Criminal Justice System

views updated Jun 11 2018


A criminal justice system is a set of legal and social institutions for enforcing the criminal law in accordance with a defined set of procedural rules and limitations. In the United States, there are separate federal, state, and military criminal justice systems, and each state has separate systems for adults and juveniles.

Criminal justice systems include several major subsystems, composed of one or more public institutions and their staffs: police and other law enforcement agencies; trial and appellate courts; prosecution and public defender offices; probation and parole agencies; custodial institutions ( jails, prisons, reformatories, halfway houses, etc.); and departments of corrections (responsible for some or all probation, parole, and custodial functions). Some jurisdictions also have a sentencing guidelines commission. Other important public and private actors in this system include: defendants; private defense attorneys; bail bondsmen; other private agencies providing assistance, supervision, or treatment of offenders; and victims and groups or officials representing or assisting them (e.g., crime victim compensation boards). In addition, there are numerous administrative agencies whose work includes criminal law enforcement (e.g., driver and vehicle licensing bureaus; agencies dealing with natural resources and taxation). Legislators and other elected officials, although generally lacking any direct role in individual cases, have a major impact on the formulation of criminal laws and criminal justice policy. Such policy is also strongly influenced by the news media and by businesses and public-employee labor organizations, which have a major stake in criminal justice issues.

The notion of a "system" suggests something highly rationalcarefully planned, coordinated, and regulated. Although a certain amount of rationality does exist, much of the functioning of criminal justice agencies is unplanned, poorly coordinated, and unregulated. No jurisdiction has ever reexamined and reformed all (or even any substantial part) of its system of criminal justice. Existing systems include some components that are very ancient (e.g., jury trials) alongside others that are of quite recent origin (e.g., specialized drug courts). Moreover, each of the institutions and actors listed above has its own set of goals and priorities that sometimes conflict with those of other institutions and actors, or with the supposed goals and priorities of the system as a whole. Furthermore, each of these actors has substantial unregulated discretion in making particular decisions (e.g., the victim's decision to report a crime; police and prosecutorial discretion whether and how to apply the criminal law; judicial discretion in the setting of bail and the imposition of sentence; and correctional discretion as to parole release, parole or probation revocation, prison discipline, etc.).

Nevertheless, all of the institutions and actors in the criminal justice system are highly interdependent. What each one does depends on what the others do, and a reform or other change in one part of the system can have major repercussions on other parts. It is therefore very useful to think about criminal justice as a system, not only to stress the need for more overall planning, coordination, and structured discretion, but also to appreciate the complex ways in which different parts of the system interact with each other.

This entry describes the major components of contemporary American criminal justice systems, presents some of the available data on how these components typically operate in practice, and examines the various uses of the system concept. The entry will focus on aspects of criminal justice involving adult offenders and designed to enforce civilian criminal laws. There is, however, considerable overlap between the adult and juvenile systems. The police spend a substantial proportion of their time on juvenile suspects; serious juvenile offenders may be tried as adults; and juvenile court convictions (adjudications) may be taken into account in the sentencing of young adults.

Readers should also be aware that several legal regimes outside of the adult, juvenile, and military criminal justice systems can be used to impose serious deprivations of liberty and property (usually with far fewer legal safeguards than apply to criminal prosecutions). Of these, three deserve special mention. First, persons can be seized and detained, sometimes for lengthy periods, under the civil and administrative procedures used to enforce immigration laws. Second, state and federal law enforcement authorities often employ civil forfeiture procedures, permitting the confiscation of property alleged to be the fruit of criminal activity (for example, money earned from selling drugs) or to have served as an instrumentality of crime (for example, a car used to carry the drugs). Third, persons found to be mentally ill and dangerous to themselves or others are subject to involuntary civil commitment. Such a commitment can lead to indefinite confinement in a secure mental health facility that, from the inmate's perspective, is not much different than a prison. A number of states have expanded these procedures to make it easier to commit sex offenders who have completed their criminal sentences but who are believed to be too dangerous to release into the community.

Structural and theoretical components of criminal justice systems

The principal components of American criminal justice systems are jurisdictional (resulting in separate federal and state systems), normative (the goals, values, and limitations provided by criminal and procedural laws), functional (the activities that typically occur at different stages of the process), and institutional (the officials, agencies, and other actors that handle these various stages).

Separate federal, state, and local criminal justice systems. Each of the fifty states has its own criminal justice system. Some components of the system are organized at the state level (e.g., courts of appeal, state prisons, parole boards, police crime labs); other components are organized at the city and county level (e.g., trial courts, local jails, and most police departments). Some components are found at both state and local levels (e.g., legislative bodies, prosecution and defense offices, probation officers). For minor crimes, a state's criminal justice system actually consists of many independent local systems. Minor crimes are often defined by local ordinances or by state statutes that authorize only local jail and other community sentences, and such crimes are usually processed entirely by local officials. For more serious offenses, it is meaningful to speak of a statewide "system," but one with very substantial local variations. Although such offenses are usually defined by state statutes authorizing state prison sentences, they are processed by local police, prosecutors, attorneys, pretrial and trial judges, and probation officers, who may be strongly attached to local values and traditions. Local variation also results from factors such as differing rates and types of crime, and problems of justice administration such as court congestion and jail overcrowding.

There is also a nationwide federal criminal justice system, consisting of Congress; general and specialized police agencies such as the FBI and the Secret Service; prosecutors in the Department of Justice and in over ninety local United States attorneys' offices; federal public defenders and private defense attorneys; trial (district) courts; intermediate (circuit) courts of appeal; the U.S. Supreme Court; the Federal Sentencing Commission; and the U.S. Bureau of Prisons. Under the American federal constitutional system, the general police power belongs to the states, and the federal government is, in principle, a limited government exercising the powers specified in the U.S. Constitution. Thus, most federal crimes and enforcement activities are limited to conduct jeopardizing a particular federal program (e.g., the federal income tax), or involving some aspect of international or interstate commerce or movement (e.g., mail fraud; interstate transport of stolen property).

State crimes and enforcement activities include a much broader range of behavior, indeed almost any conduct that could be considered criminal, with the exception of certain matters, such as immigration, which lie within the exclusive control of Congress. There is considerable overlap between state and federal criminal jurisdiction, particularly with respect to illegal drugs and prohibited weapons. Cases are sometimes investigated at one level, and prosecuted at the other. In general, federal police and prosecutors use their discretion to select and prosecute only the most serious crimes, or those which the states are unwilling or unable to handle effectively, for example: crimes involving activities in several states, organized crime, complex economic crimes, corruption of local law enforcement or political officials, or denial of civil rights guaranteed by the U.S. Constitution.

The District of Columbia has its own criminal justice system, operating under laws passed by Congress, but with a broad criminal caseload more similar to that of state systems.

State and federal criminal justice systems are generally very similar in their major features, but quite diverse in their details. No particular state is widely regarded as typical, and the specialized criminal jurisdiction of the federal courts precludes using that system to illustrate the entire country. The remainder of this entry will focus primarily on state and local systems. Although federal criminal jurisdiction and federal criminal caseloads have grown steadily over the years, and have increased dramatically since a "war on drugs" was declared in the 1980s, about 95 percent of criminal defendants continue to be prosecuted in state courts, under state criminal laws (Harlow, p. 4).

Normative dimensions: laws defining crimes and criminal procedure. Criminal justice systems exist to enforce criminal laws, and such enforcement is both structured and limited by rules of procedure. Although many aspects of criminal justice operate withoutor even in violation oflegal rules, the goals, values, and specific provisions of the applicable criminal and procedural law have a major bearing both on how a given system functions and on any assessment of such functioning.

Criminal laws. In the United States, virtually all crimes are defined at least partially by statutes enacted by a legislative body. Within state systems, local legislative bodies usually only have power to enact ordinances creating minor offenses, and only if such local laws do not conflict with state criminal laws governing the same conduct. The power that early U.S. courts exercised to create or expand "common law" crimes is now seen as inconsistent with the fundamental requirement of "fair notice" to the citizen in advance of the acts that are criminally punished. However, many criminal statutes are written in general language, so that courts retain considerable power to interpret statutory terms defining the required elements of liability (actus reus and mens rea). Moreover, affirmative defenses (e.g., self defense, defense of property, necessity, duress, insanity) are often only loosely specified by statute, and some defenses have been recognized by courts without any statutory basis.

The legal categories of crimes in each system determine not only the type and severity of authorized penalties, but also the jurisdiction of trial courts and the applicable procedural rules (more serious offenses are governed by more elaborate procedural safeguards). U.S. criminal law traditionally recognizes three major classes of crime: felonies, misdemeanors, and a third category variously called violations, petty offenses, or petty misdemeanors. In most states, felonies are defined as offenses punishable with more than one year of imprisonment. Such lengthy terms are normally served in large, state-run prisons, but felons may also receive shorter custodial terms to be served in a local jail. Common examples of felonies include murder, manslaughter, rape, robbery, kidnaping, aggravated assault, arson, burglary, forgery, and non-petty cases of theft, possession of stolen property, criminal damage to property, fraud, drug possession or trafficking, illegal weapons, gambling, and prostitution.

Misdemeanors include less serious versions of most of the above offenses, various public order crimes (drunk in public or other disorderly conduct; violation of building or health codes), and serious moving traffic violations (drunk driving; driving without a license). Many states recognize more than one category of misdemeanor offense. In Minnesota, gross misdemeanors are punishable with up to one year in jail, and in most respects are treated procedurally the same as felonies. Ordinary misdemeanors are punishable with up to ninety days in jail, and are handled under simpler, less demanding procedures. The least serious category of offenses (labeled petty misdemeanors in Minnesota) is usually punishable with a fine or other noncustodial penalty. This category includes lesser traffic violations and various minor regulatory offenses. Such violations are not deemed to be "crimes" in many states, but they are generally enforced by the police, and some criminal procedures apply. Most of these cases are handled by payment of scheduled fines, without any court appearance.

Felony cases are generally prosecuted by government attorneys at the county or multicounty level, in a court of general jurisdiction organized at the same level. In many states, misdemeanor cases are handled by city attorneys, and are tried in a municipal or other court of limited jurisdiction, or in the municipal division of county or district court.

Sentencing laws and purposes. Criminal statutes specify the types and amounts of punishment authorized for a given offense, and sometimes even impose a specific penalty (e.g., life in prison without parole, for certain murders) or a minimum penalty (e.g., a mandatory minimum prison sentence of at least five years, for persons selling a certain type and quantity of drugs). Criminal codes sometimes further specify the general purposes that criminal sentences are supposed to serve; however, since these purposes are rarely specified in an exhaustive or detailed manner, courts retain substantial authority to interpret and apply sentencing goals.

Five major purposes of punishment have traditionally been recognized: rehabilitation, incapacitation, deterrence, denunciation, and retribution. The first four are designed to prevent crime. Rehabilitation does this through treatment, education, or training of offenders. Incapacitation prevents crime by imprisoning dangerous offenders, thus physically restraining them from committing crimes against the public. Deterrence discourages future crimes by the defendant ("special" deterrence) and by other would-be offenders ("general" deterrence), through fear of punishment.

The theory of denunciation (sometimes referred to as the expressive function of punishment, indirect general prevention, or affirmative general prevention) views criminal penalties as a means of defining and reinforcing important social norms of behavior. Given the many difficulties of preventing crime by deterrent threats, incapacitation, or treatment (in particular, the fact that so few offenders are caught and punishedsee statistics, presented below), this norm-reinforcement process may be one of the most important crime-preventive effects of punishment.

The fifth traditional sentencing goal, retribution, aims not to prevent crime but rather to give defendants their "just deserts" by imposing penalties directly proportional to the seriousness of the offense and the offender's blameworthiness. What some have called "defining" retributivism seeks to scale punishment precisely to each defendant's desert, while also ensuring that equally deserving offenders receive similarly severe sanctions (sentencing uniformity). A more modest version of desert theory, "limiting" retributivism, merely sets upper and lower boundssentences must not be excessively severe or unduly lenient; within these outer limits, punishment is scaled according to what is needed to achieve the crime-preventive goals listed above, and should be the least severe sanction necessary to achieve all of these goals (sentencing "parsimony") (Morris; Frase, 1997).

In addition to the principal goals outlined above, numerous other sentencing purposes, limitations, and theories have been recognized. Constitutional and international human rights norms forbid physically cruel or inhumane punishments. In recent years, more and more courts and other sentencing officials have applied the theory of restorative justice, which seeks to obtain restitution or other satisfaction for the victim or the community, promote victim-offender reconciliation and healing, and provide more opportunities for victims and community representatives to participate in the sentencing and punishment processes. Another new punishment goal in recent years is "truth in sentencing"offenders should serve almost all of the sentence imposed by the trial court, and should not be released early on parole. However, reforms based on this goal usually allow sentence reductions for good behavior in prison, and this exception illustrates another important sentencing factor: the need to reward the offender's cooperation. Indeed, the entire criminal justice process, from investigation through punishment, relies heavily on such cooperation (for instance, in providing testimony against other offenders; pleading guilty or waiving jury trial and other legal rights; and cooperating with treatment and with conditions of release). Cooperation is induced by giving defendants leniency in the form of lower charges or less severe penalties. Such leniency may bear little relation to an offender's "deserts," and thus requires adoption of the more flexible, "limiting" theory of retribution, described above.

Sentencing judges and corrections agents are not the only officials who must interpret and apply purposes and limitations of punishment. Since police and prosecutors have discretion to set priorities in the use of limited law enforcement resources, they must decide, for example, whether to pursue enforcement policies that emphasize deterrence and incapacitation of drug sellers (the "supply" side) or close supervision and treatment of drug users ("demand"); within the goal of deterrence, they must decide whether to attempt to maximize the number of convictions (i.e., the certainty of punishment) or the severity of penalties.

Legislators also make "sentencing" decisions, based on at least an implicit theory or theories of punishment: mandatory-minimum penalties are believed to have a greater deterrent or incapacitation effect than discretionary penalties; laws punishing drugs possessed for personal use are premised in part on the retributive assumption that drug use is immoral and deserves to be punished, and on the belief that the threat or imposition of criminal penalties will reduce the incidence of drug use (via deterrence or one of the other crime-control theories summarized above).

Whether at the legislative, law enforcement, sentencing, or corrections stage, the definition and application of punishment purposes is highly problematic. Since these purposes are rarely specified in detail, criminal justice agents may apply differing purposes, thus producing disparate results for similarly situated offenders; indeed, the same agent may act inconsistently in different cases.

Beyond mere human error and differences of philosophy, another important reason for disparity is that the traditional goals of punishment often conflict with each other, posing difficult tradeoffs. For example, increased rates of imprisonment may increase the general deterrent effect on other would-be offenders, yet some of the incarcerated offenders may be made substantially worse (more dangerous, less able to cope with freedom) than they were before entering prison (an effect know as prisonization). An offender's mental illness or addiction to drugs reduces his or her capacity to obey the law, thus making the offender less deterable and less blameworthy, but more dangerous and in need of incapacitation. All of the sentencing goals premised on assessments of the individual offender's dangerousness or amenability to treatment inevitably produce disparate sentences for equally culpable offenders, thus violating retributive goals. Given all of these inherently conflicting values and goals, it is no wonder that many persons both inside and outside of the criminal justice system are strongly critical of law enforcement and punishment decisions.

Procedural laws and values. The day-today functioning of criminal justice systems is strongly influenced by rules of criminal procedure, which specify what should or should not be done at each stage of the investigation and prosecution of a suspected offense. In comparison with other nations (particularly continental European and other civil law countries), relatively few procedural matters are governed by statutes or codes in American systems; instead, many aspects of U.S. criminal procedure are regulated primarily by state and federal constitutional provisions (particularly the Bill of Rights), for example: limitations on searches and seizures, pretrial interrogations, and admissibility of evidence at trial. But most U.S. jurisdictions do have codes of criminal procedure or statutes that specify such things as arraignment procedures, charging documents, grand jury procedures, pretrial release, pretrial motion procedures, speedy trial rights, trial procedures, and appeal rights and procedures. Separate codes or statutes also regulate such things as electronic surveillance, general evidence rules, and professional responsibility, incorporating both constitutionally imposed and nonconstitutional rules. Some of these codes are promulgated by judicial authorities, others are legislative enactments. In addition, the courts in many states occasionally invoke "inherent" or "supervisory" powers, permitting them to create new procedural requirements.

Criminal procedure laws are based on certain fundamental goals and values that, like the goals and values of punishment mentioned above, sometimes conflict with each other. The central procedural goal is to promote the accurate, speedy, and efficient assessment of criminal liability and punishmentwhat is often loosely referred to as the "truth-seeking" goal. However, the values of promptness and efficiency often conflict with the need to allow sufficient time for accurate investigation and resolution of complex factual and legal issues. Furthermore, many procedural rules are designed to protect competing values that often limit the achievement of truth-seeking goals, at least in particular cases. These competing values include individual privacy, autonomy, freedom of movement, and dignity; the protection of certain family and confidential relationships (by means of evidence rules excluding "privileged" information); equal treatment of offenders (particularly those of different social classes or races); lay participation in the pretrial and trial processes (on grand juries and trial juries); victim participation at various stages; political accountability of key officials (in particular, judges and prosecutors); and sensitivity to local values and customs (as interpreted by local judges, prosecutors, police, and juries). Such collateral values also sometimes conflict with each other. For example, it may be difficult to increase the participation rights of crime victims without simultaneously reducing defense rights (and also making the process slower and more expensive).

Another procedural value underlying many aspects of American criminal justice is the preference for "adversary" procedures. The most common meaning of this term is that evidence should be gathered and presented by the principal parties (prosecution and defense) and their lawyers, rather than, as in some foreign systems, by a supposedly neutral investigator or presiding trial judge. However, it is easy to overstate the practical significance of this concept in American systems. Although trials and certain pretrial proceedings (e.g., hearings on motions to suppress evidence) are highly adversary, many other procedures are largely or entirely dominated by officials (e.g., police investigations, grand jury proceedings, and most of the decisions affecting the execution of sentence).

These conflicting procedural goals and values thus require constant balancing and compromise, and inevitably produce some disparity in the handling of similar cases, all of which leads to frequent dissatisfaction with the process and its results. These problems are made all the worse by the chronic shortage of resources, and the need to handle large numbers of cases in a more-or-less "assembly line" fashion.

Viewed from a broader perspective, however, the conflicts between procedural values may be less serious than they seem when viewed in the context of individual cases; the pursuit of procedural fairness does not necessarily compete strongly with the achievement of crime-control goals in the long term. Research suggests that people are more likely to obey the law if they feel they have been fairly treated (Tyler), and are more likely to accept the fairness of adjudication procedures in which they can directly participate (Freedman, pp. 8788). These findings underscore the importance of maintaining respect for the criminal justice system on the part of the general public as well as suspects and defendants. Such respect seems particularly important if, as was suggested earlier, the long term, norm-reinforcing effect is one of the most important functions of punishment. Criminal sentences cannot achieve their vital "teaching" effect if the procedures leading to such sentences are seen as unfair and not worthy of respect.

Typical stages of criminal case processing. The following is a brief summary of the stages through which most criminal cases pass, and the various agencies involved at each stage. These agencies and their personnel are examined further in the following section. Additional detail on the stages of criminal procedure, procedural rules, and criminal justice agencies is provided in other entries in this encyclopedia.

Although any given criminal case usually begins with the commission of the offense, the criminal justice system actually begins to operate even earlier. First, the behavior must be defined as criminal, with specified penalties and resultant procedural requirements (see discussion above). Moreover, in some cases the police begin to act even before the offense is committed; given the difficulties of detecting and proving so-called victimless or consensual crimes (that is, crimes like drug selling, illegal gambling, prostitution, and other "vice" crimes, which have few if any witnesses other than the direct participants), the police often need to use undercover police agents and informants to infiltrate criminal groups and observe, or even propose, the particular criminal acts that are to be prosecuted.

Many minor crimes (traffic offenses, disorderly conduct, fish and game violations) are directly observed by law enforcement officers, but most offenses become known to the police because a victim or a witness has reported the crime. However, many crimes go undetected by anyone other than the offenders (e.g., attempted thefts; illegal drug use), and public surveys reveal that a large number of detected crimes are not reported to the police by victims (Bureau of Justice Statistics web page; see further statistics below). The most common reasons for not reporting to the police are either that the matter was seen as too minor or too personal, or that the victim felt that the crime could not be solved anyway (due to lack of evidence, delay, etc.). As will be seen, these reasons are quite similar to the reasons that police and prosecutors often give for not pursuing criminal charges.

Even if the police observe a crime or receive a report, they may be unwilling or unable to take further action, for a variety of reasons. First, they may decide that no crime was committed, for instance, because the reported behavior is not legally a crime, or because the police doubt the complainant's account (a process known as "unfounding" the complaint). Even if the police believe that a crime was committed, they may decline to take further action because they deem the offense to be too difficult to solve and not worth pursuing, given its relatively low seriousness (e.g., a stolen bicycle, taken from a front yard). Or, they may feel that the offense is so minor (e.g., driving only a few miles above the posted speed limit) that a warning or other informal measure will suffice.

If the police do take further action, it will depend very much on the nature of the crime, the suspected offender, and the particular circumstances. If the police directly observe the offense, or find the offender on the scene when they respond to a crime report, they may immediately arrest the offender or, in traffic and certain other minor crimes, issue a "ticket," or citation, which requires the offender to come to court at a later time. They may also detain and talk to the offender, which may lead to arrest or citation, a warning but no charges, a noncriminal disposition (e.g., taking a drunken person to a detoxification center), or a decision that no crime has occurred and no further action is required. In more complex cases the police may interview victims and witnesses, search places where they believe evidence, contraband, or crime fruits may be found, and compare the information obtained with police records of known offenders or other unsolved cases. One or more suspects may be approached, detained, and questioned. In many cases, especially those with no eye-witnesses, the police will be unable to solve ("clear") the offense by making an arrest or otherwise charging someone. In "white collar" and other highly complex cases, police and prosecutorial investigations may last for months or even years; if and when sufficient evidence is found to support charges, suspects in these cases may be issued a summons to appear in court, rather than being arrested and taken into custody.

Once a suspect is arrested, he or she is usually searched and then transported to the police station or other central facility for further processing (fingerprinting, interrogation, lineups, and other identification procedures). If the evidence is not strong, or the offense is relatively minor, the suspect may then be released without further charges. If the police decide to press charges, the suspect may be released on a promise to appear later in court (recognizance), if he or she is considered reliable enough to appear when required. The suspect may also obtain release by posting bail according to a preset bail schedule established by the court for that offense. If the suspect is not released, he or she will be transferred to jail. While in jail, the suspect may be subject to further searches, questioning, or identification procedures.

Within a few days, the detained suspect will make his or her first appearance in court. (Since priority is given to expediting cases of detained offenders, those who are released on citation or who receive a summons may not be scheduled to appear in court for several weeks.) By the time the suspect appears in court, the police will have given at least a preliminary report of the crime to the prosecutor, who will assess the strength of the evidence, the seriousness of the crime, and other factors bearing on whether the case merits prosecution, and if so, on what charges. Many cases are dismissed or charged down at this stage.

Prosecutors screen out cases for a variety of reasons (alone or in combination): evidence problems that would make it difficult to obtain a conviction (in particular, a lack of credible witnesses, or the reluctance of key witnesses to testify); attractive alternatives to prosecution such as victim-offender mediation or restitution; the defendant's agreement to enter a treatment program; and policy reasons that make prosecution inappropriate (such as the defendant's willingness to testify for or cooperate with the prosecution, or the minor nature of an offense or the defendant's role in it). American prosecutors exercise almost complete discretion in deciding what charges to file and to dismiss. Courts cannot order a charge to be filed, and have limited authority to dismiss charges; crime victims, the police, and other government agencies have no legal power to file or demand the filing of charges.

If charges are filed, the defendant will be advised of the charges at the first court appearance. Indigents will have counsel appointed to represent them. Minor crimes may be immediately adjudicated by trial or entry of a guilty plea. If the case is not disposed of at this hearing, issues of pretrial release and detention will be addressed. Offenders may be released on recognizance, or be given an opportunity to post bail (or request a reduction in bail). If the court decides that the defendant's pretrial release would jeopardize community safety, or that no release conditions will adequately assure later appearance in court, the defendant may be held without bail (preventive detention). Bail and release decisions may be facilitated by background reports prepared by probation or other court officials, or by private agencies; these officials and agencies may also provide supervision of defendants released and awaiting trial.

Although decisions about pretrial detention are collateral to the central goals of the criminal processadjudication of guilt and imposition of sentencedetention decisions are closely related to, and sometimes interfere with, the pursuit of these goals. A decision to detain a suspect is often based in part on a prediction that a custodial sentence will be imposed later. But once pretrial detention has been ordered, it exercises a powerful influence on subsequent decisions, and may even render moot the formal processes of adjudication and sentencing. Detained offenders are more likely to plead guilty (in return for a sentence of "time already served"), and are less able to present an effective defense at trial; they are also disadvantaged at sentencing, having been deprived of the opportunity to demonstrate their ability to comply with release conditions. These effects illustrate not only the critical impact of pretrial detention decisions, but also the importance of system-wide analysis of criminal justice functioning.

Later formal stages of pretrial and trial procedure depend on the law of the particular jurisdiction, and also on the seriousness of the charges. In general, more serious charges receive more elaborate proceduresfor instance, review by the grand jury; required disclosure of proposed trial evidence ("discovery") by the prosecution to the defense, and vice versa; and jury trial rights (none, for petty offenses; small juries for low-level offenses, and larger juries for the most serious crimes). All these procedures are described more fully in other entries in this encyclopedia.

Of course, not all prosecutions lead to conviction; many criminal cases are dismissed by the court or prosecutor (usually because of evidentiary weaknesses, or because the defendant has agreed to plead guilty to other charges), and some defendants who go to trial are acquitted of all charges.

Perhaps the most important pretrial and trial-court procedureplea bargainingoccurs largely outside of court, and with very little legal structure or regulation. In most jurisdictions, 90 percent or more of convicted offenders have pled guilty rather than being convicted at trial, and most of these pleas are the result of negotiations between the prosecution and the defense. Such bargaining takes a variety of forms, including "vertical" charge bargaining (a plea of guilty in exchange for a lowering of the severity of the charges, or an agreement not to raise them); "horizontal" charge bargaining (a plea of guilty to some charges in exchange for a dismissal of other pending charges, or an agreement not to add additional ones); and sentence bargaining (a plea of guilty in exchange for leniency in sentencing, or at least a lenient sentence recommendation or position by the prosecutor).

Many view plea bargaining as a necessity that enables courts to dispose of large caseloads; in terms of money and time, criminal trials are costly for the state and the defendant, as well as for witnesses and victims. Some have also argued that offenders who plead guilty deserve less punishment and demonstrate that they are less likely to repeat their crimes, or are more amenable to treatment.

Criticisms of the practice of plea bargaining are leveled from many ideological perspectives. Some civil libertarians view plea bargaining as unfairly coercive, and as penalizing defendants who assert their constitutional rights by demanding a trial. It is also argued that, by avoiding the procedural safeguards of a full trial, plea bargaining risks convicting innocent persons who are unwilling to risk going to trial and possibly receiving a much more severe sentence. Moreover, plea bargaining, in effect, allows sentencing decisions to be made not by judges but by prosecutors, whose discretion is subject to few legal limits. Conservative critics, on the other hand, often object to plea bargaining because they believe it results in lenient sentences, and gives the impression that the courts, and by extension the criminal justice system, can be manipulated.

If the defendant is found guilty at trial (and sometimes, if conviction results from a guilty plea), the court may receive a presentence investigation report prepared by a probation or court services officer, providing additional background about the offender (e.g., prior record; employment history; family situation) and the conviction offense. More serious cases are more likely to benefit from a presentence report, and to have a separate sentencing hearing. Some jurisdictions allow the trial jury to recommend a sentence (and imposition of the death penalty often requires a jury recommendation), but the vast majority of sentences are imposed solely by the trial judge. The sentencing discretion afforded to trial judges varies considerably across jurisdictions. The federal system and about twenty states have some form of recommended sentencing guidelines, and several other states have determinate sentencing laws that limit the range of authorized penalties (Frase, 2000). In addition, most jurisdictions have enacted mandatory prison terms for some repeat offenders, as well as for those convicted of certain offenses (especially those involving drugs or weapons). As of the end of 1999, capital punishment was authorized in thirty-eight states (Snell, p. 2).

Although American courts make heavy use of custodial ( jail or prison) sentences (see statistics, below), a wide variety of noncustodial sentences are also available. Such options include: treatment (residential or outpatient); home detention (with or without electronic monitoring); probation (with "intensive," regular, or minimal supervision); periodic drug or alcohol-use testing; the imposition of fines and court costs; compensation (restitution) to the victim or his/her family; victim-offender mediation; and community service. Most of these options are combined with some degree of probationary supervision and a suspended prison or jail term (or the option to hold a delayed sentencing hearing and impose such a term, if probation conditions are violated).

Once a sentence is imposed, the offender has a certain period of time in which to file an appeal. Only some jurisdictions, particularly those with sentencing guidelines, permit defendants to appeal the sentence; these jurisdictions also usually permit prosecution sentence appeals. Except for a few jurisdictions that permit a second full trial (trial de novo) in a higher court (usually only for minor crimes initially tried without a jury), appeals on questions of guilt may only raise issues of law (e.g., jury instructions; rulings admitting or excluding evidence), not factual issues; thus, no witnesses or other forms of evidence are heard by an appeals court, and facts may not be reevaluated except as necessary to apply rules of law (including whether the evidence, viewed in the light most favorable to the prosecution, was legally sufficient to support a finding of guilt beyond a reasonable doubt). Many states now allow two stages of appeal: the first appeal, open to all offenders (except those who waive this right, as part of their guilty plea), is heard by a regional court of appeals; the second appeal, usually to the state supreme court, is often permitted only with the approval of that court. Offenders who were sentenced to prison are often required to begin serving their sentences even if they have filed an appeal. Once the time for direct appeals has passed, offenders may still be able to raise certain legal issues by seeking a writ of habeas corpus or other form of postconviction (or "collateral") relief.

The processes involved in the execution of the trial court's sentence are diverse, and depend both on the nature of the sentence and the defendant's postsentence behavior. Defendants who violate conditions of their release on probation may have those conditions tightened; if the violations are serious (for instance, committing further crime, repeatedly failing drug tests, failing to cooperate with treatment or home detention restrictions, or failing to perform required community service) probation may be revoked and the offender will then be sent to jail or prison (from which they may later be paroled, as explained below).

For felony crimes, custody sentences of over one year are usually served in a state prison, whereas shorter terms (as well as almost all misdemeanor custody sentences) are served in a local jail or workhouse. Offenders sentenced to prison are generally eligible to be released by the state parole board or similar agency after a certain portion of the sentence has been served. Both the date of earliest eligibility for parole release, and the maximum duration the inmate can be held if parole is never granted, are usually reduced as a reward for good behavior in prison (good time credits), based on evaluations made by prison officials. Parole is not available for extremely serious crimes; moreover, in a substantial number of jurisdictions parole release has been abolished for all prison inmates (although limited good time credits are still available). Jail sentences may also be eligible for parole (by decision of the sentencing judge or a separate agency), as well as good time credits. As with probation, parole release from prison or jail is conditioned on law-abiding behavior, cooperation with supervising parole agents, and other requirements; violation of these requirements will often lead the parole board or judge to revoke release, sending the offender back to jail or prison.

Major system actors: organization and function. The actual work of the criminal justice system is performed by a large number of public and private actors and agencies, many of which have already been mentioned. Some of them (for example, trial courts and private defense attorneys) operate only at the level of individual cases, while others (legislatures; sentencing commissions) have only general policymaking authority (Reitz, pp. 392396). Still others (appeals courts; parole boards) operate at both levels, setting general policy as well as handling individual cases. This section provides a brief description of the principal public agencies and their personnel.

Legislatures. Legislative decisions determining the number and types of crimes, authorized or mandatory penalties, and levels of funding for various agencies have a significant impact on the functioning of criminal justice systems. These impacts are sometimes felt beyond a legislature's immediate jurisdiction (for example, when federal or state laws provide funding on condition that certain rules or procedures are adopted by the receiving state or local government).

Police and other law enforcement agencies. Law enforcement agencies are among the most diverse and decentralized components of criminal justice systems. There are some agencies with statewide jurisdiction (e.g., highway patrol, fish and game, tax agents, environmental inspectors), but most law enforcement agents work for counties or cities. Almost all counties have an elected sheriff, whose appointed deputies enforce the law outside of cities, operate the county jail, and perform certain court services such as service of legal process and transport of prisoners. City police departments are generally headed by a chief who is appointed by the city council or the mayor. Additional local police agencies, with limited subject matter and geographic jurisdiction, are operated by city or county departments responsible for public parks, transit, and other specialized functions. Colleges and universities often have their own police forces. Some of the law enforcement agencies described above have overlapping jurisdiction, for example, state and local police may both have enforcement power on state highways.

As of 1996, there were 663,535 full-time sworn law enforcement officers in the United States, broken down as follows: 54,587 state police officers, in forty-nine agencies; 410,956 local police officers, in 13,578 agencies (including five consolidated police-sheriff departments); 152,922 sheriff's department officers, in 3,088 agencies; and 45,070 special police officers, in 1,317 state or local agencies (including the Texas Constable) (Bureau of Justice Statistics web page).

Police functions are also frequently carried out by nongovernmental employees. As of 1999, it was estimated that there were about 2.5 million private security personnel in the United States (Forst and Manning, p. 34).

Courts and court services. Many states, as well as the federal system, have two levels of trial court. The lower court (city or municipal court, magistrate's court) is a court of limited jurisdiction; it may try misdemeanor crimes, but in felony cases it may only conduct pretrial hearings. Felony trials are held in the criminal division of the court of general jurisdiction (county court, district court, circuit court, superior court). Some states have a unified court system, in which all felony and misdemeanor hearings and trials are held in various divisions of the court of general jurisdiction. The area covered by such courts may be limited to a single, large county, or may, in less populated areas, include a group of several smaller counties. In addition to conducting pretrial hearings and trials, local courts supervise grand juries and operate various court services including probation departments and pretrial services agencies (which are used for bail screening and supervision, pretrial diversion, mediation programs, and the like).

In 1998 thirty-nine states had both an intermediate appellate court and a state supreme court (or other, higher appeals court); eleven states and the District of Columbia had only one level of appellate court (Rottman et al., p. ix). In addition to hearing appeals, state supreme courts exercise control over bar membership and judicial discipline. They also enact and revise rules of trial and appellate procedure, evidence, admission to the bar, professional responsibility, and so forth.

In 1998 there were about 9,100 full-time authorized judgeships in state trial courts of general jurisdiction, and about 1,300 appellate judges (Rottman et al., pp. ix, 13). Gubernatorial or legislative appointment was used to select general jurisdiction trial judges in eighteen states; for appellate judges, this method was used in twenty-four states. Nonpartizan or retention elections ("shall judge X be retained?") were used for trial judges in eighteen states, and for appellate judges in eighteen states; partizan elections were used for trial judges in ten states, and for appellate judges in eight states (other methods were used for trial judges, in four states) (Rottman et al., p. ix).

Prosecutors. In state systems, prosecutors are found at the state, county, and city levels. State attorneys general sometimes have concurrent authority to prosecute some or all crimes, though this power is seldom used except in the few states that have no separate county government. County or multicounty prosecutors (county attorney, district attorney, state's attorney) mainly handle felony-level crimes, while city prosecutors handle misdemeanors and ordinance violations.

In 1996 an estimated 2,343 state prosecutors' offices were authorized to file felony cases (DeFrances and Steadman, pp. 1, 2). These offices employed approximately 24,000 assistant prosecutors. Ninety-one percent of the offices also had jurisdiction to handle misdemeanor cases, 82 percent handled traffic violations, and 53 percent handled child support enforcement. Fifty-three percent represented the government in civil lawsuits.

Defense attorneys. Defendants may be represented by privately retained attorneys (some of whom specialize in criminal law), or by publicly paid, court-appointed counsel. In 1998 appointed counsel represented 82 percent of state felony defendants in the seventy-five largest counties (Harlow, p. 1). One or more of the following three systems of appointed counsel are used in state courts: (1) a staff public defender system, in which salaried defense attorneys work for a public or private nonprofit organization, or as direct government employees; (2) an assigned counsel system, in which judges appoint attorneys from a list of private bar members who accept cases on a judge-by-judge, court-by-court, or case-by-case basis; and (3) a contract attorney system, in which private attorneys, bar associations, law firms, groups of attorneys, or nonprofit corporations provide services based on contracts with state, county, or other local governmental units. In the general jursdiction courts as of 1994, these three public defense systems were in use in 68, 63, and 29 percent of the courts, respectively (Harlow, p. 4).

Detention and correctional facilities. In 1995 long-term sentenced inmates were being held in 1,084 state prisons and 291 communitybased facilities (Bureau of Justice Statistics, 1997, p. 53). Short-term sentenced inmates, as well as persons awaiting trial or transfer to other authorities, were held in about 3,400 county or city jails (Beck 2000a, p. 7). As of 1999, there were 161 private adult correctional facilities, in thirty-two states and the District of Columbia, with a rated capacity of 132,933 inmates (Maguire and Pastore, p. 82, Table 1.65).

Sentencing and correctional agencies and agents. Most states have a statewide department of corrections or similar agency, responsible for operating prisons and some or all probation and parole functions. Some cities and counties also have a department of corrections, to operate their jails or probation services. Most states retain discretionary parole release, under a statewide parole board; most states also have some sort of board that reviews requests for pardons, commutations, and other extraordinary relief for convicts. As of the fall of 1999, about twenty states had a sentencing commission, responsible for implementing and monitoring sentencing guidelines (Frase, 2000, p. 70).

The systems in operation

Previous sections of this entry have described the structure and purposes of criminal justice systems, but it is equally important to examine how systems function in practicewhich may be quite different from how they are commonly assumed to function. Perhaps the most striking finding derived from the available data on system operations is the very substantial case attrition between the start of the process (crimes committed) and the final stages of execution of sentence. This is not a new phenomenon, nor one limited to the United States; studies of American criminal justice in the early part of the twentieth century (Cleveland Foundation), and in several other Western countries (Frase, 2001, Table 3; Zeisel, p. 24), have reported similarly high rates of case attrition.

Citizens and their political leaders must keep these findings in mind when making criminal justice policy decisions. For most crimes, nothing even remotely approaching "full enforcement" has ever been achieved, nor is it likely to be achieved; it may even be undesirable. The high level of case attrition in all modern systems suggests that the criminal law has very substantial limitations as an instrument of direct crime control (by means of deterrence, incapacitation, and rehabilitation). Such limitations suggest that, in most cases, the primary value of criminal prosecution is symbolic. Criminal convictions and penalties impose deserved punishment (retribution), and reinforce important societal norms (denunciation)but only if these penal consequences are imposed according to procedures that are widely perceived as fair and just (Tyler).

Case attrition results from the exercise of discretion by all system actors, both public and private, and from the nature of the criminal process itself. Several factors justify and require the exercise of discretion by public officials: (1) the practical inability of legislatures to specify in advance all of the conditions that properly bear on issues of criminal liability and the scope of criminal statutes, punishment, and criminal procedure (particularly when, as was noted earlier, basic goals and values often conflict with each other); (2) the need for case-specific assessments of the available evidence to convict an offender, as well as the available resources for investigation, conviction, and punishment of this and other offenders; (3) the desirability of taking into account local crime problems, community values, and the desires and needs of crime victims.

Citizens involved in the criminal justice process also exercise substantial amounts of discretion. Crime victims and witnesses may choose not to report a crime, or not to cooperate with prosecution. Suspects and defendants also have choices: to exercise their legal rights, rather than waiving them; to supply information helpful in convicting other offenders; and to comply with conditions of release or prison rules of conduct.

Apart from the exercise of discretion, another major reason why case volumes decline substantially as cases move through the system is that different standards apply at these stages: probable cause may be sufficient to justify an arrest or a search, with the hope of uncovering more evidence. But if such evidence does not become available within a reasonable time, cases must be dismissed or charged down; imposition of the severe social stigma and sanctions of the criminal law requires morally convincing evidence (proof beyond a reasonable doubt).

Statistics on case attrition at various stages. Many of the decisions made at crucial points in the criminal process are not easily observable, so it can be very difficult to determine what decisions are made, let alone the rationale for these decisions. For example, there is very little information regarding police and prosecutorial decisions to investigate. Likewise, there are few available statistics on decisions made in the correctional realm, such as parole and probation revocations, and sentence-reductions based on an inmate's good behavior in prison. However, data is available on decisions at several of the most important stages of the process.

Victim reporting of crime. Victim surveys reveal that substantially less than half of crimes committed are reported or otherwise made known to the police. The reporting rate is especially low for attempts and minor completed crimes, and is also probably very low for so-called victimless crimes (i.e., those with no immediate victim or witnesses other than the offender[s] and the police, such as drug offenses). On the other hand, the proportion of homicides that become known to the police (either by contemporaneous reporting or by discovery of the body) is probably close to 100 percent. For obvious reasons, neither victimless crimes nor homicide are included in victim surveys. These surveys also do not measure crimes against the environment, frauds, or crimes against businesses and government agencies.

In 1999 only 44 percent of violent crimes and 34 percent of property crimes were reported to the police (Rennison, p. 11). Table 1 illustrates the percent of crimes that victims claimed to have reported to the police, by crime type (including attempts).

Table 1 shows that the likelihood of a victim reporting an offense to the police varies significantly by crime type. Victim reporting is highest for auto theft (84 percent), probably because most auto insurance policies require police notification of a stolen vehicle. By contrast, personal thefts outside the home (e.g., a stolen bicycle) are reported to the police only about one-fourth of the time.

Police recording of crime. If the police doubt that any crime was actually committed they will "unfound" the report, take no further investigative action, and decline to include the report in their statistics of crimes known to the police. There are no official statistics on the rates of police unfounding, overall or for particular offenses.

Proportions of crimes solved (clearance rates). The only official statistics on police crime-solution (clearance) rates are for the eight "index crimes" (listed in Table 2) that the Federal Bureau of Investigation (FBI) uses as an overall measure of crime levels. For 1999, the FBI reported that 21 percent of index crimes were clearedincluding 50 percent of violent crimes and 17 percent of property crimes (FBI, 2000, p. 203). Regarding specific crime types, Table 2 presents the percentages of index crimes known to police departments in the United States that were cleared by arrest, another charging procedure (e.g., a summons or citation) or, occasionally, by attribution to a dead or otherwise unavailable suspect.

As is the case with victim reporting, there is great variation in clearance rates across types of index crime. More than two-thirds of murder and non-negligent manslaughter cases and almost three-fifths of aggravated assaults were cleared by arrest, whereas less than one in six burglary and motor vehicle theft offenses was cleared. These differences are attributable both to the higher priority that the police give to more serious crimes, and to typical offense patterns: violent crimes often involve offenders who are already known to the victim.

It is likely that clearance rates are lower for other (non-index) crimes, since the latter are generally less serious, and receive less victim, witness, and police attention. On the other hand, the proportion of "victimless" crimes cleared is probably very high, since such crimes are rarely known to the police unless they are committed in the presence of a police officer or undercover informant.

It should be noted that clearance rate statistics are only roughly comparable to the victim-survey data reported previously. In particular, the surveys exclude offenses against victims under the age of twelve, exclude most property offenses committed against businesses, and include sexual assaults other than forcible rape.

Pretrial detention. Statistics on this critical issue are only available for defendants charged with felonies in a sample of the nation's seventy-five largest counties. In 1996 these counties accounted for 37 percent of the nation's population, 50 percent of serious violent crimes known to the police, and 40 percent of serious property crimes known to the police (Hart and Reaves, p. 1). Sixty-three percent of these defendants were released before case disposition and 37 percent were detained; one-sixth of those detained were denied bail, whereas five out of six failed to post bail. Those charged with a violent offense were less likely to be released (55 percent) than those charged with a property offense (65 percent) or a drug offense (66 percent). Table 3 shows the percent of those released and detained, and the type of release or detention, by the most serious arrest charge.

As Table 3 illustrates, the decisions whether to release suspects before trial, and whether to guarantee their appearance in court by setting bail, varied greatly across felony charges. Only 16 percent of those charged with murder were released before disposition, and 84 percent were detained; 61 percent were denied bail. In comparison, those charged with theft were released two-thirds of the time, and more than half of these releases were nonfinancial (not requiring deposit of bail or other security). For all charges except murder, the majority of those who were released before trial were released within a week of being arrested.

In regard to the relationship between pretrial detention and subsequent case processing, separate analysis of this data by the present authors confirms the results of previous studies: detained defendants were more likely to be found guilty, and were also more likely to receive a custody sentence. At the same time, a significant portion of the detained did not receive a formal conviction and custodial sentence. For example, 34 percent of those charged with burglary who were detained for more than two days before trial either were not convicted or received a non-custodial sentence. For defendants charged with theft or with drug violations, the proportions were 38 and 36 percent, respectively. Thus, even where the system has officially decided that an individual should not receive custodial punishment, a de facto custody "sentence" is often imposed.

Prosecutorial screening and diversion. Despite the critical importance of prosecutorial discretion, there is almost no current national data on charging decisions (for the most recent data, covering eleven states as of 1990, see Perez). Table 4 presents rough estimates of prosecution rates, for selected offenses in 1996, derived by comparing the total number of felony cases filed in a sample of the nation's seventy-five largest counties with the total number of adult arrests for each offense in those counties that year.

Table 4 indicates that offense-specific prosecution rates vary a great dealone out of five theft cases, three out of four cases of murder and non-negligent manslaughter, and over nine out of ten forcible rape cases. It is important to recognize that these numbers are aggregates, and thus do not represent the disposition of individual cases as they flow through the system. These figures also exclude offenders who were prosecuted for a different crime (usually a less serious one) than their arrest offense. Yet these admittedly inexact numbers are the only available estimates, given the paucity of national data tracking individual cases beginning at the arrest stage (compare Perez, cited above). (It should also be noted that the offense-specific prosecution-rate data above (as well as the conviction-rate data below) is only roughly comparable to the victim-survey and FBI data presented previously.)

Final dispositions: conviction rates. Nationwide data on these issues are, again, only available for certain jurisdictions, offenses, and years. Table 5 shows, by arrest offense, the percentages of those charged with selected felonies who were convicted (including conviction on lesser charges) in the nation's seventy-five largest counties.

Guilty pleas and plea bargaining. There are no national data on the practice of plea bargaining per se; information is limited to the prevalence of guilty pleas, and, once again, is further limited to certain jurisdictions, offenses, and years. Implicit in a defendant's decision to plead guilty is the assumption that the sentence will be more lenient than it would have been had the defendant been convicted at trial, but the percent of plea agreements that are explicitly negotiated is unknown. The available data on felony dispositions in the nation's seventy-five largest counties show that, in 1996, 93 percent of felony charges resulting in a conviction (either felony or misdemeanor) were the result of a guilty plea, while only 7 percent were the result of a trial. Table 6 shows that guilty pleas are less likely when the stakes are highest. Murder convictions are almost as likely to result from a trial (47 percent of convictions) as from a guilty plea. By contrast, drug possession convictions were the product of a guilty plea in 97 percent of the cases.

Impact of method of disposition on case processing time. Table 7 shows the median time in days between arrest and sentencing, controlling for the manner of case dispositiontrial ( jury or bench) versus guilty plea.

It is evident from Table 7 that, across conviction types, guilty pleas and bench trials are associated with much shorter case processing times than are jury trials. For example, regarding cases in which the most serious conviction offense was murder, those disposed with bench trials (191 days) took only half as long as those with jury trials (377 days), and two-thirds as long as cases disposed with a guilty plea. For other offenses, median days to disposition by plea were roughly the same as for disposition by bench trial, with time to disposition for jury trials markedly longer.

The slower case processing associated with jury trials is partly due to court backlogs, but another contributing factor is that many jury trials occur only after the parties have failed to reach a plea agreementoften after lengthy negotiations and attempts to "wear down" the other side. It is therefore quite possible that, if plea bargaining were curtailed and cases were either pled as charged or set for trial, average disposition times might actually decrease. Indeed, this is what happened in the only state (Alaska) that has ever attempted to sharply limit plea bargaining (Zimring and Frase, pp. 678679).

Sentencing outcomes. Once again, national data on sentencing in the United States is limited to certain jurisdictions, offenses, and years. Table 8 shows the distribution of prison, jail, and probation sentences for selected felonies, by most serious conviction offense, in the seventy-five largest counties; it also reports the median sentence length for prison and jail sentences.

Table 8 shows that the total percent incarcerated varies greatly across conviction offense charges. For example, all of those convicted for murder received a prison sentence, whereas roughly one-third of those convicted on theft, drug possession, and weapons charges received probation. Among those who are incarcerated, the likelihood of getting a prison sentence as opposed to a jail sentence varied too. Those convicted of robbery were over three times more likely to receive a prison sentence than a jail sentence (71 percent versus 19 percent), whereas those convicted of drug possession were almost twice as likely to receive a jail sentence as they were to get a prison sentence.

In light of the high proportions of custodial sentences reported in Table 8, it should be noted that many other Western countries appear to make much less use of custodial sentences, particularly for nonviolent crimes (Tonry and Frase, 2001; Frase, 2001).

Table 8 also shows that maximum sentence lengths are by far the longest for murder (median of 360 months), followed by rape (96 months). By comparison, those arrested for theft or drug possession had a median maximum sentence of only 24 months. Sentence lengths for those receiving a sentence of jail are markedly shorter since, in most states, jail sentences can be no longer than one year.

Actual time served in prison is almost always less than the maximum sentence imposed (usually much less). In 1996 it was expected that those convicted of violent felonies would serve 51 percent of their sentence (e.g., murder, 50 percent). In comparison, it was expected that those who were convicted of felony property offenses, as well as drug trafficking, would serve 42 percent of their sentences (Brown et al., p. 4, Table 4).

At the end of 1999, 3,507 prisoners were being held under sentence of death; 98 prisoners, in twenty states, were executed during that year (Snell, pp. 1, 7).

Case volumes at various stages (by offense, over time, and across jurisdictions). Table 9 shows the number of cases nationwide at several different stages in the criminal court process for six felony offenses that have the greatest comparability across reporting series. These numbers are aggregates, and do not represent individual cases as they flow through the system. Yet, they are the best available national data showing case volume (and therefore, case attrition) at several different points in the criminal court process. For example, in 1996 the police arrested more than 322,000 adults for drug trafficking (which is almost always a felony). In that year more than 212,000 adults were convicted of drug trafficking, and about 84,000 received a prison sentence. The last three columns in Table 9 show that in 1996, for every 100 adult arrests for drug trafficking, there were 66 felony convictions, and 48 custodial sentences (26 sentences to prison, and 22 to jail).

The screening decisions carried out at each successive stage of the criminal process result in dramatic reductions in case volume, as cases move through the system. For example, among the four felony offenses in Table 9 for which there is information on the number of offenses committed (robbery, aggravated assault, burglary, and motor vehicle theft), for every 1,000 felonies committed 444 were reported by the police, 71 adults were arrested, 18 adults were convicted, 13 adults were incarcerated, and 9 adults were imprisoned. Although data are not available, it seems likely that case attrition is at least as great for less serious crimes. In 1996, for example, there were about 12.3 million adult arrests in the United States (FBI, 1997, pp. 214, 224), but there were only about one million felony convictions in state criminal courts in that year (Brown et al., p. 2, Table 1). On the other hand, the attrition data above reflect cases, rather than offenders; since many offenders commit more than one offense, and thus are likely to be eventually caught for one of their crimes, it is likely that the proportion of offenders arrested, prosecuted, convicted, and imprisoned is somewhat higher than the numbers above would suggest.

Number of individuals in prisons and jails (overall and by state). As of midyear 1999, 1,254,600 persons were held in federal and state prisons, and 606,000 federal and state prisoners were held in local jails (Beck, 2000a, p.1). These inmate counts represented a national average of 460 adults per 100,000 residents incarcerated in state and federal prisons, and 222 per 100,000 incarcerated in local jails. However, as Table 10 shows, these national averages belie great variation across states. Southern states such as Texas (726 state prisoners per 100,000) and Oklahoma (625 per 100,000) imprison at much higher rates than some Midwestern and Northeastern states (Minnesota, 121 per 100,000; Maine, 131 per 100,000).

Jail rates also vary greatly across jurisdictions. In 1999 Louisiana jailed at a rate (585 jail prisoners per 100,000) that was six and a half times higher than Maine's rate (89 per 100,000). Moreover, the relative use of prison and jail varied greatly. For example, whereas Missouri's prison rate was 3.6 times its jail rate, the ratio of prison use to jail use was much lower in most other states; indeed, two states (Louisiana and Tennessee) had substantially higher jail rates than prison rates. These dramatic variations in the rate and type of incarceration are only partially explained by variations in crime rates and criminal caseloads.

Number of individuals on probation and parole. At the end of 1999 there were approximately 3,773,600 adults on probation and 712,700 on parole (Bureau of Justice Statistics, 2000 (press release), p. 1). These caseloads represented an aggregate rate of 1,848 probationers per 100,000 residents, and 317 persons on parole per 100,000.

Trends in the number of individuals under criminal justice control. The last quarter of the twentieth century witnessed a sharp increase in all forms of correctional supervisionboth custodial (prison and jail) and noncustodial (probation and parole). Figure 1 provides a graphic illustration of these increases (some figures have been scaled up or down, to facilitate trend comparisons). Figure 1 shows that, from 1977 through 1999, the number of adults on state or federal probation increased from 816,525 to 3,773,624an increase of 362 percent. Over the same period, the number of adults on parole increased at a slightly lower rate (from 173,632 to 712,713, or 310 percent). State and federal year-end prison populations increased from 291,667 to 1,263,226 (up 333 percent), while average daily jail populations increased from an estimated 155,200 in 1977, to 607,978 in 1999 (up 292 percent). As with the state-to-state variations shown in Table 10, only some of these dramatic increases can be attributed to rising crime ratesas shown in Figure 1, adult arrests increased by only 50 percent during the same time period.

Appeals. It is estimated that about 122,000 criminal appeals were filed in 1996. More than two-thirds of these were mandatory appealscases that the appellate courts must hear as a matter of a defendant's right. The balance were discretionary petitions that appellate courts agreed to hear (National Center for State Courts, 1997, pp. 71, 74).

Criminal justice budgets. In 1997 total direct criminal justice expenditures (in billions) at federal, state, county, and city levels of government were, respectively: $20.5, $42.4, $31.6, and $35.3 (Bureau of Justice Statistics web site). Federal government expenditures had grown the most since 1982 (4.8 times higher in 1997), reflecting the dramatic increase in federal prison populations (which rose even faster than state prison populations during this period). State and county expenditures were about four times higher in 1997 while city expenditures (mostly for police) were about three times higher. When examined by component, the direct expenditures in 1997 for policing, the courts, and corrections, respectively, were: $57.8, $28.5, and $43.5 billion. Correctional expenditures (mostly to operate prisons and jails) grew the most (4.8 times higher than they were in 1982); police and court expenditures were 3.0 and 3.7 times higher, respectively.

The importance of viewing criminal justice as a system

Although criminal justice, in practice, is often highly un-"systematic," it is still very useful to take a system-wide approach when seeking to better understand and more effectively respond to problems of modern criminal justice.

Understanding criminal justice practices. A systemwide approach facilitates better understanding of the many ways in which decisions at earlier and later stages of the process affect each other (President's Commission, p. 7). Earlier decisions, such as those involving prosecutorial screening or pretrial detention, often anticipate later ones (conviction and sentencing), and provide the essential "inputs" for subsequent case processing. Later decisions react to or overrule earlier ones, and in some cases provide new system inputs (for instance, when unreformed offenders are released back into the community, or appellate courts adopt rulings limiting or expanding police powers).

Systemic analysis also helps to avoid the serious distortions that can occur when selected aspects of system functioning are compared across jurisdictions (or in the same jurisdiction over time). For example, a simple comparison of the proportion of convicted assault offenders who receive a custodial sentence in two jurisdictions will yield very misleading results if these two systems have different rates of case screening in earlier stages; convicted assault cases in the jurisdiction with higher screening rates will usually have stronger evidence and more aggravated offense and offender details, which would help to explain higher custody sentencing rates observed in that jurisdiction (Frase, 2001).

System-wide analysis also reveals common policies and principles that apply at very different levels or stages of the process. For example, although issues of criminal law, sentencing, and criminal procedure are usually analyzed separately, it is useful to recognize the common values that underlie legal rules in several of these areas, such as the need to limit state power (especially physical brutality); concern for crime victims; the value of equal justice (but also of flexibility and local control); and the critical importance of defendant cooperation. Similarly, an examination of the reasons for case attrition at different stages (victim nonreporting; police and prosecutorial dismissal; sentencing leniency) shows that cases are usually dropped (or charged down, or punished less harshly) for three basic reasons: because greater severity appears to be legally or factually unsupportable; because a less severe alternative seems more appropriate; or because the offense seems too minor to justify stricter measures. This similarity suggests a surprisingly broad policy consensus, but also raises questions as to which actor(s) should implement these agreed policies. Finally, the pervasiveness of case attrition (and of the various discretionary powers that produce it) becomes clear when all stages of the system are examined. The magnitude of this attrition, across the entire system, has important implications for our understanding of the limits of the criminal law, and the purposes it can feasibly achieve.

There is, unfortunately, also considerable system-wide disagreement on major issues and, in general, a lack of agreed goals, priorities, and performance measures for the whole system. The police measure their success primarily by arrest and clearance rates (even if no conviction results), and secondarily by reported crime rates (even if many crimes are unreported); prosecutors "keep score" according to their conviction rates (even if large numbers of cases are dismissed or charged down); judges saddled with heavy caseloads sometimes keep score in terms of how quickly they can dispose of cases (by any means); elected prosecutors and judges are tempted to emphasize how "tough on crime" they are (whether or not "tough" means "effective"). Systemic analysis promotes recognition of these conflicting standards, and the impact such conflicts have on the performance of the system and its separate parts.

Evaluating criminal justice reforms and operations. Systemic analysis also helps in evaluating the merits of proposed reforms, and the consequences of reforms that have been adopted. One consistent problem of criminal justice reform, which results from the pervasiveness of unregulated discretion, is the tendency for changes in one part of the system to be nullified or greatly weakened by compensating changes in other parts. This phenomenon is sometimes referred to as the system "hydraulic"; like a full tube of toothpaste, "squeezing" one part of the system causes it to "bulge" somewhere else. For example, mandatory minimum sentence reforms are often undercut by charging or plea bargaining decisions that prevent many eligible offenders from being convicted of the targeted offense.

Reforms that create new, intermediate options (pretrial diversion; strict supervision before or after conviction; prison "boot camps") provide another good example of the need for careful, systemic evaluation. Although many such reforms are designed to reduce the use of more severe options, in practice they are more likely (for reasons of public and political safety) to be applied to cases that would otherwise have received less severe treatmentthus increasing, not decreasing, the budgetary and other disadvantages of severity, and greatly complicating the selection of matched comparison groups to evaluate offender impact (Zimring and Frase, pp. 349387). A third example of the value of systemic analysis is its ability to identify strong linkages between existing practices that may preclude a particular reform, or show that it is unnecessary. Thus, an American state may not wish to adopt the narrower, more flexible exclusionary rules found in many civil law systems if such rules depend on other practicesstricter police discipline or closer prosecutorial oversight of the policewhich that state would be unable or unwilling to emulate (Frase, 1990, pp. 550, 553564). Conversely, to the extent that civil law systems employ these compensating police and prosecution safeguards, they may have less need to adopt broader American exclusionary rules.

Beyond the assessment of specific reforms, the system concept underscores the need for system-wide planning and coordination, particularly of information systems. American criminal justice is highly balkanized; although planning agencies exist in many states and some local jurisdictions, it is rare that any agency has a mandate (and budget) to engage in detailed planning for all, or even many, components of the system. One notable exception is found in states with sentencing guidelines monitored by a permanent sentencing commission (Frase, 2000, pp. 7071). Such commissions usually have members representing all major public and private agencies and interests involved in sentencing, and have the legal authority and resources to take a long-term, multiagency view of sentencing issues. Similar multiagency, criminal justice coordinating councils have existed in some metropolitan areas (National Advisory Commission, pp. 32, 35).

System analysis also encourages legislators and other criminal justice policymakers to keep the various components of the system in proper balance. This is particularly important in three areas:

Balancing the powers of the various sentencing agencies. The legislature, sentencing commission and parole board, prosecutors, defenders, courts, and corrections officials all share power over sentencing decisions, and thus serve as a check on each other (Frase, 2000). Reforms such as mandatory minimum sentencing tend to unduly concentrate power in the legislature and the prosecution (Reitz, pp. 396398).

Balancing the funding provided to different agencies and levels of government. Funding for some agencies, especially courts and defense services, is less popular and tends to lag behind funding for the police and prosecution. States often pass criminal laws imposing unfunded mandates on local systems. Conversely, local judges have no direct stake in allocating scarce state resources, and thus are tempted to send too many offenders to state prison (the "correctional free lunch"; Zimring and Hawkins, p. 140).

Balancing short-term and long-term perspectives. As much as we may hate criminals, it is in our long-term interest to help them, since almost all of them return to the community (usually after only a few months or years). Moreover, extremely long custodial sentences, although politically popular and satisfying today, impose substantial added costs far in the future, when the benefits (e.g., of confining "geriatric" inmates) may be slight or even negative. As for shorter custodial sentences, these may be cheaper than noncustodial alternatives in the near term, but more expensive in the long run (the marginal cost of confining one more inmate is usually small, while noncustodial alternatives take time and money to set up).

Application of the system concept to criminal justice research and evaluation has many advantages. But the complexities and contradictions of modern criminal justice systems will always pose a challenge to those seeking to improve the design and operation of these systems. Perhaps the greatest problem is that few researchers, and almost no officials or private citizens, have a stake in studying, improving, and explaining the whole system. This lack of systemwide experts and defenders helps explain (along with conflicting goals and values, poor coordination, and chronic funding shortages and misallocations) why these systems are so often maligned and misunderstood. Officials and other actors in each system, as well as researchers, must try to do a better job of understandingand explaining to the publicthe system's purposes, values, and operations.

Richard S. Frase

Robert R. Weidner

See also Bail; Careers in Criminal Justice: Corrections; Careers in Criminal Justice: Law; Careers in Criminal Justice: Police; Comparative Criminal Law and Enforcement: England and Wales; Counsel: Right to Counsel; Counsel: Role of Counsel; Crime Commissions; Criminalization and Decriminalization; Criminal Justice Process; Criminal Procedure: Comparative Aspects; Criminal Procedure: Constitutional Aspects; Federal Criminal Law Enforcement; Guilty Plea: Accepting the Plea; Guilty Plea: Plea Bargaining; Informal Disposition; International Criminal Justice Standards; Jails; Juvenile Justice: History and Philosophy; Juvenile Justice: Institutions; Juvenile Justice: Juvenile Court; Juveniles in the Adult System; Police: History; Police: Community Policing; Police: Criminal Investigations; Police: Handling of Juveniles; Police: Organization and Management; Pretrial Diversion; Probation and Parole: Procedural Protection; Probation and Parole: Supervision; Prosecution: History of the Public Prosecutor; Prosecution: Prosecutorial Discretion; Prosecution: United States Attorney; Probation and Parole: History, Goals and, Decision-Making; Punishment; Sentencing: Allocation of Authority; Sentencing: Alternatives; Sentencing: Disparity; Sentencing: Guidelines; Sentencing: Mandatory and Mandatory Minimum Sentences; Sentencing: Presentence Report; Sentencing: Procedural Protection; Statistics: Reporting Systems and Methods; Victimless Crime; Victims' Rights.


American Bar Association, Section of Criminal Justice. The State of Criminal Justice. Chicago: American Bar Association, 1998.

Beck, Allen J. Prison and Jail Inmates at Midyear 1999. Washington, D.C.: Bureau of Justice Statistics, 2000. Cited as Beck 2000a in this entry.

. Prisoners in 1999. Washington, D.C.: Bureau of Justice Statistics, 2000. Cited as Beck 2000b in this entry.

Bonczar, Thomas P., and Glaze, Lauren E. Probation and Parole in the United States, 1998. Washington, D.C.: Bureau of Justice Statistics, 1999.

Brown, Jodi M.; Langan, Patrick A.; and Levin, David J. Felony Sentences in State Courts, 1996. Washington, D.C.: Bureau of Justice Statistics, 1999.

Bureau of Justice Statistics. Correctional Populations in the United States, 1995. Washington, D.C.: Bureau of Justice Statistics, 1997.

. Compendium of Federal Justice Statistics, 1998. Washington, D.C.: Bureau of Justice Statistics, 2000.

. "U.S. Correctional Population Reaches 6.3 Million Men and WomenRepresents 3.1 Percent of the Adult U.S. Population." Press release, 23 July 2000.

Cleveland Foundation. Criminal Justice in Cleveland: Reports of the Cleveland Foundation Survey of the Administration of Criminal Justice in Cleveland, Ohio. Cleveland, Ohio: Patterson Smith, 1922.

Cole, George F., and Smith, Christopher E. Criminal Justice in America. Belmont, Calif.: Wadsworth Publishing Co., 1996.

DeFrances, Carol J., and Litras, Marika. Indigent Defense Services in Large Counties, 1999. Washington, D.C.: Bureau of Justice Statistics, 2000.

Defrances, Carol J., and Steadman, Greg W. Prosecutors in State Courts, 1996. Washington, D.C.: Bureau of Justice Statistics, 1998.

Eisenstein, James; Flemming, Roy B.; and Nardulli, Peter F. The Contours of Justice: Communities and Their Courts. Boston: Little, Brown & Co., 1988.

Federal Bureau of Investigation. Crime in the United States 1996. Washington, D.C.: Federal Bureau of Investigation, 1997.

. Crime in the United States 1999: Uniform Crime Reports. Washington, D.C.: Federal Bureau of Investigation, 2000.

Feeley, Malcolm M. The Process is the PunishmentHandling Cases in the Lower Court. New York: Russell Sage Foundation, 1979.

Forst, Brian, and Manning, Peter K. The Privatization of Policing: Two Views. Washington, D.C.: Georgetown University Press, 1999.

Frase, Richard S. "Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care?" California Law Review 78 (1990): 539683.

. "Sentencing Principles in Theory and Practice." Crime & Justice: A Review of Research 22 (1997): 363433.

. "Sentencing Guidelines in Minnesota, Other States, and the Federal Courts: A Twenty-Year Retrospective." Federal Sentencing Reporter 12 (2000): 6982.

. Sentencing in Germany and the United States: Comparing Apfels with Apples. Freiburg, Germany: Max Planck Institute for Foreign and International Criminal Law, 2001.

Freedman, Monroe H. "Our Constitutionalized Adversary System." Chapman Law Review 1 (1998): 5790.

Gifford, Lea S. Justice Expenditure and Employment in the United States, 1995. Washington, D.C.: Bureau of Justice Statistics, 1999.

Harlow, Caroline Wolf. Defense Counsel in Criminal Cases. Washington, D.C.: Bureau of Justice Statistics, 2000.

Hart, Timothy C., and Reaves, Brian A. Felony Defendants in Large Urban Counties, 1996. Washington, D.C.: Bureau of Justice Statistics, 1999.

LaFave, Wayne R. Arrest: The Decision to Take a Suspect into Custody. Edited by Frank J. Remington. Boston: Little, Brown, 1965.

Maquire, Kathleen, and Pastore, Ann L. Sourcebook of Criminal Justice Statistics 1998. Washington, D.C.: Bureau of Justice Statistics, 1999.

Miller, Frank W. Prosecution: The Decision to Charge a Suspect with a Crime. Edited by Frank J. Remington. Boston: Little, Brown, 1970.

Morris, Norval. The Future of Imprisonment. Chicago: University of Chicago Press, 1974.

National Advisory Commission on Criminal Justice Standards and Goals. Criminal Justice System. Washington, D.C.: The Commission, 1973.

National Center for State Courts. State Court Caseload Statistics 1996. Williamsburg, VA: National Center for State Courts, 1997.

. Examining the Work of State Courts. Williamsburg, VA: National Center for State Courts, 1998.

Ohlin, Lloyd, and Remington, Frank, eds. Discretion in Criminal Justice: The Tension between Individualization and Uniformity. Albany: State Univ. of N.Y. Press, 1993.

Packer, Herbert L. The Limits of the Criminal Sanction. Stanford, Calif.: Stanford University Press, 1968.

Perez, Jacob. Offender-Based Transaction Statistics: Tracking Offenders, 1990. Washington, D.C.: Bureau of Justice Statistics, 1994.

President's Commission on Law Enforcement and Administration of Justice. The Challenge of Crime in a Free Society. Washington, D.C.: The Commission, 1967.

Reaves, Brian A., and Goldberg, Andrew L. Campus Law Enforcement Agencies, 1995. Washington, D.C.: Bureau of Justice Statistics, 1996.

Reaves, Brian A., and Goldberg, Andrew L. Local Police Departments 1997. Washington, D.C.: Bureau of Justice Statistics, 2000.

Reaves, Brian A., and Hart, Timothy C. Federal Law Enforcement Officers, 1998. Washington, D.C.: Bureau of Justice Statistics, 2000.

Reitz, Kevin R. "Modeling Discretion in American Sentencing Systems." Law & Policy 20 (1998): 389428.

Rennison, Callie Marie. Criminal Victimization 1999. Washington, D.C.: Bureau of Justice Statistics, 2000.

Ringel, Cheryl. Criminal Victimization 1996. Washington, D.C.: Bureau of Justice Statistics, 1997.

Roach, Kent. "Four Models of the Criminal Process." Journal of Criminal Law & Criminology 89 (1999): 671716.

Rottman, David B., et al. State Court Organization 1998. Washington, D.C.: Bureau of Justice Statistics, 2000.

Snell, Tracy L. Capital Punishment 1999. Washington, D.C.: Bureau of Justice Statistics, 2000.

Stephan, James J. State Prison Expenditures, 1996. Washington, D.C.: Bureau of Justice Statistics, 1999.

Tonry, Michael, ed. Handbook of Crime and Punishment. New York: Oxford University Press, 1998.

Tonry, Michael, and Frase, Richard S., eds. Sentencing and Sanctions in Western Countries. New York: Oxford University Press, 2001.

Tyler, Tom R. Why People Obey the Law. New Haven, Conn.: Yale University Press, 1990.

Vera Institute of Justice. Felony Arrests: Their Prosecution and Disposition in New York City's Courts. New York: Vera Institute of Justice, 1977.

Walker, Samuel. Taming the System: The Control of Discretion in Criminal Justice, 19501990. New York: Oxford University Press, 1993.

Zeisel, Hans. The Limits of Law Enforcement. Chicago: University of Chicago Press, 1982.

Zimring, Franklin E., and Frase, Richard S. The Criminal Justice System: Materials on the Administration and Reform of the Criminal Law. Boston: Little, Brown & Co., 1980.

Zimring, Franklin E., and Hawkins, Gordon. The Scale of Imprisonment. Chicago: University of Chicago Press, 1991.


Bureau of Justice Statistics.

Federal Bureau of Investigation.

Federal Bureau of Prisons.

Federal Justice Statistics Resource Center.

U.S. Sentencing Commission.

Criminal Justice System

views updated May 08 2018

Criminal Justice System

The American criminal justice system has shaped racial inequalities and been shaped by them. From 1619 until Emancipation, the vast majority of African Americans were enslaved. At Emancipation, approximately four million people were enslaved in the United States. This 250-year period saw the development of a system of laws and practices that often protected white people from conviction for crimes against African Americans. This legal system also regulated marriage and mobility in a restrictive manner for African Americans.

Slave Codes

In the South until slavery was abolished, policing was carried out by publicly or privately financed patrols. These patrolscalled paterollers policed the roads, woods, and public spaces in the plantation South. The earliest slave patrols were groups of owners in sixteenth-century Cuba, then a Spanish colony, who gathered to capture enslaved people who had fled their plantations. Over time, this amateur system was replaced by professionalsoften themselves former bondsmenwho were paid a bounty for each fugitive they apprehended.

Whereas these early patrols focused their energies on enslaved people who had fled, the British colony of Barbados was the first to develop a system of laws to regulate the movement and behavior of all enslaved peoples. In reaction to an abortive rebellion in 1649, Barbados instituted a pass system. In addition to enforcing the pass system, which required enslaved people to carry passes explaining and authorizing their movement, Barbadian patrols also enforced laws that forbade enslaved people from carrying firearms and from moving around on Sundays. In 1661 Barbados created the first slave code in the British colonies in an "Act for the Better ordering and governing of Negroes." As Sally Hadden notes, this act was based on the assumption that enslaved people were "heathenish brutish" and a "'dangerous kinde of people' who had to be controlled" (2001, p. 11).

This code was soon adopted by other British colonies, first in Jamaica and Antigua and then in the North American colony of South Carolina, founded in part by former Barbadian slave owners in 1670. South Carolina created its "Act for the Better Ordering of Slaves" in 1690. Designed primarily to limit the movement of free and enslaved black people to specific days and the carrying out of specific tasks, it also regulated behavior. Whites who apprehended an enslaved person without a pass were mandated by law to administer a whipping under the 1696 revision of the South Carolina Act. After the Stono Rebellion in 1739, patrolling became the exclusive duty of the militia. These codes soon spread to other North American colonies, including Georgia, Virginia, Louisiana, Kentucky, and Alabama.

In still other ways, the emerging criminal justice system played a central role in establishing racial inequality. The lives of the approximately 500,000 free African Americans in 1860 were heavily regulated by the criminal justice system. Laws in the slave states barred black people from serving on juries or serving as witnesses against whites. Maryland and Louisiana maintained a large free black population throughout the period, particularly in Baltimore and New Orleans. But in most states in the early nineteenth century, if someone wanted to free an enslaved person he or she was required to pay the freedperson's transportation out of the state.

Criminal Justice in the Jim Crow Era

Through legislation, the antebellum criminal justice system codified the meanings of racial difference. After the Civil War, when slavery no longer existed, the codified meanings of racial difference underwent transformations through subtle and pernicious changes in criminal law. Through the convict-lease system, the southern criminal justice system managed to maintain many of the worst elements of slavery. In the convict-lease system, African Americansincluding juvenilescould be leased out to labor contractors to engage in backbreaking labor for no compensation. As W. E. B. Du Bois would later argue, the convict-lease system was a "spawn of slavery" that did nothing to lower crime rates. Like the paterollers, post-Civil War criminal justice was designed primarily to maintain white racial supremacy by restricting the movement and behavior of African American people. As social reformers and journalists investigated and revealed these practices, the convict-lease system gave way to state-run prison farms. From Angola in Louisiana to Parchman Farm in Mississippi, former plantations turned prison farms became among the most profitable farms in the post-Reconstruction South. This segregatedor Jim Crowsystem of punishment recreated the brutality and exploitation of slavery within the criminal justice system.

Extralegal practices of policing and punishment developed alongside this Jim Crow system of criminal justice. In the late nineteenth and early twentieth centuries, lynching was the most pernicious form of extralegal social control. Between 1877 and 1892, 728 documented lynchings took place. The charge of rape often accompanied lynching. Memphis journalist Ida B. Wells revealed that the premise that lynching was needed to curb an insatiable black male desire to have sex with white women obscured more credible underlying reasons. Perhaps her most important argument centered on the contention that "the whole matter is explained by the well-known opposition growing out of slavery to the progress of the race.The South resented giving the Afro-American his freedom, the ballot box, and the Civil Rights Law" (Wells, p. 30). She saw lynching as a political act intended to maintain white economic, political, and social supremacy. The strategy was "kill the leaders and it will cow the Negro" (Wells, p. 34). In the absence of police protection, she urged every African American to learn that "a Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refused to give" (Wells, p. 37).

Like paterollers, the convict-lease system, and prison farms, lynching served to maintain white supremacy through terror and violence. In couching the atrocity of lynching as a response to a rape or attempted rape, "Judge Lynch," as the practice was sometimes called, placed the extralegal practice within the language of law and order. As Ida B. Wells argued, however, lynching maintained racial oppression while claiming to protect citizens from organized violence. This ongoing link between policing and racial oppression resulted in a criminal justice system that could not be seen merely as a means of protecting lawabiding citizens from criminals. Rather, the criminal justice system was supportive of lawlessness in the case of lynching and, as the twentieth century opened, overzealous in its prosecution of African Americans, whom whites increasingly believed were associated with the problem of urban crime.

The Great Migration

Partly in response to continued discrimination, one million African Americans moved from the South to the North between 1915 and 1925. This became known as the

Great Migration. African-American neighborhoods in cities like New York and Chicago often had high crime rates, in part because they housed vice districts that served a broad, multiracial, illicit market for drugs, prostitution, and gambling. During the 1920s, sociologists offered two competing explanations for the involvement of some African Americans in urban vice and crime. The first posited that overcrowding, poverty, and uprooting helped to produce an increase in criminality. The second, more popular explanation sought racialized explanations for what was called "Negro crime." In short, explanations alternated between blaming the ghetto environment and blaming the "innate criminality" of black people. Although the explanations differed, most whites agreed that the newly urban African-American population needed intensive policing. Almost immediately following the Great Migration, state and local police resources targeted African-American communities. A third explanation soon emerged, blaming saturation policing of black communities, discrimination throughout the criminal justice system, and racist stereo-types for the overrepresentation of black people in crime data and the prison system.

Despite changes in location and justification, the criminal justice system maintained white racial domination in a historically consistent manner. In 1931 national attention focused on nine young African-American men ranging in age from thirteen to twenty-one who became known as the Scottsboro Boys after they faced trial in Alabama on rape charges. When the "boys" were convicted and sentenced to death, many observers used the case as evidence that the old system of racially inspired justice remained firmly in place. The Supreme Court reversed their convictions in Powell v. Alabama (1932), but subsequent trials resulted in prison sentences of up to nineteen years for five of the defendants. Outrage at this treatment, however, inspired the formation of the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund (LDF). Under Charles Hamilton Houston, vice dean of the Howard University Law School, the LDF joined the efforts of the civil rights movement to transform the criminal justice system during the postWorld War II period.

The Civil Rights Movement and the Criminal Justice System

In 1963, while incarcerated in a Birmingham, Alabama, jail, Martin Luther King Jr. wrote a justification of civil disobedience. His willingness to violate the laws that legitimized segregation stemmed from his belief that "all segregation statutes are unjust because segregation distort[s] the soul and damages the personality.Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong" (King, p. 38). In both his practice and advocacy, King urged people to break unjust laws even as the movement worked to reshape the legal system in ways that advanced the cause of racial justice, as had, for example, the Brown v. Board of Education (1954) decision, which outlawed school segregation.

The LDF emerged as the most powerful proponent of changing the criminal justice system during the 1960s and 1970s. While the LDF became well known for its work on school desegregation, it worked equally hard on revising laws and practices that unfairly targeted African Americans. In the years following the assassinations of Martin Luther King Jr. and Robert F. Kennedy, the LDF joined Amnesty International and the American Civil Liberties Union in condemning the death penalty. These organizations insisted that the application of the death sentenceparticularly in cases involving the rape of a white womanconstituted an arbitrary and racist double standard. Between 1930, the first year such statistics were collected, and 1969, state governments executed 445 men for rape. Of these, 40 were white, the rest African American (Bernstein, p. 16). The LDF succeeded in overturning the death sentences of over 600 death row inmates in a series of cases between 1967 and 1972.

During the late 1960s and 1970s, the argument that the criminal justice system played a crucial role in maintaining racial inequality intensified. Most notably, prisoners and former convicts voiced their concerns that racism had fundamentally influenced their incarceration. Malcolm X was joined by Huey P. Newton, George Jackson, Ericka Huggins, and Angela Davis in articulating the link between racial inequality and the policing of African-American communities. In 1967, according to Useem and Kimball (1989), 80 percent of the almost 300,000 prison inmates in the United States were people of color. These masses of incarcerated people raised more than their voices: On the East Coast, the Attica prison riots became the best known of the approximately 300 such disturbances in the United States between the late 1960s and early 1980s. Forty-eight of these were concentrated between 1968 and 1971.

The liberation of all black prisoners became a central demand of the struggle for social justice in the aftermath of the civil rights movement. As Huey P. Newtonthe founder of the Black Panther Party, whose release from prison became a focus of Panther effortssaid at the eulogy for Jonathan Jackson and William Christmas, "There are no laws that the oppressor makes that the oppressed are bound to respect" (Newton, p. 322). Jonathan Jackson's older brother George soon became known for his book of prison letters, Soledad Brother, in which he observed that "there are still some blacks here who consider themselves criminals, but not many"(Jackson, p. 36).

These writers also articulated the view that police officers were a colonizing presence in black communities; that as agents of oppression, police officers were agents of the perpetuation of segregation and exploitation. As these arguments achieved widespread influence in the wake of urban uprisings in Los Angeles, Detroit, and northern New Jersey, police departments began actively recruiting African-American officers. There had long been some few African-American police officers, but they largely served in segregated "Negro divisions" or as one of several token figures in otherwise white departments. In an explicit effort to improve relations between black communities and police departments, African Americans were hired in large numbers in Chicago, Newark, Detroit, and Houston during the 1960s and 1970s. In other cities, African Americans were promoted to leadership positions. In some cases, they spoke out against racism in their ranks in order to expedite changes in the culture of police departments. In addition, some cities joined New York City in establishing civilian review boards to investigate citizen complaints against police departments. However, white-dominated police unions took legal action against both affirmative action policies and civilian review boards. Even where they existed, the presence of African-American officers and civilian review boards did little to change discriminatory practices at every level of the criminal justice system.

The appointment of African-American judges and prosecutors proceeded even more slowly than the racial integration of police departments. In 1977, 22 of 500 federal judges were African American (4.4%). In the area of jury service, the rate of inclusion for African Americans was also low. Although the exclusion of African Americans from juries was outlawed in 1875, African Americans continued to be excluded from juries through the use of peremptory challengesa practice that allows prosecutors to eliminate individuals from the jury pool without needing to explain their reasons. This resulted in the underrepresentation of African Americans on juries in federal and state trials.

Criminal Justice Since the 1970s

Since the 1970s, two factors have dominated explanations for the continued overrepresentation of African Americans in the criminal justice system. First, the war on drugs has disproportionately affected African Americans and other peoples of color. Although drug use occurs across racial lines and some studies suggest that drug use among whites is higher than among African Americans, African Americans are prosecuted, convicted, and incarcerated for drug and drug-related crimes at far higher rates than people from all other backgrounds. Second, while scholarly studies disagree on whether people from economically disadvantaged backgrounds are more likely to break laws, they agree that they are much more likely to enter into the criminal justice system when they do so. According to U.S. census data cited by Marvin Free (1996), between 1970 and 1990 the percentage of black families with incomes below the poverty line increased from 20.9 percent to 25.6 percent. During this same period, African-American over-representation in correctional facilities increased. These trends have led some criminologists to suggest that an improvement in African-American socioeconomic conditions must join fundamental changes in the criminal justice systemincluding the decriminalization of violations that unfairly target African Americansin order to begin disentangling the legacies of racial inequality and criminal justice.

See also Black Panther Party; Davis, Angela; Houston, Charles Hamilton; Jackson, George Lester; Jim Crow; Lynching; National Association for the Advancement of Colored People (NAACP); Slave Codes


Bernstein, Lee. "'Give Me Death': Capital Punishment And The Limits Of American Citizenship." In States Of Confinement: Policing, Detention, And Prisons, edited by Joy James. New York: Palgrave, 2002.

Christianson, Scott. With Liberty for Some: 500 Years of Imprisonment in America. Boston: Northeastern University Press, 1998.

Cole, David. No Equal Justice: Race and Class in the American Criminal Justice System. New York: New Press, 1999.

DuBois, W. E. B. "The Spawn of Slavery: The Convict-Lease System in the South." The Missionary Review of the World 14 (1901): 737745. Reprinted in African American Classics in Criminology and Criminal Justice, edited by Shaun L. Gabbidon, Helen Taylor Greene, and Vernetta D. Young. Thousand Oaks, Calif.: Sage, 2002.

Dulaney, W. Marvin. Black Police in America. Bloomington: Indiana University Press, 1996.

Free, Marvin D., Jr. African Americans and the Criminal Justice System. New York: Garland, 1996.

Hadden, Sally E. Slave Patrols: Law and Violence in Virginia and the Carolinas. Cambridge, Mass.: Harvard University Press, 2001.

Jackson, George. Soledad Brother: The Prison Letters of George Jackson. New York: Bantam, 1970.

King, Martin Luther, Jr. "Letter from a Birmingham Jail." The Christian Century 80, no. 24 (June 12, 1963): 767773. Reprinted in Imprisoned Intellectuals: America's Political Prisoners Write on Life, Liberation, and Rebellion, edited by Joy James. Lanham, Md.: Rowman and Littlefield, 2003.

Newton, Huey P. "Eulogy for Jonathan Jackson and William Christmas." Delivered at Saint Augustine's Church, Oakland, Calif., August 15, 1970. Reprinted in Off the Pigs! The History and Literature of the Black Panther Party, edited by G. Louis Heath. Metuchen, N.J.: Scarecrow, 1976.

Oshinsky, David. "Worse than Slavery": Parchman Farm and the Ordeal of Jim Crow Justice. New York: Simon and Schuster, 1997.

Useem, Bert, and Peter Kimball, States of Siege: U.S. Prison Riots, 19711986. New York: Oxford University Press, 1989.

Wells, Ida B. "Southern Horrors: Lynch Law in All Its Phases," 1892. Reprinted in African American Classics in Criminology and Criminal Justice, edited by Shaun L. Gabbidon, Helen Taylor Greene, and Vernetta D. Young. Thousand Oaks, Calif.: Sage, 2002.

lee bernstein (2005)

Criminal Justice System

views updated May 17 2018


The bill of rights has sometimes been likened to a national code of criminal procedure. However, the Constitution regulates many important aspects of criminal justice that are not "procedural" in any sense; at the same time, it fails to regulate many other important aspects, both procedural and nonprocedural. Moreover, features of the criminal justice system that are subject to extensive constitutional limitations are not, in practice, so strictly regulated as is commonly believed. It is therefore appropriate to reflect on which important aspects of criminal justice are and are not governed by the Constitution, what factors explain these patterns, and what the future role of the Constitution should be in defining fundamental norms of criminal justice.

To evaluate the role of constitutional norms in criminal matters, it is necessary to analyze the entire criminal justice system. Each political entity in the United States (local, state, or federal) has such a system; it consists not only of the rules of evidence and procedure applicable in criminal matters, but also the major institutions of criminal justice (for example, the police, lawyers, judges, court and correctional officials), as well as the provisions of the criminal law (crimes, defenses, and penalties). This system can be envisioned as a process that begins with the definition of the criminal law and the institutions of justice; proceeds "chronologically" through increasingly selective stages of investigation, charging, adjudication, appellate review, and punishment; and ends with the continuing careers of convicted offenders, who all too often, begin the process all over again. Each of these stages of the process raises fundamental issues of justice and of individual-state relations that might be, but often are not, regulated by constitutional norms. At the same time, the enforcement of any such norm is limited by that norm's systemic context; specific rules are dependent on other rules, many of which are not subject to federal constitutional regulation. Thus, changes in specific constitutional norms are often canceled by compensating changes in other rules or practices in the same or different parts of the system.

The following is a list of the major issues at each stage of the above chronological flow model that are and are not subject to significant constitutional regulation:

  1. The definition of crimes and penalties is largely unregulated by the Constitution, except for certain limitations imposed by the ex post facto, bill of attainder, and equal protection clauses, the first amendment and Eighth Amendment, the right of privacy, and the vagueness and fair notice doctrines. Almost all issues relating to the definition of defenses (e.g., self defense, intoxication, and insanity) are unregulated.
  2. Except for the appointment and tenure of federal judges, the requirements of judicial neutrality in the issuance of warrants and at trial, and certain First Amendment limitations on the hiring and firing of public employees, the institutions of criminal justice are not regulated at all by the federal Constitution; many are also not closely governed by state constitutions. Important unregulated issues include selection and internal supervision of police, prosecutors, and correctional officials; selection and tenure of state judges; and training of police, prosecutors, judges, and defense attorneys.
  3. The investigation of criminal charges is covered by highly detailed constitutional limitations as to search and seizure, police interrogation and confessions, the right to counsel, and bail. Important unregulated issues include police decisions to investigate or not investigate, to use informants and undercover police officers, and to charge some offenders and offenses, but not others; magistrate shopping; nighttime arrests and searches; searches when no one but police are present; use of arrest and pretrial detention in minor cases; prompt appearance in court; appellate review of pretrial detention; and nonbail release conditions.
  4. Prosecutorial decisions to select offenders and charges, to later drop charges, and to engage in plea bargaining as to charges and the sentence, or both, have an enormous impact on case outcomes. However, except for very limited equal-protection and "vindictive prosecution" standards, these critical decisions are not regulated by the Constitution.
  5. Other pretrial procedures covered by the Constitution include the grand jury (in federal cases only), certain aspects of discovery, motions to exclude evidence, and speedy trial. However, the powers of the prosecution and the defense to obtain statements from potential witnesses (other than the defendant) before a trial are not regulated by the Constitution.
  6. Extensive fair trial rights are provided by the Constitution; examples are trial by jury, right to counsel, confrontation with state witnesses, burden of proof, right against self-incrimination, and double jeopardy. Important unregulated issues include the admissibility of the defendant's prior convictions or other misconduct, separation of guilt and sentencing evidence and findings, the necessity of written findings of guilt, multiple trials for the same offense in different states or in both state and federal systems, and most issues involving joinder of offenses and offenders in a single trial.
  7. Many of the fair trial standards also apply to sentencing proceedings, but they apply more flexibly. The Constitution does not require formal findings or reasons for a particular sentence, nor does it limit guilty plea concessions. Except for the imposition of capital punishment, sentencing decisions need not be structured by guidelines. The Eighth Amendment sets some limits on disproportionately severe prison terms and fines, and sentences are also limited by certain First Amendment, equal protection, and right of privacy rules, but most sentences are not constitutionally regulated either as to their form or severity.
  8. The freedom of the press and fair trial principles govern media publicity and access to trials and certain pretrial proceedings.
  9. Although habeas corpus rights are guaranteed, it is not clear whether the Constitution guarantees defendants any right to direct appeal in state cases. If an appellate system is provided, it must meet minimal equal protection and due process requirements, but the number of appellate levels, composition of courts, and nature of appealable issues are not regulated.
  10. Victims have no rights under the Constitution—to be heard or to appeal, to be protected, or to receive compensation.
  11. Compensation of citizens for unconstitutional search, arrest, pretrial detention, or imprisonment is available under federal civil rights statutes, but is subject to important limitations (for example, judicial immunity and police officer's defense of reasonable belief that arrest or search was lawful).
  12. The Constitution guarantees very few prisoners ' rights. Most fair trial rights do not apply to decisions such as prison discipline, transfers, parole, and revocation of probation.

To understand why the Constitution regulates criminal matters so selectively, it is necessary to consider not only the implications of federalism, but also the textual sources and historical development of federal constitutional norms. The constitutional texts applicable to criminal cases are mostly found in the Bill of Rights (1791) and the fourteenth amendment (1868). Of these, only the latter applies directly to the states, and it did not provide much concrete guidance until the 1960s, when the warren court, with use of the incorporation doctrine, began to hold that certain Bill of Rights guarantees were implicit in the Fourteenth Amendment's due process clause. Because there were very few federal criminal cases until the twentieth century, there was little early case law interpreting Bill of Rights guarantees. Indeed, before the adoption of the exclusionary rule in federal cases in 1914, there was virtually no case law, because there was no criminal court remedy encouraging defendants to litigate constitutional claims.

The Supreme Court's application of the exclusionary rule to state criminal cases in 1961, along with its expansion of the availability of habeas corpus and right to counsel in 1963, set the stage for a veritable explosion of constitutional case law during the final years of the Warren Court. Nevertheless, this expansion was constrained by the texts of the Bill of Rights. These texts were written in response to specific perceived abuses of the late eighteenth century. Moreover, they were written at a time when crime tended to be local and relatively disorganized, and before the development of organized police forces and the emergence of the public prosecutor's monopoly over the bringing of cases to trial. Considering these dramatic changes in the nature of crime and criminal justice, the Bill of Rights remains remarkably relevant today, but it fails to address many fundamental issues of modern criminal justice. In the absence of specific provisions, the courts have had to create new rights either by broad analogy to specific rights, or by applying the more open-ended provisions of the due-process clauses of the Fifth and Fourteenth Amendments. However, both approaches weaken the legitimacy of such newly recognized rights and make them vulnerable to attack.

This inherent vulnerability of the Warren Court's jurisprudence, combined with the appointment of more conservative Justices by Presidents richard m. nixon and ronald reagan, substantially slowed the expansion of criminal-process safeguards during the 1970s; indeed, the Supreme Court began to cut back on the scope of substantive rights and the availability of exclusionary and habeas corpus remedies. Notions of federalism also provided justification for this conservative shift; many believed that the Warren Court had gone too far in imposing strict federal standards on state criminal justice systems faced with rapidly rising crime rates and inadequate resources. Also, the relatively late development of these standards in federal cases and their very recent application to state cases lent some support to the view that they were not truly fundamental, at least in state cases.

But the Supreme Court did not simply relax the standards in state cases. Because the majority of Justices still accepted the premise of the selective incorporation doctrine—that a uniform definition of each right should apply in state and federal criminal cases—the conservative decisions of the 1970s and 1980s resulted in the lowering of constitutional standards in federal cases as well. Congress responded with a few statutory safeguards, and the Supreme Court's own federal rules of criminal procedure continued to provide certain standards more restrictive than the Constitution requires. At the same time, many state courts responded by relying more and more on state constitutional law to provide greater protections. In addition, state statutes, rules of procedure, and evidence codes continued to provide important safeguards in areas where constitutional law had retreated or had never been applied.

The degree of the Supreme Court's conservative shift since 1970 should not be overstated. Indeed, a closer analysis of the jurisprudence of the Warren Court reveals that it too had doubts about the wisdom of expanding and strictly enforcing constitutional standards in state and federal criminal cases. Six themes that cut across the spectrum of specific rights illustrate this ambivalence. Although these themes became much clearer in the 1970s and 1980s, they were already evident in the Warren Court era.

First, even the Warren Court recognized that some procedural rights are less important than others. The most important rights were those directly related to the integrity of the adversary system, particularly the right to counsel. Such rights, when violated, were more likely to receive retroactive application and to lead to automatic reversal of a conviction. At the other end of the spectrum, receiving the least protection, were fourth amendment rights. In theory, such rights involve fundamental issues of individual freedom from governmental oppression. In practice, however, they tend only to be asserted by defendants who, in light of illegally seized physical evidence, appear to be clearly guilty of criminal conduct. Thus, the Warren Court recognized several important limitations on these rights and related exclusionary remedies; for example, these rights received little if any retroactive application. Post-Warren Court decisions reflect this "hierarchy of rights" theme even more strongly.

Second, even the adversary-system rights given highest priority by the Warren Court were not applied with equal strictness at all stages of the criminal process. Except for police interrogations covered by miranda v. arizona (1966), the right to counsel was not applied before the filing of formal charges. Similarly, the Court did not show much interest in extending fair trial standards to critical decisions made by correctional authorities, such as disciplinary isolation and revocation of parole. Indeed, the Supreme Court (along with most lower courts) adopted a "hands off" approach toward the entire correctional process. Decisions after 1970 did recognize some rights for prisoners and extended counsel rights to some preindictment proceedings. It remains true, however, that constitutional fair trial guarantees apply primarily at trial; the criminal justice system is not, on the whole, really an "adversary" system.

Third, even some trial rights were not deemed applicable to all criminal cases: the Warren Court held that there is no right to a jury trial for "petty offenses" (maximum sentence not exceeding six months' imprisonment). The petty-offense limitation was later applied in different form to the right to counsel at trial. The rationale for this limitation, also widely followed in nonconstitutional procedural rules, is that more severe penalties require more exacting procedures of adjudication. During the pretrial investigative stage, however, the opposite rule applies: more serious offenses give the citizen fewer rights and the police greater power, for example, to make warrantless entries to arrest.

Fourth, the Warren Court's failure to condemn certain problematic features of American criminal justice implied that fundamental concepts, such as due process and equal protection, may mean different things in criminal cases than they do in other contexts. This view was later explicitly adopted by the Court in Gerstein v. Pugh (1975), holding that the Fourth Amendment defines (sometimes less strictly) "the "process that due' for seizures of person or property in criminal cases." The Warren Court never questioned the traditional use of money bail to condition pretrial release, even though such use often constitutes blatant wealth discrimination. The Court held that the right to vote could not be lost by inability to pay a poll tax, , yet it allowed the right of physical liberty before conviction to be lost by inability to post bail. Similarly, the Warren Court never seriously questioned the dominant form of adjudication of criminal cases, that is, plea bargaining, which would seem to be either an unconstitutional condition on the exercise of rights or a case of coerced waiver of rights. It scarcely seems imaginable that the Warren Court would have tolerated in any other context an institutionalized practice whose main purpose is to discourage the exercise of constitutional rights.

Fifth, the Warren Court recognized that police and courts have a practical need for easily administered "bright-line" rules that disregard the specific circumstances of each case. Although most of the Warren Court's bright lines tended to be overly broad with respect to individual rights, some tilted more in the other direction, for example, the automatic right to conduct a limited search incident to arrest. Later Supreme Court decisions have struck the opposite balance: most, but not all, bright-line rules favor the police.

Finally, the Warren Court undercut many of its liberal, prodefendant rights by recognizing significant limitations on the scope of exclusionary remedies. Thus, defendants lack standing to object to even the most outrageous violations of another person's rights; they cannot object to the use of illegally seized evidence to contradict their own testimony on the witness stand; remote products ("fruits") of illegality remain admissible in the prosecution's case, and there is no criminal court remedy for an illegal arrest that does not produce any such evidentiary fruits; and the admission of clearly excludable evidence generally does not require reversal if the reviewing court concludes, in light of the untainted evidence, that admission was harmless error. These exceptions were greatly expanded (and became more numerous) in later Supreme Court decisions; meanwhile, field studies of the exclusionary rule confirmed what perhaps was true even under the Warren Court: exclusion of evidence is rare, occurring in less than one percent of cases, many of which still result in conviction.

Why are fundamental constitutional rights so weakly enforced, even by liberal judges? In addition to the important reasons of history and federalism, noted earlier, there are a number of factors peculiar to the criminal process. First, enforcement of rights usually costs money, and the criminal justice system is inherently underfunded: crime often increases much faster than prisons can be built; legislatures enact moralistic and "get tough" laws, but not the tax increases necessary to pay for their enforcement; and criminal laws are rarely repealed or reduced in severity because there are no votes for the elected official who is, or even appears to be, "soft" on crime or immorality. Second, in part as a result of the first problem, almost all cases are resolved by a guilty plea rather than by trial; defendants who plead guilty waive not only their trial rights, but frequently also their rights to contest the introduction of illegally obtained evidence.

Third, the remedies for constitutional violations create problems of their own. The exclusionary rule often requires courts to throw out reliable evidence; retrial after appellate reversal of conviction may be impossible because of lost evidence, witnesses, and testimony. Fourth, the actors purportedly regulated by constitutional norms retain substantial unregulated discretion—not only because of the need to limit caseloads to stay within resource limits, but also because the correctness of the actors' decisions often turns on case-specific factual determinations, such as voluntariness of consent or waiver, which does not permit close regulation by legal norms. In any case, such norms govern relatively few issues; officials deal with cases and defendants under many rules and at many stages of system processing, and each stage provides opportunities to undercut or evade the occasionally strict rule.

Finally, it must be admitted that Americans are deeply ambivalent about some of their most fundamental ideals of justice. Such ideals often make it more difficult to arrest and convict criminals; particularly in times of rapidly increasing crime rates, most citizens prefer to protect themselves and their property rather than criminals. Even where constitutional norms are designed to protect the innocent, they are necessarily most likely to be asserted by a guilty defendant. As noted earlier, this is almost always true in the Fourth Amendment area, but it is generally true throughout the system. The presumption of innocence itself is somewhat counterintuitive: most arrested persons and certainly most defendants brought to trial are guilty, or ought to be; if they were not, our criminal justice system would be grossly defective. Similarly, the right against compelled self-incrimination is contrary to the general duty to testify and the view that wrongdoers have a duty to admit their mistakes; the right to a vigorous defense is contrary to the view that wrongdoers should not be assisted in their efforts to conceal the truth and avoid punishment; and limits on deceptive police practices are contrary to the view that sometimes it is necessary to fight fire with fire. In light of these value conflicts, citizens—and sometimes even lawyers and judges—may lose sight of the importance of our most fundamental criminal-procedure safeguards.

What, then, can we conclude about the proper role of the Constitution in criminal matters? Despite the problems described, Americans certainly must not stop trying to improve the quality of criminal justice. Moreover, constitutional norms play a central role in these efforts—defining, as the Supreme Court said of the cruel and unusual punishment clause, "the evolving standards of decency which mark the progress of a maturing society." At the same time, constitutional norm setting has its limits. Only the most fundamental and lasting norms can be expressed in the constitutional text. Moreover, the case law articulating such norms must not get too far ahead of our ability and willingness to enforce these rules; otherwise, idealism and hope turn to hypocrisy and cynicism.

The Constitution is only one source of norms in criminal cases; other major sources are state constitutions, statutes, codes of criminal procedure and evidence, model law and procedural codes, administrative regulations, and the common law,. Increasingly, Americans have begun to look to statements of international human rights; although the influence of the american constitution abroad once made the United States a leader in this field, international norms have now progressed to the point where they sometimes set standards more strict than, or in areas not covered by, the American Constitution.

Richard S. Frase


American Bar Association 1980 ABA Standards for Criminal Justice, 4 vols., 2nd ed. Boston: Little, Brown.

American Law Institute 1975 A Model Code of Prearraignment Procedure. Philadelphia: American Law Institute.

Frase, Richard S. 1986 Criminal Procedure in a Conservative Age: A Time to Rediscover the Critical Nonconstitutional Issues. Journal of Legal Education 36:79–82.

Friendly, Henry J. 1965 The Bill of Rights as a Code of Criminal Procedure. California Law Review 53:929–956.

Kamisar, Yale; La Fave, Wayne; and Israel, Jerold H. 1990 Modern Criminal Procedure: Cases, Comments, Questions, 7th ed. St. Paul, Minn.: West Publishing Co.

La Fave, Wayne R. and Scott, Austin W., Jr. 1986 Criminal Law, 2nd ed. St. Paul, Minn.: West Publishing Co.

Zimring, Franklin E. and Frase, Richard S. 1980 The Criminal Justice System: Materials on the Administration and Reform of the Criminal Law. Boston: Little, Brown.

Criminal Justice System

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Criminal Justice System









One of the most troubling features of the American criminal justice system is the disproportionate involvement of members of minority groups at every stage of the justice process. Long-standing debate centers on whether this over-representation results from higher rates of criminal acts committed by minority group members (i.e., biological race) or is a consequence of racism in case processing within the criminal justice system. Some scholars suggest that racial disproportion is contextual, depending on the particular circumstances of a case, the race of the defendant and victim, or geographic location. These explanations suggest that racism flows from systemic racism through discriminatory actions by individual judges, court-appointed lawyers, police officers, “three strikes and you’re out” laws, composition of juries, and correctional systems.

The background for this problem is a long-standing pattern of historical intolerance and cultural depictions of members of minority groups as deviant or criminal. African-American and Hispanic men in particular have been viewed as suspicious, violent, and dangerous. Such portrayals have contributed to assumptions that they are more likely to be involved in criminal activity, a belief that consequently leads to increased surveillance of their activities and harsher punishments once they come into contact with the criminal justice system.


Historically, the criminal justice system has functioned as an instrument of racism and oppression through legislation and the practices of the police, court, and correctional systems. For example, during slavery police were used for patrols to catch runaway slaves and return them to their owners, and in the late 1800s in the western United States, Chinese immigrants faced laws restricting their opportunities to own land and businesses (Mann 1993). The lynching of black men suspected of crimes, particularly rape of white women, was a widespread practice in southern states in the late nineteenth and early twentieth centuries. Such violence occurred with either the explicit consent and participation of criminal justice actors, or a willingness to ignore mob violence against people of color. There has also been a historical pattern of discriminatory treatment of minorities who are victims of crimes.


In addition to legislation and decision-making that treated racial and ethnic minorities as inferior, media and popular culture have depicted minorities as deviant and criminal, with differences between the depiction of men (as violent) and women (as irresponsible). In print and television news, and entertainment media such as music and movies, African-American men in particular have been presented as violent and dangerous. These portrayals encourage fear and suspicion of people of color. In contrast, the so-called war on drugs, a movement to give harsh penalties to individuals involved in drug crimes, formulated images of crime and deviance in which women were represented as crack cocaine addicts who neglected and endangered their children. Images of “crack babies” led to legislative efforts to criminalize drug use during pregnancy and imprison women whose babies were born with drugs in their systems. In retrospect, scholars have analyzed the period as a moral panic with little empirical evidence that the scope and magnitude of the problem were accurately presented. Whether these views led to discriminatory processing within the criminal justice system is a central question.

Such media and popular cultural myths and stereotypes perpetuate ideas that people of color are criminal and dangerous or irresponsible and reckless, and therefore should receive harsher treatment and penalties in the criminal justice system (Mann and Zatz 2006).


The disparity of involvement within the criminal justice system exists at all stages of the process. In 2002, while African Americans comprised 12 percent of the U.S. population, they were 27 percent of people arrested and 37 percent of felony offenders convicted in state courts. The disparities are even greater in rates of incarceration. In 2004, 41 percent of state and federal prison inmates were African American and 19 percent Hispanic. The lifetime likelihood of criminal justice system involvement is also much higher for African Americans. By some estimates, as many as one in three African-American men will be on probation, parole, or in prison in their lifetime. In 2004, 8.4 percent of all black males aged twenty-five to twenty-nine were incarcerated (Pas-tore and Maguire).


While members of minority groups are disproportionately involved with the criminal justice system, the explanations for this are a source of debate. Samuel Walker, Cassia Spohn, and Miriam DeLone (2007) point out the distinction between disparity and discrimination. A disparity does not necessarily result from racism. For example, when considering legal factors such as offense seriousness or offender’s prior record, members of minority groups are more likely to be sentenced to prison because of their greater criminal histories. This may represent a disparity in outcome, but one that is legitimately based on non-racial factors relevant to sentencing.

Yet disparity may result from the use of extralegal factors, such as the defendant’s or victim’s race, ethnicity, gender, or marital or employment status—and these may operate as indirect causes of discrimination. For example, marital and employment status are related to race, and when criminal-justice decision makers take factors such as these into account, they put members of minority groups at a systematic disadvantage because of race-based differences in background characteristics.

To better understand the differences between disparity and discrimination, Walker, Spohn, and DeLone created a discrimination–disparity continuum regarding processing in the criminal justice system. The five elements on the spectrum, ranging from the highest levels of discrimination to no discrimination at all, are: systematic discrimination, institutionalized discrimination, contextual discrimination, individual acts of discrimination, and pure justice.

At one end of the spectrum, pure justice, there is no racism in the system, and longer sentences and higher rates of incarceration for members of minority groups result purely from higher rates of criminal involvement. At the other end, systematic discrimination suggests that decisions are made according to racist assumptions and that members of minority groups are always discriminated against at every stage of the process. The intermediate points on the spectrum represent varying levels of discriminatory individuals making unfair decisions and institutional arrangements that work to the disadvantage of minorities.


There is little credible research proposing that minority involvement in the criminal justice system is attributed to biological inferiority, deviance, or propensity toward violence. There have been periods in history when such ideas were embraced, and promoted for political purposes (Mann 1993). There is a long history of research examining structural factors in crime (unemployment, poverty, neighborhood of residence) that are highly correlated with race (Walker, Spohn, and DeLone 1996).


Indirect and contextual racism may be the best explanations for why people of color are overrepresented in the criminal justice system. For example, prosecutors and judges look at the offense seriousness and prior record of the offender when they make charging and sentencing decisions. These are the legal factors that legitimately influence decisions if racism was not involved in those prior sentences. Some studies of racial bias in sentencing have found that when these variables are controlled for, evidence of racial discrimination disappears.

There are characteristics of the racial and economic structure in the United States that systematically put people of color at a disadvantage, and some of these disadvantages carry over to the criminal justice system. Minority defendants are more likely to be poor and therefore less likely to be represented by private attorneys or be released before trial. In addition, when law enforcement resources are focused on street crime, white-collar crimes are less likely to be detected, and perpetrators of such crimes go unpunished.

Contextual factors may be important for certain types of crimes, or when a defendant is a person of color and a victim is white. Research on the death penalty, for example, indicates that after controlling for legally relevant factors such as offense and defendant’s prior record, a death sentence is more likely when the victim is white (Baldus, Woodworth, and Pulaski 1990).


Increasingly, research is focusing on the devastating consequences for communities of color from overrepresentation in the criminal justice system. More than half of the states deny voting rights to individuals under correctional supervision, and fifteen states deny rights to those in prison. It is estimated that 13 percent of black men are permanently banned from voting (Human Rights Watch 1998). Moreover, justice involvement, particularly imprisonment, is geographically concentrated, leading to disparate impact on members of minority groups. The removal and return of large numbers of young men because of incarceration has a destabilizing effect that may reverberate through many aspects of community life.

New approaches to crime and justice issues are attempting to overcome the history and legacy of racist and discriminatory treatment in the criminal justice system. Community-based programs, including policing and court models, revolve around problem solving that may prevent criminal justice involvement and make criminal justice actors more responsive to the needs of specific communities. In addition, there is a growing sentiment that the criminal justice system should be involved in building neighborhoods’ capacity to provide safe environments, particularly in the communities that have suffered from systematic racism and discrimination in the United States (Clear and Karp 1999).

SEE ALSO Criminality, Race and Social Factors; Hoaxing.


Baldus, David C., George Woodworth, and Charles A. Pulaski Jr. 1990. Equal Justice and the Death Penalty: A Legal and Empirical Analysis. Boston: Northeastern University Press.

Clear, Todd R., and David R. Karp. 1999. The Community Justice Ideal: Preventing Crime and Achieving Justice. Boulder, CO: Westview Press.

Human Rights Watch and The Sentencing Project. 1998. “Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States.” Washington, DC: The Sentencing Project and New York: Human Rights Watch.

Mann, Coramae Richey. 1993. Unequal Justice: A Question of Color. Bloomington: Indiana University Press.

Mann, Coramae Richey, and Marjorie S. Zatz, eds. 2006. Images of Color, Images of Crime: Readings, 3rd ed. Los Angeles: Roxbury Publishing.

Pastore, Ann L., and Kathleen Maguire, eds. Sourcebook of Criminal Justice Statistics. Available from

Walker, Samuel, Cassia Spohn, and Miriam DeLone. 2007. The Color of Justice: Race, Ethnicity, and Crime in America, 4th ed. Belmont, CA: Wadsworth.

Johnna Christian
Todd Clear

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