Describe the factors that affect sentencing. Use these factors to inform your opinion about the fairness and justice associated with sentencing. Are the U.S. procedures fair or effective? What could be changed to create equitable sentencing. Which sociological theories might explain our sentencing trends?
Explain the CSI effect. What issues does this create in the judicial process? What are some ways in which we can co
ect for the problems that the assumptions about DNA evidence can cause?
No Slide Title
Chapter 8
Pretrial and Trial Procedures
Learning Objectives
Summarize the bail process
Discuss the main issues associated with bail
Differentiate the 2 main mechanisms for charging defendants (grand jury indictment or prosecutor’s information)
Summarize the pleas available to a criminal defendant
Explain the issues involved in plea bargaining
Learning objectives
Describe the plea bargaining process
Explain the purpose of pretrial diversion
Describe the goals and purpose of the trial process
Explain the legal rights of the accused at trial
Summarize the trial process
Pretrial Procedures
Important components of the justice process
Vast majority of cases are resolved informally at this stage and never come before the courts
Bail
Defined:
Security provided to the court that the defendant will appear at every stage in the CJ process
Failure to appear results in forfeiture of bail is forfeited and confinement in jail until court appearance
Right to Bail:
Eighth Amendment does not guarantee bail, but prohibits excessive bail
Stack v Boyle - bail is excessive when it exceeds an amount reasonably calculated to ensure the defendant’s appearance at trial
Bail
Bail Release Mechanisms:
Issues to be considered for bail eligibility:
Crime type
Flight risk
Dangerousness of defendant
Bail Release Mechanisms:
Police field citation release
Police station house citation release
Police/pretrial jail citation release
Direct release programs
Police/court bail schedule
Bail
2/3 of all felony defendants were released on bail
1/ 2 of all violent criminals were released on bail
8% of suspected murderers released on bail
42% ro
ery suspects released on bail
44% motor vehicle theft release rate
49% burglary release rate
55% rape suspect release rate
Six Types of Bail
Bail
Bail Issues:
Determining whether or not the defendant will appear for trial
Discriminatory against the poo
Costly for government
Unfair – higher proportion of detainees receive longer sentences than people on bail
Dehumanizing
The decision to bail may be racially or ethnically biased
Bail
Bail Issues:
Bondsmen and County Hunters
Employed by bonding agencies to find and return bail jumpers
Have legal powers to a
est and detain which vary from state to state
Bail
Bail Reform:
Factors such as conviction and sentence disparities have given rise to bail reform movement
Manhattan Bail Project (1961)
Federal Bail Reform Act of 1966
Bail Reform Act of 1984
Bail
Preventive Detention:
Certain defendants can be confined before trial without the possibility of bail
Preventive detention is ordered if judges determine that no condition or combination of conditions will reasonably assure the appearance of the person and the safety of any other person or community
Bail
Pretrial Services:
Provide information for judges to make release decisions
Assess likelihood of defendant failing to appear or being rea
ested
Monitor conditions of release or provide intensive supervision
Provide special services for mentally ill
Provide intense direct supervision
Charging the Defendant
The Indictment Process and the Grand Jury:
Power to act as independent investigating body
Contains information on findings and recommendation of indictment
Determines if probable cause exists:
Probable cause results in indictment or true bill:
No probable cause, no bill
Charging the Defendant
The Information Process and the Preliminary Hearing:
Open hearing conducted before a judge
Judge decides whether there is sufficient probable cause to believe the defendant committed the alleged crime
Charging the Defendant
A
aignment:
Occurs after the indictment but before trial
Judge informs defendant of charges and availability of counsel
Plea is entered
The Plea:
Guilty
Not guilty
Nolo contendere
Plea Bargaining
Exchange of prosecutorial and judicial concessions for guilty plea
Initial charges may be reduced
Prosecutor may promise to recommend lenient sentence
Prosecutor may alter charge
90% of criminal convictions are a result of negotiated guilty pleas
Plea Bargaining
Proponents argue the benefits:
Costs of prosecution reduced
Administrative efficiency of courts improved
Prosecution can devote more time to more serious cases
Opponents believe:
Dangerous offenders may receive lenient sentences
Prosecutors given free hand to induce or compel defendants to plea bargain
Possible that an innocent person will admit guilt if they believe system is biased and have little chance of acquittal
Plea Bargaining
Legal Issues in Plea Bargaining:
Defendants entitled to effective counsel
Pleas must be voluntary and without pressure
Any promise made by the prosecutor must be kept after defendant admits guilt
Defendants must also keep their side of the bargain to receive the promised offer of leniency
Plea Bargaining
The Role of Defense Counsel:
Advisory role
Ensure defendant understands the process and the guilty plea
Ensure defendant understands alternatives
Communicate all offers to client
The Role of the Judge:
Judges must approve plea agreements
Plea Bargaining
Plea Bargaining Reform:
Safeguards developed to ensure innocent individuals do not plead guilty under coercion
Judicial supervision ensures plea bargaining conducted in a fair manne
Banning plea bargaining
Pretrial Diversion
Diversion programs suspend criminal proceedings so that accused can participate in community treatment programs
Diversion gives the client an opportunity to:
Avoid stigma of criminal record
Continue to work and support family
Continue education goals
Access rehabilitation services such as anger management
Make restitution to the victim or payback community
Reduce costs and alleviate prison crowding
The Trial
The Trial
Legal Rights During Trial:
Impartial judge
Competent at trial
Confront witnesses
Compulsory process
Impartial jury
Counsel at trial
Speedy trial
Public trial
Convicted by proof beyond a reasonable doubt
The Trial
The Trial
Jury Selection:
The prosecutor and defense attorney can remove prospective jurors (under oath) by challenges known as:
Voir dire
Challenge for cause
Peremptory challenges
The Trial Process
Opening Statements:
Prosecutor makes first opening statement, then defense attorney
Statement provides an overview of the case
No prejudicial remarks, inflammatory statements, or i
elevant facts
Prosecutor’s Case:
Present evidence
Call witnesses
Cross examination
Witnesses restricted to factual information
Only expert witnesses can offer opinions
The Trial Process
The Criminal Defense:
Defendant under no obligation to present evidence as burden of proof is on the prosecution
Refutes prosecution’s allegations
After the defense rests prosecution is given the opportunity for rebuttal, followed by the defense’s su
ender rebuttal
Closing Arguments:
Selectively review facts and evidence
Provides inferences from evidence
Cannot refer to matters not in evidence
The Trial Process
Instructions to the Jury:
Judge will instruct, or charge the jury members on the principles of law that ought to guide and control their decision on the defendant’s innocence or guilt
Deliberation and Verdict:
Guilty, innocent, hung jury, jury nullification
The Trial
The Sentence:
Usually by the trial judge but in some jurisdictions jury may impose or make recommendation
Judge considers information in pre-sentence investigation report (PSI)
Different sanctions include:
Fines
Probation
Imprisonment
The Trial
The Appeal:
Once a defendant has been found guilty, they may petition an appellate court to review the procedures used during the trial
Defendants may have two main avenues to challenge such procedures:
Appeals
Habeas corpus
No Slide Title
Chapter 9
Punishment and Sentencing
Learning Objectives
Outline the historical development of punishment
List the major goals of contemporary sentencing
Distinguish among general and specific dete
ence, incapacitation, and retribution
Compare rehabilitation with just deserts
Identify various sentencing models
Learning objectives
Explain how sentences are imposed
Summarize factors associated with sentencing decisions
List the arguments for and against capital punishment
Be familiar with the legal issues associated with capital punishment
The History of Punishment
The punishment and co
ection of criminals has changed considerably through the ages reflecting:
Custom
Economic conditions
Religious and political ideals
The History of Punishment
Early Greece and Rome
Banishment or exile was most common
Middle Ages
Little governmental control
Feudal period
Emphasis of criminal law was on maintaining public order
Punishments increased in severity
Torture, execution, banishment, mutilation,
anding, and flogging used on a range of offenses
Retribution more important than dete
ence
The History of Punishment
Public Work and Transportation
to Colonies:
Sixteenth Century - the rise of the city and overseas colonization provided tremendous markets for manufactured goods and spurned a need for labo
Offenders were made to do hard labor for their crimes
“Poor laws” replaced torture
Workhouses were born in England
Convicts transported overseas
The History of Punishment
The Rise of the Prison:
Late 18th century crime rates rose significantly – a return to physical punishment and increased use of death penalty (350 crimes punishable by death)
Jails and workhouses held petty offenders
Hard core prisoners held in abandoned ships in England
Penitentiaries replaced physical punishment in England and America
The Goals of Modern Sentencing
The Goals of Modern Sentencing
Dete
ence:
General Dete
ence
Punishing the offender convinces potential offenders not to commit crimes
The more certain and severe the punishment, the greater the dete
ent effect
Specific Dete
ence
The punishment is greater than the benefits
Deters that particular individual from committing a subsequent offense
The Goals of Modern Sentencing
Incapacitation:
Criminals will not be able to repeat their criminal acts while they are under state control
The evidence supporting or negating incapacitation is mixed
The Goals of Modern Sentencing
Retribution/Just Desert:
The essential purpose of the criminal process is to punish offenders-fairly and justly-in a manner that is proportionate to the gravity of their crimes
Sentence should be clear and certain
Rehabilitation:
Based upon the need to treat criminal offenders
Society has failed the offender – therefore the justice system is obligated to help and not simply punish
Offenders can be reformed
The Goals of Modern Sentencing
Equity/Restitution:
Convicted criminals should pay back:
Their victims
Justice system costs
Society for the disruption they caused
Repayment to society and the victims by the offende
Sentencing Models
States penalize their convicted offenders in different ways:
Indeterminate sentences
Determinate sentences
Mandatory sentences
Sentencing Models
Indeterminate Sentences:
Most widely used sentencing model in the United States
Based on a treatment philosophy which must fit the needs of the offende
Specify minimum and maximum terms
Can earn time off for good behavio
Sentencing Models
Determinate Sentences:
Prompted by dissatisfaction with disparity and uncertainty of indeterminate sentencing
Utilizes sentencing guidelines:
Recommended sentences are based upon the seriousness of the offense and the background of the offender
Future of guidelines in question
Sentencing Models
Mandatory Sentences:
Limits judicial discretion and gets tough on crime
May exclude probation or parole
May use minimum or maximum terms but most require a fixed prison sentence
Have increased the prison populations significantly
Three-strikes laws - provides lengthy prison terms for three felony convictions
Sentencing Models
Truth In Sentencing:
Require offenders to serve a substantial portion of their prison sentence behind bars
The act requires an offender serve at least 85 percent of the prison sentence in order to qualify for funding
Parole eligibility and good-time credits are restricted or eliminated
Imposing the Sentence
Pre-Sentence Investigation Report:
Most judges consider pre-sentence investigation reports by the probation department
This report is a social and personal history, as well as an evaluation of the defendant’s chances for rehabilitation within the community
Imposing the Sentence
Concu
ent vs. Consecutive Sentences:
Concu
ent sentences
Serves sentences for two or more crimes at the same time
Consecutive sentences
Sentences for two or more criminal acts are served one after the othe
Effects of good time can shorten sentences
Consecutive vs. Concu
ent Sentences
Imposing the Sentence
The Effect of Good Time:
When judges sentence offenders, they consider the effect that the amount of time off for good behavior
Good time rates range from 10-15 days per