Lecture 2, Part II: Criminal Justice System

SPEAKER 0 Hello, everyone. Uh, today I'm going to continue discussing the criminal justice system, focusing on what is a system and what influences a system. What are some of the characteristics of the system. And then we're going to conclude with discussing, uh, the distinction between disparities...

SPEAKER 0 Hello, everyone. Uh, today I'm going to continue discussing the criminal justice system, focusing on what is a system and what influences a system. What are some of the characteristics of the system. And then we're going to conclude with discussing, uh, the distinction between disparities and discrimination. So what is a system? Well, a system, according to Cole and colleagues, is a complex whole made up of interdependent parts whose actions are directed towards goals and influenced by the environment in which they function. Now, a criminal justice system is a social system that is influenced by a variety of factors. It's influenced by economic factors, by political factors, and by social factors. So economic factors influence the system because it's a costly endeavor and there's not an endless amount of money. And so oftentimes, um, decisions might be made based on budgetary issues. Right. So if a county or city municipality is facing a budget crunch, right, they might have to, um, not rehire police officers who retired or they in worst case scenarios, they might have to fire um, police officers, uh, similarly with correctional staff, so on and so forth. Um, political factors influence the system, right? So we think about how our prosecutors, um, in most states and jurisdictions, um, selected their selected via voting. Um, and so our judges and individuals generally like to keep their job, and so they will the concern is that they will do what, uh, they feel that their constituents want, even if that may not be the most pragmatic. Right. So politicking, um, can influence the, the system and then social factors. Right. Individuals um in society can also have uh, an impact through advocacy as well demonstrations, protests, etc. as well as other other ways. The key to the criminal justice system is the exchange or norms of reciprocity. Right. Meaning compromise. Right. The system requires some give and take. So again, as I mentioned, prosecutors are elected in most jurisdictions. Restrictions. So this is vital to their employment, right? Prosecutors have to get along with all of these entities if they wish to be successful and if they wish to keep their job. So really, we're talking about having a good working relationship with a variety of entities, um, that also operate within the criminal justice system. Um, and this is important because the system requires a lot of grease, if you will, to keep moving. Okay. If people don't get along, it can influence how the system operates. So imagine this scenario area as prosecutor is a real jerk. So in protest, as is said prosecutor, defense attorneys decide they will no longer advise their clients to accept plea deals. What would happen? Right? The system would come to a grinding halt. As we'll talk about later in the semester, you know, roughly 95% of all court cases are adjudicated via a plea bargain, meaning there is no trial. The defendant pleads guilty, and then punishment is handed down. So if the prosecutor doesn't have a good working or, you know, exchange relationship with, with other people working in the system, it could have, um, really staggering impact on the system itself. Same with the police. If the police feel like, you know, the the prosecutors are, um, charging certain offenses, uh, effectively then then police may stop enforcing that, um, that law. Right, if they think that they're arresting people for offense. A and then the prosecutor drops the charges. For whatever reason, police get the perception that offense A is not worth their time. And so they just stop making those arrests, right. So there has to be good working relationship among all entities in the criminal justice system. Um, as I mentioned, you know, the role of, um, social factors in shaping criminal justice policy, um, is pretty powerful. Um, you know. The way that the public feels about certain things, um, particularly criminal justice issues, can have a powerful impact. Um, most people have an opinion on criminal justice issues, even if they are horribly uninformed. Right? Um. If I were a nuclear physicist, uh, people would not likely provide their opinion about nuclear physics to me, um, on a regular basis, like they do with criminology. Right. Everyone thinks that they they know something and know it well, when in fact, the vast majority of the public is pretty ignorant too, to the extent and nature of crime, uh, and how things are, um, dealt with in our system because most of it is most of their information is generated through, um, TV, uh, particularly, you know, crime dramas that don't remotely resemble the reality of our system. But politicians are very sensitive to constituents demands about crime and justice, and they know that some people are driven by fear. Importantly, it's easier to sway people in favor of punitive policies than rehabilitative ones. Um, because of fear. Although this is this is beginning to change as we start to have more reasonable conversations and dialog about, um, the nature and extent of crime and criminality in, in the United States. So there are a variety of ways the public influences criminal justice policy. You know, some again, depends on the state. So voting is one way, um, you know, we vote for governors and legislatures and judges and prosecutors and sheriffs. Again, some of this is state dependent, but. For sure in Michigan it applies. And so who the public votes for, um, can have an impact on how justice is carried out. Well that's unfortunate. Clearly this is not not going to work. Um, but I had two examples, and I'll post them, uh, outside of the presentation here. Um, on canvas that are campaign ads for people highlighting, um, you know, criminal justice issues. Um, there's also advocacy work, right? So we can think about Mothers Against Drunk Driving and Black Lives Matter and Blue Lives Matter and all of the advocacy groups that are focused on criminal justice reform. Right. They can have very, very powerful effects on the system, and then public opinion polls can also have an impact on the system. So if I'm running for office and I want to win, it's probably not a good idea to run on a platform that will be opposed by a large percentage of my constituent base. Right. So politicians oftentimes look at public opinion polls to kind of gauge the temperature, if you will. And that shapes how they go about, um, pursuing a particular particular, um, issue. So as an example we can see here this is a graph from 2001 to to 2022 that is tracking the percentage of Americans who indicate they worry about crime and violence in the US. And you can see the dark green line is a great deal and a fair amount. And then the lighter green line is, um, represents those who said a great deal and so about 50%. And, you know, it varies. 2001 it was 62. And from 2014 it looks like it was 39%. But roughly annually speaking right around 50% feel like they are indicated that they they worry about crime and violence, uh, a great deal of the time and why that is meaningful and important to to acknowledge. It's also important to to remember what we talked about last week that crime has been going down, um, for the for the most part, yeah, we've seen a few micro trends, but from the, from the 90s, uh, to current day, crime has been going down. And so why are people worrying about crime and violence. It's meaningful to understand, um, but it's also meaningful for people to have kind of an accurate representation of what's going on. But more to the point here, if politicians can can have access to these types of data and they say, oh my gosh, you know, uh, 53% spent, um, a great deal of time worrying about it and 80% spent a great deal or a fair amount of time. You know, even if I think that, um, decriminalizing something, uh, is a good idea is beneficial. I'm probably not going to run on that platform because people who are very worrisome and fearful are not going to like, um, that idea. Right. And so public opinion, again, can shape the way that the system functions vis a vis operators of the system, largely those that are in elected positions. Um, when speaking about the criminal justice system, we need to be mindful of a few characteristics that Cole and colleagues um. Discuss. And the first is, um, discretion. Right. Discretion is simply the freedom to act according to their own judgment and conscience. So we're talking about criminal justice actors here in the context of the system. But we all have discretion. So discretion really speaks to an authority to make decisions using one's own judgment. And this can be a double edged sword. Right. Um, we want justice to be individualized to some extent, but discretion can also result in some very negative outcomes when it's misused. Right. So yes, we want people, uh, to Have some latitude. When presented with an issue as an example, you don't want um, officers to only be able to arrest. Right? Yeah. As crimes become more serious, their discretion is less meaningful. But from lower level stuff, um, you know, let's just say teenage kids hanging out in a corner like discretion, allowing officers to have discretion in that context is important. Otherwise, if it was, you have to arrest, there'd be a lot more arrests. Um, now, as I said, as the behavior or the crime that they're dealing with, increases in severity, their discretion becomes less influential, right? They're not going to roll up on a homicide scene and be like, oh, we're just going to let you go. Um, but for lower level, um, crimes, discretion can and often does play play a big role. But again, discretion can also result in some really negative. SPEAKER 1 Today a special on kids for cash. The shocking story of how thousands of children in Pennsylvania were jailed by two corrupt judges who received kickbacks from receivers and owners of private prison facilities and prison facilities. I was known for being the. SPEAKER 2 Jokester, known for being the jokester. He was always a fireball. UNKNOWN He was always a fireball. Were talking about how funny it would be. How funny. Maybe they might speak. SPEAKER 2 About my friends, about my buddies trying to stay out of trouble. Trying to stay out of trouble. Everything started. SPEAKER 3 Everything started. Ever since you have come here, you can't go back. You can't go back tomorrow. No no no no no. He always. He always. You are going to experience. We We're going to be going to prison. I'll be waiting around the corner. SPEAKER 4 She could have had Bailey there. The kids would have gone away. SPEAKER 3 That takes a mechanism that keeps kids and keeps. SPEAKER 2 No one listens because no one listens. There was never any instance of guilt or innocence. They were guilt or innocence. Really? High number of kids are really high number kids appearing without counsel, right? He's in their custody now. He's in their custody. SPEAKER 3 It is talking about children. I wanted the child scared. I wanted them to be scared. I don't understand how that was a bad thing. UNKNOWN That was a bad thing. SPEAKER 3 Former Luzerne County judge faces charges tonight in his $2.6 million in return for sentencing for kids to juvenile detention, to juvenile detention. I've never seen it anyway. I'm not this mad judge. This is man shackles throwing his kids away. SPEAKER 2 He went there as a free spirit. Kid came out party man. Here I was saying we can trust that we can trust their judgment. UNKNOWN That's not fair. That's not what happened. I was scared, everything. I was scared everything. I was only 14. I'm telling you, all. SPEAKER 2 Those years I miss and missed. SPEAKER 3 This is not a day for shit. SPEAKER 2 I still wake up. Nightmares. Wake up from nightmares. SPEAKER 0 So if you're not familiar with this, um, documentary, you know, I highly recommend watching it. Um, obviously despicable that anyone would engage in such behavior, and. Both judges were ultimately convicted, um, in this case. So pretty conclusive evidence that they, they were engaging in this, this complicit scheme. But aside from kind of the, the, the horrible, um, transactional nature of of their behavior. If you paid close attention, you heard some telling things about the experience. Um, for the individuals that were sent to prison, um, and the one mom said he, her son went in, you know, a loving and kind human and came out a hardened, hardened man. You heard the girl at the end talk about. She was still having nightmares. So really highlights the traumatizing impact that institutionalization can have on humans, especially, especially kids. Um, this is an example, an extreme example, uh, of course, of discretion gone wrong. Right? Allowing, uh, individuals to make their own decisions. Um, and so that's the really the, the delicate balance, um, with in the system and probably in life more generally is, you know, providing individuals enough discretion, um, to make quality decisions, but not so much discretion that things can go horribly awry, like in this case. Um, another example of, um, pardon me, a characteristic of the system is, is resource, uh, dependance. Um, you know, someone or a group of someones decides how much funding to provide the system, but revenues might be tempered by public support. For example, strong public support for police would make it hard for a mayor to cut funding for police in their city. Um, and resources are not endless, so decisions oftentimes have to be made. Uh, for example, there is a finite amount of jail and prison space. Um, yes. More can be built, but it takes a lot of time and money. So sometimes, um, we might hear about things such as this, and I anticipate this link not working. Yeah. So I will post that, uh, in canvas as well. Um, but it's about, uh, resource allocation and how it impacted, um, the function of the system. Here's another example. Um, this individual was, um, let out, um, because of limited cell space, um, and then engaged in, um, a particular crime subsequent to, uh, being released. And we, you know, sometimes we hear about these things, uh, overcrowding leads to people being released early, so on and so forth. So this idea, you know, resources are scarce, not just, um, and in our personal lives, perhaps, but. And with regard to the system and as resources, um, you know, our reduced decisions have to be made. Or even if they're not reduced, you know, decisions still have to be made. Everyone, uh, gets a certain budget and you have to live within that budget. And in doing so, you have to make certain decisions. Um, another characteristic of the system is sequential tasks. So there's a natural progression for case processing. And decisions occur in a specific and sequential order. So I'm going to show you this graph again right from the point of crime to the point of being released. There are multiple decision points, um, associated with the criminal justice system. Right. So you don't just go from arrest to prison, right? There are a series of steps and decisions in between that one will, uh, experience before they end up institutionalized. And so you're not just going to find yourself institutionalized, you're going to be arrested, arraigned, you know, charged, tried and then convicted, um, before you get there, um, there's also case filtering. So cases are filtered out at each stage. So there's a screening process that gradually exits people out of the system. And not all cases are treated equally. Okay. So how how cases are process is influenced by how important it is to decision makers as well as the seriousness of the charge And the defendant's resources. So this is what we call the the criminal justice wedding cake. Um, and it represents kind of the, the funneling out of cases, if you will. So at the top, um, these are celebrated cases. Usually they're they involve a lot of public attention. They usually go to trial and often go through appeals. Um, and this is what these types of cases can exemplify, the adversarial system where you have a prosecutor and defense attorney and a judge, you know, um, mediating, uh, the case and deciding on the process. What what's allowed, what's not. And you have a jury that might if it's a jury trial or if it's a bench trial is just the judge, but there's a decision maker or a group of decision makers that determine the fate of the defendant. That's the law and order. Um. Example. Right. But very few of these cases, um, actually occur. Like I said, about 5% of cases go to trial. Uh, the second layer is serious offenses, and these would be mostly, like, violent. Uh, some go to trial, but most end up, um, plea bargaining. Um, and then we have less serious felonies, almost all of which, um, will be dismissed or adjudicated via plea bargaining. And then the bottom layer, the fourth layer, are misdemeanor cases. Um, and about 90% of all criminal cases fall into this layer of cake. So about 90% of um offenses are misdemeanor that 10% are felony. And then the the seriousness of those felonies obviously varies based on the second and third level of of the cake. Um, and trials are very, very rare for, for misdemeanor cases, the rare for felony cases to but certainly for misdemeanor cases. Um, Herbert Packard is someone that you should be familiar with. Um, he was a scholar who studied the, uh, the criminal justice system, and he authored, um, The Limits of the Criminal Sanction in 1968. So he was a law professor at Stanford University who dedicated a lot of time to studying criminal justice systems. In 1968, he published this book in which he laid out two models of justice that operate in America's criminal justice systems. And just as a side note, sadly, in 1972 he committed suicide. Nonetheless, his work is considered seminal, very important, and he outlined a due process model and a crime control model, and each is characterized differently. Okay, so here are the two two models of justice that Herbert's Herbert Packard's work, Packer's work, um, identified. So these are not official models. Of course, his research just led him to characterize the way that some systems function, um, either as due process or crime control. Um, so he just merely suggested that elements of these models are visible throughout the system based on his studies. And so the first is the due process model. And within jurisdictions that exemplify this model, you know, there's an attempt to treat everyone fairly. Um, there's an attempt at kind of individualized justice, if you will. So each case is factors are considered and the outcome is not solely determined by the crime that was committed. All right. So as an example looking at context was the theft for fun versus was the theft for the purposes of feeding one's baby. Again weighing the context and to understand the appropriate outcome. Um, with the due process model, there's always an attempt to reduce the number of errors made because they don't want to convict innocent people or let guilty people go, okay. So it's very deliberate. Um, the due process model operates on an assumption of innocence. Okay. And the desired outcome is accuracy, um, of the outcome. Again, they want to make sure that the person is either guilty or innocent. The crime control model, on the other hand, um, operates a little differently. Um, more akin to an assembly line, whereas the due process model is kind of like an obstacle course. So the crime control model, um, really has a more template of justice. Okay. Most justice is not meted out in an adversarial trial. It's the result of, um, plea bargaining. Uh, this system is willing to accept error as long as the system gets it correct most of the time. Right. So, uh, as an example, convicting innocent people, um, might happen, but most of the time that's not going to happen. That's the contention anyway. Um, similarly, failing to convict a guilty person. It might happen, but most of the time that's not going to happen. Um. The crime control model is designed to process as many cases as possible, as quickly as possible. So speed and finality, um, is really part and parcel. Uh, the objectives of this model. Um, this model operates on the implicit assumption of guilt. Um, right. Um, which makes this kind of assembly line justice more, um, efficient. If you can get people to, to plead out without going to trial. Um, importantly, both models discourage unfair play. So there are no, you know, no, neither advocates or, um, condones, you know, coerced confessions or wrongdoing on the part of the system. But the crime control model is more concerned with efficiency and is willing to accept more error than the due process model, according to Packer. And so we can look across these two and see some really fundamental differences in how Packer um, characterized there is these specific features. Um, and I think, you know, given that we know that the vast majority, upwards of 95% of cases are adjudicated via plea bargaining, I think it's safe to say that the crime control model, um, It's probably more frequently practiced than the due process model, if it's still applies, um, in a 21st century context, which I assume it does. Um, just given the nature of how things play out in criminal justice. Um, so now so what is the difference between disparity and discrimination? Generally speaking, disparities and outcomes can be explained by legitimate factors in the context of the criminal justice system. We might be talking about a defendant's criminal history, the type of offense that the defendant is accused of having committed, um, or other aggravating circumstances surrounding the criminal act, such as was the crime Committed with a firearm. Uh, was the victim, uh, seriously injured during the offense? And so these were being legitimate factors that might explain why two individuals who committed similar crimes received very different outcomes. Okay. Conversely, uh, discrimination is not explained by legitimate factors associated with the, uh, criminal nature of the defendant or the nature of the crime. Instead, here we might point to extralegal factors, uh, that lead to differential treatment. So it might be, uh, gender or socioeconomic status or race or sexual orientation, all things, um, that might differentiate individuals but should have no bearing on the outcome of a criminal case. Cole and colleagues offer three possible explanations for what we see in criminal justice outcomes as they relate to race and ethnicity. First, they note that one potential explanation is that minorities commit more crime than their white counterparts. But this is not supported by the data, so there's really no point in even exploring this any further. We know that offending rates do not differ significantly enough across racial groups to produce the outcomes that we see in the criminal justice system, in terms of the overrepresentation of minorities. The second possible explanation um, they put forth is that the criminal justice system is racist. And so the outcomes are not disputable. Right? Uh, minorities in general receive harsher scrutiny and punishment than their white counterparts. There's really no debate about that. But personally speaking, minorities are overrepresented in arrests, convictions, incarceration and police killings, to name a few outcomes. Given the difference in treatment in nearly every stage of the system, there is good reason to ask whether certain practices are so ingrained as to be unnoticed by those participating in that meaning that individuals aren't consciously basing decisions on race or ethnicity. But the the practices are so ingrained that they're just following the practices, meaning perhaps the policies or practices are more of the problem than the individual actor, him or herself. As Cole and colleagues note, however, the whole system need not be racist for it to have devastating effects. Thus, discrimination might be limited to certain decision makers, certain types of cases, certain circumstances, and or certain defendants. But at the end of the day, we know that minorities are overrepresented, even if not everyone within the system or the system itself is explicitly racist. Um, the third explanation that, um, Cole and colleagues provide is that America, uh, as a society, is racist. And they make this statement that the criminal justice system is embedded in a racist society. And so as everyone in, um, American society, racist, um, know, are some people, of course. Um, but I think the larger question and what's more, um, being explored more, uh, in contemporary researches is not whether or not these are these are constant conscious decisions, but whether or not they're implicit. Right. This idea of implicit bias that we're repeatedly, um, exposed to certain things that lead us to have certain, um, unconscious biases and then we act on those. Um, it's a great deal of research on that. It's quite fascinating. Harvard has a implicit bias test that you can take online if you're curious to see where you might score on one of these tests, and the focus of the test can range from body size to race to religion. There's a whole host of of tests that you can take. Um, nonetheless, um, it's important to, to understand the implications of implicit bias and, and how it can affect outcomes. Um, to highlight, you know, this, um, possibility of America, um, being a racist society. You know, they we should call in colleagues, present, uh, some, some information on how, uh, responses were curated for different, um, drug epidemics ranging from crack to methamphetamine to prescription drugs and how society responded as a whole, not just within the criminal justice system, but a larger society responded as a whole represents, um, part of the problem. So crack, which was, um, predominantly associated or thought to be associated with minorities. The approach was strict enforcement and harsh penalties, uh, methamphetamine, which is perceived to be predominantly, um, an issue, um, associated with white individuals. Uh, the focus has been much more treatment oriented and, uh, regulatory in terms of trying to regulate the products used to manufacture the drug and then prescription drugs. Um, while the effects are devastating and affect everyone, I think, again, the perception is it predominantly, um, affects white individuals. It's really been characterized as a public health concern and treatment forward. Um response. And so these um, differential responses to these, uh, drugs that are perceived to affect different groups really highlights some of the, the, the issues that Cole and colleagues are talking about. And you might be quick to claim that socioeconomic status is the real culprit, but even prominent minorities cannot escape the bias in some instances. So this is, uh, Republican US Senator Tim Scott from South Carolina. Perhaps you recognize him. He, um, has run for president a couple of times, but according to his own accounts, he has been subjected to multiple traffic stops without legal justification. Additionally, he's noted that he was he has been stopped by Capitol Police officers who did not believe he was actually a senator. So imagine that being an individual who was elected by your constituents to represent you in the nation's capital and security for that building that you work in, did not believe that you actually were a senator? Right. It's shocking. Um, but unfortunately, these are Senator Scott's experiences. And so it begs the question, did he experience these incidents due to, you know, uh, legitimate or illegitimate factors? And I'll leave you to decide that. That's all I have. Uh, for this week, I will post the links to the videos and articles that did not work in canvas. Have a good week.