Final exam for American Courts

Susannah Krug
March 16, 2007
Final Exam for American Courts

Question #1:
Discrimination is often decried as one of the main problems with our current court system. With both African-Americans and Hispanics over represented in the criminal justice system in proportion to their percentage of the population, many social scientists and criminal justice researchers have focused on why this might be. Most research has been performed on African-Americans and this limits the usefulness of this data for Hispanics, but does not negate the question of whether or not this data might hold true for other ethnic minorities such as Hispanics or Native Americans.
According to Spohn, Cassia, Gruhl, and Welch, blacks do not receive harsher sentences based solely on race, once seriousness of the charge and previous criminal record were controlled for. There was some wealth discrimination found though and since minorities are more likely to be disproportionately poor, this could be seen as indirect racial discrimination or just plain wealth discrimination. Either way, we probably should not be discriminating against people based on how much money they have. Spohn, Cassia, Gruhl, and Welch also found that when sentenced, blacks were 5 percent more likely to be sentenced to short jail time than probation. This is after controlling for all the other factors, so this is direct racial discrimination. "This five percent difference means that blacks are 20 percent more likely than whites to be incarcerated" (Spohn, Cassia, Gruhl, and Welch, pg 9).
Marjorie Zatz finds that "at both the adult and juvenile levels, poor people and people of color are more likely to be detained pending trial, and pretrial detention results in harsher sentencing outcomes" (Zatz, pg 5). She finds clear race effects in the lower level felonies where prosecutors have a lot of leeway to make charging decisions and other decisions that affect the outcome of a case. She repeatedly states that small racial discrimination at each level of the criminal justice system eventually adds up to a large racial discrimination at the end of the process. Also, in death penalty cases, the race of the victim is the largest determining factor of whether the death penalty is pursued. However, I am not sure whether that discriminates against defendants of color.
The first change that I would recommend would be to have set guidelines for charging decisions. This idea would be sort of like determinate sentencing only for prosecutors. This might prevent some of the variance found in the charging of minority defendants. This will prevent some of the indirect racial discrimination found by Spohn, Cassia, Gruhl, and Welch and Zatz in determining how the defendants are charged.
My second change would be to provide a lawyer to every single person that comes through the criminal justice system. While this would be a sweeping change and I do not know how it would pass politically, it would prevent the wealth discrimination found by both of the previously mentioned researchers. There would not be an option for people to have their own private attorneys. This would prevent both the perception of "bought justice" and the actuality of indirect minority discrimination since minorities are disproportionately poor.

Question #2: I have chosen to create a description of prosecutors. Obviously the main job of the prosecutor is to decide which cases the police have enough evidence on to pursue going to trial. They are then responsible for presenting the best possible case for the state They also handle the decisions with what charge to place on people that are detained by the police and requesting certain amount of bail based on previous charges of the person, severity of the crime and other factors that go into that determination. Also, the guidelines set forth by the American Bar Association state that the prosecutor has a duty to represent the face of the criminal justice system and as such have the duty of seeking justice, not just convicting people. They represent the government and are expected to follow the guidelines set forth for legal conduct.
Acting with correct legal conduct for prosecutors’ means advocating justice, not just pursuing convictions. The prosecutors overarching goal has to be to preserve the integrity of the criminal justice system. Advocating justice means not participating in underhanded or unethical techniques that might produce a conviction, but would not preserve the integrity. Prosecutors should not participate in any unauthorized discussions or submissions of material to a judge without the defense attorney present. They also should be alert to conflicts of interest that may exist for them personally or professionally and refer the case to another prosecutor if this should happen.
Interacting with the other members of the courtroom ought to always be one of respect, including what limited contact the prosecutor might have with the defendant. The prosecutor should always address the court while court is in session, as opposed to speaking to the opposing counsel. The prosecutor ought not to try and pressure an unrepresented defendant into signing away important legal rights or even speak to him without having the defendant sign a waiver of counsel.
In handling cases, the prosecutor has a limited investigative role. This role only comes into play when other agencies have not done their job in fully investigating. The prosecutor is expected to not discriminate against the defendant based on race, gender or other factors that do not affect the defendants’ guilt. They also should maintain the highest integrity in how evidence is obtained. A prosecutor should avoid interviewing a potential witness except in the presence of a third party. The prosecutor makes the decision to charge and what charges to charge the defendant on. This obviously imbues the prosecutors’ office with a lot of power. A prosecutor presents the evidence to a grand jury if that is necessary. A prosecutor also discloses evidence to the defense counsel in a timely manner so as to give them time to properly prepare an adequate defense for the defendant.
I think that the overarching theme for the role of the prosecutor is to maintain a professional and ethical stance in all of their dealings, inside and outside of the courtroom.

Question # 3:
As a case goes through problem solving courts, it is treated slightly differently than when the case goes through a traditional court system. In a traditional court system, there are the same resources available to everyone. In a problem-solving court, there is more of an effort to make sure that the resources match the severity of the problem. For example, in drug court, they frequently pursue partnerships with outside providers of drug treatment programs because they want to have the sense of involvement and because they want to have these options available so that they can send the people that need it to that sort of treatment. They also try to involve the community in the criminal justice procedure. This provides some education to the general public about what the justice system has to deal with but also fosters a sense of responsibility with the outside community. With traditional courts, the community frequently and most of the time correctly feel alienated from the courts and feel like all they do is sit around and try to think up ways to screw regular people.
Frequently judges in traditional court systems refer people to social service agencies to obtain help, but most of the time there is no way for the judge to know whether or not this help was actually obtained and most defendants feel lost or do not understand the system so they do not obtain the help. Problem-solving courts attempt to have more systems in place for the court and social service agencies to work together to offer services to defendants that need help. Generally when a judge sentences a defendant to parole or probation, the case goes to a probation officer that more than likely has over 200 cases and has literally no time to oversee any of the cases that they have. In a problem-solving court, more oversight is given and generally is in the form of the judge seeing the defendant in court to see that treatment is being followed. Judges in problem-solving courts look for more information to give them background information on the issues and concerns of defendants. This focus on information also bleeds over into a focus on results and hard numbers on the effect of the court.
I think the focus of problem-solving courts as courts that try to understand the problems that are behind the crimes that are committed and then trying to help fix the problems as opposed to just punishing the crime committed is definitely opposed to my traditional view of courts. In my mind, the job of the courts is not to fix social ills and drug abuse but to go ahead and sentence based on the crimes that are committed. However, I think that traditional court systems have been operating off of this system for many years and obviously there needs to be a change. Recidivism amongst defendants in court systems is high and our jails are overcrowded. Evidently a change to our system has to happen or these ills will continue.
Many times in traditional systems, judges feel like they sit up in their seat and are not able to say anything that would imply that they too involved in the case and they feel trapped in their role as arbitrors of justice. I would argue, as does the Good Courts book, that many judges in problem-solving courts actually feel like they have a bigger impact on their defendants and the world than in traditional systems. I think this is because they are able to see defendants as follow-up to the treatment they required them to do and they are able to see with the focus on results, the impact they are having on the local community. I think that the role of the defense attorney changes in problem solving courts also. Generally in these courts there is no need for the rhetoric spouted by the defense attorney, but you have to ask yourself if that rhetoric was originally developed for a good reason (defending clients).