47 8.5 The Criminal Justice System
- Describe what is meant by the “working personality” of the police.
- Discuss the quality of legal representation of criminal defendants.
- Explain whether incarceration reduces crime in an effective and cost-efficient manner.
The criminal justice system in a democracy like the United States faces two major tasks: (1) keeping the public safe by apprehending criminals and, ideally, reducing crime; and (2) doing so while protecting individual freedom from the abuse of power by law enforcement agents and other government officials. Having a criminal justice system that protects individual rights and liberties is a key feature that distinguishes a democracy from a dictatorship.
How well does the US criminal justice system work in both respects? How well does it control and reduce crime, and how well does it observe individual rights and not treat people differently based on their social class, race and ethnicity, gender, and other social characteristics? What are other problems in our criminal justice system? Once again, whole books have been written about these topics, and we have space here to discuss only some of this rich literature.
The police are our first line of defense against crime and criminals and for that reason are often called “the thin blue line.” Police officers realize that their lives may be in danger at any time, and they also often interact with suspects and other citizens whose hostility toward the police is quite evident. For these reasons, officers typically develop a working personality that, in response to the danger and hostility police face, tends to be authoritarian and suspicious (Skolnick, 1994). Indeed, it is not too far-fetched to say that police-citizen relations are characterized by mutual hostility and suspicion (Dempsey & Forst, 2012).
Two aspects of police behavior are especially relevant for a textbook on social problems. The first is police corruption. No one knows for sure how much police corruption occurs, but low-level corruption (e.g., accepting small bribes and stealing things from stores while on patrol) is thought to be fairly common, while high-level corruption (e.g., accepting large bribes and confiscating and then selling illegal drugs) is thought to be far from rare. In one study involving trained researchers who rode around in police cars, more than one-fifth of the officers being observed committed some corruption (Reiss, 1980). Several notorious police scandals have called attention to rampant corruption amid some police forces. One scandal more than three decades ago involved New York City officer Frank Serpico, whose story was later documented in a best-selling book (Maas, 1973) and in a tension-filled film starring Al Pacino. After Serpico reported high-level corruption to his superiors, other officers plotted to have him murdered and almost succeeded. A more recent scandal involved the so-called Rampart Division in Los Angeles and involved dozens of officers who beat and shot suspects, stole drugs and money, and lied at the trials of the people they arrested (Glover & Lait, 2000).
The other relevant behavior is police brutality or, to use a less provocative term, the use of undue (also called unjustified or excessive) force by police. Police, of course, are permitted and even expected to use physical force when necessary to subdue suspects. Given the context of police work noted earlier (feelings of danger and suspicion) and the strong emotions at work in any encounter between police and suspects, it is inevitable that some police will go beyond the bounds of appropriate force and commit brutality. An important question is how much police brutality occurs. In a recent national survey, about 1 percent of US residents who had had an encounter with the police in 2008 believed that excessive force was used against them (Eith & Durose, 2011). This is a low figure in percentage terms, but still translates to 417,000 people who may have been victims of police brutality in one year.
How well do the police prevent crime? To answer this question, let us be clear what it is asking. The relevant question is not whether having the police we do have keeps us safer than having no police at all. Rather, the relevant question is whether hiring more police or making some specific change in police practice would lower the crime rate. The evidence on this issue is complex, but certain conclusions are in order.
First, simply adding more officers to a city’s existing police force will probably not reduce crime, or will reduce it only to a very small degree and at great expense (Walker, 2011). Several reasons may explain why additional police produce small or no reductions in crime. Much violence takes place indoors or in other locations far from police purview, and practical increases in police numbers still would not yield numbers high enough to guarantee a police presence in every public location where crime might happen. Because criminals typically think they can commit a crime with impunity if no police are around, the hiring of additional police is not likely to deter them.
Additional police may not matter, but how police are deployed does matter. In this regard, a second conclusion from the policing and crime literature is that directed patrol involving the consistent deployment of large numbers of police in high-crime areas (“hot spots”) can reduce crime significantly (Mastrofski, Weisburd, & Braga, 2010). Crackdowns—in which the police flood a high crime and drug neighborhood, make a lot of arrests, and then leave—have at most a short-term effect, with crime and drug use eventually returning to their previous levels or simply becoming displaced to other neighborhoods.
In the US legal system, suspects and defendants enjoy certain rights and protections guaranteed by the Constitution and Bill of Rights and provided in various Supreme Court rulings since these documents were written some 220 years ago. Although these rights and protections do exist and again help distinguish our democratic government from authoritarian regimes, in reality the criminal courts often fail to achieve the high standards by which they should be judged. Justice Denied (Downie, 1972) and Injustice for All (Strick, 1978) were the titles of two popular critiques of the courts written about four decades ago, and these titles continue to apply to the criminal courts today.
A basic problem is the lack of adequate counsel for the poor. Wealthy defendants can afford the best attorneys and get what they pay for: excellent legal defense. An oft-cited example here is O. J. Simpson, the former football star and television and film celebrity who was arrested and tried during the mid-1990s for allegedly killing his ex-wife and one of her friends (Barkan, 1996). Simpson hired a “dream team” of nationally famous attorneys and other experts, including private investigators, to defend him at an eventual cost of some $10 million. A jury acquitted him, but a poor defendant in similar circumstances almost undoubtedly would have been found guilty and perhaps received a death sentence.
Almost all criminal defendants are poor or near poor. Although they enjoy the right to free legal counsel, in practice they receive ineffective counsel or virtually no counsel at all. The poor are defended by public defenders or by court-appointed private counsel, and either type of attorney simply has far too many cases in any time period to handle adequately. Many poor defendants see their attorneys for the first time just moments before a hearing before the judge. Because of their heavy caseloads, the defense attorneys do not have the time to consider the complexities of any one case, and most defendants end up pleading guilty.
A 2006 report by a New York state judicial commission reflected these problems (Hakim, 2006, p. B1). The report concluded that “local governments were falling well short of constitutional requirements in providing legal representation to the poor,” according to a news story. Some New York attorneys, the report found, had an average yearly caseload of 1,000 misdemeanors and 175 felonies. The report also found that many poor defendants in 1,300 towns and villages throughout the state received no legal representation at all. The judge who headed the commission called the situation “a serious crisis.”
Another problem is plea bargaining, in which a defendant agrees to plead guilty, usually in return for a reduced sentence. Under our system of justice, criminal defendants are entitled to a trial by jury if they want one. In reality, however, most defendants plead guilty, and criminal trials are very rare: Fewer than 3 percent of felony cases go to trial. Prosecutors favor plea bargains because they help ensure convictions while saving the time and expense of jury trials, while defendants favor plea bargains because they help ensure a lower sentence than they might receive if they exercised their right to have a jury trial and then were found guilty. However, this practice in effect means that defendants are punished if they do exercise their right to have a trial. Critics of this aspect say that defendants are being coerced into pleading guilty even when they have a good chance of winning a not guilty verdict if their case went to trial (Oppel, 2011).
The Problem of Prisons
The United States now houses more than 1.5 million people in state and federal prisons and more than 750,000 in local jails. This total of about 2.3 million people behind bars is about double the 1990 number and yields an incarceration rate that is by far the highest rate of any Western democracy. This high rate is troubling, and so is the racial composition of American prisoners. More than 60 percent of all state and federal prisoners are African American or Latino, even though these two groups comprise only about 30 percent of the national population. As Chapter 7 “Alcohol and Other Drugs” noted, African Americans and Latinos have been arrested and imprisoned for drug offenses far out of proportion to their actual use of illegal drugs. This racial/ethnic disparity has contributed to what law professor Michelle Alexander (2010) terms the “new Jim Crow” of mass incarceration. Reflecting her concern, about one of every three young African American males are under correctional supervision (in jail or prison or on probation or parole).
The corrections system costs the nation more than $75 billion annually. What does the expenditure of this huge sum accomplish? It would be reassuring to know that the high US incarceration rate keeps the nation safe and even helps reduce the crime rate, and it is certainly true that the crime rate would be much higher if we had no prisons at all. However, many criminologists think the surge in imprisonment during the last few decades has not helped reduce the crime rate at all or at least in a cost-efficient manner (Durlauf & Nagin, 2011). Greater crime declines would be produced, many criminologists say, if equivalent funds were instead spent on crime prevention programs instead of on incarceration (Welsh & Farrington, 2007), a point returned to in Section 8.6 “Reducing Crime”.
Criminologists also worry that prison may be a breeding ground for crime because rehabilitation programs such as vocational training and drug and alcohol counseling are lacking and because prison conditions are substandard. They note that more than 700,000 inmates are released from prison every year and come back into their communities ill equipped to resume a normal life. There they face a lack of job opportunities (how many employers want to hire an ex-con?) and a lack of friendships with law-abiding individuals, as our earlier discussion of labeling theory indicated. Partly for these reasons, imprisonment ironically may increase the likelihood of future offending (Durlauf & Nagin, 2011).
Living conditions behind bars merit further discussion. A common belief of Americans is that many prisons and jails are like country clubs, with exercise rooms and expensive video and audio equipment abounding. However, this belief is a myth. Although some minimum-security federal prisons may have clean, adequate facilities, state prisons and local jails are typically squalid places. As one critique summarized the situation, “Behind the walls, prisoners are likely to find cramped living conditions, poor ventilation, poor plumbing, substandard heating and cooling, unsanitary conditions, limited private possessions, restricted visitation rights, constant noise, and a complete lack of privacy” (Kappeler & Potter, 2005, p. 293).
Some Americans probably feel that criminals deserve to live amid overcrowding and squalid living conditions, while many Americans are probably at least not very bothered by this situation. But this situation increases the odds that inmates will leave prison and jail as more of a threat to public safety than when they were first incarcerated. Treating inmates humanely would be an important step toward successful reentry into mainstream society.
People Making a Difference
Making a Difference in the Lives of Ex-Cons
The text notes that more than 600,000 inmates are released from prison every year. Many of them are burdened with drug, alcohol, and other problems and face bleak prospects for employment, friendships, and stable lives, in general. Since 1967, The Fortune Society has been making a difference in the lives of ex-convicts in and near New York City.
The Fortune Society’s website (http://www.fortunesociety.org) describes the group’s mission: “The Fortune Society is a nonprofit social service and advocacy, founded in 1967, whose mission is to support successful reentry from prison and promote alternatives to incarceration, thus strengthening the fabric of our communities.” About 70 percent of its more than 190 employees are ex-prisoners and/or have histories of substance abuse or homelessness. It is fair to say that The Fortune Society was working on prisoner reentry long before scholars discovered the problem in the late 1990s and early 2000s.
The group’s president, JoAnne Page, described its halfway house where inmates stay for up to two months after their release from prisons: “This is what we do. We bring people home safely. There’s a point when the crime happened. The sentence was served, and the rehabilitation must begin. We look at a human being as much more than the worst they ever did.” Recalling that many of her relatives died in the Holocaust, Page added, “What my family experience did was to make me want to be somebody who fights institutions that damage people and who makes the world a little safer. Prisons are savage institutions.”
In addition to its halfway house, the Fortune Society provides many other services for inmates, ex-inmates, and offenders who are put on probation in lieu of incarceration. It regularly offers drug and alcohol counseling, family services, adult education and career development programs, and classes in anger management, parenting skills, and health care. One of its most novel programs is Miss Betty’s Practical Cooking and Nutrition Class, an eight-week course for ex-inmates who are young fathers. While a first reaction might be to scoff at such a class, a Fortune counselor pointed to its benefits after conceding her own immediate reaction. “When I found out about the cooking classes, I thought, ‘So they’re going to learn to cook, so what?’ What’s that going to do? But it’s building self-esteem. For most of these guys, they’re in a city, they’ve grown up on Kool-Aid and a bag of chips. This is building structure. They’re at the point where they have really accomplished something…They’re learning manners. You really can change patterns.”
One ex-convict that Fortune helped was 22-year-old Candice Ellison, who spent more than two years in prison for assault. After not finding a job despite applying to several dozen jobs over a six-month span, she turned in desperation to The Fortune Society for help. Fortune bought her interview clothes and advised her on how to talk about her prison record with potential employers. Commending the help she received, she noted, “Some of my high school friends say it’s not that hard to get a job, but for people like me with a criminal background, it’s like 20 times harder.”
The Fortune Society has received national recognition for its efforts. Two federal agencies, the Department of Justice and the Department of Housing and Urban Development, have featured The Fortune Society as a model program for helping ex-inmates. The Urban Institute featured this model in a video it developed about prisoner reentry programs. And in 2005, the American Society of Criminology presented the Society its President’s Award for “Distinguished Contributions to the Cause of Justice.” These and other examples of the national recognition won by The Fortune Society indicate that for more than four decades it has indeed been making a difference.
Sources: Bellafante, 2005; Greenhouse, 2011; Richardson, 2004
Focus on the Death Penalty
The death penalty is perhaps the most controversial issue in the criminal justice system today. The United States is the only Western democracy that sentences common criminals to death, as other democracies decided decades ago that civilized nations should not execute anyone, even if the person took a human life. About two-thirds of Americans in national surveys favor the death penalty, with their reasons including the need for retribution (“an eye for an eye”), deterrence of potential murderers, and lower expenditure of public funds compared to a lifetime sentence. Social science evidence is irrelevant to the retribution argument, which is a matter for philosophy and theology, but it is relevant to many other aspects of the death debate. Taken together, the evidence on all these aspects yields a powerful case against the death penalty (Death Penalty Information Center, 2011).
First, capital punishment does not deter homicide: Almost all studies on this issue fail to find a deterrent effect. An important reason for this stems from the nature of homicide. As discussed earlier, it is a relatively spontaneous, emotional crime. Most people who murder do not sit down beforehand to calculate their chances of being arrested, convicted, and executed. Instead they lash out. Premeditated murders do exist, but the people who commit them do not think they will get caught and so, once again, are not deterred by the potential for execution.
Second, the death penalty is racially discriminatory. While some studies find that African Americans are more likely than whites who commit similar homicides to receive the death penalty, the clearest evidence for racial discrimination involves the race of the victim: Homicides with white victims are more likely than those with African American victims to result in a death sentence (Paternoster & Brame, 2008). Although this difference is not intended, it suggests that the criminal justice system values white lives more than African American lives.
Third, many people have been mistakenly convicted of capital offenses, raising the possibility of wrongful executions. Sometimes defendants are convicted out of honest errors, and sometimes they are convicted because the police and/or prosecution fabricated evidence or engaged in other legal misconduct. Whatever their source, wrongful convictions of capital offenses raise the ugly possibility that a defendant will be executed even though he was actually innocent of any capital crime. During the past four decades, more than 130 people have been released from death row after DNA or other evidence cast serious doubt on their guilt. In March 2011, Illinois abolished capital punishment, partly because of concern over the possibility of wrongful executions. As the Illinois governor summarized his reasons for signing the legislative bill to abolish the death penalty, “Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it” (Schwartz & Fitzsimmons, 2011:A18).
Fourth, executions are expensive. Keeping a murderer in prison for life costs about $1 million in current dollars (say 40 years at $25,000 per year), while the average death sentence costs the state about $2 million to $3 million in legal expenses.
This diverse body of evidence leads most criminologists to oppose the death penalty. In 1989, the American Society of Criminology adopted this official policy position on capital punishment: “Be it resolved that because social science research has demonstrated the death penalty to be racist in application and social science research has found no consistent evidence of crime deterrence through execution, The American Society of Criminology publicly condemns this form of punishment, and urges its members to use their professional skills in legislatures and courts to seek a speedy abolition of this form of punishment.”
- Partly because the police often fear for their lives, they tend to have a “working personality” that is authoritarian and suspicious. Police corruption and use of undue force remain significant problems in many police departments.
- Although criminal defendants have the right to counsel, the legal representation of such defendants, most of whom are poor or near poor, is very inadequate.
- Prisons are squalid places, and incarceration has not been shown to reduce crime in an effective or cost-efficient manner.
- Most criminologists agree that capital punishment does not deter homicide, and they worry about racial discrimination in the use of the death penalty and about the possibility of wrongful executions.
For Your Review
- Have you ever had an encounter with a police officer? If so, how would you describe the officer’s personality? Was it similar to what is described in the text?
- The text argues that improvement in prison conditions would help reduce the probability of reoffending after inmates leave prison. Do you agree or disagree with this statement? Explain your answer.
Alexander, M. (2010). The new Jim Crow: Mass incarceration in the age of colorblindness. New York, NY: New Press.
Barkan, S. E. (1996). The social science significance of the O. J. Simpson case. In G. Barak (Ed.), Representing O. J.: Murder, criminal justice and mass culture (pp. 36–42). Albany, NY: Harrow and Heston.
Bellafante, G. (2005, March 9). Recipe for a second chance. New York Times, p. F1.
Death Penalty Information Center. (2011). Facts about the death penalty. Washington, DC: Author. Retrieved from http://www.deathpenaltyinfo.org/documents/FactSheet.pdf.
Dempsey, J. S., & Forst, L. S. (2012). An introduction to policing (6th ed.). Belmont, CA: Cengage Learning.
Downie, L., Jr. (1972). Justice denied: The case for reform of the courts. Baltimore, MD: Penguin Books.
Durlauf, S. N., & Nagin, D. S. (2011). Imprisonment and crime: Can both be reduced? Criminology & Public Policy, 10, 13–54.
Eith, C., & Durose, M. R. (2011). Contacts between police and the public, 2008. Washington, DC: Bureau of Justice Statistics.
Glover, S., & Lait, M. (2000, February 10). Police in secret group broke law routinely, transcripts say. The Los Angeles Times, p. A1.
Greenhouse, S. (2011, January 25). States help ex-inmates find jobs. New York Times, p. B1.
Hakim, D. (2006, June 29). Judge urges state control of legal aid for the poor. New York Times, p. B1.
Kappeler, V. E., & Potter, G. W. (2005). The mythology of crime and criminal justice (4th ed.). Prospect Heights, IL: Waveland Press.
Maas, P. (1973). Serpico. New York, NY: Viking Press.
Mastrofski, S. D., Weisburd, D., & Braga, A. A. (2010). Rethinking policing: The policy implications of hot spots of crime. In N. A. Frost, J. D. Freilich & T. R. Clear (Eds.), Contemporary issues in criminal justice policy (pp. 251–264). Belmont, CA: Wadsworth.
Oppel, R. A., Jr. (2011, September 26). Sentencing shift gives new leverage to prosecutors. New York Times, p. A1.
Paternoster, R., & Brame, R. (2008). Reassessing race disparities in Maryland capital cases. Criminology, 46, 971–1007.
Reiss, A. J., Jr. (1980). Officer violations of the law. In R. J. Lundman (Ed.), Police behavior: A sociological perspective (pp. 253–272). New York, NY: Oxford University Press.
Richardson, L. (2004, July 13). Defending the despised, and loving to do so. New York Times, p. B2.
Schwartz, J., & Fitzsimmons, E. G. (2011, March 10). Illinois governor signs capital punishment ban. New York Times, p. A18.
Skolnick, J. H. (1994). Justice without trial: Law enforcement in democratic society (3rd ed.). New York, NY: Macmillan.
Strick, A. (1978). Injustice for all. New York, NY: Penguin.
Walker, S. (2011). Sense and nonsense about crime, drugs, and communities: A policy guide (7th ed.). Belmont, CA: Wadsworth.
Welsh, B. C., & Farrington, D. P. (Eds.). (2007). Preventing Crime: What works for children, offenders, victims and places. New York, NY: Springer.