Lecture 2 SOW 769

The Criminal Justice System

In addition to studying the question of how much laws reflect social conflict or
consensus, sociologists want to know how and with what success the formal structure set
up to implement the law operates. The organizations and procedures that are provided to
enforce the law (or to do something about behaviour defined as a public problem) vary
with the behaviour in question. Mental illness, for example, is dealt with formally
through a mental health or lunacy commission. This commission declares persons to be
mentally incompetent and consigns them to various organizations for treatment or
safekeeping, including state-up mental institutions. White-collar offenses, such as
restraint of trade, false advertising, environmental pollution, commercial and consumer
fraud, and fraudulent practice in professions are regulated by various state and federal
boards and commissions. But the heart of the formal control mechanism is the criminal
justice system. This administrative and judicial system consists of these major sectors: (1)
the police (or more generally, law enforcement officers, including agents of the Federal
Bureau of Investigation, the Treasury Department and other agencies); (2) the
prosecutor; (3) the courts, including (a) local misdemeanant courts for minor offenders,
(b) superior or district courts for felony cases, and (c) state and federal appellate and
supreme courts that hear appeals and decide questions of constitutionality; and (4)
correctional-treatment organizations and agencies, including prisons, delinquency
institutions, special treatment programs, and probation and parole offices.

The police serve as the principal gateway through which the suspected deviant is
funneled into the control apparatus. That gateway leads to a system of adjudication and
correction for adults charged with crime and a separate system for juveniles charged with
delinquency (and for neglected children). Figure 11.8 maps the major stapes through
which the adult and the juvenile are processed in the legal system.

The Formal Control Process For Adults Charged With Crimes

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Uses and Abuses of Discretion: At each stage of this processing system, discretion is
exercised as to whether a person should be kept in the system and moved along to the
next step or should be released. If everyone who violated legal norms were discovered,
reported, arrested, charged, given a jury trial, found guilty, and incarcerated, the criminal
justice system is overloaded – even though the mesh in the law enforcement sieve is wide
enough, and enough people are excluded, so that only a small fraction of the possible
load is handled. Of all major criminal offenses known to the police, less than 20 percent
are cleared by arrest (this percentage is much higher for infrequent offenses such as
murder), and of those persons arrested, less than 15 percent are actually imprisoned.

The exercise of discretion in acting against some and releasing other supposed deviants is
necessary for the functioning of the system. But the exercise of discretion may have
unintended consequences. Police discretion, for instance, sometimes leads in the direction
of unnecessary violence (Westley, 1953), unstable overreaction to crowd control (Stark,
1972b), corruption, discrimination on the basis of race and class, and other acts counter to
the rules of law and of due process (Chambliss and Seidman, 1971; Quinney, 1970;
Ferdinand and Luchterhand, 1970). Processes whereby these injustices come about are
detailed in what follows.

The prosecutor decides which cases will be tried and the charges on which a conviction
will be sought. He may engage in plea-bargaining negotiations with the defendant and
his or her lawyer to work out an arrangement whereby the prosecutor agrees to reduce or
reduce or dismiss certain charges in exchange for a plea of guilty by the defendant
(Newman, 1956; President’s Commission on Law Enforcement and Administration of
Justice, 1967 – popularly known as the Crime Commission). Many convictions are
obtained in this way, and about eight out of ten felony convictions are on guilty pleas
(negotiated and otherwise) before a judge, without a jury trial, presentation of evidence,
or a prosecution-defence confrontation. The aim of this whole proceeding sometimes
seems to be the attainment of bureaucratic efficiency in processing cases rather than the

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finding of truth and the assurance of justice. Further there may be social and racial bias in
the sentencing of those convicted (Bullock, 1961).

Thus, the practice of discretion may not only sacrifice legality for efficiency but may also
provide opportunities for the abuse of authority. Persons entrusted with legal authority
may allow their private prejudices and self-interest to influence how they use their
discretionary powers. Indeed, a major complaint of American minority communities is
that the police and the courts do not deal with impartially. Recent government reports
such as those compiled by the Kerner Commission, the Crime Commission, and the
Violence Commission have agreed that abuse of discretionary powers by police and
prosecutors is a serious problem (Stark, 1972b).

However, careful studies of the problem have revealed a somewhat complex picture. For
example, the police are much more prone to be violent toward some kind of crowds than
toward others. What have been called “police riots” are mainly directed at crowds
composed of kinds of persons whom the police regard as unconventional – blacks,
Chicanos, students, political dissenters. But the police do not riot even when faced with
comparatively unruly crowds made up of what the police regard as conventional persons
– delegates at fraternal conventions or celebrating sports fans (Stark, 1972b). However,
mass confrontations are relatively unusual events. In the course of routine circumstances,
studies have shown that the police do not frequently act on their prejudices. Thus, Albert
J. Reiss, Jr. (1968) found in his observational studies of the police force that the bigotry
freely and loudly expressed in the patrol car did not manifest itself in actual
discriminatory behaviour.

In practice the police seem to behave mainly in a routine fashion and so do the courts.
Both, according to recent studies, seem to decide what action to take mainly on the basis
of the seriousness of the offense with which a person is charged and his prior record.
When seriousness of offense is controlled there no longer appear to be interracial
differences in the length of sentences or the amount of fines imposed by the courts.

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But, many wonder, how can this be the case when blacks are disproportionately arrested
and sent to prison compared with whites? The answer is that the effects of racism in this
society operate so that blacks have a higher rate of involvement in serious crimes.
However, at the point where persons accused of crimes enter the criminal justice system,
racism seems to play a minimal role. Blacks and whites suspected of similarly serious
offenses ordinarily are treated similarly by the police, the prosecution, and the courts
(Terry, 1967). Undeniably, political motives sometimes do influence the criminal justice
system. Prosecutors of one political party do from time to time press flimsy cases against
officeholders of the other political party. And periodically the courts have been used to
harass political dissenters.

Correctional Organizations: After the court has judged an adult guilty of a crime or a
juvenile to be a delinquent, he or she is legally sanctioned by sentencing to a specific type
of correctional programe. The judge may place the adult on probation; that is, he serves
his sentence while remaining in the community under the supervision of a probation
officer. If the offense s a misdemeanor, the sentence may be served in the county jail (or
some substitute, such as county farm or an alcoholic treatment centre). If the offense is a
felony, the person may be committed ot a prison (or some substitute, such as a prison
camp or training center). Once committed, few serve the maximum time of the sentence
in prison. Most are released earlier and serve the remainder of their sentences on parole –
that is, release back to the community under supervision of a parole officer. The
conditions of probation and parole may require residence in a half-way house or some
type of re-habilitation program in the community. The possibilities for the juvenile are
much the same, except that there is a wider range of options before commitment to an
institution and a wider range of correctional facilities available. (See Figure 11.8 for
some alternatives).

These correctional programs are supposed to protect society by restraining

convicted people from additional law violations and by preventing them from repeating
their deviant behaviours in the future. this protection of society is supposed to be

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accomplished through maintaining the convicted person in custody and punishing him for
his transgressions or rehabilitating (resocializing) him (see Chapter 10). The philosophy
of rehabilitation is a latter-day imposition on the older philosophy of punishment, and
both philosophies exist today in an uneasy and contradictory mixture within the criminal
justice system. Prisons, with their attendant custodial regimentation and deprivations,
built to serve punishment aims, are now the site of such treatment programs as education,
training, work-release, and counseling. Special treatment facilities erected to carry out the
rehabilitation ideal are also charged with maintaining secure custody over their inmates.
The juvenile court system and special institutions for delinquents were intended to be
rehabilitative alternatives to the extant criminal court and prison system, but the juvenile
courts and rehabilitation institutions have practiced treatment virtually indistinguishable
from punishment (Platt, 1969).

Is the System Effective? The question is: Through the deterrence of punishment or
through rehabilitation, does the criminal justice system work to control deviance? The
answer is: Not very well. Although it is probably true that there would be more deviance
if no system at all existed, the current system seems to be doing less than an adequate job
of deterring or rehabilitating. In both the older-style custodial prison and the newer
treatment-oriented institutions there has evolved an adaptative inmate culture and social
system that does little to further the goal of making the inmate less likely to commit
crimes after release (Hazelrigg, 1969; Cressey, 1961). (See Chapter 10 for a discussion of
the formation of such subcultures). The rate of recidivism (the rate at which those who
have been imprisoned are reprehended for violations after release) is close to 50 percent
for many prison systems. Even the lowest recidivism rates – about 30 percent – recorded
for some prison systems (Glaser, 1964) leaves one skeptical about the effectiveness of
imprisonment in controlling deviance. The evidence is somewhat contradictory, but
research has yet to establish clearly that either certainty or severity of imprisonment
reduces the crime rate (Title, 1969; Chiricos and Waldo, 1970).

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 The success of special treatment and rehabilitation programs is not much more
impressive. These programs have been based on a variety of theoretical and practical
premises; they employ a spectrum of treatments ranging from individualized therapy to
group counselling. They have operated within the confines of a closed institution and
within residential and nonresidential facilities in the open community. Most of these
programs are more humane and are infused with more dignity and respect for the inmate
than is characteristic of the usual institutional regime. However, although some of these
programs show tentative signs of success, at this time none has been shown to be clearly
more effective in reducing recidivism than the traditional custodial programs
((Kassebaum et al., 1971; Empey and Lubeck, 1971; Lerman,1970). Likewise, programs
for special types of deviants, such as drug addicts, have not shown a record of success
(Glasscote et al., 1972).

Community-based programs as alternatives to incarceration, both public and

private, are proliferating. Many are residential and semi-residential programs in which
ex-convicts live together in the attempt to help one another reintegrate into conventional
society. The federal government has spent millions of dollars in recent years to
underwrite law enforcement and treatment programs to improve the criminal justice
system. Most of these newer efforts have not yet been evaluated, and how successful they
will be remains to be seen. But knowing the complexity of the problem and the history of
such attempts, the sociologist is bound to predict that progress will be slow and painful.

SUGGESTED READINGS

Cressey, Donald R., and David A. Ward (eds.). Delinquency, Crime and Social Process.
New York: Harper & Row, 1969.

Gibbons, Don C. Delinquent Behaviour. Englewood Cliffs, N.J.: Prentice-Hall, 1970.

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Glaser, Daniel. Social Deviance. Chicago: Markham, 1971.

Rushing, William A. (ed.) Deviant Behavour and Social Process. Chicago: Rand-
McNally, 1969.