Carol S. Steiker and Jordan M. Steiker
This article explores the tedious and unsuccessful project of controlling the death penalty through constitutional law. It first studies the problems that have surrounded constitutional jurisprudence since the 1970s, and then addresses the question of whether capital-punishment regimes are likely to meet the general concerns of fairness in process and outcome. Unfortunately, it seems that the problems of politicization and racial discrimination—among others—still are resistant to reform. This article concludes that even the basic requirements for a properly administered capital-punishment regime do not exist—and may never be achieved—in the United States.
This article reviews the landscape of capital punishment as it now exists. Section I discusses the use of capital punishment internationally. Section II, reviews the use and characteristics of capital punishment in the United States. Section III discusses issues of race, and Section IV examines major Supreme Court decisions. Section V reviews arguments for and against capital punishment. Section VI discusses problems in the administration of capital punishment. Section VII discusses life without the possibility of parole. The article concludes with a discussion of what might be fruitful and important areas for future research, and a look at what the future of the death penalty might be.
Ronald F. Wright
This article shows how charging and plea bargaining can be used as forms of sentencing discretion. It first examines the claims that prosecutorial charging and plea bargaining discretion is a form of sentencing power, which appear to be largely true of American legal systems. Next, it discusses negotiation terms used by government and defense concessions. It also takes a look at the systemic effects of party negotiations and identifies the objectives that prosecutors hope to gain by selecting and amending charges and their sentencing recommendations. This article ends with a section on the limitations of prosecutorial discretion.
Due to the under-representation of females, public officials have paid less attention to understanding their offending or to developing and assessing prevention and intervention strategies for them. Attention to female offenders is now considered important because their numbers are growing in all spheres of criminal justice. This article explains what is currently known about girls and their juvenile justice experiences. It discusses the difficulty that exists in identifying gender bias because of the nature of juvenile justice processing. It then describes data sources about the offending patterns of girls and boys and examines how gender appears to affect juvenile justice processing. Following this, the article identifies difficulties for girls in access to treatment and services. It highlights deficiencies in knowledge about female-specific treatment. Finally, it gives recommendations for an integrated framework to assist in learning more about the problems girls face and ways to make their experiences with juvenile justice systems successful.
Julian V. Roberts
This article explores the role of the victim during sentencing and parole release proceedings in the United States and other common law jurisdictions. It reviews the empirical evidence of the effects of the victim's participation and distinguishes sentencing from parole. This article also introduces the principle of proportionality, which serves as either a main consideration in the setting of penalties, or as a limit placed upon the allowable severity of punishment.
The Dark at the Top of the Stairs: Four Destructive Influences of Capital Punishment on American Criminal Justice
Franklin E. Zimring and David T. Johnson
This article tries to show how capital punishment can become a destructive influence on American criminal justice. It first determines that due to the availability of the death penalty, there have been misrepresentations in the law of homicide. This has also led to “penal inflation,” which refers to the increased use of prison terms of life without parole (LWOP). It then notes that the general acceptance of most death penalty abolitionists of the use of LWOP sentences has resulted in an involuntary increase in the use of LWOP—one that exceeds the moderating effect on the use of the death penalty. It then addresses the continuous controversy over capital punishment, which has drained huge amounts of attention, resources, and energy that could have been used on reforms.
This article presents an overview of drug and other specialty courts. Section I defines specialty courts and traces their growth in number and types. It also explores the factors that sparked the specialty court movement. Section II examines drug courts, the most popular and prominent type of specialty court. It outlines key features of the drug court model, reviews the evidence of their effectiveness in reducing criminal behavior, and identifies neglected issues. Section III considers other manifestations of specialty courts and the emerging research evaluating the effectiveness of these courts. Section IV probes the policy implications of specialty court research and what this body of research suggests about the long-term viability of the specialty court movement.
David S. Tanenhaus
This article traces the ideological origins and legal foundations of the juvenile court. It examines juvenile courts at work in the early twentieth century, their guiding principles, and the later development of federal juvenile justice in the 1930s. It also assesses the U.S. Supreme Court's due process revolution that introduced more procedural requirements as well as lawyers into juvenile court during the 1960s, but simultaneously undercut one of the rationales (i.e., “the rehabilitative ideal”) for having a separate justice system for juveniles. It further focuses on the “get tough” era of the 1980s and 1990s, a time when most states made it easier to prosecute adolescents in the criminal justice system. Finally, it gives a brief discussion of future of the juvenile court. Despite jurisdictional changes, procedural reforms, and the erosion of the rehabilitative ideal, the juvenile court remains a flawed but resilient fixture in modern American governance.
LaTosha Traylor and Beth Richie
This article focuses on the steadily increasing number of females being admitted in corrections. It emphasizes the need for gender-based programs inside and outside prisons, and observes that drug offenses seem to be the main reason for the increase of female inmates. Most of these women have experienced physical—and even sexual—abuse, which makes treatment even more challenging. This article identifies some new programs that can address the needs of female inmates, particularly mothers and their children.
Daniel P. Mears
This article is focused on front-end processing in the juvenile court. The front end of juvenile justice refers to initial court decisions about how to process cases. The article discusses how the traditional mission of the juvenile court, which emphasizes punishment, treatment and services, and individualized attention, contributes to the goals and structure of front-end decision-making. Following this, it reveals two critical front-end activities: screening and assessment and informal and formal processing encompassing the roles of intake officers and prosecutors in these activities and how they comport with the juvenile court's traditional mission. Furthermore, it explores the stakes involved in front-end decision-making, including the potential impacts on how cases are processed and describes the implications of front-end processing for policy and practice. It concludes with a call for better monitoring of and research on front-end juvenile court processing and its impacts on recidivism, juvenile crime rates, and other outcomes.
Robert Apel and Daniel S. Nagin
This article begins with a discussion of key concepts of deterrence. Section II turns to empirical research on general deterrence. It considers the deterrent effect of the penultimate and ultimate legally prescribed sanctions, imprisonment, and execution. Section III discusses the deterrent effect of police, and reviews studies of aggregate police presence in addition to police deployment strategies. Section IV evaluates the strength of the evidence for perceptual deterrence, and the interplay of sanctions, perceptions, and behavior among individuals. The article concludes with some general remarks, a cautionary message about the limits of deterrence as a crime-control policy, and recommendations concerning future deterrence-based inquiry.
Jennifer L. Skeem and Jillian K. Peterson
This article provides a vivid description of how persons with mental illness continually find themselves involved in the corrections system. It first explains how their unique needs are interpreted into relevant management problems for corrections agencies. It discusses the 1970s deinstitutionalization movement, where the mentally ill were moved out of state hospital and placed in the community. Unfortunately, most of these mentally ill persons became unemployed, homeless, and even abused drugs and alcohol, which placed them in and out of corrections. This article emphasizes that there is a move towards adequate knowledge on how to identify and effectively treat persons who have mental illnesses, and notes that the public is becoming even more sympathetic to giving services to the nonviolent mentally ill who can be supported within the community.
Increasing Discretionary Prosecutor’s Powers: The Pivotal Role of the Italian Prosecutor in the Pretrial Investigation Phase
This essay considers the increasingly prominent role played by the prosecutor in the Italian criminal justice system, focusing on the investigation and pretrial phase. The assumption is that in the past two decades the trial phase has lost its relevance and that the crucial decisions for the outcome of criminal proceedings are made more and more often during the investigation and pretrial phase, where the prosecutor enjoys considerable discretion, although formally the legality principle still rigidly rules in the Italian system. Two steps need to be taken to improve the current situation and to fill the gap between reality and theory. The first is starting to interpret the principles of the constitution as allowing discretionary choices by the prosecutor. The second is to strengthen prosecutors’ accountability, but without affecting their independence from the government.
Lucian E. Dervan and Ellen S. Podgor
This chapter discusses the prosecution of white-collar criminals and outlines the stages of the investigative and judicial process. It notes differences in white-collar cases from those involving street crimes. This chapter recognizes the role of corporate internal investigations, government investigations, the grand jury process, white-collar trials involving complex corporate criminality, and sentencing. It notes how pleas and the use of “shortcut” offenses play an important role in this area of the law. It also discusses the players in a white-collar investigation and prosecution, and the guidelines that assist the prosecutorial discretion.
Brandon K. Applegate
This article begins with an overview of the jail inmate population. Data reveal the current makeup and important shifts in inmate characteristics. Section II discusses the historical development of jails and pretrial release. Section III reviews the empirical evidence on contemporary pretrial release issues, including trends in pretrial release and detention, correlates of release decisions, and dimensions of supervision and misconduct among released defendants. Section IV turns to contemporary jail issues of direct supervision in new generation facilities, mental health, and adjustment to jail confinement. Section V concludes with a discussion of policy implications and fruitful directions for future research.
Lieutenant Gary F. Cornelius
This article views America's jails using a practitioner's perspective. It first describes how local jails were developed, how they are managed in an overcrowded environment, and how they are trying to provide inmates with programs and the community with public safety. It then discusses how jails have been affected and coped with the pressure-cooker effect experienced in overcrowded prisons. This article also includes sections on the development of the mega jail, the ever-evolving nature of the inmate population—and its implication for jail security—and the increasing importance of privatization.
Nancy J. King
This essay provides a comprehensive yet compact discussion of jury nullification in the United States. It includes a summary of (a) criminal cases in which juries have deliberately acquitted defendants they believed were guilty under the law as described by the judge, from the nation’s beginning through today; (b) legal rules that prevent nullification from occurring, as well as rules that protect it when it does; (c) constitutional and nonconstitutional arguments for and against recognizing a more robust role for jury nullification; and (d) the findings of empirical research examining how often and under what conditions jurors refuse to convict for reasons other than failure of proof. A list of references includes more than 100 books, articles, cases, and other resources on the topic.
Lay adjudication is a widely discussed topic in the present-day debate on legal systems. Around the world, a large variety of types of lay adjudication exists. Almost all countries make use of lay people as judges, and many of them have several forms of lay adjudication. This article discusses three models of lay adjudication: the jury, mixed panels, and experts as judges. It elaborates on the issues of legitimacy and the question as to whether lay participation increases various aspects of democracy within the legal system. Advantages and drawbacks are discussed. The article ends with a tentative prospective into the future.
This article summarizes research on the implementation, operation, and deterrent effects of mandatory sentencing laws. Section I examines research before 1970 while Section II examines the major empirical evaluations in the United States since then. Section III summarizes the small literature in other countries, primarily Australia, Canada, England and Wales, and South Africa. Although the mandatory penalties are much less harsh in those countries and the research is less extensive, the findings are indistinguishable from those in the United States. Section IV briefly examines research on deterrent effects. Section V tries to make sense of these findings and to outline their policy implications.
Stan C. Proband
Probation remains the most common form of correctional supervision. Well over half of sentenced offenders, over four million at any one time in recent years, are under the control of probation agencies. This article discusses probation and community penalties. Section I provides a brief history of the evolution of probation since 1970. Section II discusses the scale of probation. Section III offers a brief survey of knowledge concerning the effectiveness of community penalties in widespread use. Section IV discusses possible futures for probation.