Criminal Justice System
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 without—or even in violation of—legal 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 punished—see 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 bounds—sentences 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 punishment—what 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. 87–88). 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 process—adjudication of guilt and imposition of sentence—detention 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 procedures—for 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 procedure—plea bargaining—occurs 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. 392–396). 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).
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