SECTION 1 - COLQUITT
FALL, 2002
NOTE: The following
report on the criminal justice system was published thirty years ago. Much has changed,
but the report should serve to acquaint you with the criminal justice system. For our
discussion purposes, the report continues to succinctly and adequately describe the system
that exists thirty years later. The changes in that system will be noted as we visit
various system components in class.
THE CHALLENGE OF CRIME IN A FREE SOCIETY
A Report By The President's Commission
On Law Enforcement and Administration of Justice
February 1967
AMERICA'S SYSTEM OF CRIMINAL JUSTICE
The system of criminal justice America uses to deal with those crimes it cannot prevent and those criminals it cannot deter is not a monolithic, or even a consistent, system. It was not designed or built in one piece at one time. Its philosophic core is that a person may be punished by the Government if, and only if, it has been proved by an impartial and deliberate process that he has violated a specific law. Around that core layer upon layer of institutions and procedures, some carefully constructed and some improvised, some inspired by principle and some by expediency, have accumulated. Parts of the system magistrates' courts, trial by jury, bail are of great antiquity.
Other parts juvenile courts, probation and parole, professional policemen are relatively new. The entire system represents an adaptation of the English common law to America's peculiar structure of government, which allows each local community to construct institutions that fill its special needs. Every village, town, county, city, and State has its own criminal justice system, and there is a Federal one as well. All of them operate somewhat alike. No two of them operate precisely alike.
Any criminal justice system is an apparatus society uses to enforce the standards of conduct necessary to protect individuals and the community. It operates by apprehending, prosecuting, convicting, and sentencing those members of the community who violate the basic rules of group existence. The action taken against lawbreakers is designed to serve three purposes beyond the immediately punitive one. It removes dangerous people from the community; it deters others from criminal behavior; and it gives society an opportunity to attempt to transform lawbreakers into law-abiding citizens. What most significantly distinguishes the system of one country from that of another is the extent and the form of the protection it offers individuals in the process of determining guilt and imposing punishment. Our system of justice deliberately sacrifices much in efficiency and even in effectiveness in order to preserve local autonomy and to protect the individual. Sometimes it may seem to sacrifice too much. For example, the American system was not designed with Cosa Nostra-type criminal organizations in mind, and it has been notably unsuccessful to date in preventing such organizations from preying on society.
The criminal justice system has three separately organized parts the police, the courts, and corrections and each has distinct tasks. However, these parts are by no means independent of each other. What each one does and how it does it has a direct effect on the work of the others. The courts must deal, and can only deal, with those whom the police arrest; the business of corrections is with those delivered to it by the courts. How successfully corrections reforms convicts determines whether they will once again become police business and influences the sentences the judges pass; police activities are subject to court scrutiny and are often determined by court decisions. And so reforming or reorganizing any part or procedure of the system changes other parts or procedures. Furthermore, the criminal process, the method by which the system deals with individual cases, is not a hodgepodge of random actions. It is rather a continuum an orderly progression of events some of which, like arrest and trial, are highly visible and some of which, though of great importance, occur out of public view. A study of the system must begin by examining it as a whole.
* * *
The popular, or even the lawbook, theory of everyday criminal process oversimplifies in some respects and over-complicates in others what usually happens. That theory is that when an infraction of the law occurs, a policeman finds, if he can, the probable offender, arrests him and brings him promptly before a magistrate. If the offense is minor, the magistrate disposes of it forthwith; if it is serious, he holds the defendant for further action and admits him to bail. The case then is turned over to a prosecuting attorney who charges the defendant with a specific statutory crime. This charge is subject to review by a judge at a preliminary hearing of the evidence and in many places if the offense charged is a felony, by a grand jury that can dismiss the charge, or affirm it by delivering it to a judge in the form of an indictment. If the defendant pleads "not guilty" to the charge he comes to trial; the facts of his care are marshaled by prosecuting and defense attorneys and presented, under the supervision of a judge, through witnesses, to a jury. If the jury finds the defendant guilty, he is sentenced by the judge to a term in prison, where a systematic attempt to convert him into a law-abiding citizen is made, or to a term of probation, under which he is permitted to live in the community as long as he behaves himself.
Some cases do proceed much like that, especially those involving offenses that are generally considered "major": serious acts of violence or thefts of large amounts of property. However, not all major cases follow this course, and, in any event, the bulk of the daily business of the criminal justice system consists of offenses that are not major of breaches of the peace, crimes of vice, petty thefts, assaults arising from domestic or street-corner or barroom disputes. These and most other cases are disposed of in much less formal and much less deliberate ways.
The theory of the juvenile court is that it is a "helping" social agency, designed to prescribe carefully individualized treatment to young people in trouble, and that its procedures are therefore nonadversary. Here again there is, in most places, a considerable difference between theory and practice. Many juvenile proceedings are no more individualized and no more therapeutic than adult ones.
What has evidently happened is that the transformation of America from a relatively relaxed rural society into a tumultuous urban one has presented the criminal justice system in the cities with a volume of cases too large to handle by traditional methods. One result of heavy caseloads is highly visible in city courts, which process many cases with excessive haste and many others with excessive slowness. In the interest of both of effectiveness and of fairness to individuals, justice should be swift and certain; too often in city courts today it is, instead, hasty or faltering. Invisibly, the pressure of numbers has effected a series of adventitious changes in the criminal process. Informal shortcuts have been used. The decision making process has often become routinized. Throughout the system the importance of individual judgment and discretion, as distinguished from stated rules and procedures, has increased. In effect, much decision making is being done on an administrative rather than on a judicial basis. Thus, an examination of how the criminal justice system works and a consideration of the changes needed to make it more effective and fair must focus on the extent to which invisible, administrative procedures depart from visible, traditional ones, and on the desirability of that departure.
THE POLICE
At the very beginning of the process or, more properly, before the process begins at all something happens that is scarcely discussed in lawbooks and is seldom recognized by the public: law enforcement policy is made by the policeman. For policemen cannot and do not arrest all the offenders they encounter. It is doubtful that they arrest most of them. A criminal code, in practice, is not a set of specific instructions to policemen but a more or less rough map of the territory in which policemen work. How an individual policeman moves around that territory depends largely on his personal discretion.
That a policeman's duties compel him to exercise personal discretion many times every day is evident. Crime does not look the same on the street as it does in a legislative chamber. How much noise or profanity makes conduct "disorderly" within the meaning of the law? When must a quarrel be treated as a criminal assault: at the first threat or at the first shove or at the first blow, or after blood is drawn, or when a serious injury is inflicted? How suspicious must conduct be before there is "probable cause," the constitutional basis for an arrest? Every policeman, however complete or sketchy his education, is an interpreter of the law.
Every policeman, too, is an arbiter of social values, for he meets situation after situation in which invoking criminal sanctions is a questionable line of action. It is obvious that a boy throwing rocks at a school's windows is committing the statutory offense of vandalism, but it is often not at all obvious whether a policeman will better serve the interests of the community and of the boy by taking the boy home to his parents or by arresting him. Who are the boy's parents? Can they control him? Is he a frequent offender who has responded badly to leniency? Is vandalism so epidemic in the neighborhood that he should be made a cautionary example? With juveniles especially, the police exercise great discretion.
Finally, the manner in which a policeman works is influenced by practical matters: the legal strength of the available evidence, the willingness of victims to press charges and of witnesses to testify, the temper of the community, the time and information at the policeman's disposal. Much is at stake in how the policeman exercises this discretion. If he judges conduct not suspicious enough to justify intervention, the chance to prevent a robbery, rape, or murder may be lost. If he overestimates the seriousness of a situation or his actions are controlled by panic or prejudice, he may hurt or kill someone unnecessarily. His actions may even touch off a riot.
THE MAGISTRATE
In direct contrast to the policeman, the magistrate before whom a suspect is first brought usually exercises less discretion than the law allows him. He is entitled to inquire into the facts of the case, into whether there are grounds for holding the accused. He seldom does. He seldom can. The more promptly an arrested suspect is brought into magistrate's court, the less likelihood there is that much information about the arrest other than the arresting officer's statement will be available to the magistrate. Moreover many magistrates, especially in big cities, have such congested calendars that it is almost impossible for them to subject any case but an extraordinary one to prolonged scrutiny.
In practice the most important things, by far, that a magistrate does are to set the amount of a defendant's bail and in some jurisdictions to appoint counsel. Too seldom does either action get the careful attention it deserves. In many cases the magistrate accepts a waiver of counsel without insuring that the suspect knows the significance of legal representation.
Bail is a device to free an untried defendant and at the same time make sure he appears for trial. That is the sole stated legal purpose in America. The Eighth Amendment to the Constitution declares that it must not be "excessive." Appellate courts have declared that not just the seriousness of the charge against the defendant, but the suspect's personal, family, and employment situation, as they bear on the likelihood of his appearance, must be weighed before the amount of his bail is fixed. Yet more magistrates than not set bail according to standard rates: so and so many dollars for such and such an offense.
The persistence of money bail can best be explained not by its stated purpose but by the belief of police, prosecutors, and courts that the best way to keep a defendant from committing more crimes before trial is to set bail so high that he cannot obtain his release.
THE PROSECUTOR
The key administrative officer in the processing of cases is the prosecutor. Theoretically the examination of the evidence against a defendant by a judge at a preliminary hearing, and its reexamination by a grand jury, are important parts of the process. Practically they seldom are because a prosecutor seldom has any difficulty in making a prima facie case against a defendant. In fact most defendants waive their rights to preliminary hearings and much more often than not grand juries indict precisely as prosecutors ask them to. The prosecutor wields almost undisputed sway over the pretrial progress of most cases. He decides whether to press a case or drop it. He determines the specific charge against a defendant. When the charge is reduced, as it is in as many as two-thirds of all cases in some cities, the prosecutor is usually the official who reduces it.
In the informal, noncriminal, nonadversary juvenile justice system there are no "magistrates" or "prosecutors" or "charges," or, in most instances, defense counsel. An arrested youth is brought before an intake officer who is likely to be a social worker or, in smaller communities, before a judge. On the basis of an informal inquiry into the facts and circumstances that led to the arrest, and of an interview with the youth himself, the intake officer or the judge decides whether or not a case should be the subject of formal court proceedings. If he decides it should be, he draws up a petition, describing the case. In very few places is bail a part of the juvenile system; a youth whose case is referred to court is either sent home with orders to reappear on a certain date, or remanded to custody. This decision, too, is made by the screening official. Thus, though these officials work in a quite different environment and according to quite different procedures from magistrates and prosecutors, they in fact exercise the same kind of discretionary control over what happens before the facts of a case are adjudicated.
THE PLEA AND THE SENTENCE
When the prosecutor reduces a charge it is ordinarily because there has been "plea bargaining" between him and a defense attorney. The issue at stake is how much the prosecutor will reduce his original charge or how lenient a sentence he will recommend, in return for a plea of guilty. There is no way of judging how many bargains reflect the prosecutor's belief that a lesser charge or sentence is justified and how many result from the fact that there may be in the system at any one time ten times as many cases as there are prosecutors or judges or courtrooms to handle them, should every one come to trial. In form, a plea bargain can be anything from a series of careful conferences to a hurried consultation in a courthouse corridor. In content it can be anything from a conscientious exploration of the facts and dispositional alternatives available and appropriate to a defendant, to a perfunctory deal. If the interests of a defendant are to be properly protected while his fate is being thus invisibly determined, he obviously needs just as good legal representation as the kind he needs at a public trial. Whether or not plea bargaining is a fair and effective method of disposing of criminal cases depends heavily on whether or not defendants are provided early with competent and conscientious counsel.
Plea bargaining is not only an invisible procedure but, in some jurisdictions, a theoretically unsanctioned one. In order to satisfy the court record, a defendant, his attorney, and the prosecutor will at the time of sentencing often ritually state to a judge that no bargain has been made. Plea bargaining may be a useful procedure, especially in congested urban jurisdictions, but neither the dignity of the law, nor the quality of justice, nor the protection of society from dangerous criminals is enhanced by its being conducted covertly.
In the juvenile system there is, of course, no plea bargaining in the sense described above. However, the entire juvenile process can involve extra-judicial negotiations about disposition. Furthermore, the entire juvenile process is by design invisible. Though intended to be helpful, the authority exercised often is coercive; juveniles, no less than adults, may need representation by counsel.
An enormously consequential kind of decision is the sentencing decision of a judge. The law recognizes the importance of fitting sentences to individual defendants by giving judges, in most instances, considerable latitude. For example the * * * New York Penal Code, which [went] into effect in autumn of 1967, empowers a judge to impose upon a man convicted of armed robbery any sentence between a 5-year term of probation and a 25-year term in prison. Even when a judge has presided over a trial during which the facts of a case have been carefully set forth and has been given a probation report that carefully discusses a defendant's character, background, and problems, he cannot find it easy to choose a sentence. In perhaps nine-tenths of all cases there is no trial; the defendants are self-confessedly guilty.
In the lower or misdemeanor courts, the courts that process most criminal cases, probation reports are a rarity. Under such circumstances judges have little to go on and many sentences are bound to be based on conjecture or intuition. When a sentence is part of a plea bargain, which an overworked judge ratifies perfunctorily, it may not even be his conjecture or intuition on which the sentence is based, but a prosecutor's or a defense counsel's. But perhaps the greatest lack judges suffer from when they pass sentence is not time or information, but correctional alternatives. Some lower courts do not have any probation officers, and in almost every court the caseloads of probation officers are so heavy that a sentence of probation means, in fact, releasing an offender into the community with almost no supervision. Few States have a sufficient variety of correctional institutions or treatment programs to inspire judges with the confidence that sentences will lead to rehabilitation.
CORRECTIONS
The correctional apparatus to which guilty defendants are delivered is in every respect the most isolated part of the criminal justice system. Much of it is physically isolated; its institutions usually have thick walls and locked doors, and often they are situated in rural areas, remote from the courts where the institutions' inmates were tried and from the communities where they lived. The correctional apparatus is isolated in the sense that its officials do not have everyday working relationships with officials from the system's other branches, like those that commonly exist between policemen and prosecutors, or prosecutors and judges. It is isolated in the sense that what it does with, to, or for the people under its supervision is seldom governed by any but the most broadly written statutes, and is almost never scrutinized by appellate courts. Finally, it is isolated from the public partly by its invisibility and physical remoteness; partly by the inherent lack of drama in most of its activities, but perhaps most importantly by the fact that the correctional apparatus is often used or misused by both the criminal justice system and the public as a rug under which disturbing problems and people can be swept.
The most striking fact about the correctional apparatus today is that, although the rehabilitation of criminals is presumably its major purpose, the custody of criminals is actually its major task. On any given day there are well over a million people being "corrected" in America, two-thirds of them on probation or parole and one-third of them in prisons or jails. However, prisons and jails are where four-fifths of correctional money is spent and where nine-tenths of correctional employees work. Furthermore, fewer than one-fifth of the people who work in State prisons and local jails have jobs that are not essentially either custodial or administrative in character. Many jails have nothing but custodial and administrative personnel. Of course many jails are crowded with defendants who have not been able to furnish bail and who are not considered by the law to be appropriate objects of rehabilitation because it has not yet been determined that they are criminals who need it.
What this emphasis on custody means in practice is that the enormous potential of the correctional apparatus for making creative decisions about its treatment of convicts is largely unfulfilled. This is true not only of offenders in custody but of offenders on probation and parole. Most authorities agree that while probationers and parolees need varying degrees and kinds of supervision, an average of no more than 35 cases per officer is necessary for effective attention; 97 percent of all officers handling adults have larger caseloads than that. In the juvenile correctional system the situation is somewhat better. Juvenile institutions, which typically are training schools, have a higher proportion of treatment personnel and juvenile probation and parole officers generally have lighter caseloads. However, these comparatively rich resources are very far from being sufficiently rich.
Except for sentencing, no decision in the criminal process has more impact on the convicted offender than the parole decision, which determines how much of his maximum sentence a prisoner must serve. This again is an invisible administrative decision that is seldom open to attack or subject to review. It is made by parole board members who are often political appointees. Many are skilled and conscientious, but they generally are able to spend no more than a few minutes on a case. Parole decisions that are made in haste and on the basis of insufficient information, in the absence of the parole machinery that can provide good supervision, are necessarily imperfect decisions. And since there is virtually no appeal from them, they can be made arbitrarily or discriminatorily. Just as carefully formulated and clearly stated law enforcement policies would help policemen, charge policies would help prosecutors and sentencing policies would help judges, so parole policies would help parole boards perform their delicate and important duties.
In sum, America's system of criminal justice is overcrowded and overworked, undermanned, underfinanced, and very often misunderstood. It needs more information and more knowledge. it needs more technical resources. It needs more coordination among its many parts. It needs more public support. It needs the help of community programs and institutions in dealing with offenders and potential offenders. It needs, above all, the willingness to reexamine old ways of doing things, to reform itself, to experiment, to run risks, to date. It needs vision.
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