IEJS > Survey of CJ > Chapter 1Survey of Criminal JusticeChapter OneWhat is Criminal Justice?
This chapter title is a critical question that is often overlooked because the answer is taken for granted. The first element, crime, is easy to understand. A crime is simply a violation of some local, state, or federal criminal law for which there is no justification or excuse. Everyone has an idea of what justice is. The problem is that everyone will have a slightly different definition of the term. It is in this lack of agreement on what justice really is that we find the beginnings of many of the controversial issues in criminal justice today. Some conceptualize justice in terms of equality. That is, everyone should have the same amount, regardless of what they produce. Others define justice in terms of equity: People should get benefits in proportion to what they contribute to producing them. That is, the more people produce, the more they should get. The converse of this is also true according to this definition of justice: Punishment should be meted out in direct proportion to the harm done. This is the idea of “just deserts” and is the basis for the ancient doctrine of “an eye for an eye.” Another definition of justice focuses not on outcomes, but on process. The logic here is that justice is served if the process is fair or impartial. This is the conceptualization of justice that is most closely associated with the American legal system. This definition of justice is closely related to the legal concept of due process. Due process essentially means equal treatment of all by the legal system. These differing ideas of justice create a continuing conflict within our criminal justice system. Due process is insured by a guarantee of individual rights. The term individual rights refers to rights guaranteed to all Americans by the Constitution of the United States. These rights are of critical importance to criminal defendants facing the criminal justice system. Also of importance is the idea of public order. Public order refers to protecting the public safety and preventing future crimes. Both individual rights and public order are important to our society. The problem is that policies and practices designed to increase one are often seen to diminish the other. For example, when the Supreme Court decided the Miranda v. Arizona case, many police and prosecutors were outraged. Miranda was considered as undermining the criminal justice system’s ability to maintain public order. On the other hand, many criticized the USA PATRIOT Act of 2001 (which dramatically increased the investigatory authority of law enforcement in an effort to combat terrorism) as undermining individual liberties for the sake of public order. Criminal justice, because of the criminal component, must be differentiated from civil justice. Civil justice deals with the private rights of persons. When a person’s private rights are violated, the wrong is called a tort. When a person commits an act that violates the rights of all of society as recognized by the law, it is called a crime. The same action can be both a tort and a crime. Since crimes are thought to be against everyone, society, as a whole, prosecutes criminals. In practice, this means that criminal prosecutions are conducted in the name of the state, the commonwealth, the people, and so forth, depending on the traditions of each state. Putting all these ideas together, we can define criminal justice as a system designed to protect society from crime by preventing crime and punishing criminals. There is no single criminal justice system in the United States. We have many similar systems that are individually unique. Criminal cases may be handled differently in different jurisdictions, but court decisions based on the due process guarantees of the U.S. Constitution require that specific steps be taken in the administration of criminal justice so that the individual will be protected from undue intervention from the State. The Structure of the American Justice System Under our form of government, each State and the Federal Government has its own criminal justice system. All systems must respect the rights of individuals set forth in court interpretation of the U.S. Constitution and defined in case law. State constitutions and laws define the criminal justice system within each State and delegate the authority and responsibility for criminal justice to various jurisdictions, officials, and institutions. State laws also define criminal behavior. Municipalities and counties further define their criminal justice systems through local ordinances that establish the local agencies responsible for criminal justice processing that were not established by the State. Congress has also established a criminal justice system at the Federal level to respond to Federal crimes such a bank robbery, kidnapping, and transporting stolen goods across State lines. Very few crimes, however, are under exclusive Federal jurisdiction. The responsibility to respond to most crime rests with State and local governments. Police protection is primarily a function of cities and towns. Corrections is primarily a function of State governments. Most justice personnel (two-thirds) are employed at the local level. The separation of powers inherent in government in the United States means that different parts of government make different contributions to the criminal justice system. The legislatures, both state and federal, serve to define crimes, establish sentences, and appropriate funding for criminal justice agencies. The judiciary performs several functions in the criminal justice system. The trial courts adjudicate the guilt of criminal defendants. Appellate courts, especially the State and Federal supreme courts, interpret the law according to constitutional principles. The power of judicial review gives the courts the ability to determine that a law made by the legislature is unconstitutional and thus void. The major power of the executive branch is that of appointment: mayors, governors, and the president of the Untied States appoint many judges, police chiefs, and corrections officials. The Criminal Justice Process Criminal justice is a process, involving a set of steps beginning with a criminal investigation and, if the offender does not leave the system somewhere along the way, ending with the release of the convicted offender from correctional supervision. The sections below describe how a criminal case moves through the criminal justice system. This information is presented in the order that cases most often proceed through the three components of the criminal justice system: (1) police, (2) the courts, and (3) corrections. Procedural rules and discretionary decision-making are at the center of this process. This information is offered as a general overview of the rest of this text. Police The criminal justice system does not respond to many crimes because a large amount of crime goes unreported. When law enforcement agencies do learn about crimes, they do so from the reports of victims or other citizens, from discovery by a police officer in the field, from informants, or from investigative work. Once a police agency has established that a crime has been committed, a suspect must be identified and apprehended before the case to proceed through the justice system. Sometimes, society gets lucky and a suspect is apprehended at the scene. Often, however, identification of a suspect requires an extensive investigation. Many times, no suspect is identified or apprehended. In some cases, a suspect is arrested and later the police determine that no crime was committed and the suspect is released. Courts After an arrest, police agencies present information about the case and about the accused to the prosecutor, who will decide if formal charges will be filed with the court. If no charges are filed, the accused must be released. The prosecutor can also drop charges after making efforts to prosecute. Such a failure to prosecute on the part of the prosecutor is known by the Latin legal phrase nolle prosequi. A suspect charged with a crime must be taken before a judge without unnecessary delay. At the initial appearance, the magistrate informs the accused of the charges and decides whether there is probable cause to detain the accused. If the offense is not very serious, a determination of guilt and the assignment of a penalty may also occur at this stage. Generally, the defense counsel is also assigned at the initial appearance. The Constitution of the United States guarantees suspects being prosecuted for serious crimes the right to be represented by a lawyer. If the court determines the suspect is indigent (poor) and cannot afford a lawyer, the court will assign counsel at the public's expense. A pretrial-release decision may be made at the initial appearance, but may occur at other hearings or may be changed at another time during the process. Different jurisdictions do it different ways. Pretrial release is most often accomplished through bail. Bail was traditionally intended to ensure appearance at trial. Suspects are constitutionally protected against excessive bail (8th Amendment). Many jurisdictions permit pretrial detention of defendants accused of serious offenses and judged to be dangerous to society. Courts often base pretrial release decisions on information about the defendant, such as drug use, residence, employment, and family ties. The court may decide to release accused persons on their own recognizance or into the custody of a third party after the posting bond or on the promise of satisfying certain conditions such as taking periodic drug tests. In many jurisdictions, a preliminary hearing may follow the initial appearance. The primary function of this hearing is for the judge to find out if there is probable cause to believe that the accused committed a crime within the jurisdiction of the court. If the judge does not find probable cause, the case is dismissed. If the judge decides that probable cause does exist the case may be bound over to a grand jury. A grand jury hears evidence against the accused presented by the prosecutor and decides if there is sufficient evidence to have a criminal trial. If the grand jury finds sufficient evidence, it submits to the court an indictment. Misdemeanor cases and some felony cases proceed by the issuance of an information. An information is a formal accusation submitted to the court by a prosecutor. In some jurisdictions, indictments may be required in felony cases, others use information for all types of cases. In some jurisdictions, the defendant may choose to waive a grand jury indictment and allow the prosecution to proceed with an information for the crime. Once an indictment or information has been filed with the trial court, the accused is scheduled for arraignment. At arraignment, accused persons are informed of the charges, advised of their rights, and asked to enter a plea to the charges. Sometimes, a plea of guilty is the result of negotiations between the prosecutor and the defendant resulting in a reduction of charges or a lighter sentence. Such negotiations are called plea-bargaining. If the accused pleads guilty or pleads nolo contendere, the judge may accept or reject the plea. If the plea is accepted, no trial is held and the offender is sentenced at the arraignment or, most often for serious offenses, later. The plea may be rejected and proceed to trial if, for example, the judge believes that the accused may have been coerced to plead guilty. If the accused pleads not guilty or not guilty by reason of insanity, a trial date is set. A person accused of a serious crime is guaranteed a trial by jury ( Amendment). Generally, the accused may ask for a bench trial where the judge, rather than a jury, serves as the finder of fact. In both instances, the prosecution and defense present evidence by questioning witnesses while the judge decides on issues of law. The trial results in acquittal or conviction on the original charges or on lesser-included offenses. After the trial, a defendant may request appellate review of the conviction or sentence. In some cases, appeals of convictions are a matter of right, guaranteed by law. All States with the death penalty provide for automatic appeal of cases involving a death sentence. Other appeals may be subject to the discretion of the appellate court and are granted only on acceptance of a defendant's petition for a writ of certiorari. After a conviction, the judge or jury, depending on the jurisdiction and type of case, imposes a sentence. In arriving at an appropriate sentence, a sentencing hearing may be held at which evidence of aggravating or mitigating circumstances is considered. In assessing the circumstances surrounding a convicted person's criminal behavior, courts often rely on presentence investigations (PSI) by probation agencies. Increasingly, courts also consider victim impact statements. The sentencing choices that may be available to judges and juries include one or more of the following:
In some jurisdictions, offenders may be sentenced to alternatives to incarceration that are considered more severe than straight probation but less severe than a prison term. Examples of such sanctions include boot camps, intense supervision often with drug treatment and testing, house arrest and electronic monitoring, denial of Federal benefits, and community service. In many states, statutes mandate that persons convicted of certain types of offenses serve a prison term. Most jurisdictions permit the judge to set the sentence length within certain limits, but some have determinate sentencing laws that stipulate a specific sentence length that must be served and cannot be altered by a parole board. Corrections Offenders sentenced to incarceration usually serve time in a local jail or a State prison. Offenders sentenced to less than one year generally go to jail. Offenders sentenced to more than one year generally go to prison. Offenders sentenced to the Federal system or a State prison system may be held in prisons with varying levels of custody or in a community correctional facility. A prisoner may become eligible for parole after serving a specific part of his or her sentence. Parole is the conditional release of a prisoner before the prisoner's full sentence has been served. The decision to grant parole is made by an authority such as a parole board, which has power to grant or revoke parole or to discharge a parolee altogether. The way parole decisions are made varies widely among jurisdictions. Offenders may also be required to serve out their full sentences prior to release. Those sentenced under determinate sentencing laws can be released only after they have served their full sentence less any goodtime received while in prison. Inmates get goodtime credits against their sentences automatically or by earning them through participation in programs. Parolees are under the supervision of a parole officer in the community for the balance of their sentences. This supervision is governed by specific conditions of release, and the parolee may be returned to prison for violations of such conditions. Recidivism Once offenders are released from the jurisdiction of a criminal justice agency, they may be processed through the criminal justice system again for a new crime. Long-term studies show that many suspects who are arrested have prior criminal histories and those with a greater number of prior arrests were more likely to be arrested again. As the courts consider prior criminal history at sentencing, most prison inmates have a prior criminal history and many have been incarcerated before. Nationally, about half the inmates released from State prison will return to prison. The Juvenile Justice System Juvenile courts usually have jurisdiction over matters concerning children, including delinquency, neglect, and adoption. They also handle status offenses such as truancy and running away. Status offenses are acts that would not have been illegal if the actor were an adult. State statutes define which persons are under the original jurisdiction of the juvenile court. The upper age of juvenile court jurisdiction in delinquency matters is 17 in most States. The processing of juvenile offenders is not entirely different from adult criminal processing, but there are important differences. Law enforcement officers refer many juveniles to juvenile courts, but many others are referred by school officials, social services agencies, neighbors, and even parents, for behavior or conditions that are determined to require intervention by the formal system. At arrest, a decision is made either to send the matter further into the justice system or to divert the case out of the system, often to alternative programs. Examples of alternative programs include drug treatment, individual or group counseling, or referral to educational and recreational programs. When juveniles are referred to the juvenile courts, the court's intake department or the prosecuting attorney determines whether sufficient grounds exist to warrant filing a petition that requests an adjudicatory hearing or a request to transfer jurisdiction to criminal court. At this point, many juveniles are released or diverted to alternative programs. All States allow juveniles to be tried as adults in criminal court under certain circumstances. In many States, the legislature statutorily excludes certain serious offenses from the jurisdiction of the juvenile court regardless of the age of the accused. In some States and at the Federal level under certain circumstances, prosecutors have the discretion to either file criminal charges against juveniles directly in criminal courts or proceed through the juvenile justice process. The juvenile court's intake department or the prosecutor may petition the juvenile court to waive jurisdiction to criminal court. The juvenile court also may order referral to criminal court for trial as adults. In some jurisdictions, juveniles processed as adults may be sentenced to either an adult or a juvenile facility. In those cases where the juvenile court retains jurisdiction, the case may be handled formally by filing a delinquency petition or informally by diverting the juvenile to other agencies or programs in rather than conducting further court processing. If a petition for an adjudicatory hearing is accepted, the juvenile may be brought before a court quite unlike the court with jurisdiction over adult offenders. Despite the considerable discretion associated with juvenile court proceedings, juveniles are afforded many of the due-process safeguards associated with adult criminal trials. A few States permit the use of juries in juvenile courts. Since the U.S. Supreme Court’s holding that juries are not constitutionally required in juvenile hearings, most States do not make provisions for juries in juvenile courts. In disposing of cases, juvenile courts usually have far more discretion than adult courts. In addition to such options as probation, commitment to a residential facility, restitution, or fines, State laws grant juvenile courts the power to order removal of children from their homes to foster homes or treatment facilities. Juvenile courts also may order participation in special programs aimed at shoplifting prevention, drug counseling, or driver education. Following release from an institution, juveniles are often ordered to a period of aftercare which is similar to parole supervision for adult offenders. Juvenile offenders who violate the conditions of aftercare may have their aftercare revoked, resulting in being recommitted to a secure detention facility. The Role of Citizens Most discussions on the criminal justice system make no mention of the public that the criminal justice system is supposed to protect and serve. American citizens play several important roles in the criminal justice system. Citizens have a significant impact on the criminal justice system through interest groups. Representatives of these interest groups lobby lawmakers to pass legislation that favors the interests of the interest group. Some interest groups are concerned with a broad range of interests, such as the AARP and the NAACP. Other groups are interested in a narrow agenda, such as the NRA. Citizens also have an important impact of judicial policymaking. Representatives of disadvantaged groups can influence court decisions by filing amicus curiae briefs in cases before the appellate courts. These “friend of the court” briefs present legal arguments on behalf of others. Citizens are often called upon to provide service to the justice system directly as jurors. The American system of justice has a long standing commitment to lay persons as finders of fact in criminal cases. In political theory, the jury system is seen as protecting the citizen against unjust convictions by the government. Citizens also report crimes and testify in criminal cases. Very few crimes would ever be resolved without information coming from the public. Witnesses to a crime are considered to be very good evidence, and almost all criminal proceedings will involve the testimony of lay witnesses. The Role of Individual Rights Americans are very mindful of their rights. Individual rights are rights that the government cannot abridge. Throughout the criminal justice process, the first ten amendments the U.S. Constitution—the Bill of Rights— impose procedural fairness, as does the Fourteenth Amendment. Of these rights, the idea of due process is the most general; it, simply put, means procedural fairness. After the American Civil War, the Fourteenth Amendment was added to the constitution. The Fourteenth Amendment directly prohibits the States from violating the people’s right to due process of law. The most important guardian of individual rights is the Supreme Court. Because of the court’s power to interpret the constitution, coupled with the constitution’s legal supremacy, all facets of the criminal justice system are regulated in some degree by the court. Important terms, such as “due process” and “equal protection” were left up to the Supreme Court to define. Discretion Decision making within the criminal justice system involves much more than learning the rules of the system and applying those rules. At every level of the system, there are always individuals who exercise their own judgment in a particular case. Discretion comes into play when police officers decide whether to arrest, question, investigate, use force, and so forth. Prosecutors exercise individual judgment in deciding whether to charge a person with a crime and whether to plea bargain or not. Judges exercise discretion with nearly every ruling they make. Parole board members must use discretion when deciding whether an inmate should be released from prison. Criminal Justice as a Field of Study The study of why people commit crimes is a very old enterprise. What we refer to as criminal justice today, however, is of relatively recent origin. It is important to note that criminal justice is different from criminology. Criminology is the study of crime as a social phenomenon and a human behavior. Criminal justice, on the other hand, is the study of the processes and people involved in the justice system. From this definition, we can see that criminal justice is much broader in scope. The presence of criminal justice in universities began in the 1970s when federal funding was made available to establish them (LEEP funding). These early academic departments drew upon a wide variety of disciplines, including sociology, political science, psychology, economics, business, and the sciences. The early academic curriculum was strongly oriented toward applied knowledge and geared toward professional development of practitioners. Members of other academic disciplines often referred to these early criminal justice programs as “cop shops” or “cop schools”—definitely not real college material. Modern criminal justice departments have made great strides in earning the respect of their academic peers as serious scholars. In its 30 year history, criminal justice has moved from teaching new cops how to do what cops do to exploring how they (and other components of the criminal justice system) can do their jobs more effectively and efficiently. What System? Many critics believe that criminal justice is not really a system at all. They argue that criminal justice agencies are independent from each other and get their objectives, funding, and authority from different sources. Much of this criticism revolves around the fact that these mostly autonomous agencies rarely consider the impact of their policies and actions on other agencies. For example, a get tough on drugs “sweep” conducted by police might overload already strained jail resources.
References and Further Reading American Association of Retired Persons (AARP). Available: http://www.nra.org/ Brady Campaign to Prevent Gun Violence. Available: http://www.handguncontrol.org/ Bureau of Justice Statistics. The Justice System. Available: http://www.ojp.usdoj.gov/bjs/justsys.htm Deflem, M. (2002). Teaching Criminal Justice in Liberal Arts Education: A Sociologist’s Confessions. ACJS Today, Newsletter of the Academy of Criminal Justice Sciences, 22(2):1,3-5. Available: http://www.cla.sc.edu/socy/faculty/deflem/zteachCJ.htm National Association for the Advancement of Colored People (NAACP). Available: http://www.naacp.org/index.shtml National Rifle Association (NRA). Available: http://www.nra.org/ This page available at: |