What Does the Criminal Justice System Look Like?* 

 

*Note:  This research article is part of chapter 1 in my book Criminal Justice in America: A Critical View.  For information regarding this and other books I have written go to the following link: Books

 

Thumbnail Sketch of the Criminal Justice System

 

The criminal justice system is a very complex system.  Criminal justice is so much more than simply make an arrest, take the defendant to court, and sentence her or him to prison or probation.  Each subsequent chapter will explore in much more detail the details of this system. For now, however, let us take a very brief view of this system=s major components.

 

The Police

 

There are almost 18,000 police departments, ranging from small town departments of one officer to large urban departments with 1,000 or more officers.  There are over 1 million law enforcement employees who share a more than $3.4 billion monthly payroll  There are nearly 1 million law enforcement employees who share a more than $2 2 billion monthly payroll.[1] Police agencies today can be divided into the three major branches of government: federal, state, and local (city and county). The federal law enforcement system includes such well-known agencies as the FBI, National Park Service, Border Patrol, U.S. Marshal, U.S. Postal Inspector, and many more.   Law enforcement on the state level includes the state police or highway patrol, drug control agencies, fish and game control agencies, investigative bureaus (the state equivalent of the FBI), and others. County and municipal police agencies (local government) are by far the largest law enforcement group. These agencies include municipal (or city police), county sheriff's offices, constables, and village police departments.

The police engage in a wide variety of duties, many of which do not relate directly to the control of crime (e.g., traffic control).  The essential role of the police officer is both proactive and reactive.  The former consists of providing routine patrol in communities in order to identify potential criminal activities and generally maintain “order” (a rather vague term that we will discuss in a later chapter).  The latter refers to reacting after a crime has already occurred, typically by arriving at the scene of the alleged crime, interviewing witnesses, collecting evidence, attempting to locate and/or identify a suspect, making the arrest and transporting suspect to the local jail.  Also, police officers are often called upon to testify during the court trial.

 

The Courts

 

It is within the court system that some key decisions are made following an arrest.  In the United States there are two major court systems: federal and state. Within each system there are two general types of courts: trial and appellate.  This is what is known as the dual court system.  Trial courts are used to hear cases and decide on guilt or in­nocence. Appellate courts are used to hear appeals, to insure that the laws are properly interpreted, and “to devise new rules, reexamine old ones, and interpret unclear language of past court decisions or statutes.”[2]  In essence, the appellate courts “police” the behavior of the trial courts.

The bulk of criminal and civil cases in the United States come before the state court system.  Most of the criminal cases are heard in trial courts of limited jurisdiction or what are more commonly known as lower or inferior courts. These courts are variously known as municipal, justice of the peace, city, magistrate, or county courts. They are usually created by local governments (cities or counties) and are not therefore part of the larger state court system. Within these courts are heard misdemeanors, traffic cases, city ordinance cases, minor civil disputes, and the like. They are also responsible for initial appearances and preliminary hearings for felony cases.  They are certainly the most numerous of the courts, as they number almost 14,000, which collectively represent 84 percent of all state judicial bodies.  The number of judges serving in these courts, according to the most recent count, is 18,272.  They dispose of about 71 million cases each year.  There are around 500,000 employees within the court system, with a payroll of about $1.5 billion. [3]

These lower courts are the courts most citizens come in contact with if they run afoul of the law.  Cases are heard in a rather perfunctory manner (many are handled by clerks as traffic cases and many are settled by the payment of a small fine), often taking as little as a minute.  It is also the ultimate of “assembly line justice.”  Technological advancements are constantly used to upgrade, or streamline, the assembly line in order to make it more efficient.

Within the court system are several crucial stages in the criminal justice process.  These stages include: (1) the initial appearance.  The main purpose of this hearing is to arrange for some form of pretrial release, usually through some form of bail.  (2) The preliminary hearing, often referred to as the “probable cause hearing,” for one of its major aims is to determine whether or not there is probable cause to believe that a crime has been committed and that the defendant committed it.  (3) The arraignment, during which the defendant first enters a plea.  (4) Finally, the trial, a relatively rare event (occurring in less than 10 percent of all criminal cases), which is an adversary procedure between the prosecutor and the defense attorney.

 

The Prison System

 

The prison system consists of a vast array of institutions designed to supervise and control convicted persons, either on a temporary basis (jails) or for a longer term (prisons), ranging from one year to life.  Prison administrators, in certain jurisdictions, are given the responsibility for carrying out state sanctioned killing (frequently called “execution”) under the order of a court.  It also consists of two very important components, probation and parole.  The former is a status reserved for those who have been convicted but their sentence to jail or prison has been suspended for a certain period of time, during which they are supervised in the community by a probation officer.  The latter describes a post-prison status where the individual has been released prior to the expiration of the sentence and technically serves the remainder of the sentence under the supervision of a parole officer.  In some jurisdictions a probation/parole officer has both probationers and parolees on their caseload.  Probation is a result of a court action just after conviction but in lieu of an actual term of incarceration, while parole, a prison administrative action, follows a period of incarceration.  The general purpose of both methods is to supervise and control behavior.

The term “correctional institution” is a relatively recent term (becoming popular after World War II) and applies to such institutions as jails, detention centers, reception centers, state and local prisons, federal prisons and the like.  In recent years the prison system has grown tremendously. Whereas in 1990 there were a total of 1,287 prisons (80 federal and 1,207 state prisons); by 1996 there were a total of 2,499 state prisons and 385 federal prisons, for a grand total of 2,883, an increase of 124%.  Also, there were an additional 2,297 state and 98 federal juvenile correctional facilities (125 federal and 1,375 state prisons).[4] Regionally, the South has 629 state prison facilities, followed by 275 in the Midwest, 267 in the West, and 204 in the Northeast.[5]   There are more than 3,000 jails in the United States today.[6]

The main difference between prisons and jails is that while the latter serve as a short-term  or temporary housing facility (roughly about half awaiting for their court appearance or trial and the other half serving sentences of less than one year), the former holds those serving sentences of one year or more.  In some instances, and generally for logistical or economic reasons, some convicted persons do much of there prison sentence in jails due to overcrowded prison facilities.

This, then, is a very brief look at the basic components of the criminal justice system.  It is, in a sense, an overview of the structure of the system.  There is, however, a process that takes place.  Crimes are reported, arrests are made, defendants are “booked” and charged with specific offenses and processed through various stages of the system.  In an attempt to describe what the criminal justice system “looks like” and what actually takes place within it, two predominant models have been suggested in many introductory textbooks.  These two models, the President's Commission Model and the Wedding Cake Model are the subjects of the next section.

 

TWO TRADITIONAL MODELS OF THE CRIMINAL JUSTICE SYSTEM

 

The President's Commission Model

 

More than 30 years ago the President's Commission on Law and Administration of Justice provided us with a view of the criminal justice system as a system of sequential stages through which cases are processed.  This model became perhaps the most famous depiction of the criminal justice system. It has been reproduced in literally scores of introductory criminal justice and criminology textbooks since this time, so there is no need to reproduce it once again

Such a depiction, however, does little more than suggest an outline of the “steps” or “stages” one may or may not pass through.  Such a model also suggests that the system is an efficient one where cases are processed in a more or less orderly manner from the beginning to some point at a later stage, sometimes getting to the very end and most of the time falling out somewhere along the way.

This model is both a description of how the system is supposed to work and a prescription of how it can be improved.  From this view, the system is “fragmented” and even considered as a “non-system” with little coordination among the different parts.  It emphasizes “efficiency” and “cost-effectiveness” as the major goals, rather than justice.[7]  Also, the “Custer syndrome” operates here which means that as long as we don't lose, we win, which is typical of the bureaucratic mentality that drives workers within bureaucracies to keep their heads above water and maintain some semblance of control.  Why else would most call this crime control?

This view is misleading in other ways.  It ignores the social context of the system, that is, how and why cases move through the system the way they do.  It ignores the role of race, gender and social class as determinant factors along the way.  More importantly, it ignores one very crucial stage that takes place prior to the first stage that is depicted here.  The stage that is ignored is the stage of legislation whereby certain behaviors are defined as “criminal” while others are not.

 

The Wedding Cake Model

 

In contrast to the foregoing model, Samuel Walker proposed what he called the wedding cake model of criminal justice.  This model depicts the criminal justice system as consisting of four major layers, as on a wedding cake.  Walker's assumption is that the system handles different kinds of cases differently.  They differ mainly in terms of the disparities between cases in different layers.[8]

The first layer consists of the small number of “celebrated cases.”  The OJ Simpson case comes to mind most immediately, along with Susan Smith (convicted of killing her two sons), the Oklahoma bombing case, the Menendez trial, the Rodney King case, and most recently the Scott Peterson case, among others.  Two major types of cases fall within this category: (1) the rich and the famous (or someone who's intended victim was famous, as in the John Hinckley case, where the victim was the President of the United States, Ronald Reagan), with O.J. Simpson being the most famous example in recent history.  Also included would be various examples of “white collar” or “corporate crime” such as the Savings and Loan Scandal and the Ford Pinto case; (2) those who are at the lowest end of the class system but whose case ends up as one of the landmark Supreme Court decisions, such as Dolree Mapp, Ernesto Miranda, and Danny Escobedo.  These cases, although representing a minute proportion of all cases, tend to capture the public imagination and have an enormous impact on public perceptions of how the criminal justice system works.  Many people conclude that this is how the system works, yet the exact opposite is far more typical, especially when we consider that the majority of cases are handled in a rather routine manner in virtually a matter of minutes and it is a rare case that ever goes before a jury. 

The second and third layers consist of what Walker calls “heavy duty” felonies and “lightweight” felonies respectively.  The second layer consist of the major, “heavy duty” felonies, usually most violent crimes (e.g., murders, robberies, rapes, and assaults) and major property crimes (e.g., burglary, grand theft).  One variable that separates the two layers is whether or not the victims are strangers to the offender.  If prosecutors believe that the particular crime is a private matter among acquaintances, then this will be considered a third layer or “lightweight” felony.  If the case involves a repeat offender, the case will be handled as a serious matter (i.e., a second layer felony).  In the case of rapes, in most cases where there has been some prior relationship between the victim and the offender, the case will be viewed as a third layer case (and often resulting in a dismissal of the case).  Also, many serious cases of spouse abuse (which also involves ex-husbands tracking down, stalking, attacking and even killing their ex-wives), it will be treated as a third layer felony or perhaps even included in the fourth layer.  Several research studies have demonstrated that in most of the cases where the victims and offenders know one another, there is a dismissal or the case is not prosecuted as vigorously as in cases involving strangers.[9]

Finally, the fourth layer is, in Walker's words, “a world unto itself.”  These cases are those that fill the so-called “lower courts.”  These are the millions of misdemeanor cases handled by the criminal justice system each year.  The bulk of such cases involve “public order” violations (e.g., drunkenness, disorderly conduct) or minor thefts (e.g., shoplifting).  In a fascinating study Feeley found that in such courts we see the classic illustration of “assembly-line justice” at work, where many defendants are arraigned en masse without the assistance of a lawyer and each case is disposed of in a manner of minutes with the usual sentence being a light fine and rarely jail time. Feeley concluded that in such cases the “process is the punishment” because merely being physically in the court itself is punishment enough for most people.[10]  The readers of this text may have experienced some of this if they ever had to go to court to pay a traffic ticket, especially if they wanted to plead their case to the judge in the hope of leniency (or a reduction of the fine in return for attending traffic school).

While the wedding cake model correctly points out that there are many different cases processed through the criminal justice system, the focus of the model is mostly toward the decisions of those who work in the systemBparticularly actors of the court (e.g., prosecutors, defense attorneys, and judges)Band the relationship between the victims and the offenders.  We can get a glimpse of the role of power and status in such decisions, and it suggests that race, class and gender may play a role, but such factors are not often made explicit and do not form the centerpiece of the model.  Further, as with the President's Commission model, the wedding cake model does not direct us into an inquiry into the law-making process, that is, how certain behaviors come to be defined as “criminal,” while others are not.  Furthermore, the surrounding economic and political system, with all of its class, racial and gender inequalities, is taken for granted.  Neither of these models addresses the question of why the defendants (and many of the victims as well) are disproportionately racial minorities and the poor, especially those that end up doing time in jails and prisons.  For these and related issues we will offer a critical theoretical explanation of criminal justice which illuminates the underbelly of that system.  Such an explanation must not be confined to the promotion of efficiency, nor should such an explanation be limited to how an institution should operate.  Such an explanation should not be limited to explaining the obvious, but to venture into that which is not obvious.  Thus, the real task we have taken on with this book is the furtherance of social justice.  It is to this task that we now turn.

 

THE CRIMINALIZATION MODEL

 

There is a certain truism to the old adage, “money talks.”   The title of a song that was originally made popular in 1960 by Barrett Strong was called “Money.”  One line in this song is: “Money don’t get everything it’s true/but what it don’t get I can’t use.”  As with much of the rest of our social world, money does in fact talk.  In fact, we can say in general terms that the greater amount of money and other resources one has at their disposal, the greater will be the likelihood of getting one=s way, in spite of opposition.  This applies not just to receiving “justice” but also to getting elected to office, getting a good education, being healthy, becoming wealthy and thousands of other components of the “good life,” however one defines this term.  In common parlance the “other resources” include things like connections, “juice,” contacts.  What this all boils down to is simply social class.  As one writer puts it, class counts.[11] Since social class determines most everything else that matters in a capitalist society, why should it not apply to criminal justice?  This simple idea forms the basis of our alternative view of the criminal justice system.

Put simply, whether or not certain behaviors are even considered “criminal” to begin with, whether or not one is arrested and charged with a “crime,” and ultimately one’s fate after this happens, depends largely upon one social class position.  However, as so much research has demonstrated (much of it to be reviewed in subsequent chapters), race and gender also have a significant bearing on criminal justice outcomes. When the various stages in the criminal justice system are examined in detail, the odds of being arrested, charged, convicted and sentenced to prison (or death) is greatest the lower one is in the social class hierarchy and for those who are racial minorities, especially males.  However, women do not fare too well, especially those who are poor and racial minorities.[12] 

 

The Process of Criminalization

 

A complete understanding of “criminal justice” requires, initially, a description of the process itself.  Indeed, before we can realize a truly just legal system, we must comprehend what this system really is and how it works on a daily basis.  The remainder of this chapter will be devoted to the beginnings of this task as we describe the modern response to crime by the criminal justice system.  As we will note below, this process is not always about responding to crime per se, but rather the processing of certain kinds of defendants accused of committing certain kinds of crimes.  The effects of such processing are likened to a process of “criminalization” whereby certain behaviors and persons are defined as “criminal,” while others are not.  It is a sort of homogenization process, whereby the offenses and the offenders become more and more homogeneous (in terms of social class, race, gender and other characteristics) the further one goes into the system.[13]

The criminalization process recognizes most of the major stages of the criminal justice process, but also draws attention to the political processes and involvement of powerful interest groups and lawmakers with the selection of behaviors defined as criminal, the administrative and legislative responses to those behaviors, the policies adopted to control pre-defined criminal behavior, and the transformation of responsibility for making public policy by legislators and senior jurisdictional administrators (e.g., Presidents and Governors) to criminal justice officials who assume the responsibility for interpretation and implementation of those policies.  In addition to the typical stages set forth in traditional models of criminal justice which reflect much of what is normally regarded as the “criminal justice process” itself, and stage we exhibit the enhanced likelihood of  re-entry for convicted persons and convicts back into the systemBnot because of the crimes they commit, nor because of special attention directed toward them by criminal justice officials, but because of diminished opportunities resulting from social stigmatization and alienation.[14] 

The remaining chapters of this text will be devoted to an examination of all of these stages in more detail.  For the present we will note that the various crime control policies established at both the national and local level ultimately determine the structure and operations of the entire criminal justice system as well as what laws will be enforced.  It is by definition a very political process, as many have noted.[15]  These policies determine what sorts of behaviors should be considered “criminal” and what kinds of specific actions the criminal justice system should take.  Here we find the beginning of what Quinney once referred to as the process of creating a “social reality of crime.”[16]  Most importantly perhaps is that these policies, and these “realities,” help determine not only the response of the major actors in the criminal justice system (police, courts, prisons), but also they help determine what kinds of persons and what sorts of acts will be labeled as “criminal.”  During certain periods of time certain specific behaviors are singled out for special attention.  The war on drugs and the war on gangs are two most recent examples.  Many of these policies are part of what some researchers have called “moral panics,” where certain behaviors are defined as “problems” in proportion far greater than the actual threat and groups who are deemed offensive or threatening to those in power are targeted.[17]

A related concept that helps further explain this political process is that of “symbolic politics.”[18]  This term refers to a “technique” which directs our attention to certain “problems” (for instance, crime, drugs, or gangs) and simultaneously diverts our focus from larger social issues that may actually create the problems that we now concentrate on. 

Those larger social problems we are talking about include inequality, poverty, racism, and sexism.  Declaring wars on crime, drugs, and gangs are simplified for policymakers and their powerful interest groups when public attention is distracted from the true causes of these phenomena.  Scheingold has observed that to “politicize crime” in this way diverts our attention from certain structural reforms, which would be far more costly, to individual “deviants” or the “dangerous classes.”[19]  Quoting Murray Edelman, Scheingold notes that: “The appeal of an emphasis upon the pathologies of criminals and the utility of punishing them lies partly in what it negates: the tracing of crime to pathological social conditions.”  Scheingold further observes that “the power of these symbols is that they are deeply rooted in America's individualistic culture, which increasingly generates the kinds of insecurities that promote a yearning for scapegoats...”[20]  One effect of this tendency is that the criminal justice system becomes a mechanism of controlling these scapegoats, and in particular members of the “underclass” or the “dangerous classes.” 

It is the poor, the young, ethnic minorities, and women who have the least vocal representation in both federal and state legislaturesBthese groups have a minimal political voice and the least amount of political influence.  Subsequently, these groups become easy targets for those whose interest it is to create and develop scapegoats (i.e., large businesses and corporations striving for more profit, and the legislators and administrators their campaign contributions purchase), and for those whose function it is to control those politically weak groups (i.e., the criminal justice system), and who implement public policies which are created and enacted by various legislative and administrative bodies. 

 

Stages in the Criminalization Process

 

The criminalization process begins with the process of legislation (stage 1), which determines what sorts of behaviors are deemed “criminal,” along with their corresponding punishments, plus state, local and national criminal justice policies. We begin our critique by noting the influences of those in persons who are largely responsible for passing such legislation and formulating social policies.  A great deal of research has shown that this is done mostly by those with money and power and who occupy the highest social class position in society.[21]  In 1996 winners of a House of Representatives seat spent an average of $673,000 on her or his campaign.[22]  “Soft money,” or campaign contributions that lie beyond the control of campaign finance rules, as well as thousands of lobbying groups (most under the control of large corporations),[23] and many special interest groups that do not represent the poor or minorities, have had profound impact on drafting and passing legislation, and influencing public policy. [24]  The linkage between powerful interest groups and political influence lies in the control of purse strings before, during and after elections which often insure whether or not a politician keeps or loses her or his job.

Through a political process various sorts of “public policies” are discussed and formulated. The legislation of laws, and the subsequent formulation of public policies, particularly crime policies, are often preceded by a barrage of “marketing” techniques directed toward the public.  Isolated incidents (e.g., serial murders, school shootings, deaths resulting from illegal drugs, drive-by shootings, etc.) are amplified to the general public through elaborate media presentations (e.g., newspapers, magazines, television, radio, etc.).  Nauseating details about relatively rare forms of crime are presented in a manner whereby an unquestioning public comes to believe that such forms of crime are commonplace.  There are those who might argue that the media, protected under the First Amendment, is an unbiased entity, however, we have yet to find any major media source that was not at least linked to a major corporation.  Typically, in the aftermath of a media blitz promotional campaign attempting to persuade the public that more stringent social control measures are  needed, laws become easier to pass, and policies easier to craft and implement.  It seems that when lawmakers are satisfied that the public is adequately frightened and willing to surrender rights for imaginary safety, laws are passed, and policies are established.   It is at this juncture, the establishment of crime policy that the formal “criminal justice process” begins.  It is important to note that in American society there are numerous acts that result in harms done to individuals and society as a whole.  These behaviors are social harms.  Some of these may or may not be treated as “criminal” acts.[25]  

When a legislative body (e.g., state legislature) defines a certain behavior as “criminal,” through a criminal law, this provides an agenda for those who work within the criminal justice system.  This is important to understand, because the criminal law lies at the heart and is indeed the very foundation of the criminal justice system.  After all, the agents of the criminal justice system (e.g., police, judges, prosecutors) are empowered to enforce the criminal law (not the civil law, nor any other form of law).  For the most part, the decisions that determine what constitutes a “crime” are based upon narrow vested interests, such as class, racial and gender interests.  Criminal laws “are formulated by those segments of society which have the power to shape public policy.”  Thus, lawmaking “represents the translation of specific interests into public policy.”[26]

It should be noted that legislation in general (not just that which makes behavior criminal) involves interest groups and rarely is any piece of legislation not the produce of some powerful interest group.  Interest groups are organized groups of individuals who try to influence public policy decisions.  Most of these interest groups disproportionately include people of high social standing and represent powerful corporations, rather than average citizens.[27]  In many, if not most cases, these are the interests of white, upper class, males who together constitute what some believe to be a “ruling class” in American society.[28]  It is not by accident that many harmful acts engaged in by those of high social standing are either not considered criminal or if so are considered misdemeanors.  Those who pass these laws are predominantly those of high social standing (in many cases they are quite wealthy; some are even classified a millionaires), specifically upper-middle and upper-class white males.

Stage 2 involves the commission of a criminal act. When an act that is defined as criminal is committed, if that act is observed by a citizen, there are several likely responses.  First, it is either reported or not reported to the police.  There are a number of reasons why people report and fail to report crimes they observe.  We will cover these reasons later.  In the event that the act is reported, the police appear to have the discretionary power to respond in one of two ways: either an investigation is conducted, or the police may choose to ignore the report altogether.  Moreover, in the aftermath of a police investigation, the police may either make an arrest, or not make an arrest (stage 3).  As a general rule, the more serious the violation the more likely the police will make an arrest if they have a “suspect.”  It is not necessary to arrest the actual perpetrator, but rather a highly probable suspect.  Highly probable may rest on detailed information, social stereotypes, or administrative pressure to “clear the case.”  A case is cleared by making an arrestBany arrest.  If an arrest is made the police have the discretion to file a formal charge (stage 4). Here we are actually dealing with two theoretically separate sub-stages, since the police are the first to charge a defendant (what is commonly known as “booking”), but then this is followed by actions by the district attorney's office who make a decision to either accept the original charge(s), alter some or all of these charges or even to dismiss one or more or even all of the charges (formally this is called denying the charge) (stage 5).  Assuming that the prosecutor feels the evidence against the suspect is relatively strong, the court processes will likely begin.

Stage 6 involves various court decisions.  Several different court processes (or sub-stages) may occur.  One is the initial appearance (usually within a short time following an arrest, such as 48 or 72 hours), where it is determined whether of not there is sufficient evidence to hold a defendant for further action.  Another hearing may be held, known as a preliminary hearing is held during which a sort of “mini-trial” is held with both the prosecutor and the defense attorney present some of their evidence to a judge, who then determines whether or not the case can be processed further.  If the case is accepted, there is usually an arraignment, where the defendant is required to enter a plea and the case is further processed (more often than not a guilty plea, as a result of some form of plea bargaining, is entered (which means that the next stage is bypassed).  The next stage, the trial, occurs only if the defendant pleads not guilty.  It is during this stage that guilt or innocence is determined.  If the outcome of this stage is guilty, then the defendant moves on to the next stage which is sentencing. 

Since this is such an important step in the process, we conceive of this as a totally different stage - thus stage 7.  During the sentencing stage the convicted person is given some form of sanction, usually some form of probation, some form of intermediate sanction (e.g., community service, restitution, drug treatment), or incarceration in a prison or jail.

The criminal justice process is often viewed as terminated when the final disposition of a case is reached.  But the process continues since criminal justice agents often continue to be involved in the life of the convicted person.  There may be one of two forms of supervision in the community in the form of either probation (if this is the sentence established during the sentencing stage) or parole (if the individual has been sentenced to prison or jail).  Probation is formally a sentence where the convicted offender is under some form of supervision in the community for a certain period of time in lieu of going to prison or jail.  Parole is a period of supervision in the community following a period of time in jail or prison.  Here the offender technically serves a part of the jail or prison sentence in the community.  More will be said about probation and parole in a later chapter.   During this stage the individual either completes his or her period of supervision successfully, or is brought back to court (in the case of probation) or to the parole board (in the case of parole) as a result of a violation of probation or parole, or committing another offense. 

This brings to an end the formal criminal justice process, but it may not be the end for an offender, since he or she may have their probation or parole revoked because of the violation of some rule or the commission of a new offense.  If a defendant is placed on probation, there are a number of rules and regulations that must be followed.  If one of these rules is violated, the state may revoke proba­tion and send the defendant to jail or to prison.  If the defendant is sentenced to prison, he or she at some point (in most cases) will be released on parole prior to the expiration of the sentence.  Parole is a period of super­vision in the community.  If parole rules are violated, the defendant may have his or her parole revoked and may be put back in prison to serve out the remainder of the original sentence or given “another chance” to continue his or her community supervision.  If the individual commits another crime and is caught he or she moves into yet another stage (which could also, of course, be reached even if the individual successfully completes the period of supervision on parole or probation), and re-enter the system through arrest.

It should be noted that even after a conviction, every defendant has the right to file an appeal of the decision to a higher court (e.g., court of appeals, Supreme Court).  This court (called an appellate court) either affirms or reverses the convic­tion.  (More will be said about these kinds of courts in a later chapter.)  If the conviction is reversed, the case goes to trial again and the process begins again. 

The presentation given above is, as already noted, an idealized version of what is supposed to happen. What really happens varies in both time and space.  As the above discussion indicates there are several critical stages during which important decisions are made. ­

As we pro­ceed through the stages of the system, we see that the number of people involved as defendants is further reduced.  Also, and more importantly, the kinds of people involved become more and more homogeneous. For instance, they become more alike in terms of age (younger), sex (more are males), race (increasingly nonwhite), social class (increasing num­bers of lower- and working -class people and the poor), offense (the kinds of offenses typically associated with the poor and the powerless), and more with previous experiences with the criminal justice system.  When we arrive at the last stage, those who are incarcerated in the nation's prisons and jails, we have the most homogenous grouping in which the vast majority are poor, unskilled, uneducated, and well experienced in crime and have had much contact with the criminal (and juvenile) justice system.

While this sifting and sorting are often based on such legal criteria as offense (especially its seriousness) and past record, nonlegal variables such as class, race, and sex which become “proxy variables,” play an important role as well.  An inmate at a women's prison told Kathryn Watterson: “Money talks, bullshit walks.”[29]  This statement illustrates a strong feeling among many inmates (and non-inmates too) that if you have money and power you may never go to prison no matter what kind of offense you commit.  There is certainly much truth to this and, as we shall document throughout this text, money does in fact buy one's freedom and in many cases a lot of money has to be spent just to prove your innocence.

 Reiman argues that “the criminal justice system effectively weeds out the well-to-do, so that at the end of the road in prison, the vast majority of those we find there come from the lower classes.” He further asserts:

 

This “weeding out” process starts before the agents of law enforcement go into action... our very definition of crime excludes a wide variety of actions at least as dangerous as those included and often worse... Even before we mobilize our troops in the war on crime, we have already guaranteed that large numbers of upper-class individuals will never come within their sights...At each step, from arresting to sentencing, the likeli­hood of being ignored or released or lightly treated by the system is greater the better off one is economically.[30]

 

One important factor that is crucially linked to class position and criminal justice is that of power.  Michael Parenti gives as good a definition as anyone when he writes:

 

By “power” I mean the ability to get what one wants, either by having one=s interests prevail in conflicts with others or by preventing others from raising their demands.  Power presumes the ability to manipulate the social environment to one=s advantage.  Power belongs to those who possess the resources that enable them to shape the political agenda and control the actions and beliefs of others, resources such as jobs, organization, technology, publicity, media, social legitimacy, expertise, essential goods and services, organized force, and - the ingredient that often determines the availability of these things - money.[31]

 

 

Power can be achieved either by force or by being able to get someone “to think and believe in accordance with your interests,” the latter of which is more long-lasting. [32] Those who have this power are able to influence legislation to their own advantage and/or the disadvantage of others.  Another example of power, as indicated in the above definition, is that certain individuals with “pull” can avoid detection of criminal acts (or prevent acts from being defined as “criminal”) or, if caught, can avoid or at least minimize punishment.

As we have already alluded to, traditional models have failed to address most of the issues brought forth by the critical model.  Which leads us to ask: what sort of theoretical perspectives have generally been used to explain the criminal justice system?  In other words, how have academics and practitioners explained the criminal justice system?  Two major perspectives have been traditionally used.  These two perspectives are the classical and the positivist schools of thought, which also happen to be the two most popular schools of criminology used to explain criminal behavior. 

 

Notes


 

[1]  Sourcebook on Criminal Justice Statistics on line, March 2001, Table 1.17.

[2] Neubauer, D. W.,  America's Courts and the Criminal Justice System, 5th ed. Belmont, CA: Wadsworth, 1996, p. 45.

[3]  Neubauer, p. 51; Sourcebook on Criminal Justice Statistics on line, Table 1.17.

[4] Rush, G. Inside American Prisons and Jails.  Incline Village, NV: Copperhouse Publishing.,1997, p. 157

 

[5] Maguire and Pastore, Sourcebook on Criminal Justice Statistics - 1998.

[6]  Allen, H. E. and C. E. Simonsen. Corrections in America (8th ed.). Englewood Cliffs, NJ: Prentice-Hall, 1998, p. 170.

[7] Walker, S.  Sense and Nonsense About Crime and Drugs (4th edition).  Belmont, CA: Wadsworth, 1997, p. 15.

[8]  Ibid., p. 16.

[9]  Ibid.

[10] Feeley, M. The Process is the Punishment.  New York: Russell Sage Foundation, 1979.

[11] Wright, E. O., Class Counts. New York: Cambridge University Press, 2000.

[12]  Documentation is provided in Shelden, Controlling the Dangerous Classes.

[13] Newton,, C. H., R. G. Shelden, and S. W. Jenkins. "The Homogenization Process within the Juvenile Justice System," International Journal of Criminology and Penology 3: 213-227 (1975); Shelden, R. G.  Criminal Justice in America: A Sociological Approach. Boston: Little Brown, 1982.

[14]  Irwin, J.  The Felon. Englewood Cliffs, NJ: Prentice Hall, 1970.  Terry, C. M.  “Beyond Punishment: Perpetuating Differences From the Prison Experience.” Humanity and Society 24:108-135 (2000); Richards, S. C.  Structure of Prison Release: An Extended Case Study Of Prison Release, Work Release, and Parole.  New York: McGraw-Hill, 1995.

[15] Scheingold, S. A.  The Politics of Law and Order: Street Crime and Public Policy. New York: Longman, 1984 and The Politics of Street Crime.  Philadelphia: Temple University Press, 1991.

[16]  Quinney, R.  The Social Reality of Crime. Boston: Little, Brown. 1970.

[17] Cohen, S. Folk Devils and Moral Panics: The creation of the Mods and Rockets.  London: MacGibbon and Kee, 1972; Hall, S., C. Critcher, T. Hefferson, J. Clarke and B. Roberts.  Policing the Crisis: Mugging, the State, and Law and Order.  New York: Holmes and Meier, 1978; Goode, E. and N. Ben-Yehuda.  Moral Panics: the Social Construction of Deviance.  Cambridge, MA: Blackwell, 1994.

[18] Edelman, M. Constructing the Political Spectacle. Chicago: University of Chicago Press, 1988; Scheingold, 1991; Gordon, D. The Justice Juggernaut. New Brunswick, NJ: Rutgers University Press, 1990.

[19] Gordon, D., The Return of the Dangerous Classes: Drug Prohibition and Policy Politics.  New York: W. W. Norton, 1994.

[20] Scheingold, The Politics of Street Crime, p. 173.

[21] Domhoff, Who Rules America?; see also his The Powers That Be.  New York: Random House, 1979; Quinney, R., Critique of Legal Order: Crime Control in Capitalist Society. New Brunswick, NJ: Transaction Books, 2002 (originally published in 1974); Chambliss, W. J. and M. S. Zatz (eds.) Making Law: The State, the Law, and Structural Contradictions.  Bloomington, IN: Indiana University Press, 1993.

[22] Harrigan, J., Empty Dreams, Empty Pockets: Class and Bias in American Politics.  New York: Addison-Wesley Longman, 2000.

[23]Simon, D  and J. Hagan, White Collar Deviance.  Boston: Allyn and Bacon, 1999.

[24] Domhoff, Who Rules America?

[25]  Michalowksi, R.  Order, Law and Crime.  New York: Macmillan, 1985 and Reiman, J. H.  The Rich Get Richer and the Poor Get Prison, 6th ed.  Chicago: Allyn and Bacon, 2001.

 

[26] The Social Reality of Crime, p. 43.

[27] Janda K., J. M. Berry and J. Goldman. The Challenge of Democracy: Government in America (3rd ed.). Boston: Houghton Mifflin, 1993, pp. 339-368; see also, Bennett,  Inside the System, p. 304.

[28] For documentation of the existence of this “ruling class” see, e.g., Mills, C. W.  The Power Elite. New York: Oxford University Press, 1956; Domhoff, Who Rules America?, The Powers That Be and The Higher Circles.  New York: Random House, 1970; Parenti, M. Democracy for the Few (7th ed.).  Boston: Bedford/St. Martin=s, 2002

[29] Watterson, K.  Women in Prison: Inside the Concrete Womb. Boston: Northeastern University Press, 1996, p. 18.

[30] Reiman, The Rich Get Richer and the Poor Get Prison, 110.

[31]  Parenti, Democracy for the Few, p. 4.

[32] Eitzen, D. S. and M. B. Zinn. In Conflict and Order. (8th ed.) Boston: Allyn and Bacon, 1998, p. 403; this latter method (i.e., getting someone to think and believe in accordance with your own interests) suggests the use of propaganda as a method of thought control. On this subject see Chomsky, N.   Necessary Illusions: Thought Control in Democratic Societies. Boston: South End Press, 1989 and Parenti, M. Power and the Powerless. New York: St. Martin's Press, 1978 and Land of Idols: Political Mythology in America.  New York: St. Martin's Press, 1994.

 

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