1 Introduction to Law in American Society PS 380Dr. Troy Gibson

2 Chapter 1 Law, Courts, and PoliticsI. Courts and Government Courts = 3rd branch, but distinctive (law degree, formal procedures, it’s own language). A. Course: We will examine the judicial system’s relationship with each of the following: Constitution Federalism President’s role Legislatures Elections Political Parties Interest Groups

3 8. Public Opinion Legal Institutions Many components other than courtrooms (lawyers, judges, plaintiffs, defendants, witnesses, jurors, investigators, etc.) Legal System (Fig 1-2, 11). Inner Ring: Institutions of Law (3 branches of government; tell us what the law is and how fast it should change). Middle Ring: Interpreters of Law – composed of actors who serve as gatekeepers (lawyers, judges, judicial elections, law schools) between the inner and outer rings. These actors control the entry and exit of litigation (law suits).

4 Outer ring – consumers of the lawOuter ring – consumers of the law. All of those who seek legal solutions to their perceived problems. That is, anyone who desires something from a legal process. These rings operate within the context of the larger political, economic, and cultural environment. C. Courts as Political Institutions – courts do not exist in a vacuum, no matter how much we think courts are or should be immune from “politics.” Since courts determine what the law is (via interpretation), they are inherently political institutions. But differences: Passive, not active – must wait on cases before they get to decide things Less able to avoid decision-making (e.g., politically charged issues). Politics is less directly influential over courts.

5 Information is limited and narrow, not broad and openInformation is limited and narrow, not broad and open. Comes mostly through two disputing parties. Not an open forum. Courts and Controversy “There is almost no political question in the U.S. that is not resolved sooner or later into a ___________ question.” - Tocqueville Courts have emerged as principle players in public policy debates. Three headings of legal-policy debates: _______________ (e.g., segregation) Criminal justice issues (e.g., death penalty) Civil justice issues (e.g., tort reform) C. Liberal and ___________ positions (T 1-1, 20)

6 Chapter 2 Law and Legal Systems What is Law? Body of rules enacted by public officials in a legitimate manner and backed by force of state. Law and Justice – justice is associated with normative values; not winning, not ___________ (prohibition). Legal Systems (Table 2-1) Civil Law (Roman) – oldest law family. Starts with the code – expresses rules of law as general principles phrased in _________ language. Judges and lawyers emphasize the _______ and not concrete cases (deductive reasoning from the code to the decision). No precedent use. Small working library!

7 Judges and not lawyers dominate hearings (witnesses and questions)Judges are ___________, not practicing lawyers No juries. Mixed tribunals (judges and citizens) are used for __________ crimes. Most widely used system in Europe. Socialist law – birthed in revolution; focus on changing society, not maintaining order. Russia/_________. Rejects common law and civil law assertions that law is basis of society. Goal – protection of the _______ (not private property) Law is to be educational targeting the new socialist society (crime=failure of state, not individuals).

8 Islamic Law – only law family directly tied to religious beliefs.Exhaustive – all aspects of life Source – God (______), through the Koran and the Sunna dictated and written by Muhammad. Judges receive legal & religious training. Lawyers are not independent of legal system/gov’t. Juries not allowed Courts do NOT make policy. Common Law – rooted in __________ England; meaning common to all. History – over time, became __________ and inflexible. Was totally reactive and never proactive. 1. Soon, concerns over equity (adapting

9 common law to changing conditions and new legal practices)common law to changing conditions and new legal practices). For example, the practice of _________ was underdeveloped (proactive). Common law was slow to develop (unlike civil law). 3. Americans adopted this system. C. Characteristics Judge-Made law. Judges were the primary instruments of law-making until late 19th century (wills, property, contracts, etc.) Precedent – ____________ is the practice of letting previous decisions stand. “Broad rules and policy directives emerge only over time through the ______________ of court decisions.”

10 Uncodified Rules and _____________ – no place to find the official statement of the WHOLE law. Law emerges through court decisions. Adversary system – we also have an ___________ system (not _____________), where judges are passive/neutral and lawyers run the show (prosecute cases/question/call witnesses). Discussion: Which is better, inquisitorial or adversarial? (page 39). Eight Layers of U.S. Law _____________: power divided between national and state. Federal/state/local order of hierarchy. Multiple Sources of Law – Constitutions _____________

11 Administrative Regulations (Administrative law)Judicial Decisions – courts don’t make law, but they _______ it in previous decisions. Public and Private law Public law involves ___________ (e.g., International law). Private law involves relationships between private citizens Tort law __________ (including divorce) Property Civil and __________ law Civil suit involves dispute between private parties.

12 Criminal suits involves a __________ of a government penal laws.Sometimes a single action results in both (OJ-homicide and wrongful death). Substantive and ____________ Law Substantive – law that defines rights (what). Procedural – establishes methods of enforcing legal rights (how). Rules of court and constitutional due process. Remedies Declaratory judgment (defining rights of parties) _____________ – recovering of damages (compensatory or punitive) H. Doctrines of __________

13 Jurisdiction – right of a court to hear a caseReal dispute (not contrived) Standing – plaintiff must demonstrate real injury/harm in order to ________. Interpreting the Law Ideally, judicial process is to consider what the law ______ and not what policy ________ be. Average citizen thinks in terms of the latter (abortion). Why interpretation? Meaning of words (establishment, interstate commerce) Conflicting laws – (different courts, federalism, states, statements in constitution). Often, courts use “______” to balance these conflicts (Lemon test). Gaps in law – law and ___________ imbalance

14 Chapter 3 Federal Courts I. Principles of Court Organization Jurisdiction Geographical Jurisdiction (e.g., extradition) Subject Matter Jurisdiction – some courts can hear a limited ___________ of cases Hierarchical Jurisdiction (original and appellate) Dual Court system – Federal and State (51 court systems; Fig. 3.1) Trial and Appellate Courts Trial Courts: trial centers on ____________ facts (evidence, witnesses, juries) Appellate Courts: centers on correctly interpreting the law (none of the above)

15 History of the Federal Courts2 landmarks shaped the current court Article III (Constitution) Disagreement between ___________ (distrusted state court ability to produce uniform body of law; wanted a series of lower federal courts) and _______________ (feared too powerful national government; wanted federal law to first be interpreted by state courts). Article III, however, basically passed the buck to _____________ (p. 64). Judiciary Act of 1789 Plan: SC (5 justices, 1 chief), circuit courts in every district (composed of 2 SC justices who “______” circuit), and 1 district court judge (Fig. 3-2). Major victory of _____________ (lower courts).

16 But did support state interests as well:dc boundaries shaped by ________ (no district encompassed more than one state) Selection of dc judges tied to respective states Gave _________ district courts __________ jurisdiction. – growing consensus that the system was inadequate Circuit riding (Fig 3-2): one justice had to travel _________ miles in one year. One murdered by unhappy party on the road. Caseloads – sometimes took 3 years before cases were heard (1800 cases at SC in 1890) Court of Appeals Act 1891 Reformers differ: states rights people wanted to return ________ to states (reduce fed. Jurisdiction). Nationalists wanted to create/expand/reform circuit courts.

17 Another victory for ___________Another victory for ___________. Created 9 new “Courts of Appeal” which handles almost all appeals of dc’s. Basically has remained the same ever since. U.S. District Courts A. Characteristics 1. Geography – at least _____ in each state; never crosses state lines (Fig 5-3). Map of Circuit and District Courts dc judgeships; 94 dcs; ranges from 2-28 (pop based). 3. Full staffs 4. Each has ______ U.S. Atty (nominated by Pres. And confirmed by Senate).

18 3-Judge District Courts – Congress became frustrated with laissez-faire dc justices in early 1900s. Legislated that certain cases must be heard by ____ dc justices instead of one. Panel is composed of original dc judge, a circuit court judge, and another dc judge (latter 2 chosen by ________________). The use of these, however, has decreased after mid-century (320 in 1973 to 9 in 1990). Other federal courts Magistrates (early stages of criminal cases; Soc Sec claims, etc.) Bankruptcy Judges Caseload of dc’s 2002, 341,841 cases filed. What cases? Federal _________ (usually a congressional

19 statute). Money cases must exceed $10,000.Diversity Jurisdiction – citizens of different states suing. Why? ______. ¼ dc docket congress upped the “amount in controversy” from $10,000 to $__________. Prisoner ___________ – prisoner complaining they are improperly convicted or suffer from poor imprisonment conditions. U.S. Court of Appeals 11 circuits; another DC Circuit; another Federal Circuit (also in DC). 179 judges, 6-28 range; each has a chief (senior). Use 3 judge rotating panels, but by majority vote can sit ___________ (all; 100 a year). Caseload – 93% from dc’s, rest from administrative agencies. 57,555 cases Not matched with ____________ in judges.

20 U.S. Supreme Court Composition: ____ + Chief (nominated for that post by president). Writ of __________ – decision by SC to review (call up) lower court holdings to determine if law has been correctly applied. Caseload – Writ is granted according to “rule of _____” (very few % make it). Must involve a _____________ federal question. Federal Court filings have exploded (Fig. 3-4)

21 Chapter 4 State Courts Trial Courts of Limited Jurisdiction (Lower Courts) Size: 13,684 courts (85% of all courts). Varies from none to 2,500 (TX). Hear 60million matters a year (mostly traffic) Not part of state court system. Usually created and controlled by local gov’ts. Not a court of __________ (no official transcript) Appeals go to trial court of general jurisdiction and is heard ___________ (heard entirely again). Criminal/Civil Cases 1. Criminal cases usually concern ordinance violations and ________________ (peace disturbance, shoplifting). Fines < $1000.

22 Often handle preliminary stages of felony cases (arraignments, bail).Civil Cases: handle small claims cases with $1500-$__________ money limits. These hearings usually go quickly by dispensing with written pleas, strict rules of ____________, and jury trial rights. Trial Courts of General Jurisdiction (Major Trial courts). MS name? (p. 104) Size: ________; hear cases not specifically delegated to lower courts Geographic jurisdictions usually follow ________ lines and are subdivided into circuits/districts. Criminal/Civil 1. Criminal: hear mostly street crimes (not white collar). Most do not go to trial because of _____ __________ (not guilt, but what penalty)

23 Civil cases: outnumber criminal 2 to 1Civil cases: outnumber criminal 2 to 1. Usually concern domestic relations (alimony, child support, divorce); __________ cases (supervise will disbursements); Personal injury (vehicle accidents to wrongful death). Intermediate Courts of Appeal A. Created to relieve courts of __________________ ______ states have them (MS?) Their decisions are usually final. Courts of Last Resort: State Supreme Courts TX/OK have two (criminal and civil) Original rarely used (disciplining lawyers/judges); primarily ________________ (gets to pick the appeals that it hears). An appeal goes to U.S. Sup. Ct., but rarely ___________.

24 The Lower Courts: A Closer LookHeavily influenced by local customs. Therefore, wide-ranging. Types: Justice of the _________ Courts Originated 14th century rural England to quickly dispense simple justice. 15,000-20,000 in U.S; most with elected officials. Concerns: fairness (out of town speeders) Solutions? Professionalize – training programs or law degree requirements. *1/3-1/2 CA JP’s with no high school diploma; Assistant Atty General of MS said MS JP’s “are not capable of learning the necessary elements of law” Abolish JP’s? Response: ________________: Powerful lobbies who protect their jobs. Argue that all that is required in their cases is __________________ (not a law degree). *”These are the last bastions of the people w/o much money. It’s a place they can go to resolve their problems without the necessity of having a lawyer”

25 Municipal Courts – urban answer to JPsMunicipal Courts – urban answer to JPs. Product of big-city political ____________ (patronage system). Juvenile Courts – product of the “progressive movement” (save children from a life of crime). Philosophy – system becomes a __________. 1999 – 2.5m juveniles arrested. Usually means below _____. Three categories of juvenile matters: Delinquency – would be a crime if committed by _________ (64%) Status offenses – illegal only for juv’s (14%) Child victim – neglect or dependency

26 Court ___________ – shifting judicial administration from local to centralized (state capitol) control. A. 5 reform proposals: Simplified Structure (____________, reduce number of local/minor/specialized courts). Whole system becomes 3-tier Centralized Administration – whole system is governed by state supreme court. Accountability via hierarchy. Centralized rule-making – uniform rules set not by legislatures/local bodies but ________ and lawyers. Centralized Budgeting – have a state judicial administrator who independently prepares budget for entire system (bypass _______________).

27 Statewide financing – fund the system through state _____________, not local.Success of Reforms? While many states have moved that direction (e.g., 4-tier), few have implemented even most of these. Why? Reformers are mainly legal elites. Perhaps bias against issues not as important to them (e.g., consumer, domestic issues) Resisted by lawyers, judges, and court personnel who are _______________ with status quo. Big city problem, not rural. New way of thinking: ____________ may be more efficient (top-down), but _____________ and diversity leads to better quality (bottom-up).

28 Drug Courts – new thing response to drug war in 80sDrug Courts – new thing response to drug war in 80s. Focus on ______________ mainly. Quick and easy process. DCs usually aim a reducing rearrests. Attys play less of a role. Mixed results as to ________________. Consequences: Costs have soared for these Might be increasing # of prisoners. Police and prosecutors more likely to go after small drug crimes ($10-$20) since the DC is available.

29 Supreme Court: Deciding What to DecideChapter 14 Supreme Court: Deciding What to Decide Jurisdiction of the Supreme Court Original Jurisdiction Article III, cases affecting ambassadors, public ministers, consuls, or cases between ___________ (e.g., water rights). Rare SC no longer hears the cases in _________ format. A “special master” is appointed for this and reports back. Appellate Jurisdiction Goal of SC is no longer primarily to correct lower court errors. Instead, they are permitted to hear cases dealing with important issues of _________________. 3 methods: Appeal – review lower court decisions declaring state/federal laws unconstitutional. The only appeal they MUST hear comes from the 3-judge dc panels. ______________ – SC may or may not choose to review

30 a lower court decision. Certification – appellate courts may ask the SC to “make certain” or clarify a point of Federal law. Doctrines of Access _________________ – a case is justiciable if it is proper to be decided by the court. Court will not issue ____________ opinions on legislative/executive acts (need a case) Standing - right to sue Components: Actual dispute (not hypothetical) Adversity – no ____________ lawsuits; parties must have adverse stakes in the outcome. Direct legal injury for plaintiff – no 3rd party suits. Taxpayer lawsuits – generally, _______________ claim for standing (too minute and uncertain). Class action – all members must have real harm, not simply concern over “public interest”

31 Ripeness/Mootness – these concerning timing.Ripeness: case is brought too _________ (no harm has been done or alternatives not fully exhausted). Mootness: case brought too late (remedy no longer available; Roe). Political Questions – most ambiguous. Means no cases that are properly decided by other ____________. Today, this means basically only foreign affairs. Getting the Case to SC Lawyers – two classes: Repeat players (SC Bar) – held on retainer specifically for SC cases (usually ____________ cases). Novices – new to SC (usually noncommercial cases like civil liberties/criminal).

32 Interest Groups – participate directly by sponsoring litigants or indirectly via ________________ (amici) briefs. 18% of SC justice opinions cite amici. Liberal IG’s more successful than conservatives (libs=older/repeaters). __________________ – atty for the government/executive. Office on first floor of SC. Decides what executive agency appeals will be filed Advises SC justices on cases where U.S. is not a party. Files U.S. amici Most successful _____________ player

33 Case Selection Little chance: 8,000 filed, 100 granted review. Cert petitions are mostly managed by ______________ who make recommendations on which cases to accept. ________________: at a weekly conference, by custom, the judges discuss the cases and vote on cert. If 4 agree, it is accepted. Interpretation of denial: Means ONLY that the court leaves lower court decision ________________ (don’t read into it) Screening Criteria: Must involve “substantial federal question” but that has not been defined. 5 Criteria for getting in: Federal Government as ________________: 50-75% of Solicitor requests are granted (compare to 5% for all else). Why? Repeat player and/or institutional deference. Conflict over law: Appellate court ______________ district court; appellate judge writes a dissent; circuit conflict.

34 Justice Ideology: Two discoveriesGrant cert when a lower court decision conflicts with their ______________ (liberals more likely to hear criminal defendants) Strategic action or “defensive denial”: justices make ideologically based cert decisions based on expected action of colleagues. Means bias in favor of reversals (if you like it, leave the lower decision alone). Amicus Curia Activity: More likely to hear cases with ________ amici briefs. Demonstrates _________________. Issue Areas: Civil liberties issues mainly (not much majority appeal). Not as detectable lately. Court’s Docket: Begins term on _______ Monday in October until early summer. Number of cases: Original jurisdiction, only _______ a year. Pauper cases: 75% of total. Petitioner can’t afford the $_____ filing fee and required 40 copies of brief. Mostly from criminal defendants.

35 Court may take 1 of ___ actions (#’s from 2002):Denial (7500) _____________ decision (124): no orals, usually an unsigned memo stating the court’s decision and applicable law. Grant review (87): oral arguments Caseload growth: from _______ the first two years to 8000 now (Fig. 14-2, p. 489). Most of the increase from criminal cases. Kinds of cases: half are ______________; half are statutory (other laws) cases.

36 Justices and Their DecisionsChapter 15 Justices and Their Decisions Secret in deliberation (behind closed doors, few interviews with press), open in decision-making (detailed published opinions) Judicial Selection The most important appointment of President. An _____________ mark. Irregular; depends on ____________ (death, resignation, impeachment). Table 15-1, p. 502 current membership Nomination Process: President nominates, Senate confirms, justice serves during good behavior (none have been removed). Have become _______________ and dramatic. Criteria: Merit – for _________ court, merit takes back seat to political rewards and senatorial courtesy. At SC, merit is first concern (professional eminence and without ethical blemish). Most served as high judges. Rehnquist had never been a judge.

37 Personal/Political Friendship: 50% have been personal friendsPersonal/Political Friendship: 50% have been personal friends. ____% from President’s party. Recently, however, personal ___________ has been less a factor Policy Preferences – President’s try to select ideological ______________ (Reagan and Scalia; Clinton and Breyer). Commonly disappointed (Eisenhower and Warren; Kennedy and White). Symbolic Representation (ranked) Race/Ethnicity ____________ Geography

38 Senate Confirmation – president’s must act strategically to get nominees through.Nominees are sent to Senate Judiciary Committee for questioning. Committee recommends to _________. Most nominations are successful. Last ___ rejections due to ethical/ideological concerns (Bork and Ginsburg). Discuss Harriet Myers. Decision-Making Process Briefing – lawyers and amici (center more on SC precedent and less on facts Oral Arguments Each side gets ____ minutes (interrupted often) Often strategic (use lawyers as __________ of communication between justices). Example: prayer at football games Conference – 2-3 days later, justices assemble in conference. Chief reviews case and gives his opinion first. Others present views by ___________. Opinion Assignment – Chief assigns if in majority;

39 If not, most senior member assigns. Four factors in opinion assignment:Workload – equal # of ___________________ Ideology – must satisfy views of ________ usually (perhaps justice closest to dissenters). Specialization – legal areas of expertise (In Roe, Burger selected Blackmun, a medical law expert). Self-Assignment – Tradition of Chief assigning himself big cases. Opinion Writing Burden of ______________ usually. Submit drafts to justice, who revises and edits. Very dynamic process of letter/opinion sending between justices. Change mind sometimes (less than ____% of time) Announcement of Opinion – Decision and rationale Types:

40 Majority: 5 or more agree with decision and rationale__________: no single opinion is joined by 5 or more; the most Concurring: agree with decision, but not ____________ of majority Dissent: disagree with both Justice’s Policy Preferences Bloc Analysis – ________ of justices voting together (ideological blocs). Table Who are the least predictable?

41 Scaling – method of analyzing ideological divisions on the court.Stronger the support, ________ on the scale. Cutoff point – point at which the support is so low that the judge votes in opposite direction. Procedure – arrange cases according to voting divisions (1-8 to 8-1). Strong voting patterns and underlying ideological attitudes are statistically discerned. (e.g., study in 70s found that ____% of Court’s decisions were explained by 3 values – freedom, equality, and New Dealism). Content Analysis – direct means of measuring ideology on the court (look directly at the __________ of their speeches, opinions, votes, writings before coming to court).

42 Supreme Courts Warren ( ) – most _________. Support for minority rights, criminal rights, free speech/expression, separation of C & S. Burger ( ) – moderate (support for civil liberties dropped 80%) and especially different in criminal cases. A bit more _________________ in religion cases. Dealt with new issues on gender (Roe). Never reversed Warren decisions, but moderated them (e.g. Affirmative-Action and quotas) Rehnquist (1986-present) – More conservative (product of moderate to conservative replacements – Scalia, Kennedy, Thomas). Promotes ___________ rights, even more accommodationist on religion, far less supportive of criminal rights and affirmative-action. Currently, a conservative weak alliance (but probably changing); success of which was determined mostly by _____________. Impact and Implementation

43 Reactions and Responses – implementation of decisions is not always _____________ (compare Roe to Brown). Political Institutions – In statutory cases, Congress may respond by ____________ its laws or simply passing new laws to reverse the decision. Far more difficult for _______________ cases. Here, they may use amendments, deny raises (1964), refuse to appropriate necessary _________. Interpreters of law – lawyers and judges take decisions and implement them in subsequent legal actions. Some may defy, avoid, or limit (apply narrowly) the decision. Consumers of law – affect groups, agencies, etc. vary in their implementation of decisions (school prayer). Groups respond to decisions by forming, ______________, suing, etc.

44 Political, Social, Economic forces – public opinion clearly affects the degree of implementation. The court is considered the most “_____________” institution in U.S. Govt. Makes unpopular decisions more tolerable. But opinion still has an impact, how? Voters choose Presidents who appoint Court responds direction to public mood.

45 Chapter 5 Lawyers “What’s the difference between a lawyer and a catfish?” Answer: One is a bottom-dwelling creature that feeds off the waste of others. The other is a __________. Again, lawyers are important in our legal system: they are gatekeepers (gotta go through a lawyer). Legal Education Legal Training Before 1870 Self-Study – especially ________________ Apprenticeship – boy would pay to work with a lawyer for training. Law schools were rarely used (only 15 in 1850; 1000 students). Nature of law school then was much broader (philosophy, economics, ethics). A few ______________ (for profit) law schools created, which focused solely on the practice of law. Modern Law school originated with the dean of Harvard Law School (Christopher Langdell) in Introduced:

46 Case method – lectures replaced by reading appellate court opinionsThis method encouraged the creation of _________ law schools because leading law schools began raising admission and graduation standards. Night schools welcomed anyone. In response (1900), the American Assoc. of Law Schools was organized and left out night schools. Law schools today Students 127,610 in ABA approved schools 2001 (_____% women) , 46,666 (____% women). Admission based on Law School Admission Test and GPA (mostly). In the past, some law schools explicitly discriminated against women and blacks. There were only 3 black lawyers in MS 1960s. Today, _____% of law students are minorities; 20% of degrees awarded go to minorities; 7% of degrees go to AA’s. Women are ____% and blacks 5% of practicing lawyers.

47 Curriculum today Usually 3 years (compared to 1-2) Purpose1: Trained to be _____________________ Purpose2: Think like lawyers (teach them what the law requires, not what they think is right/just. First year is general and hard with little discretion over course (civil procedure, const. law, contracts, criminal law, property, torts, legal research). Subsequent years, electives (specialization) Instruction uses ____________ method – professor teach by asking students questions and challenging them to defend answers (heavy demand on students). Criticisms: too hard for students (p. 145) and too focused on passing ______ and not practical enough. Differences between law schools 200 law schools, most accredited by ABA. If not, grad can only take bar in that state. Vary in prestige quality of ____________, library holdings, required courses, faculty-student ratios.

48 Prestige: 3 levels. 20 at the top (Ivy league, Duke, Stanford, UVA, Michigan, Texas, UCLA). Most in the middle (UGA, Ole Miss, Bama). Then, local law schools (not affiliated with larger university, sometimes not accredited; focus on state law; predecessor of 19th century night schools). Licensure: ABA’s typically push for raising admission/grad standards (increases quality of lawyers, but also decreases ________________). Bar exams cover basic areas (first exam) and state law (2nd) and ethics (3rd). ____% pass it first-time. Most states require passage before practice. Some will accept bar passage somewhere else (usually of specific states). Passage anywhere gets you in Federal court. Bar basically disallows legal practice by ______________. Keeps the business going for lawyers, but mixed results on if it really improves quality of legal representation. Work of Lawyers (five duties)

49 Litigating (most do not) – presenting cases before judges/juriesLitigating (most do not) – presenting cases before judges/juries. Must mater rules of evidence, but also have insight into the psychological/sociological dynamics of juries, clients, witnesses, and other lawyers (do you support tort reform?). Representing – lawyers are often used to represent ___________________ or individuals in settings where their interests are at stake (e.g. regulatory agencies, law-making bodies, public hearings). Negotiating – most cases are settled out of court. Settlement amount depends greatly on _______________ ability of lawyer. Drafting documents – ability to remove ambiguity/doubt by writing legal documents (mortgages, divorce papers, especially wills and estates). Counseling Clients – tend to _____________ needs (like doctors). Can lead to tension/conflict between advice of lawyer and desire of client. If client is not knowledgeable of law, more deferential to atty. Where they work (Table 5-1, p. 157).

50 Access to legal servicesCriminal defense for poor (right, not privilege; Gideon v. Wainwright, 1963) Assigned Counsel – lawyer is assigned to case pro bono (for public good; no charge). Typically, they agree to this in order to practice in designated area. 52% of counties use this system. _______________ (20th cent. response) – salaried lawyers paid by local/state gov’t to represent all poor criminals in jurisdiction. Used in all big cities and most medium-size jurisdictions too. Controversy of public defender Advantages – a criminal lawyer (not a lawyer concentrating on civil law) working solely on that case, keeps up with changing law, more ______________, trial-skills sharp. Criticism – paid employees of gov’t, work buddies with prosecutors and judges (trials may be staged fights). Civil representation for poor Contingency fees – most PIs

51 Minimum fees (informal) for certain non-complicated matters.Legal aid clinics – funded with _________ monies, often ran by __________________.

52 Chapter 6 Judges Judicial Selection – Which method? Shaped by 3 questions. What’s a Good Judge? – stellar legal credentials or modest credentials better suited for the actual functions of most judgeships (e.g., administration). Who Should Select Judges? Actors: Lawyers, elected officials, or voters? Public generally distrusts all of these. Selection in the U.S. usually features participation by all three plus ______________________. Judicial Independence or Political ___________________? Public holds contradictory opinions here. Therefore, methods often feature compromise. For example, practically all judges, regardless of ____________, hold longer terms (promotes independence). D. 3 methods in general emerge from these questions:

53 Appointment (by executive or legislative)Elections (partisan or nonpartisan) Merit Selection Appointment of Federal Judges Constitution says simply that Fed judges will be nominated by Pres, confirmed by Senate, and serve for __________. President’s personally involved in SC appointments, but less in lower federal court appointments. Senatorial Courtesy Started with _________________ (1789). Senators of Pres party are consulted before nomination of a district court judge from Senators’ states. If Senator is not from Pres party, consultation is literally a courtesy (polite). Senatorial courtesy far less important in _______________ nominations (crosses state lines). Interest Group Involvement 1. Increasingly involved/influential.

54 None more than the ABA, which is directly involved.Senate Judiciary Committee requests the opinion of the ABA Standing Committee on Federal Judiciary (14 members, staggered 3-year terms). Rank nominees “well-qualified; qualified; unqualified” 4. GOP President’s traditionally enjoy _________ cooperation with ABA than Dems (ABA usually politically conservative). Switched lately however; Bush and Clinton). If declared qualified by ABA and favorable hearing in SJ Committee, Presidential nominees are practically always ________________ by floor. Instead of rejecting, opposing parties usually try delay tactics. Clinton Judiciary (peculiar) Determined not to use ________________ as a screen First to allow nominations to come from Justice Department (Reno) instead of White House. Appointed __________ # of women and minorities Bush Judiciary 1. Pledge to appoint strict constructionists (Reagan too)

55 Verge of doing it with GOP control in Senate, until SenVerge of doing it with GOP control in Senate, until Sen. Jim Jeffords left GOP to give Dems a voting majority in Senate. GOP gained Senate back after elections in ________ (51-49; now and 1). Bush re-nominated his group of conservatives. Dems found a loophole tactic (filibuster on procedural votes for the most conservative nominees). Still, Bush able to confirm ________ of 131 judges. Backgrounds of Fed Judges Whether by Dems or Reps, similar: former activists in Pres party, held prior gov’t positions (judges/prosecutors), white male ______________ from elite law schools. Difficult to use D/R Pres to predict what the judiciary would look like. Clinton appeared to be more “_______” (appointed richer, Ivy leaguers) than Bush (see Table 6-1)

56 Judicial Elections – majority of state judges are electedJudicial Elections – majority of state judges are elected. Product of Jacksonian era (early 1800s; transfer rule to common man, democratize political system, etc.). View abhors special qualifications for public office; let voters decide. Methods (Table 6-2) Partisan Elections (9 states) Nonpartisan Elections (____; MS) Appointment (5) Merit Selection for all (15) Combined (some Merit some elected; 9) Judicial Campaigns Usually low-key, little controversy, not nearly as much partisan language, candidates often do not take rigid policy positions. Turnout is low (___% know much about candidates). Favors incumbents: marked as “Judge” on ballot. Sitting judges seldom opposed; when challenged, just a few get voted out. Campaigning changing: nastier, noisier, costlier

57 Merit Selection (_____________ Plan)Judicial reformers argued that simply electing judges had 3 adverse effects: Discouraged qualified lawyers from running (their not politicians) Suggest ___________ (answer to voters/parties) Voters least likely to be informed on judicial candidates Merit Plan (or Missouri Bar Plan, 1940) is the proposed solution/compromise (hybrid) Judicial nominating commission composed of lawyers and citizens create list of suggested nominees Governor appoints one to fill vacancy After a short period (1 yr typically), new judge faces an uncontested ___________ election (keep Judge X or not?). If retained by voters, awarded full term. Subsequent terms awarded via another retention election. , _______ retention elections, 52 ousted (99% retention). 28 from IL (requires 60% vote to retain).

58 Assessment Has not eliminated politics from selection process (interested groups, like plaintiff and defense lawyers, work to have their reps on commission). Basically has reduced importance of ________ and enhanced influence of legal profession. Which System is Best? Selection systems do not seem to matter in terms of judge __________. Yet, election systems have an impact on _________ representation. Statewide elections tend to reduce it. The VRA 1965 (revised 1982) encouraged the creation of majority-minority districts for elections, including judicial ones. Removing Judges Most judges can be removed only through _______________ (federal) and some states allow for recall elections. Only 6 federal judges have been removed *Hastings-FL was ousted from bribery,

59 Then elected to the House that charged himThen elected to the House that charged him. Nixon from South MS district court, convicted of lying about intervening on behalf of a son of a friend. Drew his judicial salary while serving time, until removed by Senate.

60 Trial Courts: Preliminary Stages of Criminal CasesChapter 8 Trial Courts: Preliminary Stages of Criminal Cases Focus: early stages of a criminal case (arrestsinitial appearancesetting of bailprosecutorial screeningpreliminary hearinggrand jury reviewexclusionary rule. Half of defendants have charges dismissed here. Crime On the rise from 60searly 90s; then declined (p. 250) Two general categories: Type I: Major (_______) crime (homicide, auto theft, rape, arson, aggravated assault, robbery, burglary, larceny over $50) Type II: Minor crime (simple assault, public drunkenness, disorderly conduct, _______ offenses). C. American crime rate, is _________ among Western dems.

61 Police _______________, spread over 18,000 agencies housed at the federal, state, county, local, and special agencies (p. 253, Table 8-1). Why political? Historically, because of patronage and corruption. Civil service reform reduced this. Modern era, because of race relations (police brutality directed at racial minorities). Also, policing has become ______________ as well as reactive. Arrests: A. # of Arrests: Success has always been measured by #arrests made as % of crimes committed. 1. 20% result in arrests; ____% of violent crime and 18% of property crime. 2. Of 14m arrests, 2.2m are for Type I; 1.6 are for drug offenses. Quality of Arrests (i.e., record of achieving conviction). *In LA, prosecutors accept 86% of felony arrests from

62 Sheriff and 60% for police arrests.Defendant (the accused) Profile: significantly ___________, male, disproportionately racial minorities, more likely to be from broken homes, less educated, unemployed, and single. Among those _________________, even more stark disparities (Table 8-2). Defendants often unable to understand the simplest of legal terms or processes. Initial Appearance Police must present defendant to judge _______ (e.g., 48hrs). Hears basic rights (remain _______, counsel, bail, preliminary hearing) For minor crimes, initial appearance usually the only courtroom encounter (pay fine). For major crimes, it’s a formality (set bail and schedule next appearance, appoint counsel)

63 Bail: a guarantee that someone released from jail will return to court as needed (not available for _________ offense; why?). Get it back upon appearance. A. 3 Methods: 1. Post Full amount 2. Post property bond (collateral) 3. Bail Bondsman – posts bond and charges nonrefundable fee (e.g., 10% of bond). Richer defendants better able to post, so less likely to await trial in jail. 2 Factors determining bail amount: ________________ of crime (positive relationship) _________ criminal record Prosecution National level – U.S. Dept of Justice (primarily conducted by U.S. _______________________ appointed by Pres and confirmed by Senate). State level – state attys. general, although they usually play larger role in consumer rights.

64 County level – Prosecutor is the chief law enforcement officer of the community (DAs). Typically ____________, prosecuting cases in trial courts of general jurisdiction. Local/City – prosecutes minor criminal offenses in minor trial courts. Filing Charges, 3 kinds: Complaints: charge signed by either victim or arresting officer Information: charge signed by _____________ (serves as indictment in non-grand jury states) Indictment: sent to grand jury for approval Whole process greatly influenced by prosecutor (if and what to charge) Preliminary Hearing In _________ jury states, this hearing determines whether to send to grand jury; in non-grand jury states, sole procedure for determining trial. Advantage=______________; state does not have to prove guilt beyond reasonable doubt; hearsay admissible;

65 Prosecutor must show only probable cause that defendant committed crime. Largely formality, takes 5 minutes, almost no cases dismissed here. Grand Juries – determine probable cause and indictment (sufficient evidence to go to trial). A. 5th amendment says that defendants accused of federal offenses are entitled to ______________ (optional for states: Hurtado v. CA, 1884). Size of grand juries ranges from 6-23; ______________ selected like other juries. Works in secret, unlike trial juries, so that investigation material concerning the accused is not made public. Dominated by ______________ (e.g., grand jurors hear only witnesses called by P) Exclusionary Rules: A. Definition and Justification: Prohibits the admission of evidence gathered ______________ s: rise of scrutiny over the process by which evidence is gathered. Justified 3 ways:

66 Normative argument (court should not condone illegal conduct)Assessment that excluding the evidence will enhance __________________ among police. View that alternative remedies (civil suits against officers) ineffective. Identification of Suspects: during __________ lineups, one has right to an atty. Confessions s, SC dismissed _________________ via physical/psychological coercion. Adopted specific guidelines for genuine confessions in Miranda Warnings Right to silence Anything you say may be used against you You have the right to have a lawyer present You have the right to court-appointed counsel if you are ________________. Also, SC shifted burden of proof from defense to prosecution that the __________________ is genuine.

67 With Nixon appointees to SC, Miranda requirements relaxed and provided exceptions (e.g., public safety). Searches: 4th amendment protects against “unreasonable searches and seizures”. Historically, this did not prevent admission of _______________ evidence (gathering procedure considered separate issue). 20th century, adopted exclusionary rule and applied to states. Costs of ____________________ Rule: not much. Rarely are arrests/convictions dismissed/reversed due to ____________________ evidence. Case ____________ (Figure 8-4, 270). High attrition early in process, small during trial phase. Anomaly: As the case moves along, the certainty of conviction increases. Why Attrition occurs Legal Judgments (evidence problems: 1. insufficient 2. uncooperative witnesses/victims) Policy Priorities: Prosecutors/police tend to stress those offenders posing _________________ societal threat (e.g., tiny marijuana possession)

68 Substantive Assessments: defendants with __________ record or determined not to be a real threat (e.g., old drunken man, stumbles into liquor store waving toy gun demanding whiskey: technically armed robbery).

69 Trial Courts: Bargaining and Sentencing in Criminal CourtsChapter 9 Trial Courts: Bargaining and Sentencing in Criminal Courts Most criminal cases do not result in a trial, so this chapter focuses on the realities of plea bargaining, imprisonment and punishment. The “Courtroom _________ Group” Typically, courtrooms appear disorganized and loud. Yet, behind it all, there is a judicial machine at work. Courthouse ______________ (judges, prosecutors, defense attorneys) share workspace and goals (dispose of cases). They are stable actors, unlike defendants who come and go. Triangle of Interdependence Judges need prosecutors and defense attorneys reach plea bargains (goal=dispose of cases). Prosecutors need _____________ attorneys to persuade defendants that pleading guilty is best and judges to accept those pleas (goal=% of defendants convicted)

70 Defense attorneys need prosecutors to not pursue or give harsh sentences (goal=______________ penalties). The machine – no two crimes/cases are identical, but tend to fall within developed categories. Once placed into the category, tend to follow a preset process and outcome quickly. Plea Bargaining Guilty pleas ____________________ trials 5:1 (federal) and 10:1 (state/local). Most of these are plea bargains (process by which defendant pleas guilty expecting consideration by government. Types of Plea Agreements ____________ bargaining – pleads guilty to less serious charge (robbery instead of armed robbery). Often reflect weakness of prosecutors case on serious charge. _____________ bargaining – pleads guilty to one or some, but not all of the counts. Prosecutor dismisses other counts and charges. _________________ bargaining (most common) – based on promise of a specific sentence.

71 Bargaining Process – what influences results?Seriousness of offense (more serious, less flexible is the prosecutor) Criminal record (longer the record, __________ flexible) Strength of prosecutors case (stronger the evidence, less flexible) Why cases go to trial: Two major factors ____________ of prosecutor’s case (defendant may determine that chance of acquittal is sufficiently high) ____________ of the penalty on conviction (defendant may determine that the bargained penalty is too severe, better to risk a trial) D. The Courtroom Work Group labels defendants who choose trial as “irrational” when the state has a ___________ case Means that some cases more likely to go to trial. Which ones? Property offense less likely (state probably has compelling evidence; sentence not long) Serious crimes more likely (inflexible prosecutors;

72 defendants willing to risk it given penalty)Plea Bargaining and the Courtroom Work Group Plea bargaining is not so much a result of the size of courtroom dockets, but prosecutorial discretion. That is, plea bargaining is simply a result of the nature of the Courtroom Work Group interactions and interdependence; not a result of too _________ cases. Presumption of Factual Guilt – remember, after initial stages, there is a ________________ of guilt (they were unable to get their case dismissed early Costs and Risks of Trial – no one in the group likes trials. They are too costly (judge, bailiff, clerk, paid witnesses, attorneys, security, victims, jurors, utilities) and too risky (no one likes _______________). Plea bargaining may be a result of the work group’s assessment that the legal penalties do not really match the defendant’s ____________ to society (provides flexibility) Plea bargaining does in fact produce lighter sentences. “He takes my time, I’ll take ________.”

73 Copping a Plea ___________________ is one option where the judge accepts a plea “I will not contest it.” Defendant gets immunity from any __________ cases related to crime. Plea of guilty means more than admission; it also results in waiving rights during court process (presumption of innocence, jury trial, confrontation of witnesses). Judge makes sure (perhaps through written questionnaire) of defendants ______________________. SC has ruled that defendants may be able to withdraw guilty plea, especially if agreements change during ____________ (new prosecutor). Debate: Abolish Plea Bargaining? Proponents argue that it occurs when state case is _____________; opponents say opposite. Proponents argue that it reflects rational defense attorney (imminent trial); opponents argue it reflects a stacked deck (institutional and information ______________ against defendant).

74 Sentencing Structures20th century = great flexibility (legislature established many options; courts given extensive discretion; __________ boards, under the executive branch, had great flexibility to determine length of term). All motivated by goals of ________________________. 21st century = legislatures have established harsher and less flexible sentencing rules. Court and parole board discretion has been sharply ____________. Legislative Sentencing – 1990s, began limiting judicial discretion via sentencing guidelines, mandatory minimums. Also began either limiting parole board discretions or, in some cases, removed option of early ________________. Judicial Sentencing – flexible historically with goal of individualizing cases (type of punishment made to fit criminal). Any potential problems here? Recently, critics have won the battle and pushed for _____________ ranges of sentencing options/lengths. Executive sentencing – Parole (governors, correction officials, and parole boards determine early release)

75 Parole is the conditioned release of an inmate (supervised by parole officers; return to prison of conditions are violated). Most states have “good time” awards or days off term built up for good behavior. _______________ – institutional order and overcrowding. Several states have begun ______________ parole board discretion and the potential for early release. Forms of Punishment – from stocks, flogging, exile, and branding to only imprisonment, _____________, fines, and death. 6.5m adults in correctional supervision. (Fig 6-2, 295) Imprisonment – 1.4m inmates. Grown since 80s. 1. Overcrowding – biggest problem. State = 15.5% over capacity; Federal = 31% more than buildings originally were designed to hold. 2. Prison conditions – 1970s, courts began finding that prison conditions violated __th amendment (cruel and unusual). Rule that entire systems of 9 states unconstitutional. This has changed a bit over last 15 years. Court has now required proof of “a deliberate

76 indifference” and Congress ended federal court supervision of state prisons in __________.3. Costs – 500-cell prison costs $337m over 30 years; $20-25,000 per inmate for a year. Probation – granted to ___% of offenders; 4m on probation (doubled since 1980s). Designed to control offender without _________________. Conditions: keep job, support family, report to officer. Justified on 2 grounds: prison inappropriate for some defendants; less expensive. Fines – oldest and most used punishment. Generate $1b annually for local gov’ts. Often use in combination with other ________________. Death Penalty The Death Penalty Since 1920, average annual executions in U.S. dropped from ______ to 21 in early 60s. Debate: Opponents say it is morally wrong for state to take life, not a deterrent, discriminatory.

77 Supporters argue that it is just retribution (eye for an eye), does deter, and discrimination is a separate issue. 8th Amendment Standards: DP cruel and unusual? In Furman v. GA (1972) ruled that state were administering it unconstitutionally. Afterwards, ____ states enacted new legislation to comply and eventually, SC reversed decision with a few stipulations: Death Penalties cannot be mandatory. Death Penalty cases must be ____________ (i.e., sentencing phase separate from trial phase). Recently (2005), court raised minimum age to ____ and declared DP for mentally ill unconstitutional Partly due to its popularity, 38 states have the DP and sufficiently addressed SC guidelines and ____% of pop is covered. B. Death-Row Inmates – _______ on death row, mostly from the South, then West % male, majority white, without high school diploma (___%), prior felony conviction (2 out of 3), disproportionately

78 minority (43%), median age 38.Since reinstated in early 70s, 683 executions in 31 states (7 in MS); there have been over _________ sentences of death since then, ½ of these in two states, well over 500,000 murders reported 94% of those sentenced to death since 1976 have evaded it, average time before death sentence carried out=12 years. ______ have had death sentences vacated or commuted by governor. Overwhelmingly, murder convictions do not result in death penalty. Average time served for murder=8.5 years. Fairness of Sentencing Sentencing Discrimination – exists when outcomes associated with illegitimate attributes. There is ___________ evidence that racial minorities are sentenced more severely or are more likely to be sentenced. Legal factors more important than race. Conclusions from studies: no racial bias in death sentences and little evidence of overt _____________ against African-Americans in noncapital sentences.

79 Sentencing disparities – divergence in sentence length imposed for same crime without clear reasons.Geography – it matters where you are sentenced (South __________; ____% of executions there; Urban courts more likely to issue probation than rural). Judge – it matters who sentences you (study shows that Fed. DC judges appointed by Dems more likely to decide for defendant. Northern judges more ____________ of defendant concerns). Increasing Consistency: justification has been to make sentencing ______________ and uniform (remove judicial discretion) is good because it removes bias and undue leniency. Sentencing guidelines have been introduced in at least ____ states (others pending). Congress also moved in this direction in 1987. Two kinds (overall, associated with more severity): Voluntary: nonmandatory norms of using previous sentencing patterns to determine present ones. Judges don’t tend to abide by these. _____________: require judges (via legislation) to follow

80 Guidelines or mandatory ____________ when considering sentence (no discretion). Judges do abide by these (see Table 9-3, 309). Increasing Severity of Penalties - Public wants it, legislators providing it (why, for deterrence). Example: Truth in Sentencing Laws (must serve ___% of term). ____________ by Discretion – evidence suggests that sentencing mandates have not removed __________ but only relocated to prosecutors, police, and judges. May increase __________, but actually reduces probability of getting punished. More severe, less likely imposed. 2. Side effects: costs (longer sentences, more trials, pressure to plea bargain)