Richard D Hartley & Dean John Champion. 21st Century Criminology: A Reference Handbook. Editor: J Mitchell Miller. 2009. Sage Publications.
When most people speak of the law, they are probably referring to a body of rules of conduct that has been written down. This is what is known as the substantive law. The law, however, can also refer to the systems and persons that have the authority to put the substantive law into practice. The law may also mean many other things to many people. Quinney (1974) believes the law serves the needs of those in the ruling class. Others believe the reverse is true: The law serves as a means for those not in the ruling class to challenge the existing status quo. The law can be both and may at the same time be seen as liberating to some and oppressive to others (Vago, 2006). Throughout U.S. history, the law has been used to both enable and eliminate slavery and to control and liberate women, and it has served to both convict and acquit those accused of crimes, regardless of whether they were guilty or not (Champion, Hartley, & Rabe, 2008). Whatever the law has meant at various times to various people, the criminal courts are both the institution and the structure that bring these ideas of the law to life. Without the courts and criminal procedures, and without legal actors, the law could not function to do any of the above.
The criminal court system in the United States, however, can be a very complex and confusing system to study and understand. Every state and the federal government has its own court structure and procedures for prosecuting criminals. Adding to the complexity is the fact that each state can specify its own sentencing structure. Some states use indeterminate sentencing; others use determinate sentencing or sentencing guidelines. Other jurisdictions also use sentence enhancements such as habitual offender statutes, truth-insentencing laws, or mandatory minimums. Finally, criminal courts are not the only avenue for dealing with those who have violated the law. Offenders in some jurisdictions may be processed in tribal court, drug court, or through a military tribunal. Others may be diverted to community-based correctional agencies with a more restorative justice ideal. These different types of courts and the lack of uniformity among them can at times be confusing to those attempting to study the U.S. criminal court system. The functions of criminal courts are more straightforward, however, and can be classified into two broad categories: social control and social change.
Social control is characterized as the methods a society undertakes to control its citizens’ behaviors. Social control can be differentiated by whether it is formal or informal. The process of socialization that each of us is subject to, starting from a very young age through adolescence and up to young adulthood, is a very important part of a society’s informal social control mechanisms. Parents, teachers, and even friends are integral in forming a person’s sense of right or wrong and what ultimately will shape the person’s future behaviors. Through a system of rewards and punishments, these informal social controls become effective tools that keep most people from displaying behaviors for which formal social control mechanisms would have to be invoked. Formal social controls include the police, the courts, and corrections. They usually need to be invoked because the informal social controls have broken down, or they were not in place to begin with. The formal social controls with which most people are familiar include being arrested by the police and being prosecuted, convicted, and sentenced by the courts. For most citizens, the formal social control mechanisms will never have to be summoned in order to keep their behavior law-abiding. This is because the socialization process and informal social controls are enough to keep their behaviors in check.
Another function of the criminal courts has been social change. The law and the criminal court system is the main means of resolving important social issues. Legislators have made most of the laws society abides by, but the institution of the court is the avenue by which the laws of the nation are put into practice. Some believe that the judicial branch of the government plays a very important role in the functioning of society. The judiciary decides whether laws have been violated by individuals or whether the government has overstepped its bounds in charging individuals. Judges, especially those at the circuit court and Supreme Court level, often generate social change with the legal decisions they make. These decisions revolve around ideas about the correct interpretation and application of the U.S. Constitution and other legislation. The rulings of these courts in some instances establish precedents to which subsequent decisions must adhere. These precedents are the foundations on which social policy is made or transformed. Under common law and because of the idea of stare decisis, these precedents become law. Stare decisis literally means to stand by that which has been decided. This does not mean that every case must be decided in a similar way, nor does it mean that higher courts cannot overturn any of their previous rulings. It just means that the lower courts will adhere to the latest ruling on any given issue. This idea of judges making law is referred to as judicial activism and has been criticized by some who believe the legislative branch of government is the only body that has the power to create law.
This process demonstrates that the law and the courts and the citizen’s relationship to them are not static. Rather, it is a dynamic relationship, and change comes through constant iterations of policy and practice. Black (1976) believes that law increases in quantity when society becomes more stratified and characterized by specialized groups with competing interests. In this sense, the law enters more areas of individual life as it increases in quantity. The courts in turn also intrude into more areas of daily life as the quantity of law increases. The citizenry may resist and even protest if the law and the courts become too intrusive, and the law and the courts may eventually retreat from some areas of citizens’ lives. This dynamic ebb and flow of intrusion and retreat of the courts in social life is social change being realized.
Structure of Courts
One way in which courts can be categorized in the United States is to say that there exists a dual-court structure, one at the federal level and one at the state level. The federal court structure consists of four different levels of courts: the magistrate courts, the district courts, the circuit courts of appeal, and the U.S. Supreme Court. State court structures are less consistent and more complex in their organization and function but generally also consist of four basic levels of courts: courts of limited jurisdiction, courts of general jurisdiction, intermediate courts of appeal, and courts of last resort. Although this duality is a simple way to categorize court structure in the United States because in reality 51 separate court structures exist, it makes understanding the system easier.
The federal court has the authority to hear cases where there is an alleged violation of federal law. At the bottom of the federal court structure are the magistrate courts. Congress formed the office of federal magistrate in 1968 to provide extra help in alleviating caseloads of the district court judges (Smith, 1992). In 1990, under the Judicial Improvements Act, U.S. magistrates became U.S. magistrate judges. There are both full-time and part-time magistrate judges, and both are appointed by district court judges to tenures that are renewable every 8 years and every 4 years respectively (Champion, Hartley, & Rabe, 2008). Although the duties of magistrate judges vary by district and they have been given increased status and responsibilities by the Judicial Improvements Act, they generally have jurisdiction over petty crimes at the federal level as well as other procedural duties. Most of their work involves setting bail, conducting initial appearances, and issuing warrants, but they also may conduct evidentiary hearings, make rulings on motions, and oversee felony cases regarding any other pretrial matters. There were 486 full-time and 51 part-time magistrate judges in 2002 (Maguire & Pastore, 2005), and in 2006, U.S. magistrate judges drew average salaries of $151,984 (Schwemle, 2006).
The trial courts at the federal level are the U.S. district courts. There are 94 districts in the United States. Interestingly, only about 15% of cases in federal court involve criminal matters; the rest involve civil disputes. Most states (31) have only one district court; the remaining states, either because of their large populations or due to bigger caseloads, have two or more district courts. In 2008, there were 665 federal district judges (TRAC, 2009). Federal judges at the district level are appointed by the president and must pass Senate confirmation. Presidential appointment of district judges is a very partisan process; according to Maguire and Pastore, from President Johnson to President George W. Bush, over 80% of district appointees have come from the same political party as the president that appointed them. For presidents Johnson, Nixon, Carter, and Reagan, the number was over 90%. District court judges have lifetime tenure, and in 2006, their average salary was $165, 200 (Schwemle, 2006).
The U.S. circuit courts of appeal are the intermediate appellate courts in between the district courts and the U.S. Supreme Court. The circuit courts of appeal were formed by Congress in 1891 to ease the growing caseload of the U.S. Supreme Court (Champion, Hartley & Rabe, 2008). Federal circuit court judges are also appointed by the president. The number of judges each circuit has is mainly determined by the volume of cases it hears annually. The circuit courts have appellate jurisdiction in the federal system. In other words, they hear appeals on rulings from the district courts. There are 13 courts of appeal—one for each of the 12 circuits, and the 13th is the appellate court for the federal circuit. Each of the 12 circuit courts hears appeals from the states within its circuit. Like their district court counterparts, circuit court judges are appointed by the president, have to be confirmed by the Senate, and also have lifetime appointments. Each circuit also has a chief judge whose tenure in that position can be no longer than 7 years.
The U.S. Supreme Court is the court of last resort in the federal system. The Supreme Court consists of nine justices, eight associate justices, and one chief justice. Again, Supreme Court justices are appointed by the president and must be confirmed by the Senate. They also hold their appointments for life. Although the number of cases appealed to the Court varies each year, it has steadily risen up to almost 10, 000 cases annually. The Court will never hear most of these appeals because they are not of a legal question that is significant enough to merit review. In order for the Court to hear an appeal, 4 of the 9 justices must vote to place the case on their docket. This is known as the rule of four, and annually between 100 and 200 cases make it onto the Supreme Court’s docket. The Supreme Court therefore cannot ensure that justice has been served in every case; rather, they marshal their time to hear the most important constitutional cases or those that involve important federal questions.
For the 100 or so Supreme Court cases each year, both written and oral arguments will be presented to the justices. Other briefs may be filed as well; often, amicus curiae briefs are filed by other parties interested in the case on behalf of one of the parties. Oral arguments are presented before the justices by attorneys from the opposing parties. The justices can ask questions of the attorneys at any time during oral arguments. Once the case has been presented, the justices meet to render an initial decision. Usually, the chief justice is in the majority and therefore assigns one of the other justices in the majority the task of writing the majority opinion. The justice that is most senior on the minority side assigns the task of writing the dissenting opinion to one of the justices in the minority. Opinions can become complicated when, for instance, justices agree but for very different reasons, and each justice in the majority could write a separate opinion. Dissenting justices may do the same. Some justices may even concur in part and dissent in part.
The Supreme Court is the final decision-making authority on all cases. The nine justices are the ultimate arbiters on all federal matters. The chief justice of the Supreme Court also has added responsibilities to supervise federal judges and to assign tasks to the eight associate justices. The annual salary of an associate justice was $203,000 in 2006, while the chief justice earned $212,100 (Schwemle, 2006).
Each state has its own court organization and function. Therefore, there are 50 different court systems in place for dealing with criminal cases at the state level. The complexity of state courts sometimes stems from the fact that various courts may have conflicting or overlapping jurisdictions. The state courts are also diverse in their caseloads, depending on the population of the state. Millions of cases flow through the state court systems each year. In recent years, for instance, over 100 million cases were processed by state courts (Schauffler, LaFountain, Strickland, & Raftery, 2006). Most of these cases (54.7 million) were for traffic offenses. Other cases entering state courts in 2004 included 20.7 million criminal cases, 16.9 million civil cases, 5.7 million domestic relations cases, and 2.1 million juvenile cases (Schauffler et al., 2006). State courts are much busier than their federal counterparts.
State courts can be generally broken down into four levels: courts of limited jurisdiction, courts of general jurisdiction, intermediate courts of appeal, and state supreme courts. Not all states have these four levels, and some states may refer to some of the levels by different names. In some states, judges are not required to have a law degree, especially those who are presiding over courts of limited jurisdiction. This requirement, or lack thereof, stems from the fact that most of these judges are elected officials. In elections, the most popular but not necessarily the most “qualified” candidate will become judge.
The lowest courts in the state court system are the courts of limited jurisdiction. The jurisdiction of these courts is principally less serious criminal offenses and traffic violations. These courts make up the majority of those in the state court system (roughly 80%). It is not surprising, then, that they are also the courts with the largest caseloads in the United States (LaFountain, Schauffler, Strickland, Raftery, & Bromage, 2007). Courts of limited jurisdiction are responsible for disposing of over half of the cases that come into the state court system.
At the next level in the state court system are the courts of general jurisdiction. These courts take care of all other criminal cases that the courts of limited jurisdiction do not have authority over. They differ from courts of limited jurisdiction because they are courts of record; that is, they keep transcripts of all court proceedings. In courts of general jurisdiction, judges normally have practiced law before coming to the bench, either as prosecutors or defense attorneys. This is not necessarily the case for all states, however, because in some states, judges at this level are also elected. A majority of states have requirements in place, including having a law degree or state bar association membership, as well as certain state residency requirements.
Despite their increasing caseloads, these courts have gotten more efficient at managing them. Indeed, it is the increase in cases that has compelled the state courts to more efficiently dispose of cases. More efficient management of cases, reductions of court delays, and increased use of plea bargaining have helped the courts to be able to process their increasing caseloads. Today, roughly 90% of all cases are disposed of through some type of pleabargaining mechanism; relatively few cases go to trial. Obviously, other factors such as geography and population also affect state court caseloads. In 2005, Texas had the highest number of criminal cases in state court with more than 2.5 million. Just over 2.2 million of these cases were processed in courts of limited jurisdiction. Vermont, on the other hand, handled only 17,552 criminal cases. Per capita, however, North Carolina processed the most criminal cases at 19,741 per 100,000 population, and Kansas process the least with 2,167 per 100,000 persons (LaFountain et al., 2007). California had the highest number of fulltime judges at 1,498, and Delaware had the least with 19 full-time judges. Per capita, however, the District of Columbia had the most judges with 10.7 per 100,000 population, while South Carolina had the fewest with only 1.1 per 100,000 people (LaFountain et al., 2007). As can be seen from the above statistics, the caseload in state courts varies by population, and efficiency may be related to the number of judges a state has.
There are intermediate courts of appeal in all but 11 states and the District of Columbia. Similar to the federal court structure, these courts were created to alleviate the caseloads of the state supreme courts. In states where there are fewer cases, there is no need for an intermediate court of appeals. The court of last resort in these states can handle all appeals. Three-judge panels rule on most of the cases that make it to intermediate courts of appeal. Most of the intermediate court of appeals judges are chosen by a nominating commission and are then appointed by the governor. Ostrom, Flango, and Flango (1997) outline at least seven different patterns of flow that appellate cases in various states can take. Some states, for instance, have no intermediate appellate court; in these states, the court of last resort has to hear all appeals that are properly filed. In states that have intermediate courts of appeal, there are five case flow patterns: (1) In 5 states, appeals are filed with the court of last resort, but they can transfer some of those cases to the intermediate appellate court; (2) in 25 states, the appeal has to flow through the intermediate court before reaching the state supreme court; (3) in only 2 states, both the intermediate court of appeals and the court of last resort have discretionary jurisdiction; (4) in 5 states, there are two intermediate appellate courts divided by subject matter that all cases must flow through before reaching the court of last resort; and (5) in 2 states, Texas and Oklahoma, there is only one intermediate appellate court but two courts of last resort that divide their jurisdiction by subject matter.
The final level of court structure in the state court system is the state supreme court, or the state court of last resort. As just mentioned above, the structure of these final courts varies across the states. Some have mandatory jurisdiction, which means that they have to hear all cases that are filed properly, whereas others have discretionary jurisdiction and regulate their caseload by deciding to hear only the cases with the most significance. While most cases will not make it to the state supreme court, the workload of these courts has been gradually increasing every year. The number of justices on these courts also varies by state. Eighteen states have only five justices, seven have nine justices, and the rest all have seven justices (Ostrom et al., 1997). Annual salaries of these judges range from $100,884 in Montana to $182,071 in California (National Center for State Courts, 2006). The methods in which state court judges are selected also vary by jurisdiction.
State Judicial Selection Methods
Alfini (1981) has recognized five basic methods of selecting judges at the state level: partisan and nonpartisan elections, gubernatorial and legislative appointment, and merit selection. Partisan elections of judges involve judges running on a ticket, Republican, Democrat, or other. Candidates who garner the most votes fill the position of judge for a fixed term. Nonpartisan elections are the same as partisan elections except that candidates do not run for the position affiliated with any particular political party. There are numerous criticisms of using elections to seat judges. The first is that those running may not be learned in the law or know anything about the duties of a judge. Another is that in some cases, certain groups will spend money to try to get someone elected and then if elected, the judge may feel obligated to make decisions in the interest of his or her campaign financers rather than in the interest of the law and justice. Another criticism deals with whether the voting public is aware of what qualifications make for a good judge. Most jurisdictions require some type of legal training for newly elected judges, but questions arise concerning whether this training can give judges the tools necessary to make important decisions. Last, research has shown that the dominant force in state election outcomes is party affiliation (Volcansek, 1983). Despite this, the leading method for selecting judges today is still through partisan and nonpartisan elections. Citizens like to have choices regarding who will preside over the courts in their jurisdiction, and alternative methods like gubernatorial and legislative appointment of judges are also not without criticisms.
According to Maguire and Pastore (2005), governors appoint the highest appellate judges in only four states. Local bar associations sometimes make recommendations to governors regarding potential candidates who may be qualified to fill positions, but these are often not considered because of political pressures. Appointing judges, therefore, is also a very political method of judicial selection. Governors often give more credence to the wishes of their key campaign contributors (Pinello, 1995). Some argue that in certain jurisdictions, gubernatorial appointment of judges has led to unfairness based on the race and gender of the candidates (LouisianaTask Force on Women in the Courts, 1992; Pinello, 1995). Others contend that many of the methods result in an equally small number of female and minority judicial appointments (Glick & Emmert, 1987).
Legislative appointment of judges has also been criticized as very political. Whichever party is in control of the legislature at the time of an appointment will most always appoint a judge with the same political affiliation. This is almost an expectation among those in power, and therefore the qualifications of the appointee mean very little. Although very few states use this method to elect their highest judges, those judges selected by legislative appointment tend to be more passive in making legal decisions than their governor-appointed or elected counterparts; they also tend to favor state interests over individual interests (Pinello, 1995).
The appointment of judges, by either governor or legislature, suffers from some of the same problems that election of judges does. The question becomes whether the most qualified candidates are selected. Research tends to be inconclusive when it comes to deciding which method results in the best qualified and most responsible judges (Blankenship, Janikowski, & Sparger, 1992). A fifth method of judicial selection was created in the hope that it would solve the problems and curb criticisms of either election or appointment. It attempts to remove politics from the selection process, basing selection on the merit of the candidates.
Selecting judges based on merit is a method that slowly gained popularity, and no state used merit selection until 1933 (Uppal, 1974). Merit selection became more popular in the 1990s, and by 2004 there were 25 states that set up nominating commissions to select judges based on merit for their highest appellate vacancies (Maguire & Pastore, 2005). One of the most popular merit selection methods is known as the Missouri Plan. It was founded in 1940 and has four essential features: a nominating committee made up of lawyers and others who are appointed by the governor and presided over by a judge, a list of candidates nominated by the committee who are all qualified for judicial vacancies, appointment of a judge from this list by the governor, and retention of that judge based upon the person’s performance while on the bench (President’s Commission on Law Enforcement, 1967). The merit selection process is designed to take politics out of the judicial selection process by putting forth a list in which all those nominated are qualified to perform the duties of a judge (Champion, Hartley & Rabe, 2008).
Merit selection, however, is also criticized by those who argue that politics can never fully be removed from the judicial selection process (Blankenship et al., 1992). Some states that use nominating commissions include Delaware, Georgia, Maryland, Massachusetts, Minnesota, New Mexico, New York, North Carolina, Pennsylvania, Rhode Island, and West Virginia (Maguire & Pastore, 2005). Debate over which method to use for selecting judges continues despite the fact that most experts believe there is no one method that results in better judges (Blankenship et al., 1992). These experts believe that neither elections nor appointments of judicial candidates are good at achieving judicial independence and accountability.
Issues Surrounding Pretrial and Trial Procedures in Court
Bail and Preventative Detention
Bail can be defined as money provided in exchange for release from custody. Bail is basically money or some other surety given as promise that a defendant will appear for court. However, bail is more than money as an assurance to appear for court proceedings. The decision about release or detention represents one of the most important in the U.S. system of justice. Throughout history, bail could range from simply a defendant’s word that he or she would appear to turning over one’s property as a guaranteed appearance at trial. Through the industrial revolution and as the United States became more urbanized, one’s oath or property no longer sufficed as a guarantee of appearance for trial. Bail eventually became a monetary provision given in exchange for release of a defendant. This spawned the business of bail bonding and bondsmen as the main method for release from custody. As money became the main method for release, criticisms began to arise that bail was a form of economic discrimination against poor defendants. Defendants who could afford bail were released; defendants who could not were kept in detention.
Some believe that all defendants should be entitled to bail. However, the Eighth Amendment of the Constitution is not a guarantee of bail, only a protection against excessive bail. Although bail is not intended to be a form of punishment, judges generally have unlimited discretion on the imposition of a bail amount. In the case of Stack v. Boyle (1951), the Supreme Court defined excessive bail as that which is above a reasonable amount necessary to guarantee a defendant’s appearance for trial. The ruling also advised judges to impose similar bail in similar cases and stated that bail should not be frivolous, unusual, or beyond a defendant’s ability to pay.
On any given day, over 50% of the U.S. jail population is composed of pretrial detainees (U.S. Department of Justice [USDOJ], 2006). Holding these detainees who are awaiting trial or disposal of their cases costs the criminal justice system a great deal of money. Research on convictions and sentences of defendants reveals that those who are held in detention are more likely to be convicted, and if convicted are more likely to be sent to prison and also receive lengthier sentences. Nonetheless, despite these statistics the Supreme Court, in the case of United States vs. Salerno (1987), ruled that the practice of preventative detention is constitutional. This ruling justified preventative detention in an attempt to protect the community and as a method of crime control. The Supreme Court also upheld the constitutionality of preventative detention for juveniles in the case of Schall v. Martin (1984).
The Preventative Detention Controversy and Bail Reform
Controversy surrounds how best to preserve the idea of innocent until proven guilty while attempting to protect the community from dangerous offenders or those likely to recidivate. The Bail Reform Act of 1984 allows the detention of a defendant prior to trial if a judge does not believe that any conditions exist that will ensure that the defendant will appear in court. Numerous states also have statutes authorizing detention of those considered dangerous or likely to reoffend.
However, because of continuous criticisms that bail discriminates against poor defendants, many attempts have been made at reforming bail. The Vera Institute of Justice and its famous Manhattan Bail Project in 1961 changed the practice of money as the primary mode of bail. Prior to this, those who had money could make bail and those who did not were detained. The Vera Institute and the Manhattan Bail Project used law students who provided judges with more detailed information about defendants, thereby allowing them to make more informed decisions about which defendants would be most likely to appear or not reoffend. Because the project was such a success, the Bail Reform Act of 1966 was passed and release-on-recognizance (ROR) programs were implemented in courts across the country. The 1966 Bail Reform Act set forth that ROR was to be considered in lieu of monetary bail; it also created a form of bail, referred to as deposit bail, in which defendants would pay 10% of their bail amount.
This act and the practice of ROR would soon fall out of favor because of fears that defendants who were released were reoffending. The Bail Reform Act of 1984 was passed, setting forth new rules regarding bail. These new rules stated that judges should consider protection of the community as well as the defendant’s likelihood of appearance in court when making decisions about bail. Under the 1984 act, many more persons were held in detention. Bail as a method of ensuring a defendant’s appearance in court continues to undergo changes, and more jurisdictions are utilizing nonmonetary methods of bail. Criticisms have also surfaced that race and other extralegal factors may play a more important role in decisions about bail than the risk of either absconscion or community safety.
On both sides of the preventative detention controversy, arguments can be made for reforming bail. Those who believe bail is a form of monetary discrimination that leads to jail overcrowding believe that the principle of innocent until proven guilty should be at the forefront of all bail decisions. Those advocating for tougher standards believe that the primary concern is protection of the community. Until Congress or the Supreme Court decides to modify the rules regarding bail, the debate about what is a just, fair, and protective method of bail decision making is likely to continue. Judges must weigh both sides in making a determination of bail on a case-by-case basis.
The Courts and the Adversary System
As stated at the beginning of this chapter, the primary function of law is perhaps its application in maintenance of the existing social order. The law and legal structure are charged with maintaining order; this task is accomplished through the adversary system that characterizes the U.S. courts. This adversary process places the prosecution against the defense in a search for the truth. Skolnick (1967), however, questions whether the current system is in fact adversarial; he believes that the U.S. system of criminal justice engenders a relationship between prosecution and defense that is more reciprocal than adversarial and is in actuality more one of cooperation. In other words, the prosecution, defense, and judge (the courtroom workgroup) have broader common interests to efficiently process the court’s caseload. Considering that roughly 90% of cases annually result in convictions through plea bargaining, it is hard not to believe that perhaps the system is more negotiative than adversarial.
The notion of the courtroom workgroup is based upon the idea that the courtroom actors must work together to process cases efficiently. Eisenstein and Jacob (1977) believe that the courtroom workgroup has many shared goals, and thus, there are incentives for working together. Eisenstein, Fleming, and Nardulli (1988) believe that the daily procedures of the courtroom strain the relationship between defense attorneys and other members of the courtroom workgroup toward cooperation. The courtroom workgroup, then, consists of prosecutors, defense counsel, bailiffs, clerks, and even defendants whose interactions on a daily basis affect court outcomes.
Under this notion, the contextual characteristics of the court are important to criminal court outcomes. There have been two basic metaphors set forth for understanding the functioning of courts (Eisenstein et al., 1988). One is a legal metaphor where justice is the ultimate result; the other is a metaphor portraying the court as a community. The legal metaphor sees the court as symbolic, an institution that focuses on the rules and procedures set forth. The court as a community assumes that the courtroom actors are all interdependent and rely on each other. Here, the relationships of courtroom actors, technology, and even physical location will affect outcomes. Eisenstein et al. (1988) further argue that the courts are indeed more than just a metaphor for the law. They point out that criminal courts are complex political institutions, and as such, different courtroom communities will dispense different kinds of justice.
The Sixth Amendment Right to Counsel
The Sixth Amendment to the Constitution states that “in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.” This is a fundamental right to criminal court proceedings based on the fact that most defendants are not learned in the law and therefore have very little knowledge of courtroom rules and procedures. The Supreme Court has made rulings purporting that a fair trial cannot be realized without the assistance of counsel. There have been many decisions affording expanded counsel rights to those accused of crimes. For instance, in Powell v. Alabama (1932), the court decided that indigent defendants who are charged with capital offenses must be afforded the assistance of counsel. In Johnson v. Zerbst (1938), the court ruled that assistance of counsel is mandatory for indigent defendants in federal criminal cases. Gideon v. Wainwright (1963) expanded this requirement to defendants in state courts. Argersinger v. Hamlin (1972) further stated that no person may be imprisoned, for any offense, unless represented by counsel. The court in Scott v. Illinois (1979), however, ruled that counsel need be provided only where the prosecution is seeking imprisonment as a punishment. These rulings and others like them have ensured that indigent defendants are given the provision of counsel at most critical stages in the criminal justice process.
Public Defenders versus Private Attorneys
Many have argued that because of the courtroom workgroup, public defenders do not have the best interests of their clients in mind (Blumberg, 1998; Sudnow, 1965). Mather (1974) contends that it is not that public defenders do not have their client’s best interests in mind but rather that they are more realistic about the possible outcomes for them. Neubauer (1974) supports this idea; his research shows that attorneys with good relationships to the courtroom workgroup were better able to predict court outcomes for their clients. Sudnow (1965), however, found that public defenders were more likely to assume that their clients were guilty, whereas those who hired a private attorney were deemed to be innocent and were therefore afforded a better defense.
Whether the type of attorney a defendant has affects case outcomes continues to be an issue because of criticisms that the criminal justice system processes are biased based on the socioeconomic status of the defendant (Nardulli, 1986). Discrimination of public defenders continues because they hold an ambiguous role in the criminal court system (Eisenstein & Jacob, 1977). They are advocates of individual rights and the representatives for indigent defendants. They are also, however, seen as double agents (Blumberg, 1998). In other words, they not only work for indigent defendants but also for the state. They are seen as being co-opted to the courtroom workgroup, and in order to ensure that cases flow through the system effectively and efficiently, they are likely to negotiate with prosecutors. Although most research finds that offense seriousness and prior criminal history are the most significant predictors of courtroom outcomes, extralegal factors still have an effect in some contexts. Eisenstein and Jacob say that the nature of charges, the strength of evidence, characteristics and background of the defendant, and characteristics regarding type of attorney and judge all influence criminal justice outcomes. These factors are all in some manner related to the framework of the courtroom workgroup.
Theoretical Perspectives regarding Criminal Court Outcomes
Outcomes in court regarding decision making of courtroom actors generally are viewed through two theoretical perspectives. The first is that outcomes are dependent primarily on legally relevant factors such as the seriousness of the crime committed by the defendant and the defendant’s prior criminal record. This view of decision making is referred to as formal rationality (Dixon, 1995). This theoretical perspective posits that the formal legal rules are what govern courtroom decisions; therefore, extralegal factors like attorney type, socioeconomic status, gender, and race/ethnicity of the defendant will have no influence on criminal justice outcomes.
The second theoretical perspective posits that outcomes in the criminal justice system are influenced by both legal and extralegal factors. One such theory along these lines was proposed by Albonetti, (1987, 1997), labeled bounded rationality. This theory suggests that courtroom actors often have little time or information when making decisions and may rely therefore on stereotypes regarding the dangerousness and risk a defendant poses based on extralegal factors. According to this perspective, judges and prosecutors make decisions using both legal and extralegal factors.
A similar theory called the focal concerns perspective (Steffensmeier, Ulmer, & Kramer, 1998) proffers that judges use three focal concerns when making decisions. The three focal concerns are blameworthiness, protection of the community, and practical or organization implications. According to this theory, “Judges may rely not only on the defendant’s present offense and prior criminal conduct, but also on attributions linked to the defendant’s gender, race, social class, or other social positions” (Steffensmeier & Demuth, 2006, p. 151). Due to limited time and information, judges use a perceptual shorthand to make decisions about an offender’s dangerousness and risk for recidivism based on the three focal concerns, which then predicts sentence severity.
The first theoretical perspective, formal rationality, would predict no difference in criminal court outcomes based on extralegal factors. The second perspective, which encompasses bounded rationality and focal concerns, would predict that variables such as type of counsel, gender, race/ethnicity, and socioeconomic status would in some circumstances have an effect on decisions surrounding criminal court outcomes.
Courtroom outcomes and the decision-making processes of courtroom actors will continue to be a very complex issue. At the outset, the court structure in the United States is somewhat confusing, as there is little uniformity among jurisdictions. The criminal court system is a very important institution in society; it is the structure that breathes life into the law and the avenue through which social control is maintained. Without the courts and criminal procedures, the law could not function. It is also a means for social change in society.
The U.S. court system is best characterized as a dualcourt system. Each state and the federal government has its own court system and organization to deal with cases that come under its authority. These systems, however, are not perfect. There are criticisms at all stages and of all members of the courtroom workgroup. Criticisms have also been levied at the idea that the system is adversarial; arguments are that because a majority of cases are plea-bargained, the system is better characterized by cooperation and negotiation. It has been said that the prosecution and defense are co-opted and are more concerned with efficiently processing cases than ensuring that justice has been done. Public defenders are further criticized for not zealously defending their clients. Indeed, their caseloads are high and their resources low, but most research shows that they are effective and do achieve outcomes for their defendants that are similar to, or, in some cases, better than those who privately retain attorneys.
Although the structure and function of the American criminal court system can be somewhat confusing, scholars continue to study and research the courts and their decision-making practices. Decisions and processes are continually being examined and assessed to ensure that procedural rules are adhered to and due process rights are being fulfilled. Court structures across the country continue to experience increases in their caseloads. Judges in some jurisdictions are appointed and in others, elected. The adversary process that characterizes courts may be a myth because of characterizations of courtrooms and their actors (the courtroom workgroup) as negotiators and not adversaries. Most jurisdictions rely on plea bargaining in order to efficiently and effectively manage their caseloads. The courts have in the past been avenues for change and have always been important mechanisms for the maintenance of order in society. The courts will continue to be criticized, but it may be because they will continue to hold an important place in the democratic ideals of United States society.