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Introduction to Criminal Justice
Section 2.1:
Dual Federalism
33 Slides
2
Dual Federalism
 Dual federalism refers to the governmental system of the United States where there is a
single federal government and 50 state governments.
 At least theoretically, the states are allowed to exercise their own powers without
interference from the federal government.
3
State v. Federal
 Some powers are delegated to the federal government, while others remain with the
states.
 In reality, this boils down to an ever-evolving body of law.
 The trend has been toward the federal government gaining more and more influence in
criminal justice over the years.
4
The Hierarchy of Laws
 A hierarchy is an organization where people are ranked according to status and authority.
 Article Six of the U.S. Constitution has long been interpreted as meaning that federal law
trumps state law whenever the two come into conflict.
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Limits on Federal Authority
 Conversely, the power of the federal government was thought to be held in check by the
Bill of Rights, which are the first ten amendments to the Constitution.

6
The Growth of Federal Power
 The exact reach of federal power has long been debated, and is still not fully resolved.
 The issue is often talked about in terms of “states rights.”
7
Major Power Shifts
 Major changes in how the federal government exercised its power in relation to the states
have happened quickly at times, such as a dramatic increase in federal power during the
Civil War, the passage of the Fourteenth Amendment immediately after the war, and
during the New Deal era prior to World War II.

8
A Paradigm Shift?
 Many political scientists contend that dual federalism is no longer an accurate term, stating
that the states and the federal government share powers in a model that may more
accurately be described as “cooperative federalism.”
9
A Prime Example
 Nowhere has this overlap of power been more obvious than in the criminal laws of the
United States and how those laws overlap the criminal codes of the various states.

10
The Hierarchy of Courts
 As a direct result of American federalism, a dual court system exists within the United
States today.
 There is a complete and independent federal court system, and there is a complete and
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somewhat independent state court system in every state.
11
Separation of Powers
 The idea of separation of powers does not suggest that the courts are completely
independent of the other branches of government.
 The laws that federal courts arbitrate, for example, are passed by Congress and signed by
the President.
12
Congress and the Courts
 The U.S. Constitution gives Congress the power to create federal courts other than the
Supreme Court and to determine the jurisdiction of those courts.
 It is Congress, not the judges, that controls the type of cases that may be addressed in the
various federal courts.
13
Judicial Appointment
 Congress, through the confirmation process, has a role in determining which presidential
nominees eventually become federal judges.

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The Power of the Purse
 Congress also approves the federal courts' budget and appropriates money for the
judiciary to operate.
 Congress wields this authority over many components of the criminal justice system.
 The power to control funding is often called the power of the purse.
15
U.S. District Courts
 The United States district courts are the trial courts of the federal court system.
 Within limits set by Congress and the Constitution, the district courts have jurisdiction to
hear nearly all categories of federal cases, including both civil and criminal matters.
16
District Court Organization
 There are 94 federal judicial districts, including at least one district in each state, the
District of Columbia and Puerto Rico.
 Three territories of the United States—the Virgin Islands, Guam, and the Northern Mariana
Islands—have district courts that hear federal cases.
17
United States Courts of Appeal
 The 94 U.S. judicial districts are organized into 12 regional circuits, each of which has a
United States court of appeals.
 A court of appeals hears appeals from the district courts located within its circuit, as well
as appeals from decisions of federal administrative agencies.
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United States Supreme Court
 The United States Supreme Court consists of the Chief Justice of the United States and
eight associate justices.
 At its discretion, and within certain guidelines established by Congress, the Supreme Court
each year hears a limited number of the cases it is asked to decide.
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A Substantial Federal Question
 Those cases may begin in the federal or state courts, and they usually involve important
questions about the Constitution or federal law.
 This standard is often referred to as a substantial federal question.
20
State Cases
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 Only certain state court cases are eligible for review by the U.S. Supreme Court.
 State courts are the final deciders of state laws and constitutions.
 State court interpretations of federal law or the U.S. Constitution may be appealed to the
U.S. Supreme Court.
21
The State Court Systems
 The Constitution and laws of each state establish the state courts.
 A court of last resort, often known as a supreme court, is usually the highest court in a
state.
 Some states also have an intermediate court of appeals.
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State Trial Courts
 Below these appeals courts are the state trial courts.
 Some are referred to as circuit or district courts.
23
State Court Restructuring
 Historically, states usually had courts that handled specific legal matters, (e.g., probate
courts, juvenile court; family court, etc.).
 Many states, however, have followed the federal model and have combined these various
courts.

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State Appeals
 Parties dissatisfied with the decision of the trial court may take their cases to the
intermediate court of appeals in states that have them, or to the court of last resort in
states that do not.
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The Hierarchy of Law Makers
 As previously discussed, Article Six of the United States Constitution contains what is
known as the supremacy clause.
 This translates into federal laws being dominant over state laws when conflicts arise.
 Because there are state criminal codes and a federal criminal code, there is much overlap.
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The Dual Executives
 Just as there are federal laws and federal courts, there are federal law enforcement
agencies.
 The federal agencies can only enforce federal laws, while state laws are only enforced by
law enforcement officers.
 In practice, there is a large degree of cooperation between state and federal agencies.
27
The Layer Cake Metaphor
 The dual federalist system in the United States has been referred to (especially in its
earlier versions) as layer cake federalism.
 The idea of a layer cake suggests the distinct yet united spheres of power held by the
federal government and by the various states.
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The Marble Cake Metaphor
 Political scientist Morton Grodzins compared the layer cake analogy to marble cake
federalism.
 The marbling of this type of cake symbolized the overlapping and concurring powers of the
state and federal governments.
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The Forgotten Governments
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 Often forgotten in power struggle between the state and federal governments is that there
is a third tier of government: the local governments.
 The term local government is used to discuss the governing bodies of America’s myriad
cities and counties.
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Municipalities
 Local governments are critically important to criminal justice because most of the workload
of the criminal justice system is taken care of on a local level.
 The vast majority of police officers are employed at the municipal (city) level of
government.
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County Government
 A large number of law enforcement officers and correctional officers are employed by
country (or parish, depending on the state) governments under the auspices of the
Sheriff’s Department.
32
Blurring the Lines
 For legal purposes, most local and county agencies are considered state agencies.
 Municipal police officers and country deputies are charged with enforcing state laws; they
can do nothing about violations of federal law except for turning a case over to federal
authorities.
33
Local Legislation
 Local governments are also empowered to make “minor” laws known as ordinances.
 In the criminal justice system, ordinances regulating conduct are usually considered
violations, resulting in only a fine.
 Local governments are not entrusted by the state and federal governments with the power
to enact laws that punish by imprisonment.
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1
Introduction to Criminal Justice
Section 2.2:
Politics in Criminal Justice
31 Slides
2
Politics
 Politics is the art and science of running government and guiding governmental policy.
 The nature of politics in America is conflict and debate about policy, and criminal justice
policy falls into that arena.
3
The American Political System
 The American political system and the criminal justice system both involve actions of the
President, Congers, courts, bureaucracies, interest groups, elections, and the media.
 These groups are mirrored on the state level and to some degree on the local level.
4
Selecting Decision Makers
 In a democratic republic, criminal justice decision makers are selected by one of two ways:
1. They are either elected by the public
2. appointed by a public official (often an elected one).
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Selection Examples
 Elected mayors, for example, often appoint chiefs of police.
 The President of the United States (an elected official) appoints Supreme Court justices
with the confirmation of the U.S. Senate (a body of elected officials).
 Both methods are highly political and cannot be understood without understanding
something of the political process.
6
The Politics of the Legislature
 Criminal laws are made by legislative assemblies that decide which acts are prohibited, and
what punishments are appropriate.
 Obviously, politics influences the laws that assemblies pass.
7
“Get Tough” Legislation
 Today the nation finds itself at the conclusion of what has been a “get tough” era of
criminal justice.
 Ushered in by the “crack epidemic” of the early 1980s, this has been a period of:
harsher punishments
longer prison sentences
less therapeutic programs
skyrocketing corrections budgets
8
Current Trends
 The pendulum seems to have reached the far right, and now may be swinging back
toward the middle.
 Many states have begun concentrated efforts at finding alternatives to incarceration.
 The federal government is considering early release for drug offenders sentenced under
the “get tough” drug laws of the previous two decades.
9
The Politics of Policing
 Most police departments try to distance themselves from the vicissitudes of politics as
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much as possible.
 To be effective, law enforcement must be seen as fair and impartial, serving all of the
community without favoritism or political patronage.
10
Local Politics
 The political climate of a community can have a huge impact on the police department.
 Elected officials appoint police administrators, and can often fire them just as easily.
 The style of law enforcement, formal departmental policy, and informal norms can all be
heavily influenced by local politics.
11
Local Government Structure
 The structure of local government can have an impact on how police services are
delivered.
 Professional city managers, for example, are less likely to get involved in police affairs than
are mayors and aldermen.

12
The Politics of Prosecution
 Prosecutors in most jurisdictions are elected officials and thus highly political.
 At the federal level, an essentially political process appoints U.S. attorneys.
 The career paths of these federal lawyers tend to be linked to one particular political party
or the other.
13
Prosecutors & Political Careers
 It is fairly common to see prosecutors at both the state and federal level using their tenure
as prosecutors to launch political careers.
 This fact gives rise to the unethical possibility of political prosecutions against political
enemies.
14
The Politics of the Judiciary
 There is a tendency among academic writers to view the judiciary as somehow above
partisan politics.
 In the modern American reality, this is a pleasant fiction.
 Judges at all levels of government are either elected or appointed, and this fact makes
them political creatures.
15
Elected Judges
 Elected judges fear public reactions to issues with political foundations.
 Examples:
appearing “soft on crime”
being in favor of the death penalty, or against it, depending on the political climate in
the jurisdiction.
16
Liberal v. Conservative
 Conservative courts tend to side with law and order, willing to sacrifice some civil liberties
to maintain law and order.
 Liberal judges tend to take the opposite, ruling in favor of civil liberties at the expense of
(in the minds of the opposition) public safety.
17
The Balancing Act
 It has been said that the real job of appellate courts is balancing the civil rights of the
people with the desire of the people to be safe from crime.
 Obviously, the political belief of the justices making these decisions weighs heavily in the
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outcome of important cases.
18
The Politics of Corrections
 Corrections is a highly politicized aspect of government.
 At the local level, the operation of jails is tied to the office of sheriff in many jurisdictions,
which ties jail operations to the politics of particular individuals being elected and reelected
as sheriff.
19
State Corrections
 At the state level, departments of corrections are highly political, with administrators and
budgets being politically determined.
20
Parole Boards
 Another highly political aspect of corrections is the membership and functioning of parole
boards, which is established by appointment of the governor in most jurisdictions.
 If parole boards make release decisions that later reflect badly on the board members, the
bad press will ultimately turn to the governor.
21
Political Problems
 As politics is such an integral part of criminal justice, a high potential for serious problems
generated by politics exists.
 Rash decisions can be made, poorly considered policies can be implemented, and illconceived laws can be written that hamper the efficient and ethical administration of
justice.
22
Emotionality v. Rationality
 Unscrupulous politicians can easily make appeals to people’s emotions, fears, and
prejudices to improve their own chances at reappointment or reelection.
 Emotionally charged decisions do not tend to be rational decisions.
 In the high stakes world of criminal justice, clear, rational thinking is often overshadowed
by politically charged emotionality.
23
Packer’s Models
 Herbert Packer (1964) outlined two competing models of the value systems operating
within criminal justice today:
1. The crime control model
2. the due process model
 These two models of how the justice system should operate reflect two opposing sets of
political ideologies that have a massive impact on criminal justice decision making at all
levels.
24
The Crime Control Model
 According to Packer,
“The value system that underlies the Crime Control Model is based on the proposition that
the repression of criminal conduct is by far the most important function to be performed by
the criminal process.”
25
The Philosophy of Crime Control
 There is a definite political philosophy that underlies this assertion:
“The failure of law enforcement to bring criminal conduct under tight control is viewed as
leading to the breakdown of public order and thence to the disappearance of an important
condition of human freedom.”
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
26
Policy & The Crime Control Model
 Therefore, adherents of the Crime Control Model advocate enhancing the powers of the
police to investigate and prosecute criminals.
 These necessarily include enhanced powers of search and seizure.
 Under this philosophy of criminal justice, the primary focus of the system should be
discovering the truth and establishing the facts.
27
The Due Process Model
 The Due Process Model takes an opposite view of how the system should operate.
 The key to understanding this position is that it hinges on protecting the civil rights of
every citizen.
28
The Philosophy of Due Process
 Under this philosophy, the most important function of the criminal justice system is to
ensure procedural due process, which mean maintaining fundamental fairness in all
aspects of the criminal justice process.
29
Policy & The Due Process Model
 A major policy implication if this view is to limit police powers in order to prevent the
oppression of the individual citizen.
 Adherents of this position hold that merely establishing guilt is not adequate.
 The government must show guilt in a fair and legal way that respects the rights of the
accused.
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Striking a Balance
 In reality, the courts and other elements of the criminal justice system have to strike a
balance of these two positions.
 It must be realized that the relative importance of each of these positions is not static:
There is a constant tug of war between the two positions.
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Politics and the High Courts
 As the makeup of America’s high courts change, so too does the underlying philosophy
that dominates the decisions of those courts.
 Liberal courts establish broad civil liberties.
 Conservative courts erode those liberties in the name of law and order.
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1
Introduction to Criminal Justice
Section 2.3:
The Policymaking role of the Supreme Court
25 Slides
2
Policymaking and the Supreme Court
 The Supreme Court is the most likely of all the courts to be involved in criminal justice
policymaking.
 The Court makes policy in two ways.
 First, it can assert the power of judicial review.
3
Judicial Review
 In Marbury v. Madison (1803), the Court struck down a law “repugnant to the
Constitution” for the first time and set the precedent for judicial review of acts of
Congress.
 Judicial review is the court's power to declare acts of Congress unconstitutional and to
review acts of state legislatures.
4
Interpreters of the Law
 The Court can also exert power as a maker of criminal justice policy through its authority
to interpret the law.
 An example of the Court's taking this route to make policy can be found in the Warren
Court's decisions in the area of due process.
5
The Warren Court
 Under the leadership of chief justice Earl Warren, the Court issued a series of rulings
aimed at changing the procedures states followed in dealing with criminal defendants.
 Notable decisions guaranteed the right to counsel in state trials, limited police search and
seizure practices, and required police to inform suspects of their rights.
6
Judicial Modesty
 In theory, Supreme Court justices should practice what constitutional scholars have called
judicial modesty.
 Judicial modesty refers to the idea that justices should only strike down acts of the
legislative branch when those laws are in direct conflict with a constitutional provision.
7
Judicial Self-restraint
 There has been a historical trend of judicial self-restraint among at least some justices.
 These justices feel that policy is best left in the hands of the legislative and executive
branches.
 Striking down a law merely because a majority of justices disagrees with the legislature is
wrong under this doctrine.
8
The Reality
 The way our system functions, there is nothing to stop the justices from doing this.
 Other justices take the position that the court should be active in cases of civil liberties and
civil rights.
 When it comes to allowing political agendas to enter into the judicial decision making
process, the justices must police themselves.
9
Judicial Activism
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 There are opposing viewpoints on whether or not appellate courts should make criminal
justice policy.
 Judicial activism consists of abandoning a literal interpretation of the Constitution in pursuit
of what the Supreme Court considers an appropriate course of action.
10
Warren’s Judicial Activism
 Chief justice Earl Warren was in this camp.
 He believed that the court should take an active role in establishing governmental policy
that established and protected civil liberties and curtailed government intrusion on the
freedoms of Americans.
11
Judicial Restraint
 Against this position is placed the idea of judicial restraint, which advises judges to avoid
the temptation to make public policy through their decisions.
 Justices in this camp believe that it is up to the legislature, as a mirror of the will of the
people, to accomplish this task.
12
Activism v. Restraint
 The difference between activism and restraint is that judges engaging in activism go
beyond interpreting the law and participate in making the law.
 To a judicial activist, constitutional rights are dynamic.
 Judicial activism is not wedded to a political philosophy—it can be conservative or liberal.
13
Limits on Judicial Activism
 The legal framework that judges work within limits judicial activism to some extent.
 This means that federal judges may interpret the law only through the resolution of actual
legal disputes.
14
No Hypotheticals
 A court cannot attempt to correct a problem on its own initiative (unless it has to do with
the rules governing the court systems), or to answer a hypothetical legal question.
15
Standing
 Standing means the plaintiff must have been aggrieved, or legally harmed in some way, by
the defendant.
 Thus, organizations such as the American Civil Liberties Union cannot sue the police
directly, but they can fund legal assistance for a party that actually alleges harm done by
the police.
16
Courts Can Only Hear Certain Cases
 The court must be authorized, under the Constitution or a federal law, to hear the case
and grant appropriate relief to the plaintiff.
 Without specific legal authorization, the court cannot hear a case.
17
Courts of Limited Jurisdiction
 The case cannot be moot, that is, it must present an ongoing problem for the court to
resolve.
 The federal courts, thus, are courts of limited jurisdiction because they may only decide
certain types of cases as provided by Congress or as identified in the Constitution.
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Don’t Underestimate the Courts
 The policymaking role of the Supreme Court should not be underestimated.
 The rulings of the court are just as consequential as acts of congress and the executive
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decisions of the president.
19
The Reality of Activism
 Many times, the ruling of the court is not based merely on a literal reading of the law.
 In many cases it is plain that the justices are invoking their own interpretations of what the
law is, and what it should be.
20
The Political Lens
 Supreme Court justices, in theory, sit in order to interpret the law.
 This interpretation is, in reality, filtered through a political lens.
 No matter how well-meaning these justices may be, their perceptions of what is right in
wrong in the law is impacted by their personal political beliefs.
21
Liberal v. Conservative
 While there are always individual differences, a common way to divide the political
leanings of the court is to use the terms liberal and conservative to describe both individual
justices, the court in general, and particular decisions.
22
Liberal Decisions
 Illustrations of liberal decisions are decisions favoring criminal defendants, people claiming
discrimination, and those claiming violations of civil rights.
23
Conservative Decisions
 Decisions that appear to favoring police, prosecutors, and other governmental entities are
said to be conservative.
24
The Current Court
 Currently, the Supreme Court as a clear cluster of four judges that consistently vote liberal,
and another cluster of four justices that vote conservative.
 Justice Anthony Kennedy sits right in the middle of the political spectrum, and is the
“swing” vote that makes predicting the outcome of Supreme Court decisions very difficult.
25
A Matter of Degrees
 Not all liberal justices are equally liberal.
 In the term that ended in June 2013, Justices Ruth Bader Ginsburg, Sonia Sotomayor and
Elena Kagan cast liberal votes 70 percent of the time.
 While still left leaning, Justice Stephen Breyer is substantially more conservative than his
female counterparts.
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1
Introduction to Criminal Justice
Section 2.5:
Theories of Punishment
39 Slides
2
Theories of the Recent Past
 During the heyday of liberalism in the 1960s and 1970s, the judicial and executive
branches (for example, parole boards) wielded power in sentencing.
 Legislators designed sentencing laws with rehabilitation in mind.
3
Punishment Theories Today
 More recently, during the politically conservative 1980s and 1990s, legislators seized power
over sentencing.
 A combination of theories have influenced sentencing laws:
 Deterrence
 Retribution
 Incapacitation

4
Deterrence
 It has been a popular notion throughout the ages that fear of punishment can reduce or
eliminate undesirable behavior.
 These ideas have been formalized in several different ways.
5
Utilitarian Theories
 Jeremy Bentham, is credited with articulating the three elements that must be present if
deterrence is to work: The punishment must be administered with
1. Celerity
2. Certainty
3. Appropriate Severity
6
Rational Choice Theory
 Rational choice theory is the simple idea that people think about committing a crime
before they do it.
 If the rewards of the crime outweigh the punishment, then they do the prohibited act.
 If the punishment is seen as outweighing the rewards, then they do not do it.
7
Cost Benefit Analysis
 Sometimes criminologists borrow the phrase cost benefit analysis from economists to
describe this sort of decision-making process.
8
Types of Deterrence
 General deterrence is the idea that every person punished by the law serves as an
example to others contemplating the same unlawful act.
 Specific deterrence is the idea that the individuals punished by the law will not commit
their crimes again because they “learned a lesson.”
9
Criticisms of Rational Choice
 Critics of deterrence theory point to high recidivism rates as proof that the theory does not
work.
 Recidivism means a relapse into crime.
 In other words, those who are punished by the criminal justice system tend to reoffend at
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a very high rate.
10
Our Theoretical Foundations
 As unpopular as rational choice theories may be with modern academic criminologists,
they are critically important to understanding how the criminal justice system works.
 This is because the entire criminal justice system is based on rational choice theory.
11
Foundations of Criminal Law
 Our criminal law is based on the idea that people commit crimes because they decide to do
so is the very foundation of criminal law.
 The intent element must be proven in almost every felony known to American criminal law.
 Without a culpable mental state, there is no crime (with very few exceptions).
12
Incapacitation
 Incapacitation is a very pragmatic goal of criminal justice.
 The idea is that if criminals are locked up in a secure environment, they cannot go around
victimizing everyday citizens.

13
Does Incapacitation Work?
 The weakness of incapacitation is that it works only as long as the offender is locked up.
 There is no real question that incapacitation reduces crime by some degree.
 The biggest problems with incapacitation is the cost.
14
Social Costs
 There are high social and moral costs when you take a people out of their homes, away
from their families, and out of the workforce and lock them up for a protracted period of
time.
15
Financial Costs to Taxpayers
 There are very heavy financial costs with this model.
 Very long prison sentences result in very large prison populations which require a very
large prison industrial complex.
 These expenses have placed a crippling financial burden on many states.
16
Rehabilitation
 Rehabilitation is a noble goal of punishment by the state that seeks to help the offender
become a productive, noncriminal member of society.
 Throughout history, there have been several different notions as to how this help should
be administered.
17
A History of Rehabilitation
 When our modern correctional system was forming, this was the dominate model.
 We can see by the very name corrections that the idea was to help the offender become a
non-offender.
18
Types of Programs
 Many types of programs have been used to rehabilitate offenders:
Education programs
Faith-based programs
Drug treatment programs
Anger management programs
Many others
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 All are aimed at helping the offender “get better.”

19
Rehabilitation Efforts: The Past
 Overall, rehabilitation efforts have had poor results when measured by looking at
recidivism rates.
 Those that the criminal justice system tried to help tend to reoffend at about the same
rate as those who serve prison time without any kind of treatment.
20
The Future
 Advocates of rehabilitation point out that past efforts failed because they were
underfunded, ill conceived, or poorly executed.
 Today’s drug courts are an example of how we may be moving back toward a more
rehabilitative model, especially with first time and nonviolent offenders.

21
Retribution
 Retribution means giving offenders the punishment they deserve.
 Most adherents to this idea believe that the punishment should fit the offense.
 This idea is known as the doctrine of proportionality.
22
Proportionality
 Such a doctrine was advocated by early Italian criminologist Cesare Beccaria who viewed
the harsh punishments of his day as being disproportionate to many of the crimes
committed.

23
Just Desert
 The term just desert is often used to describe a deserved punishment that is proportionate
to the crime committed.
24
Problems with Proportionality
 In reality, the doctrine of proportionality is difficult to achieve.
 There is no way that legislatures can go about objectively measuring criminal culpability.
 The process is one of legislative consensus, and is imprecise at best.
25
Is the System Racist?
 The United States today can be described as both multiracial and multiethnic.
 This has led to racism.
 Racism is the belief that members of one or more races are inferior to members of other
races.
26
American Racism
 Because white Americans of European decent are the majority, racism in America usually
takes on the character of whites against racial and ethnic minorities.

27
Critical Issues of Racism
 Historically, these ethnic minorities have not been given equal footing on such important
aspects of life as
 Employment
 Housing
 Education
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 health care
 Criminal justice
28
Racial Discrimination & Law
 When this unequal treatment is willful, it can be referred to as racial discrimination.
 The law forbids racial discrimination in the criminal justice system, just as it does in the
workplace.

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Disproportionate Contact
 Disproportionate minority contact refers to the disproportionate number of minorities who
come into contact with the criminal justice system.
 Disproportionate minority contact is a problem in both the adult and juvenile systems at
every level of those systems.
30
Police Minority Contact
 As the gatekeepers of the criminal justice system, the police are often accused of
discriminatory practices.
31
The Courts & Discrimination
 Courts are not immune to cries of racism from individuals and politically active groups.
 The American Civil Liberties Union states, “African-Americans are incarcerated for drug
offenses at a rate that is 10 times greater than that of whites.”
32
Legal Factors
 The literature on disproportionate minority sentencing distinguishes between legal and
extralegal factors.
 Legal factors are those things that we accept as legitimately, as a matter of law, mitigating
or aggravating criminal sentences.
33
Extralegal Factors
 Extralegal factors include things like class, race, and gender.
 These are regarded as illegitimate factors in determining criminal sentences.
 They have nothing to do with the defendant’s criminal behavior.
 They have everything to do with the defendant’s status as a member of a particular group.
34
What Does the Data Say?
 In 2013, the Bureau of the Census estimated that African-Americans made up 13.2% of
the population of the United States.
 FBI: 28.4% of all arrestees were African-American.
 This means African-Americans were arrested at a rate double what one would expect.
35
Racism and Drug Crime
 The disparity is more pronounced when it comes to drug crime.
 According to the NAACP:
“African Americans represent 12% of the total population of drug users, but 38% of those
arrested for drug offenses, and 59% of those in state prison for a drug offense.”
36
How Does Racism Work in CJ?
 There are three basic explanations for these disparities in the criminal justice system.
 The first is individual racism.
37
Individual Racism
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 Individual racism refers to a particular person’s beliefs, assumptions, and behaviors.
 This type of racism manifests itself when the individual police officer, defense attorney,
prosecutor, judge, parole board member, or parole officer is bigoted.

38
Institutional Racism
 Another explanation of racial disparities in the criminal justice system is institutional
racism.
 Institutional racism manifests itself when departmental policies (both formal and informal),
regulations, and laws result in unfair treatment of a particular group.
39
Differential Involvement
 A third (and controversial) explanation is differential involvement in crime.
 The basic idea is that African-Americans and Hispanics are involved in more criminal
activity.
 Often this is tied to social problems such as poor education, poverty, and unemployment.
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1
Introduction to Criminal Justice
Section 2.4:
The Civil Rights Revolution
32 Slides
2
The Political Pendulum
 A political pendulum, swinging back and forth from liberal to conservative, marks the
history of the U.S. Supreme Court.
 Conservative courts are courts composed of conservative justices, usually appointed by
conservative presidents.
 Liberal courts, on the other hand, are composed of liberal justices, usually appointed by
liberal presidents.
3
Naming Courts
 These courts are often characterized by the name of the chief justice at the time.
 During the 1960s, the pendulum swung to the apex of liberalism when Chief Justice Earl
Warren (1953 – 1969) led it.
4
The Warren Court
 The Warren Court adhered to Packer’s Due Process Model, at least after the judicial
activists achieved a majority on the court with the retirement of Justice Frankfurter in
1962.
 This date marks the true beginning of the civil rights revolution.
5
Changes Under Warren
 This liberal court, headed by Warren, emphasized civil rights across the legal spectrum.
 The most enduring changes in criminal justice occurred in their interpretations of the
Fourth and Fifth Amendments, with many landmark cases coming down that were
designed by the court to shield citizens from the abuse of police powers.
6
The Pre-Warren Era
 Prior to the 1960’s, the Supreme Court rarely interfered in the way that states ran their
own criminal justice systems.
 The 1960s was a time of rapid social change, and that change is reflected in the decisions
of the Warren court.
7
Mapp v. Ohio
 When the court passed down its decision in Mapp v. Ohio in 1961, the criminal justice
system in America was changed forever.
 However, this was only the beginning.
 Over the remainder of Warren’s tenure as Chief Justice, the court would hand down many
more decisions that would redefine the American legal landscape in terms of civil liberties.
8
Wolf v. Colorado
 A more conservative Supreme Court, back in 1949, stated that the exclusionary rule
applied only to federal law enforcement officers.
 According to the ruling in Wolf v. Colorado (1949), if citizens had any protection against
illegally obtained evidence being used against them in court, it was up to state supreme
courts to interpret state constitutions in such a way.
9
Mapp Overruled Wolf
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 Many courts did implement the exclusionary rule on the state level, following the lead of
the U.S. Supreme Court, but some did not.
 When Mapp overruled Wolf, the exclusionary rule was applied to all law enforcement in the
United States, no matter what level of government employed them.
10
Chimel v. California (1969)
 Today, we teach that Chimel established an exception to the warrant requirement known
as a search incident to arrest.
 As an exception to the search warrant requirement, this may seem like a case that fits
Packer’s crime control model.
11
Crime Control Model?
 This is because an exception to the search warrant requirement is generally considered to
benefit law enforcement, and is thus a victory for law and order at the expense of a civil
right.


12
The Facts
 The facts of the case paint a different picture.
 When the police arrested Chimel in his home for burglary, they searched his home for
stolen coins that were the fruits of his crime.
 The coins were found in a garage attached to the house.
13
Search Incident to Arrest
 The court ruled that while the search was incident to the arrest, the search of the garage
went too far.
 The proper scope of a search incident to arrest was the area in the suspect’s “immediate
control.”
14
Application to the States
 We can see from this that the court limited a common police practice, effectively doing
away with an unwritten arrest exception to the search warrant requirement of the Fourth
Amendment.
 Because this was deemed a due process issue by the Supreme Court, that clause of the
Fourteenth Amendment was used to apply the Fourth Amendment rule to state law
enforcement.

15
The Warren Court & Due Process
 While the decisions of the Warren court had a weighty impact on many aspects of
American life, the most profound effects on the criminal justice system were in the area of
due process and defendants’ rights.
 Since most of these rights were matters of due process, the new rules applied to state law
enforcement as well as federal.
16
Gideon v. Wainwright (1963)
 In this case, the court held that indigent defendants facing jail time had the right to
appointed council if they could not afford their own lawyer.
17
Miranda v. Arizona (1966)
 the Warren court ruled that police must inform suspects of certain rights prior to a
custodial interrogation.
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 Due to popular culture, most every American knows the statement that is read to suspects
by the police.
18
The Miranda Warnings
“You have the right to remain silent. Anything you say can and will be used against you in a
court of law. You have the right to have an attorney present during questioning. If you
cannot afford an attorney, one will be appointed for you by the state.”
19
Terry v. Ohio (1968)
 Not every case decided by the Warren court served to benefit criminal defendants.
 In Terry v. Ohio (1968), for example, the court ruled that the police could search suspects
for weapons with less than probable cause.
20
The Post-Warren Courts
 The pendulum began to swing the other way in the 1970s, and continues to do so through
the present day.
 This swing occurred because the composition of the court began to change.
 As liberal justices retired from the court, they were replaced by Republican presidents such
as Nixon, Reagan, and Bush.
21
Chipping Away at the Warren Decisions
 By the end of the first Bush administration, the court had transitioned from the very liberal
Warren Court to a much more conservative body.
 These conservative courts hammered out many exceptions to the blanket protections
created by the Warren Court.
22
The Ideological Shift
 This has created an increasingly broad scope of lawful investigative activity for law
enforcement.
 This shift from the Due Process Model to the Crime Control Model did not take place only
within the courts.
 It took place in the executive and the legislative branches as well.
23
The Burger Court
 The Burger Court (1999 – 1986) was far more conservative than the Warren Court, but
there was no conservative majority.
 One of the most controversial cases decided by the Burger Court was Furman v. Georgia
(1972), which abolished the death penalty as it was enacted at the time.
24
Unmet Expectations
 Furman was not in keeping with the conservative expectations of the Burger Court
because Warren Burger was a conservative appointed by President Richard Nixon.
 Conservatives hoped that a court led by Burger would be far more conservative, even to
the point of overruling the more liberal of the Warren Court’s rulings.
25
The Last Remnants of Liberalism
 The court may have chipped away at the major Warren Court doctrines, but it declined to
overturn them.
 The chief justice may have been conservative when Furman was handed down, but the
remnants of the Warren Court still sitting on the bench kept the court liberal, at least to a
degree, in its majority decisions.
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26
Burger the Justice
 Because the composition of the court had shifted, some conservative decisions were
handed down.
 Burger the justice (rather than the court) tended to vote conservatively.
 He voted with the majority of the court in 1976 to reinstate the death penalty in Gregg v.
Georgia.
27
The Rehnquist Court
 The Rehnquist Court (1986 - 2005) was far more conservative than the Burger court.
 These conservative courts, perhaps out of concern for the time honored tradition of
cohesion and unity of the Supreme Court, did not overrule many of the liberal decisions of
the warren Court.
28
Exceptions to the Rule
 Rather, they “chipped away” at them by creating scores of exceptions.
 That is, things like the exclusionary rule still existed as a matter of law, but there would be
many exceptions that were created during the Reagan-Bush years.
29
Liberal v. Conservative
 Conservatives applauded this as strengthening the ability of the police to do their jobs, and
liberals lamented it as the erosion of hard one civil liberties.

30
Rehnquist the Justice
 Rehnquist was a strong believer in states’ rights.
 Much of his decisionmaking hinged on the Tenth Amendment’s reservation of powers to
state government.
 He also rejected the broad view of the Fourteenth Amendment taken by the Warren Court,
and believed that such an interpretation overstepped the proper bounds of federal power.
31
Maryland v. Garrison (1987)
 In this case, the court held that a search pursuant to a warrant that the police believed
incorrectly to be valid did not violate the searched person’s Fourth Amendment Rights.
 This good faith exception meant that such evidence could be admitted at trial.
32
California v. Greenwood (1988)
 In this case, the court ruled that a warrant was not necessary to search a garbage can left
on the curb for pickup (outside the curtilage of the home).
4