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7: Court and the Community

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    Chapter 7 – Court and the Community

    Key Learning Objectives:

    • Be able to explain and define the Rule of Law, including the important cases that has shaped the United State legal system.
    • Explain the development of the United States court system and the jury system.
    • Be able to understand and define key court terms such as due process, the adversarial system, and common law.
    • Explain the unique concept of community courts and how they improve the court process.
    • Identify the specific concerns of race and its impact on the court system.

    7.1 – Rule of Law35

    The rule of law suggests that the creation of laws, their enforcement, and the relationships among legal rules are legally regulated, so that no one, including highly placed individuals are above the law. The legal constraint on those in charge means that government officials are subject to existing laws as much as its citizens are. Rule of Law is based on the belief of equality before the law, which holds that no person shall enjoy legal privileges that are not extended to all, and that no person shall be immune from legal consequences for criminal behavior.

    In addition, the application and adjudication of legal rules by the police, prosecutors and the courts are to be impartial and consistent across equivalent cases. The evidence should be weighted blindly without taking into consideration the class, status, or relative power among those involved in civil or criminal matters. In order for those principles to have any real application, there should be in place legal apparatus for compelling government officials to submit to the law.

    Rule of Law Diagram

    Figure 7.1 Rule of Law Diagram created by Tabitha Raber is used under a CC-BY 4.0 license

    Such was the case brought before the United States Supreme Court in United States v. Nixon regarding executive privileges criminal matters. A grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate burglary. The special prosecutor appointed by President Nixon sought audio tapes of conversations recorded by President Nixon in the Oval Office. President Nixon asserted that he was immune from the subpoena claiming, "executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest.

    In a unanimous decision the United States Supreme Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs but gave preference to "the fundamental demands of due process of law in the fair administration of justice." Therefore, the president must obey the subpoena and produce the tapes and documents. The rule of law was applied to the powerful just as would apply to those without power.

    The Rule of Law entails such basic requirements about how the law should be enacted in society, it also suggests certain qualities about the content of the laws themselves. Laws must be open and clear, general in form, equal in application, and known to all. Legal requirements must be such that people are able to follow them. The law must not place undue intelligence or behavioral demands on people. The law should be relatively stable, so people can consult before acting, and legal obligations should not be retroactively established.

    In spite of these basic consideration, and attempts by jurists and political philosophers, there is no generally accepted or even systematic formulation of the Rule of Law. The idea that the law should contribute to the betterment of society and constraining the exercise of public power can be interpreted in different ways; which leads to different philosophy and application of the Rule of Law.

    The majority of modern democratic societies, and certainly in the United States the Rule of Law’s requirement that both those who govern and those governed are held accountable to the law is of unquestionable principle.

    After the American Civil War, the federal government expanded the vote to blacks in the old confederate states, providing some equal protection. When Southern states were once again granted self-governance, those in power were predominately white. They began to enact laws that oppressed blacks through segregation and disenfranchisement.

    The 1875 Civil Rights Act had stated that all races were entitled to equal treatment in public accommodations, however in 1883 with an 8-1 decision Civil Right Cases the United States Supreme Court ruled the Civil Rights only applied to the Federal and State governments, but had no application to private persons or business' open to the public.

    In 1892, Homer Plessy boarded a train in New Orleans and sat in the car reserved for whites only. Plessy, who was only one-eighth black, but classified as black by Louisiana law, refused to leave and was arrested, which triggered a case challenging the legality of segregation. In 1896, the Supreme Court ruled that “separate but equal” was fair and was not a violation of the Fourteenth Amendment requiring equal protection to all.

    After the Plessy v. Ferguson decision, segregation became even more entrenched in the former confederate states through a series of laws and social customs known as “Jim Crow” laws. State schools, theaters, restaurants, and transportation vehicles were segregated. Poll taxes and literacy requirements not only prevented blacks from voting, but also made them ineligible to serve on jury pools or run for public office. “Separate but equal” remained unchallenged until the Supreme Courts re-visited segregation in 1954 with the Brown v. Board of Education reversing Plessy. Eventually congress passed the Civil Rights Act of 1964, finally fully implementing the protections guaranteed under the 13th and 14th Amendments of the Constitution.

    Supreme Court Justice Stephen Breyer has stated “Maintaining a rule of law is more difficult than many believe. The effort is ancient, stretching back to the Magna Carta, and still earlier.” Justice Breyer was attempting to emphasize the challenges of maintaining an equitable system that incorporates the rule of law. Many have tried for hundreds of years and it still in not perfected.

    7.2 – Traditional American Courts36

    Due Process

    Since colonial days, the courts of the United States have taken their own path, developing and changing to suit the needs and social conscience of the new nation. The following history of the American jury system, the concepts of due process, common law, and the adversary process should further broaden the understanding of the American judicial system.

    Along with trial by jury, the guarantees of due process of law are among the firmest bulwarks of our liberty. The value of these guarantees is shown by how our national and state governments have retained them, in strength through each change of status, from colonies to nation, from territory to state.

    PinDaniel Webster defined due process as "a law which hears before it condemns, which proceeds on inquiry, and renders judgment only after a trial". It is a course of legal proceedings according to the rules and principles established by custom and constitution for the enforcement and protection of the rights of private citizens. To give this established course of legal proceedings a valid and competent tribunal is the duty of the courts.

    Pin It! The two essential elements of due process:

    1. Notice shall be given to a person that matters concerning him are before the court.

    2. That person shall be given an opportunity to be heard and defend himself in an orderly proceeding adapted to the nature of the case.

    These mean that no person shall be deprived of life, liberty, property or any right granted him by statute unless the matter involved shall first be adjudicated in a trial or hearing conducted according to the rules for judicial proceedings, and no matter shall be adjudicated without the opportunity for a hearing. Due process has been a concern of men determined to establish justice in governments for at least seven and one-half centuries. The Magna Carta, signed by King John of England in 1215, is one of the first historical documents of men demanding rights of their government. This protection may seem self-evident however; historically governments have incarcerated people for disagreeing with those in power under the guise of punishing criminal behavior.

    The elements of due process are contained in the Constitution of the United States (Amendment V and Amendment XIV, Section 1). Due process is one of our basic American Constitutional rights. For a democratic government to survive and prosper and for their own protection, citizens must understand and value these rights. Aside from all else "due process" means fundamental fairness. This principal guide the judicial system that to function with integrity and honor.

    Common Law

    Common law is court-made law and differs from statutory law which is made by legislative bodies. Court-made law develops and is passed on to future courts through the decisions and opinions of judges hearing cases. Common law derives its authority from the uses and customs of time, or from the judgment or decrees of courts recognizing and enforcing such uses and customs.

    Common Law is especially recognized as the ancient unwritten law of England. In the 11th and 12th Centuries' the English King resolved disputes with the aid of advisers at his court. Formal judicial courts began to develop during the 16th and 17th Centuries, and the judges of these courts studied earlier decisions for guidance. Established decisions came to be called the common law. This form of judicial lawmaking is still used in the England, and the United States, who adopted this policy from the English.


    The Sixth Amendment in the Bill of Rights guarantees, among other ideas, speedy and public trials, that defendants shall be informed of all charges against them, and a trial by jury. The idea of juries is so closely interwoven with that of the courts, that for most members of the American public, the image of a courtroom means a judge in a black robe, the persuasive legal advocate and the rows of twelve men and women looking on and listening closely to the testimony as it unfolds. Although the United States accounts for 90% of the jury trials held throughout the world today, most of the work conducted in a typical American court takes place without a jury.

    Juries determine the facts in a trial, the truth or falsehood of testimony, the guilt or innocence of criminal defendants, and the liabilities in a civil trial. In the United States, juries are still seen as the best tool for ensuring that the rigidity of the rule of law can be shaped to justice in any specific case.

    Calling citizens to hear disputes has been known throughout history. Modern day juries are the hybrids of Egyptian, Greek, Roman, and European jury customs. English juries have also been a leading influence in shaping the American jury system. The following history of the evolution of the English and American jury system will provide insight and a deeper sense of understanding of this aspect of the criminal justice system.

    England, under King Alfred (871-901 A.D.) had a rough system of juries. Representatives were brought together to decide the questions put before them. This system disintegrated on the death of Alfred, although testimony of witnesses did begin to appear. The Normans left partially intact much of the Saxon court system, which included appeals to the King. They did separate temporal and spiritual courts and appointed "circuit" judges to represent the King across the country. They introduced trial by combat as well.

    Between the 15th and 18th Centuries juries began to evolve. Trial by "peers" became more authentic as Knighthood was no longer a requirement for a juror. Expert witnesses began to be used. Exemptions from jury duty were developed, as for Quakers, who could not swear to oaths. Grounds for challenging a juror for cause at common law included the juror having served on the indicting jury, the juror was a serf or servant, the juror has been convicted of certain crimes, the juror was related to one of the parties or the sheriff, or the juror had stated his opinion of the case in public. Eventually defendants were allowed to call witnesses and defense counsel was allowed to cross-examine witnesses.

    Image result for juries

    Figure 7.2 Jury of 12 in 15th Century Normandy. Image is in the public domain.

    During American colonial times, the jury became one of the symbols of rebellion against the English King. A primary complaint of the colonists was that they were being denied the rights granted to all other Englishmen, one of which, was the right to a jury trial as guaranteed by the Magna Carta of 1215. The Magna Carta held several references to trials and juries. That the Common Pleas assemblies shall not follow the court (royal court), but be held "in some certain place", and that juries shall consist of "honest men of the neighborhood" were sample references in the Magna Carta.

    Trial by jury was not completely denied to the colonists, however. Early charters, such as the Virginia Company, which established Jamestown in 1607, included the mention of such rights. In New York, the jury found John Peter Zenger not guilty of libel in 1735 on the grounds that what he had written about the royal governor was true. Virginia jurors had great latitude in deciding verdicts. They could even bring in verdicts for offenses other than the ones for which a defendant was charged. It was the British Vice-Admiralty courts, sitting without juries, which ignited the ire of the colonists.

    In response to these contentions of unfairness and the abrogation of rights, the colonists included in their earliest documents guarantees of the right to trial by jury. The First Congress of American Colonies, in 1765, recommended trials with juries. The First Continental Congress in 1774, declared that the respective three colonies were entitled to the common law of England and more especially to the great and inestimable privilege of being tried by peers, according to the course of that law. In the Declaration of Independence, Thomas Jefferson listed among the various complaints against King George, that he had obstructed the administration of justice by refusing his Assent to Laws for establishing Judiciary Powers, made judges dependent on his will for appointment for salary, depriving us in many cases if the benefits of Trial by Jury, and transporting (defendants) beyond seas for trial. All these, along with other complaints, led to the United States Constitution in 1787, and in 1897 the first ten amendments.

    Jury duty is a right and a responsibility of American citizenship. Juries serve several important purposes: (1) they serve as an arbiter regarding the conflict of facts and evidence as presented at criminal and civil trials; (2) they provide a means by which community values and sentiments are injected into the judicial process; and (3) they help to increase the public's acceptance of legal decisions. Jury duty, along with voting, is one of the primary means by which the average citizen participates in our government. Developing a historical appreciation for the role of juries contributes to willingness and ability of citizens to serve as impartial jurors when called to judge their peers. Use of juries is just one thread running through the historical development of the American judicial system.

    Adversarial System

    The development and maturation of the adversary system as it exists in American criminal courts today can be traced to the rising importance of the jury during medieval England. As the jury replaced trial by combat, it also changed from a body of witnesses to an impartial body of factfinders. As the jury became neutral, the parties to a case adopted the role of adversaries. The term "adversary" implies two conflicting parties. In American courts those two parties are the plaintiff and defendant. These parties present to the Court all the evidence and testimony they can find, in the most persuasive manner allowable, in order to achieve a decision favorable to their interests. The attorneys serve as advocates, and the judge sits as a neutral "referee."

    In all Courts, each side is bound by many rules as to how the case may be conducted. These rules are meant to ensure fair and consistent treatment for all parties, in all cases, across all situations. This adherence to rules and procedures is a hallmark of the adversary system, unlike the inquisitorial system, for example, in which few technical rules of evidence exist. The inquisitorial approach is less sensitive to claims concerning individual rights. An inquisitorial style is less likely to serve as a check on government powers, the role American Courts play in our system of checks and balances. The function of the American Criminal Courts is to inquire into the truth of the matter and establish guilt or innocence. And that all defendants in United States Courts are considered innocent until proven guilty, is one of the most important fundamentals of the American judicial system. The adversary system, allowing each side equal access to a neutral body is the method by which our courts uphold this ideal.

    7.3 – Community Courts37

    In recent years, cities and towns across the country have embarked on an experiment to test the proposition that courts can play a role in solving complex neighborhood problems and building stronger communities. Since the 1993 opening of New York City’s Midtown Community Court, the nation’s first, dozens of cities have begun planning community courts.


    Pin It! Community Court Criteria

    Eleven community courts are now operating in communities across the nation. At their onset, each court must address the following set of questions:

    • Can courts assume a problem-solving role in the life of a community, bringing people together and helping to craft solutions to problems that communities face?
    • How can courts address the impact that chronic offending has on a community?
    • Can courts improve the quality of life in a community?
    • Can local voices—residents, merchants, community groups engage in the administration of justice?

    To answer these questions, community courts have developed individual programs that differ in important ways. Although most of these new courts focus on one neighborhood, several jurisdictions are exploring ways to serve an entire city. Many community courts handle matters such as drug abuse, mental health courts and homeless courts. But others are experimenting with a broader range of matters, including juvenile delinquency and housing code violations. Some community courts were initiated by courts, and some have been championed by the district attorney. Most courts often use probation officials to help manage and guide services.

    These differences reflect a central aspect of community courts: they focus on neighborhoods and are designed to respond to the particular concerns of individual communities. Moreover, community courts are shaped by the particular political, economic, and social landscapes in each community. One of the earliest examples is the Midtown Community Court which was created New York City to address community problems in time square. In January 1998, the Midtown Community Court was the only community court in the United States. By March 2000, nearly a dozen had opened across the country in Connecticut, Florida, Georgia, Minnesota, New York, Oregon, Tennessee, and Texas. New York City and Portland, Oregon, each host two community courts, and organizers in both cities intend to open a third court in 2000. Another 13 jurisdictions, in California, Colorado, Delaware, Florida, Hawaii, Indiana, Maryland, New York, Oregon, Pennsylvania, and Texas, plan to establish community courts in the near future.

    Community courts grow out of frustration. Observers have noted that justice has become remote from communities and the people who live in them. Community residents have reported feeling out of touch with courts. They want courts to address low-level crime that is part of daily life. The Midtown Community Court offered a model for addressing these problems by emphasizing the following;

    • Locating the court in the community, close to where crimes take place.
    • Repaying a community damaged by low-level crime by requiring offenders to compensate neighborhoods through community service.
    • Using the leverage of the court to sentence offenders to complete social services that will help them address problems such as drug addiction or involvement in prostitution.
    • Bringing the court and the community closer by making the courthouse accessible, establishing a community advisory board, and publishing a quarterly newsletter.
    • Using the court as a gateway to treatment and making social services available to offender’s right at the courthouse.

    The Midtown model was thoroughly documented in an independent evaluation conducted by the National Center for State Courts and in publications prepared by the U.S. Department of Justice. With a well-defined and carefully documented model in New York City, community court planners elsewhere faced questions about whether the Midtown model would meet the needs of their jurisdictions. Planners in other jurisdictions have made significant departures from the Midtown model, reflecting both the distinct needs of their communities and the practical reality of what they believed they could accomplish given local resources and local support.

    Community courts are complex projects that involve rethinking court operations, raising substantial resources, and building partnerships within and without the justice system. Decisions about who should lead the planning of a community court varied from state to state. Judges, District Attorneys, or local court administrators can lead the planning efforts.

    Many projects recognized early that a dedicated planner would be needed to move the community court from conception to implementation. This approach reflects the complexities of raising money, building community participation, developing sanctions, establishing partnerships, and so forth. Some operating community courts were staffed with a full-time coordinator during the planning period. Some courts are led by a staff person who dedicated a majority of his or her attention to the project. To ensure that the partnerships necessary for success were established early in the planning process, formal planning committees should be established. The committees typically included representatives from the courts, district attorneys’ offices, police departments, social service agencies, and communities. Public defenders can be included on the planning teams.

    The scope of the community court project, the readiness of local players to support the concept, and the planners’ success in garnering funds and in-kind support all affected the length of the planning process. Jurisdictions can open community courts between 1-3 years.

    How Should the Court Link Offenders to Social Services?

    It is important for the community court planners to make social services available to defendants. An important consideration is to decide whether to locate these services onsite or provide services through other agencies. Services such as drug treatment, counseling, and assistance with entitlements, require case management by project staff to ensure defendants attend mandated services and receives long-term treatment.

    As more of these treatment style courts develop, additional options have become available to courts to manage treatment. Historically, services were provided through governmental agencies such as mental health agencies and case management by probation to monitor and manage compliance. However, these government agencies often become overwhelmed with the number of offenders to manage. As this became more evident, private companies have become to form that provide evidence-based treatment programs and case management services to provide support to the offenders. These agencies contract with the court to provide services and prepare compliance reports directly to the court.

    Can Punishment and Help Be Combined?

    One of the challenges of Community Courts is what type of sanctions should occur for failure to comply with mandated treatment or court ordered activities such as community service or job seeking. The goal of community courts is to improve the offender’s situation and reducing the criminal activity. But how can you help and punish at the same time. Most courts require what is called graduated sanctions when a violation by an offender occurs. To be effective and fair, the offender must be aware of the requirements, what is expected of them and the time frame they must complete tasks. A probation officer or case manager usually provides this direction at the beginning of the program. They also provide the consequences that may occur if an offender does not comply. The officer or case manager must maintain records of the offender’s compliance and provide a record to the court. Often, there will be a committee consisting of the court (judge), treatment provider, district attorney, defense counselor and other advocates to determine what the sanction should be when a violation occurs.

    Graduated sanctions consist of increasingly sever punishments depending on the violation which occurs. Often times the offender may receive a verbal admonishment for the first violation. This is where the case manager or officer reminds the offender of the program requirements and admonishes the offender for his/her failure to comply. The offender is given an opportunity to explain why he/she could not complete the assignment. An admonishment is often followed up with a plan on how to comply. Further, violations will require additional sanctions, such things as restrictions on privileges (curfew), additional assignments, or required to return to court and explain to the judge the reason for non-compliance. Often the last sanction is a return to custody (jail) for a specific amount of time.


    Pin It! Graduated Sanctions

    For graduated sanctions to be valid the case manager must track each violation and sanction.

    Each violation is maintained independently. For example, a positive drug screen is one violation and needs to be tracked individually. So, if an offender provides a positive drug screen in one week, and the next week they fail to attend community service that is not the same violation. Each violation is independent and needs to be addressed separately.

    This way of managing offender compliance and sanctioning can best be described as a “parental” relationship where the court guides the offender through the process using fairness and impartiality. While not friendly, the offender can rely on the court to look out for their best interest. However, like a parent, if the offender fails to comply consequences or sanctions will result. In this sense, both sides have a vested interest in seeing the offender improve. The offender becomes a better or contributing member of society and the community becomes better through a reduction in crime.

    What Role Should the Community Play?

    Projects should recognize that community involvement is a critical goal, so planners have to determine how and when to involve the community, raising the question: Who is the community? For most court planners, the answer included residents, social service providers, beat officers, and local merchants. Community members can participate in the planning of all of the courts, but in different ways and to differing degrees.

    Planners can use a variety of tools to establish community participation. Community, planners and criminal justice professionals attended neighborhood meetings and conduct interviews with a broad range of stakeholders. Courts can create a community advisory panel during the planning period and hold community meetings to determine priorities for the new court. Focus group discussions to better understand community members’ concerns and recommendations. In Portland, Oregon, community members were involved in shaping sanctioning options. In Brooklyn, New York, community members chose the building in which to locate the court.

    Are Community Courts Effective?

    Research on specialty courts has largely been centered on the legal and social outcomes for offenders who participate in these programs. Most studies show that drug courts are effective at reducing future criminal activities and drug use during and after the time court supervision was mandated for the offender. Most results for mental health courts were consistent with the drug court results.

    Critics of the program point out that community courts have a great deal of discretion with regards to which offenders are offered programs versus those they avoid. Critics concern are that community court staff could be selecting the offenders which are believed would be successful in their court’s program. If this type of selective process was routinely happening, community courts would appear more successful than they really are.

    To address these concerns, researchers compared similar offenders who were randomly assigned to participate, or not participate, in community court programs. Researchers track them over time and recorded whether people commit new crimes or commit new crimes. The research found that drug court participation, tends to reduce future crimes for as long as two to three years after the offender leaves community court supervision.

    Community courts for drug recidivism seem to work well really do work quite well. Improved behavior of drug offenders can save public money the community would have to spend on recovery services or criminal justice for offenders who did not benefit from drug court programs. Community court programs have the potential for being cost effective.

    7.4 – Race and the Courts38

    Los Angeles police officers beat a black man named Rodney King, after a car chase in 1991. The incident was videotaped by a citizen, documenting the amount of force used by the officers. The Black community had complained about police brutality for many years and believed there was now verifiable proof of police brutality. All four officers involved in the incident were criminally charged, however at the trial in state court, the jury acquitted the four officers of using excessive force. Following the verdict, civil unrest ensued in Los Angeles, resulting in riots, looting, arson and assaults.

    However, the story doesn't end there, the four officers were tried for civil rights violations in federal court, resulting in the conviction of two officers. Even with the guilty verdict, many in the Black community and in other minority communities suggest the case indicates the difficulty people of color have obtaining a fair outcome from the criminal justice system. Many feel officers unjustly stop and use excessive force when dealing with minorities. This injustice they say starts with officers but continues through the whole criminal process. Many say the whole system needs reform.

    Some who believe the justice system in its totality is racist often cite the incarceration rate of Black and Hispanic males. The Bureau of Justice Statistics analysis indicate if current incarceration rates remain unchanged, 32 percent of black males and 17 percent of male Hispanic males born in 2001 will be subject to incarceration in prison during their lifetime. For Caucasian males, the percentage is much lower at 6 percent. Black Americans represent approximately 12 percent of the United States population, however, represent 40 percent of all prison inmates and 42 percent of those sentenced to death.

    So, the question is - Do these statistics prove racism in the criminal justice system or are they from other causes? Social scientists, politicians, law enforcement agencies, civil rights advocates and media commentator have argued over the meaning of these statistics. Some argue racism in the system is to blame for the statistics, others argue its

    due to poverty, or personal responsibility, or acceptance of criminal behavior. The debate continues, however maybe the answer is not just one thing, but the answer is “All of the above.”

    In a 1975 article, titled “White Racism, Black Crime, and American Justice.” Criminologist Robert Staples argued that discrimination dominates the American justice system. His theory was based on the notion that the legal system was created by white men to protect white people and their assets. By doing so the intended result was to keep black people subjugated. Staples believed that the entire judicial system was racist due to poor legal representation by public defenders for black defendants, juries who were bias toward blacks and judges who sentenced blacks to harsher sentences.

    Sociologist William Wilbanks rejected Staples discrimination argument in the 1987 book, titled “The Myth of a Racist Criminal Justice System.” Wilbanks researched numerous studies which reported statistical inequalities in arrest rates and imprisonments between whites and blacks in the criminal justice system. He discovered that the inequalities came from factors such as the defendant’s criminal history and poverty, not from racial discrimination. Others have argued the apparent inequalities in the criminal justice process are related more due to poverty than race. Crimes such as robbery and assault, which are significant in the statistics, are usually committed by people from poor backgrounds. Today, approximately 39 percent of all Blacks and Hispanics live below the official poverty line, compared to approximately 9 percent of all whites.

    Street Level Arrest

    In 2010, Black Americans accounted for a third of the arrests for violent crimes. This surpasses the numbers of Black Americans in the population. Those who dispute Robert Staples argument of racism point out the percentage is consistent to reports from the National Crime Victimization Survey. This survey interviews thousands of victims of crime each year. The percentage of victims who say the suspect was black closely matches the percentage of Black Americans arrested. However, different studies of arrest indicate that police are involved in some discrimination against members of racial and ethnic minorities.

    Image result for arrest

    Figure 7.3 Arrest in Chicago. Image is used under a CC BY-SA 2.0

    It is clear that Black Americans have a higher arrest rate for drug possession and trafficking, disproportionate to the number of Black Americans within the population. Blacks are only 12 percent of the population and approximately13 percent of drug users, but Black Americans represent nearly a third of people arrested in 2010. Those that argue racism point to the use of “racial profiling.” It is alleged that police, using drug courier profiles stop black males for minor driving or vehicle mechanical violations.

    In New Jersey, a review of documented traffic stops between 1989 and 1991 determined that 72 percent of drivers stopped and arrested were Black Americans, while only 14 percent of vehicles had a black driver or occupant. New Jersey data for the same period indicated that blacks and whites had the same rate of traffic violations. A few years later a Maryland study indicated similar results: 17 percent of vehicle code violators were black, but 72 percent of those searched were black. These types of law enforcement practices may suggest blacks will be involved in the criminal justice system more rapidly than whites.

    In some states, Black Americans are released quicker than White Americans after arrest. A significant amount of those arrests are for less serious offenses such as prostitution, gambling, and public drunkenness. The meaning of this is up for debate. Those refuting the racism argument say that police and prosecutors are more likely to treat Black Americans more lenient than White Americans. Those who argue racism is rampant in the criminal justice system argue it is evidence Black Americans are more likely to be arrested on insufficient evidence or harassed by police because of racism, or at a minimum indicates bias.

    Those who believe the police have too much authority and utilize racist practices argue the courts contribute to the perceived racist practices. The argument is the courts have given officers too much discretion when it comes to police practices and establishing probable cause. Also, the argument suggests the officers state of mind should be relevant in contacting citizens.

    In the case of Whren v. United States Whren was driving in a 'high drug area.' Some plainclothes officers, while patrolling the neighborhood in an unmarked vehicle, noticed Whren sitting in a truck at an intersection stop-sign for an usually long time. Suddenly, without signaling, Whren turned his truck and sped away. Observing this traffic violation, the officers stopped the truck. When they approached the vehicle, the officers saw Whren holding plastic bags of crack cocaine. Whren was arrested on federal drug charges. Before trial, Whren moved to suppress the evidence contending that the officers used the traffic violation as a pretext for stopping the truck because they lacked either reasonable suspicion or probable cause to stop them on suspicion of drug dealing.

    In a unanimous decision the United States Supreme Court held that as long as officers have a reasonable cause to believe that a traffic violation occurred, they may stop any vehicle. In the present case, the officers had reasonable cause to stop the petitioners for a traffic violation since they sped away from a stop sign at an 'unreasonable speed' and without using his turn signal. Thus, since an actual traffic violation occurred, the ensuing search and seizure of the offending vehicle was reasonable, regardless of what other personal motivations the officers might have had for stopping the vehicle.

    Plea Bargains and the Courts

    In the United States, 90-97% of all criminal cases are resolved through the plea-bargaining process. The first step of the process is arraignment in which the defendant and defense counsel are notified of the charges, most often the maximum charges the district attorney is alleging based on the crime committed. Crime reports are provided to counsel to evaluate the initial strength of the case. After this initial hearing, a plea-bargaining process can begin. The plea bargain process in California usually consists of the district attorney, defense counsel, the judge and possibly a probation officer to provide criminal history and sentencing recommendations depending on the charges.

    Plea Agreement Diagram

    Figure 7.4 Plea Agreement Diagram created by Tabitha Raber is used under a CC-BY 4.0 license

    There is some concern that plea bargaining can have racial disparity and those of color are treated differently or more severely than whites. Research has been conducted to determine if there is significant disparity in the way Hispanics, black and whites are treated in the plea-bargaining process. One key consideration is how charges are treated from the initial filing of charges in the D.A. complaint and the plea charges agreed upon during the plea agreement process. Does race factor into how charges are reduced during the plea-bargaining process?

    In a 2018 study of this process, the author Carlos Berdejo found there was racial disparity during the plea-bargaining process. “White defendants are twenty-five percent more likely than black defendants to have their principal initial charge dropped or reduced to a lesser crime. As a result, white defendants who face initial felony charges are less likely than black defendants to be convicted of a felony.” What this means, is white defendants who were initially charged with a felony or serious crime are more likely to have the charge reduced to a misdemeanor or lessor crime. He also found that this disparity is even greater at the lower level crimes (misdemeanor) in which offender of color were more likely to serve jail time for minor offenses and white offenders received other sanctions.

    In the United States approximately 90 percent of all criminal cases will never go to trial. The prosecutor and defense attorney enter into negotiations, and if an agreement can be reached and the judge agrees; the defendant will plead guilty, often to a lesser charge. The United States Sentencing Commission conducted a study in 1990 which reviewed 1,000 cases. The commission determined that whites received a better deal in the plea bargains. Twenty-five percent of whites had their charges reduced through the plea-bargaining process, compared to 18 percent of blacks, and 12 percent of Hispanics.

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    Figure 7.5 United States Sentencing Commission. Image is in the public domain.

    In 1991, a San Jose newspaper conducted a comprehensive review of 700,000 criminal cases in California, spanning 10-years. The Mercury News reported that 33% of the white adults who were charged, but had no prior record, were able to get felony charges reduced. Compared to Black Americans and Hispanic Americans with no prior records who were only successful in reducing charges 25% of the time. The news paper's conclusions did not suggest intentional racism for these differences. The author did suggest that cultural fears and insensitivity could have been contributing factors to the differences. The article noted that at the time 80 percent of all California prosecutors and judges are white, while more than 60 percent of those arrested are non-white. The newspapers reporting made it clear the author and the editors believed that implied bias was contributing to the perceived inequities in the plea-bargaining process.

    Jury Selection and Trial

    For the criminal cases not resolved through the plea-bargaining process, they proceed to the jury trial. Things that need to be considered is how the jury selection process can affect the outcome. A key to the American criminal process is innocent until proven guilty and a trial by a jury of your peers. But is this occurring? In this section we examine the jury selection process and the affect it has on the outcome of a trial.

    Cornell University Law Professor Sheri Johnson reviewed twelve mock-jury studies. She determined the race of the defendant directly affected the juries’ determination of guilt. In the mock trial, identical presentations and facts were simulated, sometimes with white defendants and sometimes with a black defendant. Professor Johnson concluded white jurors were more likely to find a black defendant guilty than a white defendant, even though the mock trials were based on the same crime and the same evidence.

    The results discovered black jurors displayed reverse bias. Black jurors found white defendants guilty more than black defendants. Additionally, the race of the victim in the case affected both groups. White jurors determined white defendants less culpable if the victim was black. Likewise, black jurors found black defendants less culpable if the victim were white. Based on these mock-jury results, jurors of both races displayed biased behavior. So, the major question taken away from these results, is the criminal justice system racially unfair? The researchers believed the juror bias was not conscious. They attributed a guilty verdict on the basis of race seemed to be subconscious. The researchers surmised jurors were unlikely to be aware of their bias during the process.

    The U.S. Supreme Court has attempted to promote racially mixed juries by prohibiting prosecutors and defense lawyers from using peremptory challenges to remove potential jurors based on race. In the case of Batson v. Kentucky (1986) Batson, a black man, was on trial charged with second-degree burglary and receipt of stolen goods. During the jury selection, the prosecutor used his peremptory challenges to remove the four black persons on the jury panel, resulting in a jury composed of all white people. Batson was convicted on both of the charges against him.

    The United States Supreme Court found that the prosecutor's actions violated the Sixth and Fourteenth Amendments of the Constitution. Relying heavily on precedents set in Strauder v. West Virginia (1880) and Swain v. Alabama (1965), Justice Powell held that racial discrimination in the selection of jurors not only deprives the accused of important rights during a trial, but also is devastating to the community at large because it "undermines public confidence in the fairness of our system of justice." Without identifying a "neutral" reason why the four blacks should have been excluded from the jury, the prosecutor's actions were in violation of the Constitution.

    Justice Thurgood Marshall called for ending the use of peremptory challenges altogether. Justice Marshall said, only by banning peremptory challenges can racial discrimination in jury selection be ended. Six year later in the case of Georgia v. McCollum (1992) the Supreme Court would address race and peremptory challenges once more. White defendants, Thomas McCollum, William Joseph McCollum, and Ella Hampton McCollum were charged with assaulting two black individuals. Before the criminal trial, the prosecution moved to bar the defense from using its peremptory challenges to eliminate black people from the juror pool. The term "peremptory challenge" refers to the right to reject a potential juror during jury selection without giving a reason. The trial judge denied the prosecution's motion, and, when the prosecution appealed, the Georgia Supreme Court affirmed the trial judge's decision.

    The United States Supreme Court found that the exercise of peremptory challenges in a racially discriminatory manner not only violates the rights of potential jurors, but also undermines the integrity of the judicial system. Since the Court also determined that a peremptory challenge did constitute state action, it found the use of peremptory challenge for the purpose of racial discrimination to be a breach of the Equal Protection Clause. Consequently, the decision of the Georgia Supreme Court was reversed.

    Even after the Supreme Court’s rulings it can be challenging to enforce the courts mandates or ensure prosecutors and defense attorneys do not attempt to manipulate the judicial system. In the case of Miller - El v. Dretke (2003) the United States Supreme Court reviewed a case involving a black Texas death-row inmate. Miller-El alleged the prosecution in his capital murder trial violated the 14th Amendment's equal protection clause by excluding 10 of 11 blacks from the jury. The jury convicted Miller-El and he was sentenced to death. State courts rejected Miller-El's appeals and ruled Miller-El failed to meet the requirements for proving jury-selection discrimination outlined by the U.S. Supreme Court in Batson v. Kentucky. Miller-El then appealed to a federal district court. The district court rejected Miller-El's appeal and ruled the court must defer to the state courts' acceptance of prosecutors' race-neutral justifications for striking potential jurors. The Fifth Circuit Court of Appeals affirmed and ruled a federal court could only grant an appeal if the applicant made a substantial showing of the denial of a constitutional right.

    In a 6-3 opinion delivered by Justice David Souter, the Court held that Miller-El deserved to win his appeal because the jury selection in his case violated the Fourteenth Amendment's equal protection clause. The Court began by noting that the prosecutors used peremptory strikes to exclude 91 percent of the eligible black prospective jurors, "a disparity unlikely to have been produced by happenstance." After comparing two eliminated black prospective jurors with similar white jurors who were not eliminated, the Court concluded that the "selection process was replete with evidence that prosecutors were selecting and rejecting potential jurors because of race." The Court further concluded that Texas' jury selection manual, both in this case and generally, tended to allow prosecutors to read disparate questions to prospective jurors depending on whether they were black or white.

    Court Sentencing

    Studies have determined that once convicted by a court Black Americans are more likely than White Americans to be incarcerated. Additionally, sentences were longer for blacks than for whites. The study suggests that people involved in the sentencing process like probation officers, judges, and parole boards are utilizing allowed discretion in sentencing or probation and parole decisions such a way that is discriminatory toward Black Americans.

    Unintended discrimination may take place at many points in the criminal justice process. Probation officers prepare pre-sentencing reports for a judge. The judge utilizes the reports to help making decisions related to sentencing. Pre-sentencing reports typically include information on the criminal’s prior record, family background, education, marital status, and employment history. Many African Americans convicted of crimes come from lower sociology-economic background with single parent homes, many with substance abuse problems. The criminals pre-sentencing reports contain information such as trouble in school and family problems which the judges cannot relate to. The study suggests these factors may persuade some judges to sentence them to more sever sentences. However, it is important to note that the criteria for whether to impose the low, middle, or upper term in sentencing is based on the aggravating or mitigating factors of the offense and not the socio-economic factors of the offender.

    A survey of studies on discrimination in the criminal justice system discovered that much of the differences in sentencing can be determined by the arrested persons criminal charges and prior criminal activity of those. The survey concluded there was no evidence of bias throughout the criminal justice system, however examination of specific jurisdictions and courts did find evidence that suggests racial bias in a significant number of cases.

    When reviewing drug offenses separately, some federal sentencing practices had the effect of discriminating against Black Americans. Federal laws created harsher mandatory sentences for crack cocaine, which was popular in poor black communities. Powder cocaine, which had lower sentencing structure was typically consumed in wealthier communities. For example, selling 28 grams of crack cocaine a suspect would be sentenced to a mandatory minimum sentence of five years, even if it was the suspects first offense. To be sentenced for a minimum five years, a suspect would have to be convicted of selling 500 grams of powder cocaine. Because a greater majority of crack cocaine users are black while powder cocaine users white, the result of the law had an adverse effect on the black community.

    In 2010, the United States Congress passed the “Fair Sentencing Act.” This law repealed the mandatory minimum sentences and eliminated the discrepancy between crack and powder cocaine possession and sales. Additionally, in 2012, the United States Supreme Court addressed the law in Dorsey v. United States. The Court held that the Fair Sentencing Act's (FSA) lower minimum sentences apply to offenders sentenced after the FSA's passage, even for crimes committed before its passage. In the Court's opinion, Congress clearly intended for the sentencing guidelines to apply to pre-Act offenders. The FSA is intended to create uniformity and proportionality in sentencing, a goal that would be undermined by applying the old sentencing guidelines after the Act's passage. Instead, applying the old sentencing guidelines would create the exact sentencing disparities that Congress tried to prevent with the FSA.

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    Act It Out! Community Court Activity

    In this activity, click here to access the Community Court website. This will provide you with information on how successful community courts can be launched in your community.

    Answer the following questions based on the above reading:

    1. Thinking about the community you live in, identify a specific population you believe would best be targeted for community policing and why?
    2. Now identify the stakeholder or board that would provide input on how the program would be run. Why did you choose these people?
    3. Who would oversee the process? What checks and balances would be in place to ensure community safety?
    4. Present your finding to the class.
    5. Peer review of each program, each group will provide feedback on the project design.

    This page titled 7: Court and the Community is shared under a CC BY license and was authored, remixed, and/or curated by Dave Wymore & Tabitha Raber.

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