmates.

5.

What are security threat groups? How common are they in American prisons? What problems do they cause?

Security threat groups (STGs) are inmate groups, gangs, or organizations organization whose members act together to pose a threat to the safety of corrections staff or the public, who prey upon other inmates, or who threaten the secure and orderly operation of a correctional institution. STGs vary in organization and composition; some groups are highly structured while others are less formal. Members participate in an organizational hierarchy and are governed by a shared code of conduct. They may prey on other inmates and may threaten the secure and orderly operation of a correctional institution. If multiple groups are present in a prison, turf violations can easily lead to widespread disorder. STGs are very common in prisons; some larger gangs have memberships in the tens of thousands spread across prisons in multiple states. They often have significant influence beyond the penal system.

6.

What are the generally accepted rights of prisoners in the United States today? Where do these rights come from? What U.S. Supreme Court cases are especially significant in the area of prisoners’ rights?

Due process entitlements extend to all people within the jurisdiction of the United States or of the individual states. Those rights are constitutionally mandated and protected. Further, the U.S. Supreme Court enforces them in its interpretation of those constitutional mandates.

Inmates have rights as well, provided that the legitimate needs of the prison for security, custody, and safety are not compromised.

Some of the many important Supreme Court cases in this area include: • Monroe v. Pape: Inmates have the right to bring action in federal court when deprived of their rights by state officers acting under color of state law.

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• Johnson v. Avery: Inmates have a right to consult “jailhouse lawyers” for advice if assistance from trained legal professionals is not available.

•

Cruz v. Beto: Inmates must be given a “reasonable opportunity” to pursue their religious faith even if it differs from traditional forms of worship.

• Pell v. Procunier: Established inmates’ retention of all First Amendment rights that are not inconsistent with their status as prisoners or the legitimate penological objectives of the correctional system.

• Estelle v. Gamble: Requires prison officials to provide for inmates’ medical care and established the concept of “deliberate indifference” in determining whether prison administrators are meeting the medical needs of prisoners.

• Bounds v. Smith: Not only confirmed the right of prisoners to have access to the courts and to legal assistance, but also required states to assist inmates in the preparation and filing of legal papers. This assistance can be given through trained personnel or through the creation and availability of a law library for inmates.

• Wolff v. McDonnell: Sanctions cannot be levied against inmates without appropriate due process—the beginning of the concept of “state-created liberty interests.”

• Cooper v. Morin: Female inmate must receive the same treatment as male inmates.

• Hudson v. Palmer: The need for prison officials to conduct thorough and unannounced searches precludes inmates’ right to privacy in personal possessions.

• Johnson v. Avery: Inmates have a right to consult “jailhouse lawyers” for advice if assistance from trained legal professionals is not available.

• Pell v. Procunier: Supreme Court established a “balancing test” to guide prison authorities in determining what rights an inmate should have. Inmates should have the same rights as nonincarcerated citizens, provided that the legitimate needs of the prison for security, custody, and safety are not compromised.

• Helling v. McKinney: Required prisons to correct environmental conditions that pose a threat to inmate health, such as secondhand cigarette smoke.

• Wilson v. Seiter: Clarified the concept of the totality of conditions and stated that some conditions of confinement taken in combination may violate inmates’ rights even though each condition alone would not do so.

• Johnson v. California: Prohibited racial segregation in prisons.

• Hawes v. Fields: Inmates who are questioned by law enforcement officers while incarcerated do not have to be advised of their Miranda rights.

7.

What are some of the major issues that prisons face today? What new issues might the future bring?

Some special problems facing corrections administrators today are the special needs of geriatric offenders and the unique problems of inmates with mental illness and intellectual disabilities. Each carries a massive price tag for health and treatment services that results in the consumption of disproportionate amounts of most prison budgets. Another issue is the possible impact of terrorism on corrections, as well as the role of correctional personnel in antiterrorist efforts. The threat of a terrorist attack by inmates within a correctional facility, the concerns of al-Qaeda recruitment within prisons, and the incarceration of convicted terrorists are creating challenges for corrections administrators.

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Future special problems may include the housing of foreign terrorists, the emergence of new diseases that further tax prison health systems, or changes in public policy or the law that lead to increases in inmate populations (a condition that might overwhelm already crowded prisons and jails).

Questions for Reflection 1.

What does prisonization mean? Describe the U-shaped curve developed by Stanton Wheeler to illustrate the concept of prisonization. How can an understanding of Wheeler’s U-shaped curve help prevent recidivism?

Prisonization is the adaptive process each inmate undergoes soon after arrival in a prison setting. During prisonization, inmates learn the prison lifestyle and criminal values.

Wheeler’s U-shaped curve represents the process through which inmates abandon conventional values held at the beginning of their incarceration and increasingly adopt the criminal values they encounter in the prison setting. As offenders near release, however, commitment to prison values lessens. Since the curve reflects the degree of commitment to subcultural values characteristic of the prison, it is shaped like the letter U. One way that an understanding of Wheeler’s U-shaped curve might help in preventing recidivism is by acknowledging the evolutionary process inmates go through and perhaps better preparing for the transitions.

2.

What is the hands-off doctrine? What is the status of that doctrine today? What is its likely future?

The hands-off doctrine is a policy of nonintervention with regard to prison management that U.S. courts tended to follow until the late 1960s. The doctrine has undergone dramatic changes over time. For example, there was a long period of history where courts intervened very little in prison affairs. In the early 1970s, courts took a much more activist role, and significant case law was established. It appears, however, that courts are increasingly taking a step back from these cases, and there is some evidence that leads to the conclusion that courts might again adopt a strict hands-off policy.

Answers will vary.

3.

Explain the “balancing test” established by the Supreme Court in deciding issues of prisoners’ rights. How might such a test apply to the emerging area of inmate privacy?

Applied to the corrections arena in the 1974 ruling in Pell v. Procunier, the balancing test is a principle developed by the courts that seeks to weigh a prisoner’s constitutionally guaranteed rights against the state’s authority to make laws or otherwise restrict a person’s freedom in order to protect its interests and its citizens. As a gauge for determining regulatory limits on inmates’ privacy, the balancing test can be used to identify limitations that unduly restrict inmates’ privacy rights without an articulable and significant adverse impact on the state’s protective interests. In the absence of such a balance, the limitation can be seen as a violation of prisoners’ protected liberties.

Answers will vary.

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4.

What does the term state-created rights mean within the context of corrections? What do you predict for the future of state-created rights?

The term state-created rights (also called protected liberties) evolved from court decisions recognizing prisoner entitlements based on provisions contained in prison regulations.

Answers will vary.

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Chapter 15 Juvenile Justice CHAPTER OVERVIEW Juvenile crime is a perplexing problem for the criminal justice system. Research suggests that most chronic juvenile offenders begin their delinquency careers before age 12 and almost 7% of the total number of juvenile arrestees are age 12 or younger. While violent crime by juveniles is decreasing, about a million juveniles are arrested each year.

Under today’s laws, children occupy a special status that is tied closely to cultural advances that occurred in the Western world during the past 200 years. Before the modern era, children were not given preferential treatment due to age and were adjudicated, punished, and imprisoned alongside adults. The common law principle of parens patriae is important to an understanding of juvenile justice because it gives the state the right to assume the role of the parent and take custody of a child. By the end of the 18th century, society began to be more concerned about children’s well-being, due in part to the Enlightenment movement. In the United States, concerns over the large numbers of immigrant street children led to the development of houses of refuge.

The child-savers movement of the mid-1800s influenced the development of reform schools. The early reform school model focused on pre-delinquent youth and attempted to emulate a family environment. Not long afterward, the 1899 Illinois Juvenile Court Act created the first juvenile court that was separate in both form and function from adult criminal courts. The focus was on the betterment of the child over the determination of guilt or innocence and the court did not adhere strictly to the due process requirements of adult prosecutions. The Act became the model for juvenile court statutes throughout the country and by 1945 all states had special legislation focusing on the handling of juveniles. Most legislation included six categories of children subject to the jurisdiction of the juvenile court: delinquent children, undisciplined children, dependent children, neglected children, abused children, and status offenders.

During the first half of the 20th century, the Supreme Court followed a hands-off approach to juvenile justice. However, this ended in the 1960s and there were a number of important court decisions affecting juveniles. The most significant is the case of In re Gault, which guaranteed juveniles a number of procedural rights to juveniles, including the right to have notice of the charges, the right to counsel, the right to confront and cross-examine witnesses, and the right to appeal. Other key cases discussed in this chapter include In re Winship, McKeiver v.

Pennsylvania, Breed v. Jones, Kent v. U.S., Schall v. Martin, Thompson v. Oklahoma, Roper v.

Simmons, Graham v. Florida, and Miller v. Alabama. However, juveniles still do not receive all the protections guaranteed to adult defendants. For example, juveniles do not have a constitutional right to a jury trial.

A number of federal acts that affected juveniles and juvenile justice were passed beginning in the late 1960s. Several key acts discussed in the chapter include the Omnibus Crime Control and Safe Streets Act, the Juvenile Justice and Delinquency Prevention Act, and the “Amber Alert” law. Most states also have passed statutes addressing the legal rights of juveniles There are a number of key differences between adult and juvenile justice. One key distinction is that juveniles do not receive the same protections guaranteed to adult defendants. The juvenile court philosophy contributes to other differences, including a reduced concern with legal issues of guilt or innocence, an emphasis on treatment over punishment, a focus on privacy, a lack of longterm confinement, and broad discretionary alternatives, among others.

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The juvenile justice system, as a process, involves four stages: intake, adjudication, disposition, and postadjudicatory review. Intake involves the filing of a juvenile petition by some party, such as the police, alleging illegal behavior by the juvenile. Adjudication is the trial process for juveniles. Adjudicatory hearings are similar to the adult trial, but with some exceptions. A dispositional hearing, similar to an adult sentencing hearing, occurs to determine the action the court should take against a juvenile. Judges have several options at disposition, including outright release, probation, or confinement to a secure institution. Postadjudicatory review provides opportunities for appellate review of juvenile court.

In the late 20th and early 21st centuries, cases of serious juvenile offending and extensive media coverage contributed to public fears of an epidemic of juvenile violence. This, combined with the apparent “professionalization” of delinquency, led to increased focus on youth violence at both state and national levels. Key developments in the past 25 years included new transfer provisions, increased sentencing authority, changes to confidentiality provisions, increased rights for victims, and new correctional programming. Recently, the system appears to be returning to the original principles of the juvenile court. Additionally, the recent emphasis on evidence-based practices in juvenile justice, due in part to budgetary concerns, is contributing to the development of best-practices guidelines.

LEARNING OBJECTIVES After reading this chapter, you should be able to 1.

2.

3.

4.

Describe how the juvenile justice system has evolved in the Western world.

Describe important U.S. Supreme Court decisions relating to juvenile justice, including their impact on the handling of juveniles by the system.

Compare juvenile and adult legal rights and their respective systems of justice.

Briefly describe possible future directions in juvenile justice.

CHAPTER OUTLINE I.

Introduction • Discuss Figure 15-1. Explain that although juveniles make up only a relatively small proportion of the entire U.S. population, they account for a seemingly large proportion of all offenses. Ask the class to suggest reasons for this phenomenon.

• Ask students why they think the term justice-involved youth is used, rather than the terms used in the adult criminal justice system?

II. Juvenile Justice throughout History • Use Figure 13-2 to review how social views of juveniles and the treatment of juveniles by the justice system have changed over time.

• Explain the historical treatment of juveniles as small adults. Underscore the fact that in past centuries, juveniles who committed crimes were treated much the same as adults.

Discuss whether that might happen again.

A. Earliest Times • Discuss the colonial method of handling problem children, which included the use of serious corporal punishment. Explain how this approach influenced early American practices. Ask how it affects policy today.

• Describe the Chicago Reform School as one product of the child-savers movement of the mid-nineteenth century.

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• Explain the concept of parens patriae and ask students if this concept is still applicable today.

• Explain that the first house of refuge, which opened in New York City in 1824, mainly sheltered young thieves, vagrants, and runaways, but quickly became overcrowded. Point out that children with more severe delinquency problems were placed in adult prisons and jails.

B. The Juvenile Court Era • Explain the juvenile court movement as an effort to give children separate hearings with different goals and protocols than those of the adult system.

• Explain that rehabilitative goals were developed early in the evolution of the juvenile justice system and continue today. Contrast early reform attempts with today’s programs and anticipated future reforms.

• Review the philosophical principles on which the juvenile court movement was based. Ask students if there are any principles they disagree with, and why.

C. Categories of Children in the Juvenile Justice System • Discuss the various legal categories most states apply to children within their jurisdiction. Refer to the definitions provided in the text to be sure students understand the differences between the categories.

• Ask students if there are any other legal categories of children they think should be added.

• Discuss the concept of status offenses and ask the class whether they agree with basing the determination of an act as criminal or legal upon the age of the person engaging in the act.

III. The Legal Environment • Review the Fourth, Fifth, and Sixth Amendment cases discussed in the police and court sections. Remind students of the protections provided to adults against unreasonable searches and seizures, protections against self-incrimination, and right to counsel. This review will set the stage for the discussion of juvenile case law.

• Name the important U.S. Supreme Court decisions of relevance to juvenile justice, and describe their impact on the handling of juveniles by the system.

• Describe the hands-off approach to juvenile justice that the U.S. Supreme Court followed until the 1960s. Then discuss the precedent-setting cases that have been decided since then. Link this to the discussion in Chapter 14 of the Court’s hands-off policy with regard to adult corrections.

• Spotlight the 1967 Gault decision as the most significant of all the court precedents relating to the handling of juveniles. Explain that this decision extended many, but not all, of the rights of adult defendants to juveniles.

A. Legislation Concerning Juveniles and Justice • Discuss the various federal Acts that Congress has passed that specifically relate to juveniles and the juvenile justice system B. The Legal Rights of Juveniles IV. The Juvenile Justice Process Today

•

Explain the concepts of original and concurrent jurisdiction in the juvenile justice system.

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•

Explain that the age cut-off for juvenile court jurisdiction varies by state and may be as low as 16, although most states include anyone who has yet turned 18.

A. Adult and Juvenile Justice Compared • Summarize the similarities and differences between the adult and juvenile justice systems by referring to the CJ Issues Box. Point out that although the U.S. Supreme Court has held that juveniles are entitled to the protection of due process, it has refrained from declaring that juveniles have a right to all aspects of due process afforded adults.

• Ask the class to consider whether any of the differences between the adult and juvenile justice systems shown in the CJ Issues Box should be enhanced and which might best be minimized or eliminated.

• Ask the class to discuss how the tension between individual rights and public order is reflected in the juvenile justice process, and how both sets of concerns influence ideas for revision of the juvenile justice system.

B. How the System Works • Describe the juvenile justice system as being built around the processes of intake, adjudication, disposition, and post adjudicatory review. Compare this to the adult criminal court process.

• Have students research the juvenile justice process in various states and report back on the similarities and differences among states.

C. Intake and Detention Hearings • Explain the differences between adult and juvenile intake procedures, and highlight the wide variety of options available in the juvenile justice system • Describe the various types of hearings that may take place during the intake process.

1. Detention Hearing 2. Preliminary Hearing • Explain the purpose of the preliminary hearing in the juvenile justice system.

3. Transfer Hearing • Divide the class into groups and lead a debate as to whether juveniles should or should not ever be tried in adult court.

D. Adjudication • Review the various ways in which adjudicatory hearings for juveniles differ from adult trials and ask the class why they think these differences exist.

• Explain the reasons behind the concern for children’s privacy. Ask students how this concern fits with the overall juvenile justice philosophy of the last half century.

• Explain why juveniles do not have a right to trial by jury.

E. Disposition • Mention that states vary widely in their use of secure detention for adjudicated juveniles. Whereas some states institutionalize thousands of juveniles, others have almost none in training facilities. Ask the class to suggest reasons why – population differences aside – this variation exists.

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• Remind students of the primary object of the juvenile court and ask them to consider how this might affect the juvenile court judge’s choice of disposition.

1. Secure Institutions for Juveniles • Remind students of the discussion of private prisons in Chapter 14. Divide the class into groups and lead a debate as to whether juveniles should be held in private facilities.

F. Postadjudicatory Review • Discuss the various reasons why juvenile appeals may be less consequential than appeals of adult criminal convictions. Ask students if they believe the federal courts need to establish a clear right to appeal from juvenile court.

V. Trends in Juvenile Justice • Review the major developments that took place in many states during the past 25 years.

Ask the class what changes they think may be forthcoming.

• Ask the class what changes seem to be on the horizon for the American system of juvenile justice.

• Review the recent National Academy of Sciences research regarding adolescent brain development and discuss the impact this may have on criminal and juvenile justice.

• Discuss the trends identified in the recent National Conference of State Legislatures (NCSL) report.

LIST OF CHANGES/TRANSITION GUIDE •

The U.S. Supreme Court’s consideration of findings from the field of neuroscience is discussed in greater detail than before.

•

The term “justice-involved youth” is introduced and defined.

•

The change in juvenile court jurisdiction by age that has taken place in various states is described.

•

A map of juvenile confinement facilities throughout the country has been added to the chapter.

•

A discussion of commercial sexual exploitation of children has been added.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Invite a juvenile court official (judge, intake personnel, juvenile probation officer) to speak with the class either in person. Have students prepare questions before the speaker’s arrival about the challenges and rewards of his or her work. Computer conferencing may be considered as an alternative to a classroom visit.

•

Have students collect Uniform Crime Reports data on violent crime and on juvenile involvement in violent crime over the past ten years and create a table or graph illustrating data trend. Have them compare and contrast the overall crime trends with those of juvenile involvement in crime. Consider having some students examine national trends while others examine data from a specific state. This exercise could also be used to examine trends in property crime.

•

Visit the American Bar Associations Juvenile Justice Committee web site. Review the most recent article on the “State of Criminal Justice: Juvenile Justice” and provide a summary of its key ideas for display in class.

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•

Have students research the legal rights of juveniles in various states and report back on how these rights may vary by state.

•

Have students research the various types of juvenile facilities used, including both public and private facilities. Issues they might consider include facility size, conditions of confinement, overcrowding problems, programming for juveniles, and the characteristics of juveniles in each type of facility.

•

Arrange for a tour of a local secure juvenile detention facility. Ask to see as many areas of the facility as possible during the tour, including the cafeteria, the school, vocational training areas, and dormitories.

•

Have students review the recent trends in juvenile justice identified by the NCSL and research specific changes in their state, or assign each student or group of students a specific state to research.

•

Have students design an “ideal” juvenile facility based on the recent report of the Executive Session on Community Corrections at Harvard University. Remind them that it should not only include the essentials identified by the Session participants but also ensure safety and security for juveniles, staff, and the community as a whole.

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

Describe the history and evolution of the juvenile justice system in the Western world, and list the six categories of children recognized by the laws of most states.

In past centuries, children who committed crimes could expect no preferential treatment because of their youth. There was little distinction between delinquency and criminality.

Early American solutions were strongly influenced by churches and the Ten Commandments. By the end of the eighteenth century, when the Enlightenment occurred, people started to revisit the role of children in society. America changed dramatically in the early nineteenth century, and many children were victimized and abandoned. These changes pressured government officials to consider how best to help children in society. Most of the pressure to change came from the child savers movement. This movement created the reform school for children. As the needs of children were more broadly recognized, states began to adopt legislation requiring separate hearings for juveniles. In 1899, the Illinois juvenile law was passed, creating a juvenile system separate from the adult system and serving as a model throughout the nation.

In most jurisdictions, children subject to juvenile court jurisdiction are categorized as follows: • Delinquent (those who violate the criminal law) • Undisciplined (those said to be beyond parental control) • Dependent (those without parents or a guardian to care for them) • Neglected (those not receiving proper care from their parents or guardian) • Abused (those who suffered physical abuse at the hands of their custodian) • Status offenders (those who violated laws written only for children)

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2.

What U.S. Supreme Court decisions have had a substantial impact on the handling of juvenile offenders by the justice system?

Some key U.S. Supreme Court decisions that have affected how juvenile offenders are handled by the justice system include: • Kent v. U.S. (1966): This case ended the hands-off era in juvenile justice and recognized that at least minimal due process must be provided in juvenile court hearings.

• In re Gault (1967): In this case, the Court held that juveniles have a right to notice of charges, a right to counsel, a right to confront and to cross-examine witnesses, and constitutional protections against self-incrimination.

• In re Winship (1970): In this case, the Court held that allegations of delinquency must be established beyond a reasonable doubt, while status offenses may be established by preponderance of the evidence.

• McKeiver v. Pennsylvania (1971): The Court ruled that juveniles do not have the constitutional right to a jury trial.

• Breed v. Jones (1975): This case severely restricted the conditions under which transfers from juvenile to adult court may occur, and stated that they must occur before an adjudicatory hearing has been held in juvenile court.

• Schall v. Martin (1984): The Court upheld the practice of preventive detention but stated that it cannot be imposed without prior notice, an equitable detention hearing, and a statement by the judge setting the reasons for the detention.

• Thompson v. Oklahoma (1988): The Court ruled that national standards for decency do not permit the execution of any offender who was under the age of 16 at the time of the crime.

• Roper v. Simmons (2005): The Court held that the death penalty may not be imposed on offenders who commit a capital crime when younger than 18.

• Graham v. Florida (2010): The Court ruled that the Eighth Amendment’s ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for a crime not involving homicide.

• Miller v. Alabama (21012): The Court held that mandatory life-without-parole sentences for individuals under the age of 18 convicted of homicide violates the Eighth Amendment.

• Montgomery v. Louisiana (2016): This case retroactively applied the Miller decision, giving offenders who had been sentenced to mandatory life without parole as juveniles the right to have their sentences reviewed. The case also made it clear that sentences of life without parole should only be imposed in rare cases of “permanent incorrigibility.”

3.

What are the major similarities and differences between the juvenile and adult justice systems?

The following table illustrates the main similarities and differences between adult criminal case processing and the juvenile justice system: Adult Justice System

Juvenile Justice System

Focus on criminality

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4.

Comprehensive rights against unreasonable searches of persons, home, and possessions

Limited rights against unreasonable searches

Assumption of innocence until proven guilty

Focus on the interests of the child; guilt and innocence are not the primary issues

Right against self-incrimination (may be waived)

Right against self-incrimination (waivers are questionable)

Adversarial setting

Helping context

Most arrests based on arrest warrants

Apprehension based on petitions or complaints

Right to an attorney

Right to an attorney

Public trial

Closed hearing

Right to trial by jury

No right to a jury trial

System goals of punishment and reformation

System goals of protection and treatment

No right to treatment

Specific right to treatment

Possibility of bail or ROR

Release into parental custody

Public record of trial and judgment

Sealed records

Possible incarceration in adult correctional facility

Separate facilities at all levels

In your opinion, should juveniles continue to receive what many regard as preferential treatment from the courts? Why or why not?

Answers will vary.

Questions for Reflection 1.

This chapter pointed out that substantial changes are now afoot in the area of juvenile justice. What are some of those changes? With which of those changes do you agree?

Are there any with which you don’t agree? Explain.

There have been a number of recent trends in juvenile justice, many of which are focused on restoring juvenile court jurisdiction. A number of states have enacted comprehensive juvenile justice reforms focusing on public safety, diversion of low-risk youth from the system, and effective community-based programming. Some states have limited their transfer and waiver criteria, ensuring that only the most serious offenders are dealt with by the adult system.

There is also a move towards increasing the age of juvenile court jurisdiction. Some states have passed statutes supporting a commitment to evidence-based programming, including prevention, intervention, and detention reform. Another emerging trend is to increase due process protections for juvenile offenders. States are also beginning to recognize the mental health needs of juvenile offenders and to address racial and ethnic disparities. Finally, states are continuing to provide improved aftercare programs to help juveniles transition and reintegrate back into society and reduce recidivism.

Answers will vary regarding agreement to these changes.

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2.

Do you think that juvenile courts today should be more like criminal courts, or should they return to the historical principles underlying the courts creation?

Answers will vary.

3.

How can evidence-based models be of benefit in the juvenile justice system? Explain.

Evidence-based research helps identify effective strategies through the evaluation and analysis of ongoing programs. Evidence-based practices are being used by the juvenile justice system to establish best-practice guidelines that provide policymakers and juvenile justice administrators insight into what works best to control juvenile crime and rehabilitate youthful offenders.

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Chapter 16 Drugs and Crime CHAPTER OVERVIEW Chapter 16 begins with a discussion of the impact of drugs on the criminal justice system. It considers the question, “What is a drug?” and also reviews the topic of alcohol abuse and the criminal justice system’s response to alcohol-related offenses. The chapter briefly traces the history of drug abuse. Changes in the way drugs are used and the consequences of drug involvement have resulted in changes in social views of drug abuse. The chapter then reviews the history of antidrug-abuse legislation in the United States. The first significant piece of federal antidrug legislation was the Harrison Narcotics Act of 1914. The text describes the Marijuana Tax Act of 1937; the Narcotic Control Act of 1956; the Comprehensive Drug Abuse Prevention and Control Act of 1970, which included the Controlled Substances Act (CSA); and the AntiDrug Abuse Act of 1988. This latter piece of legislation created the position of drug czar within the Office of National Drug Control Policy. Other federal antidrug legislation is also reviewed.

The five schedules set up by the CSA are explained.

A discussion of the investigation of drug abuse and manufacturing is included, focusing specifically on the legal concepts of abandonment and curtilage. Recent statistics on drug use are presented and the problem of the misuse of prescription pain relievers is also discussed. The problem of drug trafficking is presented. Five of the most commonly-used types of illegal drugs are marijuana, cocaine, heroin, methamphetamine, and club drugs. The text describes how these drugs are produced, consumed, and trafficked into the United States.

The societal costs of drug abuse include both direct and indirect costs. Indirect costs are hard to measure and may include things like lost wages, mental stress, and personal insecurity resulting from victimization. This category also includes justice system expenditures needed to deal with the consequences of illegal drug use. Direct costs of drug-related crime include economic costs due to crimes committed by drug users; the costs associated with drug transactions; and economic losses due to organized criminal activity in support of the drug trade, such as money laundering.

The chapter concludes with a discussion of American drug-control strategies. There are six general types of strategies discussed. Several methods focus on the supply side of drug use. Strict law enforcement, asset forfeiture, interdiction, and crop control strategies attack the selling and production of drugs through increased efforts by police, courts, and correctional institutions.

Strict enforcement efforts include calls for harsher punishments and increasing the number of police officers responding to the problem. Asset forfeiture involves seizing the assets of individuals involved in drug trafficking. Interdiction involves intercepting drugs at the border, before they enter the United States, and crop control strategies target foreign producers of drugs, often involving the destruction of crops. Prevention and treatment programs focus on drug treatment and drug education programs; some target drug offenders while others are aimed and preventing individuals from becoming involved in drug use. Finally, legalization and decriminalization efforts focus on changing the laws relating to drugs.

LEARNING OBJECTIVES After reading this chapter, you should be able to 1.

Define drug and drug abuse, and the impact drug abuse has on the American criminal justice system.

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2.

3.

4.

5.

Discuss the history of drug abuse and antidrug legislation in America.

Describe the most common drugs used in the United States and who uses them.

Explain the link between drugs and other social costs.

Summarize the various efforts to respond to the drug problem, including your assessment of each effort’s effectiveness.

CHAPTER OUTLINE I.

Introduction • Discuss the recent concerns regarding opioid abuse in the U.S. • Ask students why society has placed such emphasis on the problem of opioid abuse, compared to the abuse of other types of drugs.

II. Drug and Drug Abuse • Explain the impact that drugs have had on the criminal justice system during the last 50 years, including clogged court dockets and huge increases in prison populations.

A. Drug Crime • Discuss social-order or victimless crimes. Explain that these crimes generally are not truly “victimless.” Ask whether individuals should be entitled to choose to use drugs without government intervention, and if there is such a thing as “responsible drug use.”

• Ask the class if they can think of other crimes that might be considered “victimless” and who might actually be victimized by these crimes. Lead a discussion as to whether any crime is truly “victimless”.

• Ask students to identify reasons other than those provided in the text for limiting or controlling social-order offenses, or for not limiting and controlling them.

B. What is a Drug?

• Ask the class to identify substances that might be defined as drugs but that—at least to date—have avoided that label.

• Explain the difference between a “drug” and a “controlled substance.”

• Ask students to discuss whether there should be stronger controls on alcohol, caffeine, and nicotine.

• Highlight that the definition of drugs and the labeling of substances as drugs occur through a process of social construction. Explain that both the law and social convention view drugs on a continuum ranging from acceptability to illegality.

1. Alcohol Abuse • Discuss with the class the effects produced by alcohol and how alcohol use is associated with various serious crimes.

• Review various crimes related to alcohol consumption, such as drunk driving, public drunkenness, and the commission of other crimes.

• Provide examples of how changes in social awareness can result in significant alterations in society’s official position regarding specific drugs and in related legislation.

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• Discuss the impact that Mothers Against Drunk Driving (MADD) has had on policymakers and criminal justice practitioners. Ask students what their experience has been with programs like MADD. III. A History of Drug Abuse in America • Discuss the general availability of patent medicines containing opium and its derivatives during the 19th and early 20th centuries, as well as the wide use of opium throughout the West in the 19th century.

• Point out that modern views of drugs and the “war on drugs” were not always part of the American worldview. Explain that many drugs that today are viewed as dangerous were at one time widely available to the general public.

• Discuss Sigmund Freud’s book The Cocaine Papers. Ask students whether Freud was wrong about cocaine. Why did he believe what he did?

• Review the history of morphine and heroin in the U.S. and discuss changing social views of marijuana and cocaine.

• Use the Internet to find video on events from the 1960s. Show videos that highlight the role of drugs during the period.

• Watch the video, “A Brief History of Drug Laws in America” on YouTube.

• Watch the video, “The Secret History of Getting High in America” on the website of Reason: Free Minds and Free Markets.

A. Drug Use and Social Awareness • Reiterate the six elements that this chapter says resulted in our culture’s present-day understanding of drug abuse. Ask what the presence of each of these elements in contemporary social consciousness would mean for a redefinition of drug abuse.

• Review the three schools of thought that Zimring and Hawkins suggest form the basis for current drug policy. Point out that they but also state that it may not be possible to base successful antidrug policy on any of these beliefs. Ask students if they agree with this view, and why/why not.

B. Antidrug Legislation • Review the early antidrug legislation in the United States and explain how these laws affected social views of drugs and drug users.

• Explain that the Pure Food and Drug Act did not actually outlaw any drugs and discuss the impact of this Act. • Discuss the impact of the Harrison Act on the medical profession and on both treatment of and social attitudes toward individuals addicted to drugs.

1. The Comprehensive Drug Abuse Prevention and Control Act of 1970 • Enumerate the various categories of controlled substances, as defined by the federal Controlled Substances Act, and list the drugs that fall into each category. Ask students whether they are surprised at any of the classifications.

If so, what does that say about their own understanding of drug abuse?

• Describe the 1991 addition of anabolic steroids to Schedule III of the Controlled Substances Act. Discuss both the legitimate and illegitimate uses of steroids.

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• Explain that new drugs are constantly being created and discuss how the CSA deals with controlling new drugs. Discuss the difficulties that are involved in criminalizing new designer drugs.

2. The Anti-Drug Abuse Act of 1988 • Discuss the Anti-Drug Abuse Act’s provision permitting the use of the death penalty for drug-related murders. Ask students whether the provision seems justified.

3. Other Federal Antidrug Legislation • Review other key federal antidrug legislation and ask students whether these laws reflect general social views on drugs and drug abuse.

C. The Investigation of Drug Abuse and Manufacturing • Link the dual concepts of abandonment and curtilage to drug investigations. Explain that personal items that have been clearly abandoned may be searched without a warrant but that the idea of curtilage restricts law enforcement authority for most searches to property beyond the area of normal household activity.

IV. The Most Common Drugs—And Who Is Using Them • Use the “CJ Issues” box titled “Drugs: What’s in a Name” to illustrate the differences between brand names, generic names, and street names for drugs.

• Discuss statistics from the most recent National Survey on Drug Use and Health regarding drug use in the U.S. today.

• Point out that rates of drug use vary substantially by age – illicit drug use tends to increase with age among young people and to peak among 18-20 year olds.

• Ask students to discuss their view of current overall drug use on campus, and of the use of specific types of drugs, such as marijuana or cocaine. Have them compare their views to the data presented in the text and consider factors that might account for any differences.

• Ask students to suggest reasons why drug use tends to decline with age after about age 25.

• Have students examine sources on drug abuse, such as the most recent National Survey on Drug Use and Health (NSDUH) data and identify relationships between drug use and sociodemographic variables (age, race, income, employment status, geographic location, etc.)

• Explain that men appear to have higher rates of illicit drug use than women. Ask students to consider why that is the case.

• Break students into groups and ask them to respond to the following question: “If, according to some sources such as the NSDUH survey, drug abuse is significantly less of a problem today than in previous years, why do you think drugs continue to be at the forefront of crime control policy?”

• Ask students to consider reasons why the use of drugs is decreasing.

A. Drug Trafficking • Explain the meaning of the term drug trafficking from a law enforcement perspective.

• Have students select a drug that mostly comes from another country and identify the methods typically used to smuggle that drug into the United States?

• The movie, Traffic presents a fictional account of drug trafficking from several perspectives.

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• The movie Blow tells the true story of George Jung, who went into the cocaine business with Pablo Escobar.

• Clockers is a 1995 crime drama directed by Spike Lee. It follows Strike, who is a “clocker” (a drug dealer) in a New York housing project. As Strike works to leave his life of crime behind, the murder of a local restaurant owner places him at the center of the police investigation.

• Watch the TED Talk video, “The Deadly Genius of Drug Cartels” on YouTube.

B. Marijuana • Discuss how the laws relating to marijuana have changed over time. Ask students how the laws reflect social views of marijuana use.

• Ask students why they think marijuana is used primarily by young people, rather than older adults.

C. Cocaine D. Heroin • Explain the concept of drug tolerance and how this means users need increasingly large doses of a drug to obtain the same effects.

E. Methamphetamine F. Club Drugs • Discuss the link between club drugs and chemically assisted date rape and review the various “date rape drugs”.

• Explain pharmaceutical diversion and discuss how the use of the Internet contributes to the increasing seriousness of the problem of pharmaceutical diversion today.

• Discuss the recent concern regarding the abuse of pain medication in Florida.

• Watch the video, “HHS OIG’s Leslie Hollie Discusses Common Drug Diversion Schemes and Fraud-Fighting Techniques” on YouTube.

V. The Costs of Abuse • Explain the difference between direct and indirect costs and provide examples of each category.

• Watch the video, “Financial Cost of Drug Addiction – Video Infographic” on YouTube.

• Watch the CNN video, “How Drug Abuse Costs Add Up” on YouTube.

A. The Indirect Costs of Abuse B. Drug-Related Crime • Point out that drug-related crime does not actually include the use of illegal drugs.

• Ask students whether they think the legalization of drugs would reduce the problem of drug-related crime.

• Summarize the impact of drugs on felony convictions, and trace their impact throughout the criminal justice system.

• Describe money laundering as a financial scheme to disguise ill-gotten gains. Refer to the federal banking requirement that financial institutions report all deposits in excess of $10,000. Ask students whether they think this requirement effectively thwarts money-laundering schemes.

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VI. Solving the Drug Problem • Review each of the potential solutions to the problem of drug abuse that the text explores.

Ask students which of the solutions they think would be most effective. Might the most appropriate solution depend on the drug in question?

• Place students in groups and have them order the various strategies for controlling drug abuse based on their evaluation of each strategy’s chance for success. Have each group resent their list and provide reasons to support their ordering. Lead a discussion as to which strategy or strategies would most likely appeal to public-order advocates and which would appeal to individual-rights advocates.

A. Strict Law Enforcement • Divide the class into groups and lead a debate on the question of using zero tolerance and other strict enforcement policies.

B. Asset Forfeiture • Discuss asset forfeiture and explain that it was originally designed as a method for combating racketeering.

• Ask students to consider how forfeiture might impact innocent defendants and how it might affect defendants’ families.

C. Interdiction • Describe the various agencies involved in drug-interdiction activities. Ask students if interdiction is still a worthwhile strategy, given the monumental task of controlling U.S. borders.

D. Crop Control • Compare interdiction and crop control.

E. Prevention and Treatment • Ask students if they participated in DARE or a similar program when they were in school. Invite them to discuss the possible impact (if any) that the program had on their decisions regarding substance use.

• Discuss the research into the effectiveness of DARE. Ask students why, given the research findings, the DARE program is growing and spreading internationally. Link this to the topic of evidenced-based criminal justice policy.

1. Drug Courts • Discuss the history and development of drug courts, and the research into drug court effectiveness.

2. Legalization and Decriminalization • Discuss the difference between legalization and decriminalization by comparing it to the difference between using a crosswalk and jaywalking.

Point out that although neither is criminal, one is ticketable as a minor offense.

• Discuss the arguments for and against legalization and decriminalization of drugs. Ask students which arguments in each group they find most and least persuasive.

• Review the solutions to the drug problem explored in the text. Ask students which of the solutions they think would be most effective. Might the most effective solution differ depending on the drug in question?

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• Break the class into groups and organize a debate regarding the legalization of recreational marijuana. Alternatively, break students into two groups and have one group argue in favor of legalizing drugs (not just marijuana) while the other group argues against it. It might be interesting to break the groups down by gender or age and have them take turns offering arguments favoring both perspectives.

LIST OF CHANGES/TRANSITION GUIDE •

Discussion of the 2017 report of the President’s Commission on Combating Drug Addiction and the Opioid Crisis, has been added to the chapter.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Invite a pharmacist to speak with the class. Ask the speaker to describe the legal requirements associated with prescription drugs and the processes through which pharmaceutical diversion can occur. Ask him or her to describe the effects of the various controlled substances that are illegally available through pharmaceutical diversion. Computer conferencing may be considered as an alternative to a classroom visit.

•

If a local police department in your area offers a drug-awareness program, invite a police spokesperson to visit the class and describe the activities associated with the program. Be sure to ask him or her to bring along any available exhibits. Computer conferencing may be considered as an alternative to a classroom visit.

•

If drug courts are used in your state, invite a drug court judge to visit the class and describe the workings of the court. Ask the judge to discuss the types of offenders who are eligible for the program, the various stages through which participants must pass, the advantages and disadvantages of the program for the participants, and the court’s success rate. Ask the judge to explain what happens if a participant fails to successfully complete the program. Computer conferencing may be considered as an alternative to a classroom visit.

•

Conduct class debates on areas relating to legalization and decriminalization. Topics could include the legalization of medical marijuana, legalization of recreational marijuana, decriminalization of marijuana, the legalization or decriminalization of various other drugs, and the adoption of a two-market system.

•

Visit the Drug Enforcement Administration website and obtain information on some of the agency’s main programs. Display information on these programs in the class and ask which they think are most important and why.

•

Prepare for a class discussion focused on various opinions about the legalization of “soft” drugs such as marijuana. Visit three or four Web sites to search for evidentiary support for the various positions.

•

Place students into groups and assign each group a point of view (for or against the legalization of marijuana). Each group should create a short video, advertisement, PSA or other media arguing your assigned position.

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SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

What constitutes a drug for purposes of the criminal law? What is drug abuse? What role does social convention play in deciding what constitutes a controlled substance?

For legal purposes, a drug is any chemical substance defined by social convention as bioactive or psychoactive. Drug abuse is any illicit drug use that results in social, economic, psychological, or legal problems for the user. Social convention plays a major part of the definition of drug legality. History shows that this is the case. Marijuana was available in the early twentieth century and was not illegal. Social convention also defines what is socially acceptable, such as alcohol.

2.

How long have substances that today would be considered illicit been used in the United States? For what purposes? List and describe some of the most important pieces of federal drug-control legislation.

An examination of the history of drug abuse in America reveals that many substances considered illegal today have been used for a variety of purposes. For example, opium was widely available in medicines of the nineteenth and early twentieth centuries and morphine was widely prescribed and used by physicians. LSD and cocaine have both been used for the treatment of psychiatric disorders. Cocaine was also put in medicine and beverages.

Some of the important pieces of federal drug-control legislation include: • Harrison Narcotics Act (1914). This was the first major piece of federal antidrug legislation, requiring that persons dealing in opium, morphine, heroin, and cocaine had to register with the federal government and pay a $1.00 tax every year.

• Marijuana Tax Act (1937). This act placed a tax of $100 per ounce on cannabis.

• Boggs Act (1951). This act made marijuana and several other drugs federally prohibited controlled substances.

• Narcotic Control Act (1956). This act increased penalties for drug trafficking and possession and made the sale of heroin to anyone under age 18 a capital offense.

• Comprehensive Drug Abuse Prevention and Control Act of 1970. This act established schedules classifying psychoactive drugs according to their degree of psychoactivity.

• Anti-Drug Abuse Act of 1988. This act created a cabinet-level post (a drug czar to be in charge of federal initiatives), increased penalties for recreational drug users, denied federal benefits to convicted drug offenders, and included the possibility of capital punishment for drug-related murders.

• Crime Control Act of 1990. This act doubled the appropriations for drug-law enforcement grants, enhanced drug-control and drug education programs, assisted rural states in drugenforcement efforts, sanctioned steroids under the Controlled Substances Act, and created “drug-free school zones.”

• Violent Crime Control and Law Enforcement Act of 1994. This act accomplished many objectives, including providing funding to rural areas for anticrime and drug efforts, providing money for treatment and education programs, requiring post-conviction drug testing of all federal prisoners, and tripling penalties for using children to deal drugs in drug-free zones.

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• Drug-Free Communities Act of 1997. This act provided support to local communities to reduce substance abuse among youth.

• Twenty-first Century Cures Act of 2016. This act provided $1 billion in state grants to assist in drug treatment, prevention, and prescription drug monitoring.

3.

What are the major types of drugs that are illegally used in this country? Describe the effects and legal classification of each.

• Marijuana is a Schedule I controlled substance. It produces euphoria, relaxation, intoxication, time distortion, memory alteration, and focused awareness.

• Cocaine is a Schedule II controlled substance. It produces excitability and feelings of competence and power.

• Heroin is a Schedule I controlled substance. It produces pleasure, euphoria, lack of concern, and a general feeling of well-being.

• Methamphetamine is a Schedule II controlled substance. It is a stimulant that increases metabolism, produces euphoria and alertness, and gives the user a sense of increased energy.

• Club drugs are Schedule I controlled substances. Their effect varies by the type of drug, but generally includes mild intoxication, hallucinations, and amnesia.

4.

What is the relationship between drug use and other social problems? What kinds of crimes might be linked to drug use?

Money is the chief reason why drug users migrate to other types of criminal behavior.

Addiction to most drugs is extraordinarily expensive, and most users do not earn enough legitimately to support their habit and meet their other living expenses, too. The pull of addiction is so strong that it often leads users into crimes such as shoplifting, robbery, burglary, auto theft, and prostitution.

5.

What strategies have been used or suggested as ways of responding to the drug problem? Which of these strategies seem to hold the most potential?

The six identified types of strategies for attacking the drug problem include: •

Strict enforcement. A feel-good approach that has cost a fortune to sustain but that has done little to reduce the use and manufacture of controlled substances.

•

Asset forfeiture. An aggressive approach that yields great monetary return but often ensnares truly innocent property owners.

•

Interdiction. An almost futile effort to seal the borders of the United States to drug shipments.

•

Crop control. Theoretically a good idea, but in practice more show than substance.

Major obstacles include the inability to overcome the potentially huge profits for farmers of illegal plants and difficulties involved in getting foreign governments to cooperate in eradication efforts.

•

Prevention and treatment. Seen by some as the key to resolving the drug problem but are inherently long-term solutions that do little to reduce the problem now.

•

Legalization or decriminalization. An approach that would likely reduce criminal justice expenditure, with commensurate expenditure increases for health care and attendant 182 Copyright © 2021 Pearson Education, Inc.

problems. Some say, however, that the additional costs to society resulting from erosion of the social and moral fabric would be immeasurable, making this the least attractive strategy.

Some say getting tougher is the only solution. Their rather idealistic stance, however, often fails to address the problems that getting tougher brings on, such as ever-growing prison systems (and the staggering cost of running them) and growing inmate populations comprised of a large segment of an entire generation. Others favor the opposite approach: legalization or decriminalization of all illicit drugs. They cite the fact that drug use in America has become epidemic and believe it should be treated as a medical emergency, not a criminal emergency.

Questions for Reflection 1.

How successful have government efforts to curtail illicit drug use been? Why haven’t they met with greater success?

Answers will vary.

2.

What is meant by the decriminalization of illicit drugs? How does decriminalization differ from legalization?

Decriminalization refers to the redefinition of certain previously criminal behaviors into regulated activities that become “ticketable” rather than “arrestable.” Decriminalization is different from legalization in that it does not involve the elimination of the laws and associated criminal penalties associated with certain behaviors but simply changes the nature of enforcement of activities directed at controlled substances.

3.

Would you be in favor of the decriminalization of any drugs that are currently considered to be federally controlled substances? Legalization? If so, which ones and why?

Answers will vary.

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Chapter 17 Terrorism, Multinational Criminal Justice, and Global Issues CHAPTER OVERVIEW Thus far, the textbook has focused primarily on criminal justice in the United States. While the American criminal justice process can be complex and confusing, this study of important criminal justice issues has provided the necessary foundation to cut through this complexity to develop a comprehensive understanding of the criminal justice system in the United States. This chapter emphasizes the need for American criminal justice to expand its understanding to issues of crime and terrorism around the world. Comparative criminologists study crime and criminal justice at a cross-national level. This field is becoming increasingly important as understanding other criminal justice systems helps us improve our own.

The chapter begins with a discussion of concerns relevant to comparative criminal justice, including the ethnocentric nature of criminal justice research and various concerns with international crime data.

The chapter focuses on Islamic criminal justice as an example of comparative criminal justice. Islamic law descends directly from the teaching of the Prophet Muhammad and is based on the Muslim religion and the Koran. A key distinction of Islamic law is the difference between Hudud and Tazir crimes. Hudud crimes are serious violations of Islamic law and regarded as offenses against God. These crimes are essentially violations of “natural law,” and the punishment for committing one is severe. In contrast, Tazir crimes are minor violations of Islamic law that are regarded as offenses against society, not God. There are three levels of Islamic courts. The first level hears cases involving the potential for serious punishments, the second handles relatively minor matters, and special courts hear cases involving crimes against government, drug crime, state security and corruption. Men and women are treated very differently under Islamic law.

There are several international criminal justice organizations that focus on comparative criminal justice, including the International Society of Criminology (ISC), the International Center of Comparative Criminology, and the International Police Executive Symposium (IPES).

The role of the United Nations in criminal justice is also discussed. Interpol (the International Criminal Police Organization) is an international law enforcement support organization that began operations in 1946 and that acts as a clearinghouse for information on crimes and suspects believed to operate across national boundaries. Europol (the European Police Office) was established in 1992 as the integrated police intelligence-gathering and dissemination arm of the member nations of the European Union. The International Criminal Court (ICC) was created in 2000 and is intended to be a global judicial institution with international jurisdiction complementing national legal systems around the world.

Globalization is the internationalization of human social activities, including crime. Key issues include transnational organized crime, which involves crimes by organized criminal groups operating across national boundaries; sex trafficking; human smuggling; and trafficking in persons.

Since the attacks of September 11, 2001, terrorism has become an issue of primary concern for top political leaders and criminal justice officials. The three main forms of terrorism are domestic terrorism, which involves individuals or groups based and operating within the U.S., international terrorism, which transcends national boundaries, and cyberterrorism, which can be either domestic or international and which used high technology to plan and carry out terrorist 184 Copyright © 2021 Pearson Education, Inc.

attacks. Other concerns include state-sponsored terrorism and narcoterrorism. Various efforts to combat terrorism are discussed, including laws designed to address terrorism, the role of the Department of Homeland Security, and the National Counterterrorism Strategy. The chapter concludes with a discussion of foreign terrorist organizations and the future of international terrorism.

LEARNING OBJECTIVES After reading this chapter, you should be able to 1.

2.

3.

4.

5.

Describe the principles that form the basis of Islamic law.

List important international criminal justice organizations, and summarize their collective role in fighting international crime.

Explain globalization, and its possible relationship to crime and terrorism.

Distinguish between human smuggling and human trafficking, and describe the extent of both problems today.

Define the five major types of terrorism.

CHAPTER OUTLINE I.

Introduction • Define comparative criminology and discuss ways in which it can provide insights into the study of crime.

A. Ethnocentrism and the Study of Criminal Justice • Explain ethnocentrism as culture-centeredness. Discuss how ethnocentrism can be a limiting factor in the study of international criminal justice.

• Explain that ethnocentrism is applicable to many areas of social life. Ask students to identify and describe these areas.

• Discuss the problems involved in exploring the justice systems of other countries that may not be as open and because of differing cultural taboos.

B. Problems with Data • Describe the difficulties that arise in the comparison of crime rates from one country to another. Include definitional differences, diverse reporting practices, and political influences on the reporting of crime.

• Point out the definitional differences in crime that exist among states in the United States and then ask students to consider how much greater these differences must be when looking at different countries.

• Focus on the variations in measuring crime and the differences in reporting practices among countries.

II. Islamic Criminal Justice • As your students read and discuss the topic of Islamic law, have them identify instances of their own ethnocentrism and discuss possible problems that ethnocentrism might create for their own study of criminal justice.

• Describe Hudud offenses as crimes against God and Tazir offenses as crimes against society. Discuss how the Western distinction between mala in se offenses and mala prohibita offenses parallels the Islamic offense categories.

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A. The Hudud Crimes • Introduce the concept of Islamic law (Shari’ah). Explain that Islamic law is based on the Koran, the teachings of the prophet Muhammad, the consensus of the clergy, and reason or logic.

B. The Tazir Crimes C. Islamic Courts • Compare the structure and process of Islamic courts to those of the United States.

Point out the differential treatment of men and women and the strict limits placed on appeals.

III. International Criminal Justice Organizations • Discuss some of the organizations and publication that focus world attention on criminal justice issues.

• Discuss various reasons why cross-jurisdictional crimes can be so difficult to combat.

Examine the problems involved in dealing with crimes that cross state boundaries and ask students to consider how much more difficult it might be when national boundaries are involved.

A. The Role of the United Nations in Criminal Justice • Discuss some of the key United Nations recommendations relating to criminal justice and how they have affected criminal justice in the United States.

• Ask students what crime and justice-related issues they think the UN should focus attention on, and why.

B. Interpol and Europol • Ask students to consider possible reasons why INTERPOL does not have any field investigators or any powers of arrest or search and seizure in member countries. Have them discuss whether having an actual international police force, that did have such powers, would be a good idea.

• Describe the theme of international police cooperation that characterizes INTERPOL. Ask what role students envision for INTERPOL in the twenty-first century.

• Discuss reasons why cross-jurisdictional crimes can be so difficult to combat.

Examine the problems involved in dealing with crimes that cross state boundaries and ask students to consider how much more difficult it might be when national boundaries are involved.

• Have students visit INTERPOL’s website and review the various types of crimes that have a transnational dimension and require a global response. Have them bring back information on these crimes and what INTERPOL is doing.

• Have students visit Europol’s website and review the various types of crimes that have a transnational dimension and require a global response. Have them bring back information on these crimes and what Europol is doing.

• Watch the video “INTERPOL: Connecting Police for a Safer World” on YouTube.

C. The International Criminal Court • Have students visit the ICC’s website and bring back information on current cases and situations under investigation. Consider whether there are any common themes to the current activities of the ICC. • Watch the ICC video “The ICC in 3 Minutes” on YouTube.

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IV. Globalization and Crime • Explain the definition of globalization and why it is important to criminal justice and criminology today.

• Explain the impact of globalization on the world today, such as the increasing similarities in how people do things, their beliefs and values, and even their language.

• Discuss the relationship between globalization and crime.

• Ask students to identify examples of globalization that they encounter on a regular (even daily) basis. Discuss why and how globalization affects criminal justice systems in the United States.

A. Transnational Organized Crime • Explain transnational organized crime as crime involving organized criminal groups that operate across national boundaries. Review the conditions that the United Nations has identified to determine if a crime can be considered transnational in nature. Link transnational organized crime and these international criminal groups to the concept of globalization.

• Explain some of the forms of transnational organized crime and explain the threat they may pose to the security of multiple countries around the world.

V. Human Smuggling and Trafficking • Explain the various types of trafficking offenses identified by the 2000 Trafficking Victims Protection Act. • Explain the difference between human trafficking and smuggling. Use Table 17-2 to assist.

• Ask students how human smuggling differs from illegal immigration.

• Consider introducing some information on human trafficking laws in other countries.

This could lead to a discussion of how different cultures have different views of this crime.

• Lead a debate as to whether a victim of human trafficking should be deported if they were brought to the United States illegally.

• Watch the video, “25 Painfully Disturbing Facts About Human Trafficking” on YouTube.

• Watch the CNN video, “Ending the $150 Billion Human Trafficking Industry” on YouTube.

VI. Terrorism • Explain that the idea of terrorism centers on the commission of crimes (usually acts of violence) for political or ideological ends. Ask students whether they think that definition should be expanded, and if so, how. Ask whether they believe that acts of terrorism will increase in frequency throughout the rest of the twenty-first century.

• Examine Gwynn Nettler’s characteristics of terrorism and discuss the ways in which terrorists are similar to other criminals and how they differ. Use these characteristics to describe how acts of terrorism differ from acts of war.

• Watch the video, “Crime and Terrorism: Is There a Difference?” on the MSNBC website.

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A. Types of Terrorism • Distinguish among the five major forms of terrorism. Ask students to discuss which form represents the greatest threat to the United States.

1. Domestic Terrorism • Highlight the growth of radical groups throughout America by pointing to the white supremacist and separatist organizations described in this chapter and in Chapter 2. Ask students whether they think such organizations will ever present a real threat to our nation’s security.

2. International Terrorism • Explain how international and foreign terrorism differ.

• Explain that surveys show Americans consider international terrorism to be the top threat facing the United States? Ask students if they agree with this view and why.

• Watch the video, “International Terrorism – The Crisis of Civilization” on YouTube.

3. State-Sponsored Terrorism • Define state-sponsored terrorism and discuss those countries currently identified by the State Department as state sponsors of international terrorism.

4. Cyberterrorism • Define cyberterrorism and explain why the U.S. is so concerned about the need to secure cyberspace from possible terrorist threats.

• Explain the importance of protecting a country’s infrastructure.

• Discuss the ways in which cyberterrorism differs from other forms of terrorism.

• Watch the ICSR video, “What is Cyberterrorism?” on YouTube.

5. Narcoterrorism • Explain why narcoterrorism is a serious concern and why the U.S. may not be prepared to combat it.

• Define narcoterrorism as the political alliance between terrorist organizations and drug-supplying cartels. Ask students how narcoterrorism might directly affect the United States.

B. Causes of Terrorism C. Combating Terrorism • Explain why the democratic structure of our society may actually hamper efforts to combat terrorism.

1. Antiterrorism Committees and Reports • Review the various antiterrorism reports and studies released in recent years, many of which relate to the events of September 11, 2001.

• Read about the goals of the USA PATRIOT Act at http://www.justice.gov/archive/ll/highlights.htm 2. The Department of Homeland Security

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• Discuss the creation of the Department of Homeland Security (DHS) and its composition. Explain why the FBI is not part of the DHS. 3. The National Counterterrorism Strategy • Review the goals of the National Strategy for Counterterrorism and discuss ways in which the government plans to meet these goals.

D. Foreign Terrorist Organizations • Explain foreign terrorist organizations and the criteria an organization must meet to be designated an FTO. Review the consequences of being designated as an FTO. E. The Future of International Terrorism • Explain that the U.S. may not be fully prepared to deal with the threats represented by domestic and international terrorism.

LIST OF CHANGES/TRANSITION GUIDE •

A new chapter-opening story replaces the old one.

•

Revised minimum rules for the treatment of prisoners, known as the “Nelson Mandela Rules” are discussed.

•

The cybercriminal Infraud organization is described.

•

The 2018 National Cyber Strategy developed by the White House is discussed.

•

A revised organizational chart of the Department of Homeland Security replaces the old one.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

If your university has study abroad programs, invite a member of the Study Abroad Office staff to address the class. Ask the speaker to describe how they deal with the issue of ethnocentrism among students participating in study abroad programs.

•

Invite foreign students to address the class and describe the criminal justice system in their home countries. If there are foreign students in the class, they may be invited to speak as well. Ask the class how they can best keep their ethnocentrism in perspective during this activity. Additionally, point out that ethnocentrism is not limited to the United States and may be experienced by foreign students studying American criminal justice.

•

Ask students to find news articles about crime and punishment in foreign countries. Discuss the stories in class, and have students decide which ones demonstrate a seemingly competent and equitable system of criminal justice.

•

Place students in groups and assign each group a specific crime. Have them research the definition of that crime in multiple countries and report back on the variations found in definitions.

•

Have students visit the Web site of the World Factbook of Criminal Justice and bring information back to class. Develop a focus for this exercise by selecting a country, a global area, or an issue such as crime rates for student exploration.

•

Ask students to assemble a list of international terrorist incidents that have taken place around the globe during the past year. The U.S. Department of State publication Patterns of Global Terrorism might be a good place to start. Which countries experienced the largest number of international terrorist incidents? Which countries had the fewest? How do rates of international terrorism within the United States compare to rates elsewhere?

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•

Have students visit the website of the National Counterterrorism Center and investigate domestic terrorism and domestic terrorist groups. Have them bring this information back to share with the class.

•

Have students obtain criminal victimization data from another country using the International Crime Victim Survey and compare the victimization patterns of that country to those of the U.S. (U.S. data may be obtained from the National Crime Victimization Survey).

•

Visit the Web sites of several criminal justice agencies located outside the United States and prepare a representative sample of these agencies for display in class.

•

Visit the Web site of the Department of Homeland Security and review the topics handled by the DHS. Display the list of these topics and ask students to discuss which they think are most critical and why.

•

Have students visit the Web site of the International Labor Organization and bring information to class. Students can be asked to focus on a specific topic (e.g., child labor) or a specific region of the world.

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

What are the principles that inform Islamic law? How do these principles contribute to the structure and activities of the criminal justice systems of Muslim nations that follow Islamic law?

Islamic law is a system of duties and rituals founded on legal and moral obligations that are sanctioned by the authority of a religious leader, who may issue commands that the faithful are bound to obey. Four aspects of justice include (1) a sacred trust, a duty imposed on humans to be discharged sincerely and honestly; (2) a mutual respect by one human being for another; (3) an aspect of the social bond that holds society together; and (4) a command from God. Items 3 and 4 are the ones most commonly invoked in Islamic jurisprudence and form the basis of criminal justice practice in many Middle Eastern countries.

2.

What important international criminal justice organizations does this chapter discuss?

Describe the role of each in fighting international crime.

The United Nations is the largest and most inclusive international body in the world. It was founded in 1945 and is very interested in international crime prevention and world criminal justice systems. There are a number of key U.N. resolutions and recommendations on criminal justice; the UN also conducts world crime surveys and maintains and Office on Drugs and Crime.

Interpol is an international law enforcement support organization that began operations in 1946. Interpol acts as a clearinghouse for information on offenses and suspects who operate across national boundaries.

Europol is the integrated police-oriented intelligence-gathering and dissemination arm of the member nations of the European Union. Its mission is to improve the effectiveness and cooperation within the member states of the European Union with the ultimate goal of preventing and combating various serious forms of international organized crime.

The International Criminal Court (ICC) was created in 2000. It is intended to be a permanent court for trying individuals committing the most serious crimes of concern to the

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international community. The goal of the ICC is to be a global judicial institution with international jurisdiction complementing national legal systems around the world.

3.

What is globalization, and how does it relate to transnational crime? What relationships might exist between transnational crime and terrorism?

Globalization is formally defined as the internationalization of trade, services, investment, information, and other forms of human social activity. Criminal entrepreneurs and terrorists are among those with a global vision and there is a wide international criminal community today that includes terrorists, drug traffickers, pornography peddlers, identity thieves, copyright violators, and traffickers.

Transnational crime is the unlawful activity undertaken and supported by organized criminal groups operating across national boundaries. Transnational crime is similar to organized crime in many respects, and individuals participating are very opportunistic in deciding what types of crimes to commit. These organizations will certainly consider using terrorism or supporting terrorist organizations in order to accomplish their objectives.

4.

What is human smuggling? Human trafficking? How do the two differ under the law?

Human smuggling is a type of immigration where an agent is paid to help a person enter a country illegally. Human trafficking is the exploitation of unwilling or unwitting people through force, coercion, threat, or deception. The difference between the two can be subtle.

The key components that distinguish trafficking from smuggling are the elements of fraud, force, or coercion.

5.

What is terrorism? What are the major types of terrorism discussed in this chapter?

Terrorism is a violent act or an act dangerous to human life, in violation of the criminal laws of the United States or of any state, committed to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.

Domestic terrorism is the unlawful use of force or violence by a group or an individual who is based and operates entirely within the United States and its territories without foreign direction and whose acts are directed at elements of the U.S. government or population.

International terrorism is the unlawful use of force or violence by a group or an individual who has some connection to a foreign power, or whose activities transcend national boundaries, against people or property in order to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.

State-sponsored terrorism is the financial, military, or other support by a nation-state of violent groups engaged in terrorism. Cyberterrorism can be either domestic or international.

It uses high technology, especially computers and the Internet, to plan and carry out terrorist attacks. Narcoterrorism involves a political alliance between terrorist organizations and drug-supplying cartels. The cartels provide financing for the terrorists, who in turn provide quasi-military protection to the drug dealers.

Questions for Reflection 1.

Why is terrorism a law enforcement concern? How is terrorism a crime? What can the American criminal justice system do to better prepare for future terrorist crimes?

American law enforcement agencies are responsible for combating threats to public safety.

Since terrorist actions inherently jeopardize public safety, they clearly are a specific concern of law enforcement. Terrorism consists of acts perpetrated for the express purpose of 191 Copyright © 2021 Pearson Education, Inc.

inducing a degree of fear in a target population sufficient to cause that population to pressure its leaders to capitulate to the terrorists’ demands. Terrorist acts frequently involve criminal violence and often result in death or serious injury. The criminal justice system needs to focus on the coordination of national and international intelligence, increased protection of the nation’s critical infrastructure, and combating international organized crime.

Answers will vary.

2.

What are the causes of terrorism? What efforts is the U.S. government making to prevent and control the spread of domestic terrorism and international terrorism?

The building process for international terrorist organization involves a multi-layered process.

The bottom layer includes a number of underlying social conditions, such as poverty, political corruption, religious and ideational conflict, and ethnic strife. The second level is the international environment relating to the boundaries across nations. The remaining layers include states, which provide physical assets and bases needed, the terrorist organization, and the terrorist leadership, which provides direction.

Efforts to prevent and combat terrorism include passing legislation providing resources and enhancing punishments of terrorists; creating government agencies, such as the Department of Homeland Security; and issuing reports suggesting strategies to respond to terrorism. The U.S. government is spending an incredible amount of money in an attempt to prevent and respond to terrorism.

3.

What are the benefits of studying criminal justice systems in other countries? What problems are inherent in such study?

Comparative criminal justice is becoming increasingly valued for the insights it provides. By contrasting native institutions of justice with similar institutions in other countries, procedures and problems that have been taken for granted under one system can be reevaluated in the light of world experience. Such reevaluation may yield information we can use to improve our own system. It is also possible, of course, that such study may lead to the discovery of domestic inequities that would place America in a difficult political position, as some say has happened in the area of the death penalty. Difficulties are often encountered in the comparison of crime rates from one country to another because of differences in the way a specific crime is defined, diversities in crime-reporting practices, and political and other influences on the reporting of statistics to international agencies.

Definitional differences create what may be the biggest problem. For cross-national comparisons of crime data to be meaningful, reported data must share conceptual similarities.

Unfortunately, that is rarely the case. Nations report offenses according to the legal criteria by which arrests are made and under which prosecution can occur. When legal criteria differ between nations, data are inherently inaccurate. Social, cultural, and economic differences between countries compound the difficulties.

Reporting practices vary substantially between nations, and no mechanism exists for confirming the accuracy of reported data. Many countries simply do not disclose requested information, and those that do often make only partial reports. International reports of crime are also often delayed. Complete up-to-date data are rare, since the information made available to agencies like the United Nations and Interpol is reported at different times and according to schedules that vary from nation to nation.

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Crime statistics also reflect political biases and national values. Some nations do not accurately admit to the frequency of certain kinds of culturally reprehensible crimes.

Communist countries, for example, appear loath to report property crimes such as theft, burglary, and robbery because the very existence of such offenses demonstrates felt inequities within the Communist system.

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Chapter 18 High-Technology Crimes CHAPTER OVERVIEW The final chapter of the textbook focuses on the opportunities and threats that new technology presents to the criminal justice system. As the level of technological sophistication in society increases, regulating and responding to crimes resulting from these changes creates new challenges for the justice system. Crimes employing advanced or emerging technologies in their commission are known as technocrimes. One concern is biocrime or biological crime, which is a crime perpetrated through the use of some biological active substance. New technologies create the potential for committing new crimes or for committing old crimes in new ways. Crime perpetrated through the use of computer technology is referred to as cybercrime or computer crime. A key characteristic of cybercrime is that it can be cross-jurisdictional or transnational; this is complicated by the lack of effective and standardized cybercrime laws in most countries.

Various types of cybercrime are discussed, including the dissemination of malware such as computer viruses, worms, and Trojan horses; software piracy, and spam. The use of technological innovations by terrorist organizations is another important issue. Some terrorist organizations appear to be attempting to obtain weapons of mass destruction and to be engaging in acts of bioterrorism.

In addition to creating new threats, technological innovations also may provide the criminal justice system with new and important tools to be used in responding to and preventing crime.

Examples include the use of social media by law enforcement agencies; the development of innovative investigative tools like DNA fingerprinting, keystroke captures, digital imaging, and automatic plate recognition technology; and computer data analysis.

Criminalistics is a subfield of criminal justice that involves the use of technology to assist criminal investigation. Early examples of the use of criminalistics are presented, including Alphonse Bertillon’s “modern” system of personal identification, the use of fingerprints to identify suspects, modern biometrics, ballistics, forensic anthropology, and forensic entomology.

A number of new emerging technologies in criminalistics are also discussed in this chapter.

One of the most significant scientific advances is the development of DNA profiling, which involves the use of biological residue found at the scene of a crime for genetic comparisons, aiding in the identification of criminal suspects. DNA evidence can be used not only to demonstrate guilt but also to prove innocence and to exonerate those who have been wrongly accused or convicted of crime. Other emerging technologies used by the criminal justice system include online databases, computer-aided investigations using expert systems, computer-based training, and predictive policing. Also discussed are various cutting-edge technologies under development that will assist law enforcement efforts. These include brain-monitoring devices, various advances in the field of augmented reality, and nanotechnology. The chapter concludes with a discussion of the future of criminal justice, with a focus on the concept of sentinel events.

LEARNING OBJECTIVES After reading this chapter, you should be able to •

Describe the historical relationship between technological advances and criminal activity.

•

Describe the current and likely future roles of technology in both crime and in the fight against crime.

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•

Describe the field of criminalistics, including the contribution of evolving technology.

CHAPTER OUTLINE I.

Introduction • Discus recent technological crimes that threaten the security of individuals and the United States as a whole. For example, discuss recent large-scale data breaches and how these have affected online users.

II. Technology and Crime • Emphasize the paradoxical relationship between technology and crime. Explain how technology has both been a tool for crime control and provided opportunities for new forms of crime to emerge.

• Stress that the effect of new or emerging technologies on crime is not a new issue. Point out the impact of technological developments such as the telephone or automobile on crime and criminal justice.

A. Biocrime • Explain the concept of biocrime and describe some of the varied types of potentially possible biocrimes, such as agroterrorism, illegal harvesting of human organs, human cloning, and the direct alteration of the DNA of living beings.

• Discuss the changes in laws relating to human cloning during the 21st century.

• Point out that there have been multiple efforts in the United States to ban human cloning and there is a prohibition on using federal money on human embryo research.

Lead a debate on the use of human cloning and whether individuals should have the right to clone their own cells.

B. Cybercrime • Explain that new technologies do not only create the potential for committing totally new crimes but also for committing old crimes in new ways.

• Summarize the federal and state statutes under which cybercriminals can be prosecuted. Ask which laws seem most effective and why.

• Discuss Kevin Minick’s argument that people are the weakest link in a computer network and explain the concept of social engineering. Have students brainstorm ways to protect computer security from human weakness.

1. Transnational Cybercrime • Refer back to the discussion of transnational crime in Chapter 17 and ask how that discussion is relevant here.

• Ask students to discuss the possible need for standardized cybercrime laws throughout the world.

2. Types of Cybercrime • Describe Grabosky’s nine broad categories of cybercrime and give examples of each type.

• Explain phishing and invite students to discuss their personal experiences with phishing emails.

• Discuss how computer viruses and other types of malware have affected the workplace. Explain the increasing concerns about ransomware.

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• Discuss some recent examples of malicious software and how they now target not only computers but also wireless hand-held devices such as cell phones.

• Lead a debate on whether spam should be criminalized.

• Using information from the website of the Software and Information Industry Association, discuss the various types of software piracy.

• Watch the video, “Computer Viruses and Threats Explained by Common Craft” on the Common Craft website.

• Watch the Kaspersky video, “Malware: Difference Between Computer Viruses, Worms and Trojans” on YouTube.

• Ask students to describe the type of person they think is most likely to commit computer crimes, and have them speculate as to the motivation to commit these types of crimes. Have them contrast the person they describe with individuals who commit violent crimes.

C. Terrorism and Technology • Explain that state-sponsored terrorist groups are becoming more technologically sophisticated and taking advantage of new technologies to further their goals. Link this back to the discussion of state-sponsored terrorism in Chapter 17.

III. Technology and Crime Control • Ask students to imagine how police work was done before the technological innovations described in this chapter. How effective would the police techniques of decades ago be in solving today’s crimes?

• Discuss the use of social media by the police. Ask students if they follow the Facebook pages or Twitter feeds of their local police department. What do students think about the police use of Twitter and other social media platforms?

• Explain that technology not only increases criminal opportunity but also is a boon to police investigators and other criminal justice personnel.

• Review some of the new innovative investigative tools available to law enforcement, such as DNA fingerprinting, keystroke captures, digital imaging, thermography, automatic plate recognition technology, and so on.

• Point out that it is often a race between technologically sophisticated offenders and law enforcement authorities to determine who can wield the most advanced technological skills.

• Break the class into groups and ask them to identify ways in which various forms of technology have made the fight against crime easier.

• Movies such as Judge Dredd and RoboCop offer interesting looks at possible—if improbable—ways that technology can be used in the fight against crime.

A. Leading Technical Organizations in Criminal Justice IV. Criminalistics: Past, Present, and Future • Point out that technological advances have signaled both threats and opportunities for criminal justice throughout history – this issue is not new to the 21st century.

• Use the invention of fingerprinting techniques to illustrate the evolution of law enforcement technology. Ask students to suggest technological changes that might have similar far-reaching effects on the criminal justice system of the future.

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• Discuss various advances in methods of personal identification, such as Alphonse Bertillon’s technique combining physical measurements with photography, the early use of fingerprints, advances in modern fingerprint identification such as IAFIS, and modern biometrics.

A. New Technologies in Criminalistics 1. DNA Profiling • Discuss the evidentiary value of DNA evidence and describe cases in which DNA evidence was used to identify the suspect of a cold case or to exonerate an innocent person.

• Point out that DNA analysis can prove innocence as well as demonstrate guilt.

• Discuss ways in which the introduction of DNA evidence has made a difference to criminal justice.

• Have students discuss the pros and cons of the federal DNA Identification Act of 1994 • Ask students if they think that we could effectively solve a larger number of crimes by requiring that DNA be submitted to a DNA bank at birth. Have them debate the ethical implications of maintaining such databases and mandating DNA submission at birth.

• Explain various federal laws relating to DNA profiling and remind students of the Daubert standard for the admissibility of scientific evidence, including DNA evidence, which was discussed in Chapter 9.

• Watch the video, “How is DNA Fingerprinting Used to Identify a Criminal?” on YouTube.

2. Online Databases • Point out that law enforcement agencies are increasingly making criminal database information available to the public via the Internet. Ask students to discuss the pros and cons of doing this and whether they think this type of police data should be made generally available.

• Have students search for crime-related databases and identify how they are used.

Lead a discussion on the usefulness of these databases, and possible ethical implications.

3. Computer-Aided Investigations 4. Computer-Based Training • Discuss some of the more widely used computer training programs in criminal justice, such as shoot/no-shoot decision-based software, police pursuit driving simulators, and virtual reality simulators.

5. Predictive Policing • Have students discuss the civil rights implications of some of the new technologies discussed in this chapter.

B. On the Horizon • Ask students to suggest coming social and technological changes that they believe will likely have a significant impact on the criminal justice system, and ask them to identify aspects of the system they believe are likely to remain unchanged.

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• Discuss some of the devices used to help secure the nation’s borders, such as tracedetection technology and radiation-detection equipment. Link this back to the discussion of human smuggling in Chapter 17.

• Ask students to consider how technological advances in investigative techniques might threaten individual rights guaranteed under the Constitution. Have them discuss which rights they believe are most threatened, and why, and consider whether the trade-off is or is not worthwhile.

C. The Future of Criminal Justice • The chapter identifies a number of ways in which offenders have used new technology to commit crimes. Ask students to put themselves in the position of a futurist. What developments do they see on the horizon that might result in new technologies of potential service to future criminals? Describe the kinds of crimes that might result.

LIST OF CHANGES/TRANSITION GUIDE •

The chapter now begins with the NYPD’s ground- breaking use of drones to patrol the skies above New Year’s revelers in the city’s Times Square.

•

Federal laws relevant to human cloning and gene editing are discussed.

•

A graphic illustration explaining how DNA phenotyping can be used to construct the physical appearance of an unknown individual from strands of their DNA has been added to the chapter.

•

The application of the concept known as “familial DNA searching” is explained.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES •

Have students explore the Internet to find discussions about computer-related crime. Ask them to identify contributors’ attitudes toward cybercrime. Assign security-related questions for students to research, and have them report what they find.

•

Have students visit the Consumer Information section of the Federal Trade Commission’s website. The “Video and Media” section includes a number of interactive games relating to cybercrime, including “Phishing Scams,” “Spam Scam Slam,” “Beware of Spyware” and “The Case of the Cyber Criminal” (among others).

•

Ask students to research how high-technology crimes are prosecuted in their home state, or assign students or groups of students a specific state to research. Does their state have a specific computer-crime statute, or are such offenses subsumed under other categories, such as larceny? Assign students the task of deciding whether their state’s provisions for the prosecution of computer crime are adequate for now and whether they are likely to be sufficient for the remainder of the twenty-first century.

•

Ask students to assemble a library of shareware or freeware computer-security programs, including those that deal with data encryption and virus protection. Use the documentation files available with the software to demonstrate the usefulness of such programs and to illustrate the kinds of threats facing computer users today. Be careful to use only shareware or freeware from reputable sources. Note that shareware vendors require purchase for continued use of their products.

•

Lead a class discussion on the ethics of sharing copyright-protected material such as e-music, digital video files, and software. Ask students if they believe it is possible to prevent this type of activity and if they think file sharing of this type is socially acceptable behavior today.

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•

If a policy agency in your area has a computer crime unit, invite a member of the unit to speak with the class. Ask him or her to discuss the effects of rapid technological change on crime and on crime prevention and investigation techniques. Computer conferencing may be considered as an alternative to a classroom visit.

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The FBI’s Computer Crime and Intellectual Property Section (CCIPS) often accepts requests for CCIPS attorneys to speak to groups regarding computer crime and/or intellectual property theft. When they cannot accommodate a request, they may recommend a local individual who may be able to assist.

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Visit the Web sites several criminal justice futurist organizations such as the Society of Police Futurists International and the Foresight Institute and prepare a presentation on futures research in criminal justice.

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Visit the Web site of the Innocence Project and display information on the use of DNA exonerations and the various causes of wrongful convictions. Have students discuss ways that the criminal justice system might go about reducing the rate of wrongful convictions.

SUGGESTED ANSWERS TO END-OF-CHAPTER ASSIGNMENTS Questions for Review 1.

Historically speaking, how have advances in technology affected society and criminal activity? What new kinds of crimes have technological advances made possible?

Distinguish between new types of crimes produced by advancing technology and new ways of committing “old crimes” that have been facilitated by emerging technologies.

Advances in technology can ignite social changes. These advances affect how people interact, communicate, learn, and profit. Such advances are likely to continue, and society will continue to evolve because of the changes. High-technology crimes focus on offenses that use advanced and emerging technologies. Biocrime, cybercrime, and bioterrorism are just a few examples of the new kinds of crimes created because of technological advances.

Many high-tech crimes are simply “old wine in new bottles.” Historically, criminals of all types have shown remarkable resourcefulness in adapting technological advances to their criminal pursuits. The surge of high-quality counterfeiting wrought by the advent of the color laser printer is a typical example. Similarly, theft, fraud, intimidation, and vandalism are ageold crime problems. Advances in technology have just provided new opportunities to use computers and other types of technology to commit these crimes.

2.

What role does technology play in the fight against crime? What new crime-fighting technologies hold the most promise for combating high-technology crimes?

In addition to increasing criminal opportunity, technology also assists police investigators and other justice system personnel. High-technology investigative tools have provided police with enormous amounts of information on crimes and suspects, and many innovative investigative tools are beginning to shape many of the practical aspects of the modern criminal justice system.

Answers will vary as to which technologies are most promising.

3.

What is criminalistics? Explain the interplay between advancing technology and methods used to gather evidence in the fight against crime.

Criminalistics is the use of technology in the service of criminal investigation and the application of scientific techniques to the detection and evaluation of criminal evidence. Law 199 Copyright © 2021 Pearson Education, Inc.

enforcement and other criminal organizations attempt to put new technologies to use in their fight against crime. Similarly, criminalists also use scientific and technological advances in any way they can to identify suspects.

Questions for Reflection 1.

How has technology affected the practice of criminal justice in America during the past century? How has it affected the criminal law?

One hundred years ago, American police officers walked beats or rode horses and communicated by whistles and shouts. Criminal investigation was less scientific than intuitive, court cases were often resolved more on the popularity of the defendant than on the weight of the evidence, and American prisons were bleak edifices immersed in the industrial prison era. Today, American police officers not only walk beats or ride horses, but also use automobiles, motorcycles, bicycles, boats, and aircraft. They have instant communication with other patrol members, their leaders at the precinct or departmental headquarters, the mayor, the governor, the Pentagon, or the president, if necessary, via an incredible communications network using satellite or computer communications. All manner of forensic and scientific resources remove guesswork from criminal investigations. Court cases are far more informed by precedent and constitutional considerations than ever before, but they are also often strongly influenced by the economic status of the accused.

2.

Why do criminal laws have to change to keep up the changes in technology? What modifications in current laws defining criminal activity might soon be necessary to meet the criminal possibilities inherent in new technologies?

Criminal behavior evolves as technology evolves. Many offenders use new technologies in order to commit crimes, and often such behaviors have not been previously defined as being criminal. Criminal laws must be changed or created to account for these changes.

Answers will vary as to modifications to current laws.

3.

What threats to individual rights might advanced technology create? Will our standards as to what constitutes admissible evidence, what is reasonable privacy, and so on undergo a significant reevaluation as a result of emerging technologies?

In this information age, the obvious threat is to the privacy of the individual. Many believe it is already too late because somebody, somewhere, has likely already created a comprehensive database containing your entire life in a thousand or so bytes.

Answers will vary as to changing standards.

4.

What is a "sentinel event"? How can sentinel events be used to improve the justice system?

A “sentinel event” is defined as “a bad outcome that no one wants repeated and that signals the existence of underlying weaknesses in the system.” Essentially, it is anything that key stakeholders agree should not happen again. Examples include wrongful convictions, botched executions, unnecessary or wrongful police shootings, unwarranted in-custody deaths or injuries, and wrongful release of dangerous or factually guilty criminals.

Sentinel events can be used to alert us to the need for changes in the criminal justice system, to prevent future repeat occurrences. For example, sentinel events such as the deaths of unarmed black citizens by the police may signal the need for reform of police policy, improvement in police training, and changes in the police subculture.

200 Copyright © 2021 Pearson Education, Inc.