Posted: September 19th, 2022

3

Chapter

9

What are the benefits and drawbacks of selecting judges through popular elections? Can a judge who considered herself or himself a Republican or Democrat render fair and impartial justice?

Chapter

10

 

Should those accused of violent acts be subjected to preventive detention instead of bail, even though they have not been convicted of a crime? Is it fair to the victim to have his alleged attacker running around loose?

Chapter

11

 

What are the arguments for and against three-strikes laws? Who is more persuasive, the supporters or the critics?

9

Selecting Judges

Many methods are used to select judges.17 In some jurisdictions, the governor appoints judges. It is common for the governor’s recommendations to be confirmed by the state senate, the governor’s council, a special confirmation committee, an executive council elected by the state assembly, or an elected review board. Some states employ a judicial nominating commission that submits names to the governor for approval.

TABLE 9.1 Judicial Salaries at a Glance

Mean Median Range

Chief, highest court $171,306 $167,210 $133,174 to 241,978

Associate justice, court of last resort 165,922 166,159 129,625 to 230,750

Judge, intermediate appellate courts 159,559 159,484 124,616 to 216,330

Judge, general jurisdiction trial courts 149,392 146,803 118,385 to 201,100

State court administrators 147,658 139,059 92,960 to 245,640

Source: National Center for State Courts, Survey of Judicial Salaries, Vol. 40, No. 2, January 2016, http://www.ncsc.org/~/media/Microsites/Files/Judicial%20Salaries/July%202015%20Salary%20Survey%20Final2.ashx (accessed April 14, 2016).

Another form of judicial selection is popular election. In some jurisdictions, judges run as members of the Republican, Democratic, or other parties; in others, they run without party affiliation. In some states, partisan elections are used for selecting all general jurisdiction court judges. In other states, nonpartisan elections are used. A number of other states hold retention elections for judges who are appointed, usually a year or two after appointment. In some of these elections, judges run uncontested.18 Altogether, about 90 percent of state trial judges face elections of some type and at some time during their tenure on the bench. Elections are less common in the higher-level state courts. Only a handful of states have partisan elections for intermediate appellate court judges and supreme court justices.

Judicial elections are troubling to some because they involve partisan politics in a process to select people who must be nonpolitical and objective. The process itself has been tainted by charges of scandal—for example, when political parties insist that judicial candidates hire favored people or firms to run their campaigns or have them make contributions to the party to obtain an endorsement.19

Roy Moore, Chief Justice of the Alabama Supreme Court, speaks to guests at his election victory party in Montgomery. Known for fighting to display the Ten Commandments in a judicial building, Moore had also written to all 50 governors urging them to support a federal constitutional amendment defining marriage as between only a man and a woman. Should elected candidates for judicial office be permitted to run on partisan platforms?

To avoid this problem, a number of states have adopted some form of what is known as the

Missouri Plan

(a form of what has been called “merit selection”) to select appellate court judges. This plan consists of three parts: (1) a judicial nominating commission to nominate candidates for the bench, (2) an elected official (usually from the executive branch) to make appointments from the list submitted by the commission, and (3) subsequent nonpartisan and noncompetitive elections in which incumbent judges run on their records and voters can choose either to retain or to dismiss them.20

Missouri Plan

A method of judicial selection that combines a judicial nominating commission, executive appointment, and nonpartisan confirmation elections.

The quality of the judiciary is a concern. Although merit plans, screening committees, and popular elections are designed to ensure a competent judiciary, it has often been charged that many judicial appointments are made to pay off political debts or to reward cronies and loyal friends. Also not uncommon are charges that those desiring to be nominated for judgeships are required to make significant political contributions. For a review of judicial selection, see Concept Summary 9.1.

Judicial Alternatives

Increased judicial caseloads have prompted the use of alternatives to the traditional judge. For example, to expedite matters in civil cases, it has become common for both parties to agree to hire a retired judge or other neutral party and abide by his or her decision.

Other jurisdictions have created new quasi-judicial officers, such as referees or magistrates, to relieve the traditional judge of time-consuming responsibilities. The Magistrate Act of 1968 created a new type of judicial officer in the federal district court system to handle pretrial duties.21 Federal magistrates also handle civil trials if both parties agree to the arrangement.22

Some jurisdictions use part-time judges. Many of these are attorneys who carry out their duties pro bono—for no or limited compensation. These judicial adjuncts assist the courts on a temporary basis while maintaining an active law practice.23 Federal judges who are close to retirement age enjoy “senior status” and also work part-time, thus easing the caseload burden on full-time judges.24

CONCEPT SUMMARY 9.1

Judicial Selection

Type Process

Appointment Governor selects a candidate, who is confirmed by state senate or other official body.

Election Potential judge runs as partisan or nonpartisan politician during regular election.

Missouri plan Bar committee searches for qualified candidates, governor chooses among them, and the judge runs for reappointment in a nonpartisan election.

LO5 Explain the different types of judicial alternatives.

ALTERNATIVE DISPUTE RESOLUTION Every state now has a means of settling disputes with alternatives to litigation. This court-connected

alternative dispute resolution

(ADR) has spread rapidly as court delays remain and legal expenses have increased. There is no single definition of ADR, but it typically refers to any means of settling disputes outside the courtroom.25

alternative dispute resolution

A means of settling disputes outside the courtroom.

There are two common forms of ADR:

arbitration

and mediation.26 Arbitration is a simplified version of a trial. There is no discovery and the rules of evidence are simplified. Either both sides select an arbitrator (other than a judge) or each selects one arbitrator and the two select a third to make up a panel of arbitrators. Arbitration hearings are relatively short, unlike trials, and the opinions are not made available to the public. Arbitration is often binding, which means that each side must abide by the arbitrator’s decision.

arbitration

A process of dispute resolution in which a neutral third party (arbitrator) renders a decision after a hearing at which both parties agree to be heard.

Arbitration is governed by law at both the federal and state levels. Title 9 of the U.S. Code contains federal arbitration law. Nearly every state has adopted its own version of the 1956 Uniform Arbitration Act. The Act was revised in 2000 and adopted by 12 states. These laws generally make arbitration agreements and arbitrators’ decisions enforceable by law. In 1970, the United States joined the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, affirming this country’s commitment to the process.

Minnesota Vikings running back Adrian Peterson, center, stands with his wife, Ashley Brown Peterson, center left, and mother Bonita Jackson, far left, as they listen to Peterson’s attorney Rusty Hardin, right, outside the courthouse after making his first court appearance in Conroe, Texas. The NFL Players Association filed a federal lawsuit for Peterson, asking the court to dismiss an arbitration ruling that upheld the NFL’s suspension of the star running back. He had been suspended for child abuse, specifically recklessly assaulting his 4-year-old son. Why did alternative dispute resolution break down in this case?

Arbitration can essentially amount to a minitrial. Such mini-trials have been described as follows:

1. The parties negotiate a set of procedural ground rules (a protocol) that will govern the nonbinding mini-trial.

10

A majority of criminal defendants are released prior to trial.7 The most recent surveys of pretrial release practices show that about two-thirds of felony defendants are released prior to the final disposition of their case. As might be expected, defendants charged with the most serious violent offenses are less likely to be released than those charged with less serious public-order or drug offenses. Defendants charged with murder are the least likely to be released prior to case disposition. In contrast, defendants charged with misdemeanors and nonviolent felonies are routinely granted bail. With all else equal, the less serious the charge, the more likely it is that bail will be granted.

When and how are bail decisions made? Bail is typically considered at a court hearing conducted shortly after a person has been taken into custody. At the hearing, such issues as crime type, flight risk, and dangerousness are considered before a bail amount is set. Victim input is sometimes taken into account, too. This is discussed further in the Victim Experience box. In jurisdictions with pretrial release programs, program staff often interview arrestees detained at the jail prior to the first hearing, verify the background information, and present recommendations to the court at arraignment. Prior record is an important factor: fewer than half of defendants with an active criminal justice status, such as parole or probation, at the time of arrest are released, compared to 67 percent of these with no active status. Some jurisdictions have developed bail schedules to make amounts uniform based on the crime and the defendant’s criminal history.

Alternative Bail Release Mechanisms

Although bail is typically granted during a court hearing, there are other stages in the system in which bail may be granted:

Police field citation release. An arresting officer releases the arrestee on a written promise to appear in court made at or near the actual time and location of the arrest. This procedure is commonly used for misdemeanor charges and is similar to issuing a traffic ticket.

Police station house citation release. The determination of an arrestee’s eligibility and suitability for release and the actual release of the arrestee are deferred until after he or she has been removed from the scene of an arrest and brought to the station house or police headquarters.

Police/pretrial jail citation release. The determination of an arrestee’s eligibility and suitability for citation release and the actual release of the arrestee are deferred until after he or she has been delivered by the arresting department to a jail or other pretrial detention facility for screening, booking, and admission.

The VICTIM Experience

INPUT INTO THE BAIL DECISION

BACKGROUND Joseph H. Gardner pleaded not guilty to raping the 3-year-old daughter of a woman he was dating. At the time of his arrest, he was out on bail, having pleaded not guilty to breaking into a distant relative’s house and raping a 6-year-old girl. At his arraignment on the second charge, the mother of the 3-year-old victim was in attendance and strongly objected to his release. “I don’t understand why he is still out,” she said. “I think the courts should make sure he goes away and is not allowed to be around kids.”

Twenty-seven-year-old Jose Alfredo Dominguez was charged with capital murder in the death of Ercile Rae Johnson, who was found stabbed to death in his apartment. As if the crime was not disturbing enough, Dominguez was actually out on bail at the time, having recently posted $50,000 bail for another murder charge in which he was accused of beating and choking to death 34-year-old Ever Gomez. Gomez’s body was found behind a warehouse in the Houston area.

THE BIG PICTURE Judges are often tasked with making difficult bail decisions, and they get them right the vast majority of the time. A minority of defendants who are released on bail commit new crimes, but the percentages are of some concern, especially in the case of motor vehicle theft (see Figures 10.2 and 10.3 later in this chapter). And victims get particularly outraged when released defendants commit more crime, as was clear in the Joseph Gardner case. Fortunately, a number of states have extended a number of victims’ rights to the bail stage. For example, Alaska gives crime victims a number of rights with respect to bail. They include:

Notice of hearings at which the accused’s release is considered.

Input into the bail release decision. The court must consider the victim’s comments.

Being entitled to receive a copy of the release conditions, if bail is granted.

Automated notification of a change in status of the offender.

Victim safety must also be taken into account as part of the release decision, and state law specifies that “victims should receive protection from harm and threats of harm arising out of cooperation with law enforcement and prosecution efforts and be provided with information regarding the protection available.”

Similar rights are granted to victims in other states. Many states permit victims to attend and/or receive notice of hearings involving the offender. Others take it a step further. For example, Missouri permits victims to confer with the prosecutor concerning all key decisions, including bail, pleas, defenses, and even in sentencing and probation revocation hearings. Other states, such as Virginia, merely provide notification of the defendant’s release on bail.

CLASSROOM EXERCISE Have students break into groups and search through news articles to find and report on a high-profile crime allegedly committed by a person who was out on bail. Try to identify reasons for the individual’s release. Also make recommendations such that similar incidents can be avoided in the future. Finally, locate pertinent state statutes pertaining to victim rights and determine whether the incident took place in a state that grants crime victims rights specific to the bail determination process.

Sources: John R. Ellement and Jonathan Saltzman, “Suspect in Rape Was Out on Bail,” Boston Globe, December 15, 2009, http://www.boston.com/news/local/massachusetts/articles/2009/12/15/kingston_man_out_on_bail_accused_of_2d_child_rape (accessed April 15, 2016); Anita Hassan, “Slaying Suspect Was Out on Bail in 2008 Murder Charge,” Houston Chronicle, April 3, 2012, http://www.chron.com/news/houston-texas/article/Slaying-suspect-was-out-on-bail-in-2008-murder-3456450.php (accessed April 15, 2016); Alaska Office of Victims’ Rights, https://ovr.akleg.gov (accessed April 15, 2016); Missouri Attorney General’s Office, Crime Victim’s Rights, https://ago.mo.gov/divisions/public-safety/crime-victims (accessed April 15, 2016).

Pretrial/court direct release by pretrial bail program. To streamline release processes and reduce the length of stay in detention, pretrial program courts may authorize pretrial programs to release defendants without direct judicial involvement. When court rules delegate such authority, the practice is generally limited to misdemeanor charges, but felony release authority has been granted in some jurisdictions.

Police/court bail schedule. An arrestee can post bail at the station house or jail according to amounts specified in a bail schedule. The schedule is a list of all bailable charges and a corresponding dollar amount for each. Schedules may vary widely from jurisdiction to jurisdiction.

FIGURE 10.1 Type of Pretrial Release for Felony Defendants in the 75 Largest Counties

Types of Bail

There are a variety of ways or mechanisms to secure bail, depending on the jurisdiction, the crime, and the defendant:

Full cash bail. The defendant pays the full bail amount out of pocket. In some jurisdictions, property can be pledged instead of cash.

Deposit bail. The defendant deposits a percentage of the bail amount, typically 10 percent, with the court. When the defendant appears in court, the deposit is returned, sometimes minus an administrative fee. If the defendant fails to appear, he or she is liable for the full amount of the bail.

Surety bail. The defendant pays a percentage of the bond, usually 10 percent, to a bonding agent, who posts the full bail. The fee paid to the bonding agent is not returned to the defendant if he or she appears in court. The bonding agent is liable for the full amount of the bond should the defendant fail to appear. Bail bonding agents hire bounty hunters to find defendants who fail to appear for their court dates.

Conditional bail. The defendant is released after promising to abide by some specified conditions in lieu of cash. For example, she promises to attend a treatment program prior to trial.

Unsecured bond. The defendant is released with no immediate requirement of payment. However, if the defendant fails to appear, he is liable for the full amount.

Release on recognizance. Eligible defendants are released without bail upon their promise to return for trial.

As Figure 10.1 shows, surety bond is now the most common type of bail form used with felony defendants, followed by release on recognizance and conditional bail. Relatively few defendants pay full cash bail out of pocket. Research on the efficacy of each approach is featured in the Evidence-Based Justice box.

WEB APP 10.2

For more information about surety bail, visit http://www.pbus.com.

LO2 List a variety of bail systems.

Pretrial Detention

The criminal defendant who is not eligible for bail or release on recognizance is subject to pretrial detention in the local county jail. Unfortunately, the jail has long been a trouble spot for the criminal justice system. Conditions tend to be poor and rehabilitation nonexistent.

In terms of the number of persons affected each year, pretrial custody accounts for more U.S. incarceration than does imprisonment after sentencing. On any given day in the United States, nearly 750,000 people are held in approximately 3,200 local jails.8 Over the course of a year, many times that number pass through the jailhouse door. About 60 percent of those held in local jails have been accused of crimes but not convicted; they are

pretrial detainees

.9 In the United States, people are detained at a rate twice that of neighboring Canada and three times that of Great Britain. Hundreds of jails are overcrowded, and many are under court orders to reduce their populations and improve conditions. The national jail-crowding crisis has worsened over the years.

pretrial detainees

People who either are denied bail or cannot afford to post bail before trial and are kept in secure confinement.

11

n 1994, Washington became the first state to enact a three-strikes law. Other states quickly followed suit. For a time, California’s law was among the most punitive. It provided that a person who had two prior convictions for serious felonies and was convicted of any third felony could be sent to prison for the rest of his or her life. In 2012, voters approved a change the state’s three-strikes law limiting the third strike to “serious or violent” felonies. This brought California’s law in line with most other states.

Because of the controversial nature of three-strikes laws, researchers have been drawn to them. They have been particularly interested in the general deterrent effects of such laws. Do offenders refrain from committing third felonies for fear of being sentenced to prison for the rest of their lives? Clearly, three-strikes laws have a specific deterrent effect because a repeat offender who is in prison cannot harm the community, but do three-strikes laws also discourage would-be offenders from breaking the law? Researchers have focused heavily on California’s law because of its harsh nature, but nationwide studies have been published, as well.

It is certainly plausible that three-strikes laws have a general deterrent effect. The very phrase “three strikes” is catchy and easy to remember. Unfortunately, though, precious little research supports any kind of deterrent effect. Joanna Shepherd, an economist, published a 2002 study wherein she found that California’s three-strikes law led to significant reductions in serious crime, but her findings have been largely drowned out by a number of more recent studies that have detected little if any deterrent effect. John Worrall replicated Shepherd’s approach and found no evidence that three strikes deters. Interestingly, two teams of researchers have found that three-strikes laws may actually increase crime, particularly homicide, as offenders who face possible life terms go to lethal lengths (i.e., they kill their pursuers) to resist apprehension. We cannot definitively state that three-strikes laws do nothing to deter crime, but we can certainly conclude that the jury is still out.

Sources: Joanna M. Shepherd, “Fear of the First Strike: The Full Deterrent Effect of California’s Two- and Three-Strikes Legislation,” Journal of Legal Studies 31 (2002): 159–201; John L. Worrall, “The Effect of Three-Strikes Legislation on Serious Crime in California,” Journal of Criminal Justice 32 (2004): 283–296; Thomas B. Marvell and Carlisle E. Moody, “The Lethal Effects of Three-Strikes Laws,” Journal of Legal Studies 30 (2001): 89–106; Tomislav Kovandzic, John J. Sloan III, and Lynne M. Vieraitis, “Unintended Consequences of Politically Popular Sentencing Policy: The Homicide-Promoting Effects of Three Strikes in U.S. Cities (1980–1999),” Criminology and Public Policy 1 (2002): 399–424.

Three-strikes laws have undeniable political appeal to legislators being pressured by their constituents to “do something about crime.” But even if such laws are possibly effective against crime (see the Evidence-Based Justice feature), any effort to deter criminal behavior through tough laws is not without costs. Three-strikes laws may satisfy the public’s hunger for retribution but makes little practical sense. First, many “three-time losers” are on the brink of aging out of crime; locking them up for life should have little effect on the crime rate. In addition, current sentences for chronic violent offenders are already severe, yet their punishment seems to have had little effect in reducing national violence rates. The efficacy of a three-strikes policy also suffers because criminals typically underestimate their risk of apprehension, while overestimating the rewards of crime. Given their inflated view of the benefits of crime, coupled with a seeming disregard of the risks of apprehension and punishment, it is unlikely that a three-strikes policy can have a measurable effect on the crime rate.

Even if such a policy could reduce the number of career offenders on the street, the drain in economic resources that might have gone for education and social welfare ensures that a new generation of young criminals will fill the offending shoes of their incarcerated brethren. In addition, three-strikes severely stresses an already overburdened prison system, driving up costs, and, presumably, reducing resources available to house other inmates. What’s more African Americans face an increased risk of being sentenced under three-strikes statutes, expanding the racial disparity in sentencing. Recent research bears this out.38 And more ominous is the possibility that police officers may be put at risk because two-time offenders would violently resist arrest, knowing that they face a life sentence.

LEGAL CONTROLS Is it fair to give someone a life sentence for a petty crime merely because she or he has prior convictions? On March 6, 2003, the Supreme Court in Lockyer v. Andrade upheld the three-strikes sentence of Leandro Andrade, a man sentenced to prison in California for 50 years for stealing $153 worth of videotapes.39 It also upheld the conviction of Gary Ewing, who appealed his 25-year sentence for stealing a set of golf clubs.40 In both cases, the Court ruled that the challenged sentences were not so grossly disproportionate as to violate the Eighth Amendment’s prohibition against cruel and unusual punishment. In her majority decision, Justice Sandra Day O’Connor added that any criticism of the law “is appropriately directed at the legislature” and is not a judicial matter. Four judges dissented in the case, arguing that the Court’s test for sentence disproportionality had been met. Writing in the Andrade case, Justice David Souter said, “If Andrade’s sentence is not grossly disproportionate, the principle has no meaning.”

Mandatory minimums continue to be criticized, even by law enforcement leaders. Some of their efforts are summarized in the Reforming Criminal Justice box.

Truth in Sentencing

As you may recall, even though criminal sentences are getting shorter, people are spending more of their sentence behind bars. One reason is a get-tough measure designed to fight a rising crime rate:

truth in sentencing

. These laws require offenders to serve a substantial portion of their prison sentence behind bars.41 Parole eligibility and good-time credits are restricted or eliminated. The movement was encouraged by the Violent Offender Incarceration and Truth-in-Sentencing Incentive Grants Program, part of the federal government’s 1994 crime act, which offered funds to help the states pay the costs involved with creating longer sentences. To qualify for federal funds, states must require persons convicted of a violent felony crime to serve not less than 85 percent of their prison sentence. The provision is already having an effect: Violent offenders released from prison in 1996 served slightly more than half of their prison sentence, or 45 months. Under truth-in-sentencing laws, violent inmates entering prison today will serve an average of 88 months behind bars. Today, more than half the states and the District of Columbia meet the federal Truth-in-Sentencing Incentive Grants Program eligibility criteria, and another 13 have adopted some form of truth-in-sentencing program.

truth in sentencing

A sentencing scheme requiring that offenders serve at least 85 percent of their original sentence before being eligible for parole or other forms of early release.

LO7 Discuss how people are sentenced today.

HOW PEOPLE ARE SENTENCED

The federal government conducts surveys on sentencing practices in state and federal courts.42 The most recent survey found that more than 1.1 million adults are convicted of felonies in a single year. What happens after conviction? About 70 percent of all felons convicted in state courts are sentenced to a period of confinement—41 percent to state prisons and 28 percent to local jails.43 The rest are sentenced to straight probation with no jail or prison time to serve.

The average felony sentence is approximately 5 years, but most offenders are likely to serve only half of that sentence before being released.44 Besides being sentenced to incarceration (in prison or jail), about one-third of all sentenced felons are put on probation or expected to pay a fine, pay victim restitution, receive treatment, perform community service, or comply with some other additional penalty. As Table 11.1 shows, violent felons who are given a prison sentence average about 8 years, while property offenders are typically sentenced to about 4 years. If they receive a jail sentence, their period of confinement is considerably less.

REFORMING Criminal Justice

REFORM MANDATORY MINIMUMS

Mandatory minimum sentencing is partly responsible for the surge in America’s prison population. Critics of mandatory minimums have been sounding the call for years now, but little progress has been made. More and more, though, people of different political persuasions are united in the call for change. Even law enforcement leaders have begun to voice their opinions about mandatory minimums. Interestingly, the group Law Enforcement Leaders to Reduce Crime and Incarceration wants to see significant revisions to our nation’s mandatory minimum laws.

We were first introduced to Law Enforcement Leaders in Chapter 6. The group, which consists of current and former law enforcement leaders from around the country, at both the federal and state levels, has used its might to work on a few key priorities: increasing alternatives to arrest and incarceration, reforming the criminal law to penalize fewer behaviors where appropriate, strengthening community-law enforcement ties (this was the topic of the Reforming Criminal Justice box in Chapter 6), and of course reforming mandatory minimums.

Why would law enforcement leaders want to support mandatory minimum reform? Isn’t the classic law enforcement worldview one that is tough on crime? To answer these questions, we first have to take stock of the incarceration problem in the United States. Our country has 5 percent of the world’s population, but 25 percent of its prisoners. This has not produced obvious reductions in crime. And as Law Enforcement Leaders expresses it, “incarceration can increase future crime, as prison often acts as a ‘crime school.’” Since 2008, crime and incarceration have both started to fall. It is also very expensive to incarcerate so many people. Law Enforcement Leaders feels that by reducing unnecessary incarceration, we can still keep America safe and be tough on crime when appropriate.

There may be no choice in the matter, and individuals’ perspectives on the best approach for dealing with criminals may be irrelevant. Why? The imprisonment binge is simply unsustainable. Mandatory minimum sentencing, three strikes, and truth-in-sentencing laws have pushed prisons beyond their breaking points. Prison stays have increased markedly since 1990. Since the late 1980s, the federal prison population grew 400 percent! Many prisons are beyond capacity. We have no choice but to do something. Law Enforcement Leaders feels we need to revisit mandatory minimums for nonviolent and drug offenders: “Judges should be allowed more flexibility in sentencing and the discretion to determine appropriate punishments,” their mission statement says.

Some states have succeeded in reforming mandatory minimum laws, suggesting that reform on a larger scale is possible. For example, New York eliminated mandatory minimums for low-level drug offenses. Since doing so, imprisonment has declined. Kentucky took similar steps, passing in 2011 HB 463, which limited previous use of mandatory minimum sentencing for drug possession within 1,000 yards of a school. That radius included nearly all neighborhoods and thus imposed an undue burden on the criminal justice system. In 1 year after the change was put into effect, the prison population dropped by 1,400 people, saving the state nearly $30 million. Neither approach required abandoning a tough-on-crime stance for serious offenders.

CRITICAL THINKING

1. Can the New York and Kentucky experiences expand to other states? Should they?

2. Which exact offenses should and should not be eligible for mandatory minimum reform?

3. Is there a place in the future for three strikes, truth-in-sentencing, and other policies that have prompted historically high levels of incarceration?

Sources: Law Enforcement Leaders to Reduce Crime and Incarceration, Statement of Principles, http://lawenforcementleaders.org/wp-content/uploads/2015/10/Statement_of_Principles (accessed March 9, 2016); J. Parsons et al., End of an Era? The Impact of Drug Law Reform in New York City (New York: Vera Institute of Justice, 2015); Pew Center on the States, 2011 Kentucky Reforms Cut Recidivism, Costs: Broad Bill Enacts Evidence-Based Strategies, July 2011, http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2011/2011kentuckyreformscutrecidivismpdf (accessed March 9, 2016); WBUR (Boston NPR Affiliate), “Kentucky Among States Already Reducing Drug Sentences,” August 2, 2013, http://hereandnow.wbur.org/2013/08/12/kentucky-drug-sentences (accessed March 9, 2016).

1. N. Totenberg, “Justice Antonin Scalia, Known for Biting Dissents, Dies at 79,” NPR, February 16, 2016, http://www.npr.org/2016/02/13/140647230/justice-antonin-scalia-known-for-biting-dissents-dies-at-79 (accessed March 7, 2016).

2. Glossip v. Gross, 576 U.S.___ (2015).

3. Sean Rosenmerkel and Donald Farole, Jr., Felony Sentences in State Courts, 2006—Statistical Tables (Washington, DC: Bureau of Justice Statistics, 2009), Table 4.4.

4. Robert C. LaFountain, Richard Y. Schauffler, Kathryn A. Holt, and Kathryn J. Lewis, Examining the Work of State Courts: An Overview of 2013 State Court Caseloads (Williamsburg, VA: National Center for State Courts, 2015), p. 6.

5. Robert C. LaFountain, Richard Y. Schauffler, Kathryn A. Holt, and Kathryn J. Lewis, Examining the Work of State Courts: An Overview of 2013 State Court Caseloads (Williamsburg, VA: National Center for State Courts, 2015).

6. U.S. Constitution, Article 3, Sections 1 and 2.

7. Martin v. Hunter’s Lessee, 14 U.S. 304 (1816)

8. Frank R. Baumgartner and Bryan D. Jones, Policy Dynamics (Chicago: University of Chicago Press, 2002), p. 272.

9. Robert C. LaFountain, Richard Y. Schauffler, Kathryn A. Holt, and Kathryn J. Lewis, Examining the Work of State Courts: An Overview of 2013 State Court Caseloads (Williamsburg, VA: National Center for State Courts, 2015), p. 7.

10. Administrative Office of the United States Courts, Judicial Business of the United States Courts (Washington, DC: Administrative Office of the United States Courts, 2014), http://www.uscourts.gov/statistics-reports/judicial-business-2014 (accessed April 14, 2016).

11. Ibid.

12. Hans Zeisel, Harry Kalven, Jr., and Bernard Buckholz, Delay in the Court (Boston: Little, Brown, 1959); for more recent information, see the National Center for State Court’s Caseflow Management Resource Guide, http://www.ncsc.org/Topics/Court-Management/Caseflow-Management/Resource-Guide.aspx (accessed April 14, 2016).

13. Maureen Solomon and Douglas Somerlot, Caseflow Management in the Trial Court: Now and for the Future (Chicago: American Bar Association, 1987); Pamela Casey, “Defining Optimal Court Performance: The Trial Court Performance Standards,” Court Review (Winter 1998): 24–33.

14. David Klein and Robert Hume, “Fear of Reversal as an Explanation of Lower Court Compliance,” Law and Society Review 37 (2003): 579–607.

15. Huey-Tsyh Chen, “Dropping In and Dropping Out: Judicial Decisionmaking in the Disposition of Felony Arrests,” Journal of Criminal Justice 19 (1991): 1–17.

16. American Bar Association, Fact Sheet on Judicial Selection Methods in the States, http://www.americanbar.org/content/dam/aba/migrated/leadership/fact_sheet.authcheckdam (accessed April 14, 2016).

17. Ibid.

18. Ibid.

19. Daniel Wise, “Making a Criminal Case over Selection of Judges in Brooklyn,” New York Law Journal (July 23, 2003): 1.

20. Sari Escovitz with Fred Kurland and Nan Gold, Judicial Selection and Tenure (Chicago: American Judicature Society, 1974), pp. 3–16.

21. Public Law 90–578, Title I, Sec. 101, 82 Stat. 1113 (1968), amended; Public Law 94–577, Sec. 1, Stat. 2729 (1976); Public Law 96–82, Sec. 2, 93 Stat. 643 (1979).

22. See, generally, Carroll Seron, “The Professional Project of Parajudges: The Case of U.S. Magistrates,” Law and Society Review 22 (1988): 557–575.

23. Alex Aikman, “Volunteer Lawyer-Judges Bolster Court Resources,” NIJ Report (January 1986): 2–6.

24. David C. Nixon and J. David Haskin, “Judicial Retirement Strategies,” American Politics Research 28 (2000): 458–489.

25. Legal Information Institute, http://www.law.cornell.edu/wex/alternative_dispute_resolution (accessed April 14, 2016).

26. Elena Nosyreva, “Alternative Dispute Resolution in the United States and Russia: A Comparative Evaluation,” Annual Survey of International and Comparative Law 7 (2001): 7–19.

27. Jethro K. Lieberman and James F. Henry, “Lessons from the Alternative Dispute Resolution Movement,” University of Chicago Law Review 53 (1986): 424–439.

28. Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor: University of Michigan Press, 1998).

29. Jeffrey Segal and Albert Cover, “Ideological Values and the Votes of U.S. Supreme Court Justices,” American Political Science Review 83 (1989): 557–565.

30. Thomas R. Marshall, Public Opinion and the Supreme Court (Boston: Unwin Hyman, 1989).

31. William Mishler and Reginald Sheehan, “The Supreme Court as a Counter-Majoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions,” American Journal of Political Science 41 (1997): 122–149.

32. Donald R. Songer and Kelley A. Crews-Meyer, “Does Judge Gender Matter? Decision Making in State Supreme Courts,” Social Science Inquiry 81 (2000): 750–762.

33. Ibid.

34. Cassia Spohn, “Sentencing Decisions of Black and White Judges: Expected and Unexpected Similarities,” Law and Society Review 24 (1990): 1197–1216.

35. Adam Liptak, “Rendering Justice, with One Eye on Re-election,” New York Times, May 25, 2008, http://www.nytimes.com/2008/05/25/us/25exception.html?_r=0 (accessed April 14, 2016).

36. Melinda G. Hall, “Electoral Politics and Strategic Voting in State Supreme Courts,” Journal of Politics 52 (1992): 427–446.

37. Melinda G. Hall, “Constituent Influence in State Supreme Courts: Conceptual Notes and a Case Study,” Journal of Politics 49 (1987): 1117–1124, at 1119.

38. Gregory A. Huber and Sanford C. Gordon, “Accountability and Coercion: Is Justice Blind When It Runs for Office?” American Journal of Political Science 48 (2004): 247–263, at 258.

39. Howard Gillman, “What’s Law Got to Do with It? Judicial Behavioralists Test the ‘Legal Model’ of Judicial Decision Making,” Law and Social Inquiry 26 (2001): 465–504.

40. See, for example, United States v. Ruiz, 536 U.S. 622 (2002).

41. Berger v. United States, 295 U.S. 78 (1935).

42. Steven W. Perry and Duren Banks, Prosecutors in State Courts, 2007 (Washington, DC: Bureau of Justice Statistics, 2011). Note: these are the most recent figures available as of this writing.

43. Mark Cohen, “Environmental Crime and Punishment: Legal/Economic Theory and Empirical Evidence on Enforcement of Federal Environmental Statutes,” Journal of Criminal Law and Criminology 82 (1992): 1054–1109.

44. Joe Palazzolo, “A Reordering of the Top 10 White Collar Prison Sentences,” Wall Street Journal, December 11, 2013, http://blogs.wsj.com/law/2013/12/11/a-reordering-of-the-top-10-white-collar-prison-sentences (accessed April 14, 2016).

45. American Bar Association, Standards for Criminal Justice: Prosecution Function and Defense Function, 3rd ed. (Washington, DC: American Bar Association, 1993). See also, American Bar Association, Standards for Criminal Justice: Providing Defense Sources, 3rd ed. (Washington, DC: American Bar Association, 1993).

46. John L. Worrall and M. Elaine Nugent-Borakove, eds., The Changing Role of the American Prosecutor (Albany, NY: SUNY Press, 2008).

47. Eric Holden, “Community Prosecution,” Prosecutor 34 (2000): 31.

48. William Scott Cunningham, Brian C. Renauer, and Christy Khalifa, “Sharing the Keys to the Courthouse: Adoption of Community Prosecution by State Court Prosecutors,” Journal of Contemporary Criminal Justice 22 (2006): 202–219.

49. Douglas Gansler, “Implementing Community Prosecution in Montgomery County, Maryland,” Prosecutor 34 (2000): 30.

50. Kenneth C. Davis, Discretionary Justice (Baton Rouge: Louisiana State University Press, 1969), p. 180. See also James B. Stewart, The Prosecutor (New York: Simon and Schuster, 1987).

51. Barbara Boland, The Prosecution of Felony Arrests (Washington, DC: Government Printing Office, 1983).

52. Leslie Griffin, “The Prudent Prosecutor,” Georgetown Journal of Legal Ethics 14 (2001): 259–308.

53. United States v. Armstrong, 517 U.S. 456 at 464 (1996).

54. Michael Tonry and Richard Frase, Sentencing and Sanctions in Western Countries (London: Oxford University Press, 2001).

55. Charles D. Breitel, “Control in Criminal Law Enforcement,” University of Chicago Law Review 27 (1960): 427.

56. Cassia Spohn, Dawn Beichner, and Erika Davis-Frenzel, “Prosecutorial Justifications for Sexual Assault Case Rejection: Guarding the ‘Gateway to Justice,’” Social Problems 48 (2001): 206–235.

57. Yick Wo v. Hopkins, 118 U.S. 356 (1886).

58. United States v. Cammisano, 413 F.Supp. 886 (1976).

59. Imbler v. Pachtman, 424 U.S. 409 (1976); see also, Burns v. Reed, 500 U.S. 478 (1991) and Kalina v. Fletcher, 522 U.S. 118 (1997).

60. Center for Public Integrity, Harmful Error: Investigative America’s Local Prosecutors, http://www.publicintegrity.org/accountability/harmful-error (accessed April 14, 2016).

61. American Bar Association, Report of Standing Committee on Legal Aid and Indigent Defendants (Washington, DC: American Bar Association, 1991).

62. Monroe H. Freedman, “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions,” Michigan Law Review 64 (1966): 1468.

63. Michael Asimow and Richard Weisberg, “When the Lawyer Knows the Client Is Guilty: Client Confessions in Legal Ethics, Popular Culture, and Literature,” Southern California Interdisciplinary Law Journal 18 (2009): 229–258.

64. Bennett Brummer, Ethics Resource Guide for Public Defenders (Chicago: American Bar Association, February 1992).

65. Miranda v. Arizona, 384 U.S. 436 (1966).

66. Mempa v. Rhay, 389 U.S. 128 (1967).

67. Douglas v. California, 372 U.S. 353 (1963).

68. In re Gault, 387 U.S. 1 (1967); Specht v. Patterson, 386 U.S. 605 (1967).

69. National Center for State Courts, Indigent Defense Resource Guide, http://www.ncsc.org/Topics/Access-and-Fairness/Indigent-Defense/Resource-Guide.aspx (accessed April 14, 2016).

70. See Betts v. Brady, 316 U.S. 455 (1942). Justice Black subsequently wrote the majority opinion in Gideon v. Wainwright, guaranteeing defendants’ right to counsel and overruling the Betts case.

71. Gideon v. Wainwright, 372 U.S. 335 (1963).

72. Argersinger v. Hamlin, 407 U.S. 25 (1972).

73. See F. Brownell, Legal Aid in the United States (Chicago: National Legal Aid Defender Association, 1961). For an interesting study of the Cook County, Illinois, Office of Public Defenders, see Lisa McIntyre, Public Defenders: Practice of Law in Shadows of Dispute (Chicago: University of Chicago Press, 1987).

74. Pauline Houlden and Steven Balkin, “Quality and Cost Comparisons of Private Bar Indigent Defense Systems: Contract vs. Ordered Assigned Counsel,” Journal of Criminal Law and Criminology 76 (1985): 176–200. See also, John Arrango, “Defense Services for the Poor,” American Bar Association Journal on Criminal Justice 12 (1998): 35.

75. Lawrence Spears, “Contract Counsel: A Different Way to Defend the Poor—How It’s Working in North Dakota,” American Bar Association Journal on Criminal Justice 6 (1991): 24–31.

76. Argersinger v. Hamlin.

77. Caroline Wolf Harlow, Defense Counsel in Criminal Cases (Washington, DC: Bureau of Justice Statistics, 2000).

78. Talia Roitberg Harmon and William Lofquist, “Too Late for Luck: A Comparison of Post-Furman Exonerations and Executions of the Innocent,” Crime and Delinquency 51 (2005): 498–520.

79. Morris B. Hoffman, Paul H. Rubin, and Joanna M. Shepherd, “An Empirical Study of Public Defender Effectiveness: Self-Selection by the ‘Marginally Indigent,’” Ohio State Journal of Criminal Law 3 (2005): 223–251, at 225.

80. Thomas H. Cohen, “Who Is Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes?” Criminal Justice Policy Review 25 (2014): 29–58.

81. See, for example, Byungbae Kim, Cassia Spohn, and E.C. Hedberg, “Federal Sentencing as a Complex Collaborative Process: Judges, Prosecutors, Judge-Prosecutor Dyads, and Disparity in Sentencing,” Criminology 53 (2015): 597–623.

82. David G. Bress, “Professional Ethics in Criminal Trials,” Michigan Law Review 64 (1966): 1493; John Mitchell, “The Ethics of the Criminal Defense Attorney,” Stanford Law

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