ANSWER THE QUESTIONS FOR CHAPTER 7 AND 8 CHAPTER 7 and 8 READING BELOW No less than 7 10 lines long for chapter assigned CHAPTER must be discussed Required readings MUST BE used AND referred INCLUDED IN THE ANSWERS to the source Chapter 7 If selective incapacitation and gross incapacitation do not reduce serious crimes, what actions can be taken to decrease such crimes Is it necessarily CJ factors and answers that can help Are there other social institutions that can impact the crime rate How so While the text provides some examples, a fundamental question should surround how incarcerations impact families and communities Discussion should encompass personal responsibilities and economics Chapter 8 Determine if there are special courts that handle certain cases (i e , drug, domestic violence, mental health, etc) locally Determine if specialty units, even when faced with the evidence in the text, can provide more for the victim and or offender and provide support for their stance Debate the use of mental institutions or prisons jails as confinement facilities for those who have mental health issues Where do students believe those persons should carry out their criminal sentence Why As both banning plea bargains and reforming plea negotiations result in speed and efficiency of cases, which option is more fiscally responsible Support should be provided Given the finality of the death penalty, should those persons on death row be allowed to exhaust all possible appeals or should they be limited in the number of appeals to file support your opinion (e g , economics, time and effort of the courts, attempt to decrease frivolousness, the majority are guilty factually and legally, etc) If applicable, determine the state's stance on death row appeals Chapter 7 Lock 'Em Up Learning Objectives GETTING CRIMINALS OFF THE STREET Identify incarceration proposals as liberal or conservative List the incarceration strategies noted in the chapter Describe the events leading up to the two bail reform movements as well as the backlash resulting from them Compare and contrast the impact of the Washington D C preventive detention law with the Federal Bail Reform Act Defend the argument that defendants out on bail are not a danger to society Explain the role the prediction problem plays in preventive detention by discussing pretrial drug testing and the natural experiment Appraise the argument that speedy trial is a good way to reduce both crime on bail and FTAs THE PHILOSOPHY OF INCAPACITATION Define incapacitation and differentiate it from other goals of punishment Define and differentiate between the selective and gross incapacitation Explain the process used by Zedlewski to reach his conclusion that incarceration saves money Critique Zedlewski's findings regarding the cost savings from incarceration Identify the various costs of overimprisonment MANDATORY SENTENCING Define mandatory sentencing and provide specific examples of it THE NATION'S TOUGHEST DRUG LAW Describe the Rockefeller Drug Law and its purpose Discuss the immediate and long term impact of the law Explain how mandatory sentencing laws are affected by the criminal justice law of thermodynamics THE FEDERAL SENTENCING GUIDELINES Describe the impact of Federal Sentencing Guidelines and mandatory sentencing THREE STRIKESWE ARE ALL OUT Summarize three strikes sentencing laws and their related variations Discuss the extent with which states use their three strikes sentencing laws Defend the argument that three strikes laws are ineffective at reducing serious crime JUST KEEP THEM AWAY FROM US SEX REGISTRATION AND NOTIFICATION LAWS Describe Megan's law, the rationale for it and the impact that it has had Discuss the reoffending rate of sex offenders and why registration and notification laws do not protect society Discuss the problems associated with the current registration and notification requirements Outline GETTING CRIMINALS OFF THE STREET In 2009, the harsh and punitive sentences that fell under New York's 1973 Rockefeller Drug Law, which served as the model for similar sentences in the U S, were either eliminated or scaled back The incarceration of offenders has been argues by conservatives as an effective policy in reducing crime, while liberals have posited that the practice has resulted in various consequences (e g , costs, fund diversion, racial disparities, and prison overcrowding) Locking up offenders and keeping them locked up is a main conservative crime control strategy Lock 'em up proposals include preventive detention, incapacitation and mandatory sentencing These strategies seek to limit the discretion of judges, because they are too lenient and American policies encourage not locking people up Preventive Detention Conservatives believe people on bail commit a lot of crime Preventive detention raises the constitutional question of whether the Eighth Amendment prohibits detention for the purpose of preventing crime and the empirical question of whether preventive detention will reduce serious crime In United States v Salerno (1984) the Supreme Court ruled there is no right to bail and preventive detention is legitimate A Short History of Bail Reform Preventive detention is a backlash against the first bail reform movement of the 1960s that found defendants who could not afford bail were more like to be convicted and imprisoned Current data support earlier findings that pretrial detention increases the likelihood that one will be convicted of a felony and incarcerated In order to correct these problems bail reform in the form of release on recognizance (ROR) was directed by federal and adopted by state courts Bail reform reduced the percentage of people in jail awaiting trial, but did not eliminate discrimination against the unemployed or the practice of keeping defendants in jail by setting high bail Seriousness and prior record influence pretrial decisions The bail reform movement coincided with the rise in serious crime between the sixties and seventies and led conservatives to argue bail reform contributed to the rising crime rate A backlash involved publicly supported preventive detention laws An Early Test Preventive Detention in Washington, D C In 1970 a D C law allowed a judge to hold a defendant charged with a violent or dangerous crime for 60 days if they had been convicted of a crime in the last 10 years, a narcotics addict or on pretrial release, probation or parole The law was hardly ever used Federal prosecutors exercised their discretion not to use the law because they continued to set high bail as a method of pretrial detention The practice of setting high bail for purposes of detention continues today The 1984 Federal Bail Reform Act This act allowed judges to detain a defendant without bail to assure the safety of the community and its extensive use has increased the number of detained defendants, especially for drug offenses The overall detention rate did not increase, because the law gave judges the legal authority to do what they had previously done covertly None of the studies has evaluated the impact of preventive detention on overall crime rates, but only a small percentage of defendants were rearrested on bail both before and after the Federal Bail Reform Act Crime on Bail Myths and Realities Defendants on bail can fail by failing to appear at a scheduled court hearing (FTA) or by committing a crime Defendants on bail do not commit that much crime Few defendants intentionally flee and become fugitives from justice The Prediction Problem Revisited The point of preventive detention is to detain only those defendants likely to commit crime on bail Predicting Dangerousness Pretrial Drug Testing People believe testing arrestees for drug use would be a reliable method of predicting the likelihood they will commit a crime on bail, but pretrial drug testing did not predict rearrests, except for heroin use Cocaine use was a predictor of FTAs the best predictor of rearrest was the number of prior arrests A Natural Experiment A New York law authorizing preventive detention of juveniles who posed a serious risk produced a natural experiment, because an appeal later found the law to be unconstitutional Judges ordered some juveniles detained which allowed for an examination of the accuracy of their predictions Judges were reasonably accurate in their predictions (excluding predicting violent behavior), but had a high rate of false positives The goal of policy reform is to make marginal improvement, but the use of an actuarial method for making preventive detention decisions would have translated to five false positives for every true positive This led Fagan and Guggenheim to conclude the accuracy of prediction remains questionable and preventive detention is unjustified due its costs and limited marginal gains Proposition 20 Preventive detention will not reduce serious crime Speedy Trial A Better Way Speedy trial is a good way to prevent crime on bail and FTA because many rearrests occur within a short time following pretrial release Unfortunately, speedy trial laws have been evaded by courtroom work groups Proposition 21 Speedy trials can reduce crime while preserving constitutional rights THE PHILOSOPHY OF INCAPACITATION Incapacitation seeks to reduce crime by keeping offenders off the street, without trying to deter or rehabilitate them Selective incapacitation is designed to lock up only the few high rate offenders or career criminals Gross incapacitation involves locking up large numbers of offenders regardless of their criminal histories Selective Incapacitation The Rand Formula Selective incapacitation was hot in the 1970s and 1980s In a 1982 study by Peter Greenwood and Rand, it was estimated that a selective incapacitation strategy could reduce crime while reducing the prison population The Rand sentencing proposal was based on the Rand Inmate Survey (RIS) which estimated controversial annual offending rates The Rand system suffered from the prediction problem as well as the problem of estimating annual offending rates because averages are inflated by extremely high rates for the worst offenders The Rand prediction scale used employment history as a criterion for sentencing with as much weight as a prior conviction The political obstacle facing Rand was that the idea of not imprisoning low risk and medium risk offenders was what corrections experts were advocating as far back as the 1960s Proposition 22 Selective Incapacitation is not a realistic strategy for reducing serious crime Gross Incapacitation Zedlewski's New Math Selective incapacitation has been ignored and gross incapacitation has been adopted and is the main reason the prison population has soared Zedlewski reported that for every dollar spent on prison $17 is saved in social costs, although his methodology was seriously flawed by using one of the highest estimates of 187 crimes per year, thus deliberately misrepresenting the facts He did not account for the problem of diminishing returns where locking people up skims off high rate offenders, leads to incarceration of less serious offenders and gives us lower returns in crime reduction and dollar savings His estimate of dollar savings is flawed because a reduction in crime does not produce a direct reduction in CJS costs The most devastating attack were his estimates of crime reduction using the highest average offending rates means crime would have been eliminated Offenders don't average 187 crimes a year and while some offenders are incarcerated, others replace them (known as the replacement factor) Incapacitation A Sober Estimate Zimring and Hawkins used a sophisticated model to conclude that each incarceration prevented 3 5 crimes per year in CA Locking up 115,000 people would reduce the crime rate by 15 Zimring and Hawkins concluded it was not clear that incapacitation was the primary cause of the drop in crime, due to some unexpected data trends A cross state comparison of changes in incarceration rates and crime rates showed no clear patterned relationship Crime declined in the 1990s, but we've been on an imprisonment binge for 25 years You can't claim success for a prescription that failed for 19 years and then suddenly appeared to work in the twentieth year Proposition 23 Gross incapacitation does not reduce serious crime Collateral Damage The Cost of Overimprisonment Prison overcrowding Directly contributes to the resource crisis Inability to Provide Treatment Alternatives Imprisonment diverts funds from drug courts and other treatment initiatives that are more effective High Prison Medical Expenses Longer terms, overcrowding and risky behaviors in prison result in various medical expenses associated with elderly inmates, communicable diseases, HIV and Hepatitis C Crowding Out Other Social Needs Mass imprisonment has diverted funds from education Between 1987 2007, states increased spending on prison 127 , while spending on education increased only 21 Racial and Ethnic Discrimination People of color represent two thirds of the prisoners serving life sentences, and 90 of the NY inmates convicted under the Rockefeller Drug laws Destructive Social Effects Gross incapacitation impacts families (e g , child support), communities and democracy itself (e g , the right to vote) MANDATORY SENTENCING All states had some form of mandatory sentence by 1994 that typically apply to certain offenses Leading conservative crime control strategy and is operationalized in two ways mandatory imprisonment fo certain crimes and mandatory minimums prison sentences Its popularity can be explained by the celebrated case syndrome THE NATION'S TOUGHEST DRUG LAW 1973 New York law (known as the Rockefeller Drug Law) was designed to incapacitate and deter future use through mandatory and long prison terms, restrictions on plea bargaining and mandatory prison terms Three categories of offenders were major, middle level and minor dealers The law attempted to prevent the abuse of plea bargaining Enormous slippage or leakage occurred between arrest and conviction that actually resulted in decreased indictment and conviction rates The law did not completely fail in its objectives for those convicted, the rate of incarceration increased, however almost half evaded mandatory sentencing provisions The slippage or leakage is explained by the CJ law of thermodynamics An increase in the severity of the potential punishment results in pressure to avoid its actual application Much slippage involved CJ officials adapting to the harsh terms of the law Slippage can also occur after sentencing as more offenders sentenced for longer terms results in overcrowding and the response is to release prisoners early Finally, the law had no significant effect on crime or drug use The Long Term Impact and the 2009 Reform Rockefeller Drug laws resulted in a dramatic increase in the number of people sent to prison on drug charges primarily impacting lower level offenders, minorities, and resulting in prison overcrowding The 2009 reform reduced the penalties Eliminating mandatory sentences for lower level drug offenses Expanding treatment and alternative options to incarceration Allowed for resentencing of some currently imprisoned offenders THE FEDERAL SENTENCING GUIDELINES Implemented in 1987, the guidelines included several mandatory sentencing provisions that have contributed to the increase in the federal prison population There is mixed evidence on the compliance of prosecutors and judges Less than half of offenders eligible for mandatory minimums are receiving them and defendants are allowed to avoid them through plea bargaining Through prosecutorial discretion mandatory sentences are not necessarily mandatory in practice which makes them more arbitrary The Growth of Life Sentences By 2008, 1 in 11 inmates were serving a life term The harsher sentences encourage prosecutorial discretion to avoid them Public pressure for getting tough has affected pardons and commutations for those ith life sentences Life terms are disproportionate to the risk of reoffending recidivism decreases with age Life terms aggravate the costs of dealing with elderly inmates Mandatory Sentencing and Crime 1996 report found no correlation between incarceration rates and crime rates Proposition 24 Mandatory sentencing is not an effective means of reducing serious crime THREE STRIKESWE ARE ALL OUT Three strikes is the most popular idea in mandatory sentencing it generally calls for a mandatory life prison sentence for anyone convicted of a third felony State laws vary considerable in terms of strikable offenses and second strikes The idea has been almost universally condemned by criminologists and other sentencing experts It is criticized for not focusing on serious repeat offenders It is actually not new as most states had repeat offender laws for decades, though they were rarely used Implementation Besides CA and GA states have not used their three strikes laws, so they have become plea bargaining tools Impact on Crime CA law was more punitive and far reaching as it applied for any felony The law sent a lot of people to prison for long terms, but did not send as many as had been expected because it was not implemented in most counties The law weighed most heavily on less serious non violent offenses and compounded racial disparities as more African Americans received it The law did not produce a reduction in crime and would have only had a modest impact if it was fully implemented Summary Striking Out Classic example of overreaction to celebrated case Crude policy that sweeps nondangerous criminals rather than a precise instrument that locks up dangerous repeat offenders Laws are not consistently implemented so they are arbitrary They upset the going rate and impose new costs on the CJS There is no clear evidence that these laws will reduce serious crime Old repeat offender laws failed to distinguish among seriousness (gravity), repetitiveness (prior record or criminal career), intensity (rate of annual offending), and dangerousness (assessment of harm the offender might do in the community) Proposition 25 Three strikes and you're out laws are a terrible crime policy JUST KEEP THEM AWAY FROM US SEX REGISTRATION AND NOTIFICATION LAWS All 50 states have Megan's Laws designed to control sex offenders through registration and community notification An expansion of the categories of sex offenders required to register was established with the Adam Walsh Act of 2006 Advocates believe sex offenders pose a high risk of reoffending and registration will assist law enforcement in surveillance and arrest and notification will allow residents to take protective measures Less than one third of sex offenders recidivate, demonstrating that reoffending by sex offenders is greatly exaggerated Research shows parolees convicted of rape have lower rearrest rates than for all felons combined as well as lower than robbers and burglars Data suggests registration and notification do not protect the public from the real potential offenders, given the majority of victims know their offender The Celebrated Case Syndrome Again There are a number of problems that exist with current registration and notification laws for sex offenders Overbreadth The laws cover a vast amount of persons who are not truly dangerous offenders (e g , public order offenses, consensual sex, prostitution, and childish pranks, such as playing doctor) additionally there is overbreadth in the amount of time people are required to register with 17 states requiring lifetime registration Residency Restrictions The restrictions limit where sex offenders can live and are considered the harshest and most arbitrary Enforcement Problems Given the overbreadth, law enforcement cannot keep track of all sex offenders The restrictions drive the offenders underground and separate offenders from family Notification hinders the readjustment to society (e g , difficulty finding housing and employment, generating threats and harassment, and creating an atmosphere of social ostracism) Registration, restriction and notification interfere with effective treatment for sex offenders Failure to Protect Society Offenders are likely to recidivate if they travel far from their current living location Most offenders meet their victims through social networking sites, not as strangers on the street Are There Effective Treatment Programs Cognitive behavioral therapy (CBT) has shown promising, however its success depends on offender's cooperation Proposition 26 Sex offender registration, notification, and residency restrictions laws are not effective in preventing repeat sex crimes, and in certain respects inhibit effective control and treatment of offender CONCLUSION Lock 'em up strategies appear to be simple and effective but they are not simple in practice We can't precisely identify the small group of high rate offenders Gross incapacitation policies create problems for the CJS Because of such problems the courtroom work group tends to evade extremely punitive laws No conclusive evidence indicates locking people up will reduce crime It is not clear that even if they reduced crime that they would be worth the enormous financial investment Key Terms United States v Salerno A 1984 Supreme Court ruling that there is no right to bail and that preventive detention is a legitimate regulatory measure ROR An innovative bail reform measure which allowed a defendant to be released without any financial consideration Incapacitation A crime policy that seeks to reduce crime by keeping criminals off the street without trying to rehabilitate or deter them Selective Incapacitation Is designed to lock up only the few high rate offenders or career criminals Gross Incapacitation Involves locking up large numbers of offenders regardless of their criminal histories Average Annual Offending Rate The rate at which an average offender (or high rate offender) commits in a given year Mandatory Sentencing An incapacitation strategy that takes the form of mandatory imprisonment for a certain crime and or a mandatory minimum prison term Slippage or Leakage A process explained by the criminal justice law of thermodynamics where CJ professionals evade the implementation of a new law or policy that results in more people escaping conviction and punishment than was intended Three Strikes Is form of mandatory sentencing that generally calls for a mandatory life prison sentence for anyone convicted of a third felony, but many variations (such as second strike provisions) exist Megan's Law A federal law requiring sex offenders who are released to the community to register with state officials Chapter 8 Close the Loopholes Learning Objectives PROSECUTE THE CAREER CRIMINALS Compare and contrast horizontal and vertical prosecution Discuss the research findings that compare special prosecution units and traditional prosecutions Describe the effects of the San Diego Major Violator Unit and explain why these effects occurred Defend the argument that special prosecution units do not result in any better or worse results than traditional prosecutions ABOLISH THE INSANITY DEFENSE Explain how the Hinckley case distorted public opinion about the insanity defense Defend the argument that defendants who successfully use the insanity defense are not beating the rap Explain the dangerousness of the criminally insane Evaluate the use and effectiveness and impact of the insanity defense, specifically NGRI and GBMI Construct and defend an argument regarding abolishing the insanity defense that includes the important role of mens rea ABOLISH OR REFORM PLEA BARGAINING Differentiate between conservative and liberal views of plea bargaining Appraise the effects of Alaska's plea bargaining ban Explain the plea bargaining reforms made in King County and its impact on overall case handling RESTRICT APPEALS List the ways in which appeals are thought to undermine criminal justice administration according to conservatives Explain the Habeus Corpus Act and the impact of the Fay v Noia decision on Habeus Corpus proceedings Defend the argument that limiting appeals will not reduce serious crime Outline PROSECUTE THE CAREER CRIMINALS Conservatives believe that many dangerous criminals beat the system and escape punishment through loopholes in the system To make sure dangerous criminals are punished, prosecutors have created major offender or career criminal prosecution programs Horizontal prosecution passes a case along from one prosecutor group of prosecutors to another prosecutor group of prosecutors as the case makes its way from initial filing and arraignment to trial and plea bargaining Vertical prosecution involves one prosecutor throughout the trial process (charges, trial plea bargains) and has a number of advantages Close involvement from start to end allows for inclusion of all relevant details Due to involvement in the case and with victims, there is less likelihood of negotiating lesser charges Crime victims deal with only one prosecutor Prosecutor specializes in certain areas (e g , sex crimes, gun crimes) Continuity eliminates disparities Does a Special Prosecutorial Unit Make a Difference Comparing Two Cities Comparison research of one site with a special prosecutorial unit vertical prosecution (Kansas City, MO) and one without horizontal prosecution (Miami, FL) demonstrated that in both offices the strength of evidence and the likelihood of conviction shaped decisions no loophole existed to allow for offenders to slip through and escape charges The San Diego Major Violator Unit The San Diego Major Violator Unit involved a program with continuity of prosecution targeting robbery and special cases of robbery related homicide The program also restricted charge bargains The program had only a modest impact on conviction rates and rates of inmates sentenced to prison, because prosecutors were already tough The program increased the percentage of convicted offenders sent to prison, because the category included split sentences Public misunderstanding about split sentences contributes to perceptions of the system as lenient, but offenders are not beating the system Length of incarceration increased during the program, but it was rising across the country so some increase would have occurred without it The evaluation did not measure the impact of the program on the crime rate, but small changes in conviction and incarceration suggest minimal impact The overall findings on prosecution of career criminals demonstrate The CJS is tough on repeat offenders The patterns of prosecution and sentencing show the going rate agreed by the local courtroom workgroup Proposition 27 Special prosecution units do not produce either higher conviction rates or lower crime rates ABOLISH THE INSANITY DEFENSE John W Hinckley Hinckley's acquittal in the attempted assassination of President Ronald Reagan in 1981 sparked a national outcry and changes in laws on the insanity defense People were outraged over Hinckley's verdict of not guilty by reason of insanity which made people think guilty people beat the rap and get off due to technicalities, though Hinckley was and remains institutionalized In one public opinion survey 87 of respondents felt the insanity defense was a loophole and 40 called it a rich person's defense The conservative response is to close the loophole and there are six ways to do so abolish the insanity defense, change the test of insanity, shift the burden of proof to the defendant, create new guilty but mentally ill verdict, revise trial procedure for raising an insanity plea, changing procedures for committing a person found NGRI Sorting Out the Issues The issues include the extent the insanity defense is used, the fate of those who win acquittal, predicting dangerousness and the effect of abolishing the insanity defense The Reality of the Insanity Defense The insanity defense is very rarely used successfully (less than 1 of all indictments) though polls have found that people believed 40 of all criminal defendants use it and half of them wanted it abolished Therefore, closing the loophole would not impact crime and it wouldn't impact robbery and burglary since the defense is most often raised in murder cases Successful use of the insanity defense occurs in as a result of plea bargaining or stipulated finding agreed to by the courtroom workgroup Another myth about the insanity defense is that dangerous people use it those who do use the insanity defense have serious mental health issues and slipped through many safety nets Aftermath of Acquittal Liberals claim people committed to mental institutions after winning NGRI verdicts spend more time in mental hospitals than they would have in prison Mentally ill people used to be hospitalized for years, but the case of Baxstrom v Herold (1966) necessitated procedures for continued confinement For all crimes except murder, persons hospitalized after being found NGRI still spend more time confined in hospitals than comparable offenders found guilty spend in prison A study attempting to determine whether defendants found incompetent to stand trial beat the rap found they spent an average of two years in prison prior to conviction the system is not turning dangerous psychotics loose Danger to the Community The forced release of criminal defendants created a natural experiment testing the dangerousness of the criminally insane A total of 14 5 appeared to be dangerous and recidivism rates for persons acquitted by reason of insanity was no greater than of felons This data translates into six false positives for each true positive, so prediction is still a problem The Impact of Abolition Abolishing the insanity defense presents complex legal problems around the issue of innocent until proven guilty, guilty beyond a reasonable doubt and the establishment of actus reus, mens rea and a connection between the two The key issue with the insanity defense is the different degrees of intent Some people are recognized as lacking full criminal intent because they do not understand what they are doing M'Naughton case established the right wrong test in 1843 and alternatives such as the irresistible impulse test have been created since then Attempts to abolish the insanity defense could be interpreted to mean an abolishment of the mens rea requirement and degrees of crime States that have tried to abolish the insanity defense have created laws that were later declared unconstitutional under due process clauses of the states A limited interpretation might result in an affirmative defense of not guilty by reason of insanity rather than an ordinary defense It is hard to say what would happen if insanity were abolished as an affirmative defense, because few states have done it and there are so few cases, but the underlying issues would likely reappear in a different form The flaws of GBMI are that it strikes indirectly at the mens rea requirement, creates a lesser and included offense that might be a compromise and does not guarantee treatment for the person declared mentally ill Prisons and jails cannot handle current inmates with mental problems, so GBMI may find themselves in a cycle of deteriorated mental health in prison and improved health upon transfer to a mental hospital GMBI is a bogus reform because it involves people who would have been found guilty, not defendants who would have been found NGRI Evaluation of another state's GBMI law found to reduction in insanity pleas, more confused jurors and offenders receiving GBMI placed on probation rather than receiving medical treatment Proposition 28 Abolishing or limiting the insanity defense will have no impact on serious crime ABOLISH OR REFORM PLEA BARGAINING Plea bargaining is disliked by all as conservatives see it as a loophole and liberals feel it is a source of injustice as some people get better deals and defense attorneys do not fight for their clients In 2004, 97 of felony cases in large urban counties were settled by guilty plea Comparative analysis between the U S and European countries conclude that unchecked prosecutorial discretion is a distinct feature of the U S CJS Efforts to eliminate issues with plea bargain fall into two categories abolish or reform Abolishing Plea Bargaining Alaska Tries The most celebrated attempt to abolish plea bargaining attacked it by forbidding sentence and charge bargaining and establishing procedures for plea negotiations The traditional defense that plea bargaining is an essential tool to handle heavy caseloads proved to be false The prediction that discretion would simply shift also did not occur as the rate of dismissals remained high before and after the ban Cases actually moved through the courts faster because there was less to negotiate The most significant result was that the ban had no impact on defendants charged with serious crimes or with substantial criminal records because dangerous offenders had not been beating the system beforehand The ban did produce more severe sentences in less serious cases which is known as the bait and switch No evaluation addressed whether the plea bargaining ban affected the crime rate, but since it has no real affect on case disposition, it likely did not Reforming Plea Bargaining in King County, Washington King County, WA, uses a more structured process for handling cases, with clear rules for plea negotiations and higher levels of supervision A horizontal approach to prosecution is used in which cases are first handled by the Charging Unit and then passed to the Early Plea Unit (EPU) cases not settled though a guilty plea are then handled by the Trial Unit Regulations maintain that plea bargains must go through the EPU or they are not accepted cannot occur at trial, and must be in writing The net result was a high level of consistency in case processing 70 of cases were settled by EPU, the courtroom workgroup worked together for appropriateness of charges, and a conservative charging policy was in place Adaptations did occur due to long standing personal relationships among courtroom workgroup members The more formal process in place in King County did not result in significant changes in case handling, although greater efficiency and openness occurred due to rules being known and increased supervision enhanced case consistency In Search of Plea Bargains Plea bargaining is a phantom loophole it survives due to the CJ wedding cake and the shared norm of proportionality held by the courtroom work group Proposition 29 Abolishing plea bargaining will not reduce serious crime RESTRICT APPEALS Conservatives believe post conviction appeals undermine CJS by allowing offenders to escape punishment all together or to have final resolution delayed which undermines the deterrent effect additionally, appeals turn the criminal process into a game There are many possible avenues for appeal that are seemingly endless Limiting Appeals 1981 Attorney General's Task Force on Violent Crime recommended a three year statute of limitations on habeas corpus petitions and a prohibition on federal courts' holding evidentiary hearings Habeas Corpus Act of 1679 is a device to challenge the detention of a person taken into custody In Fay v Noia (1963) the Supreme Court expanded the ability of an offender convicted in a state court to obtain a rehearing in federal court The Reality of Postconviction Appeals Postconviction appeals play a minor role in the administration of justice as only 1 of them succeed A study on whether offenders abuse the right to appeal found that the equivalent of only 1 4 of offenders filed habeas corpus petitions, which is because most convictions are obtained through plea bargains The workload of the courts has been exaggerated when in reality appeals represented only 4 of civil case filings in U S District Courts An exception to the rule includes people on death row who exhaust every possible appeal and should because mistakes happen Another exception involves writ writers or file innumerable appeals in federal court challenging their conviction or prison conditions, but these individuals are a tiny proportion of all inmates since few succeed their impact on the crime rate would be negligible Appeals do not delay finality and undermine the deterrent effect, because appeals are filed in few cases and could not have broad impact besides, many factors affect the deterrent effect so appeals are only a minor factor Proposition 30 Limiting habeas corpus appeals of criminal convictions will have no effect on serious crime Conclusion Closing loopholes will not reduce serious crime, because loopholes do not exist The idea that criminals beat the system through the insanity defense, plea bargains, and appeals is a perception based on a small number of unrepresentative celebrated cases Te justice system is fairly harsh with serious offenders who have been arrested Key Terms Major Offender Prosecution Programs A prosecution program that focuses special attention on career criminals to make sure they are prosecuted, convicted and incarcerated Split Sentences A sentence where the offender does some time in jail followed by a release on probation Actus Reus The fact that the accused committed the act that must be established by the prosecution in order to prove guilt this must be connected to mens rea Mens Rea The fact that the accused had criminal intent that must be established by the prosecution in order to prove guilt this must be connected with the actus reus M'Naughton Rule The right wrong test of insanity To prove insanity it must be demonstrated that the accused did not know the difference between right and wrong Affirmative Defense Says that the accused killed the victim and intended to but s he does not have criminal responsibility for the act because of the defense they are using Ordinary Defense At attempt to show that the prosecution has failed to connect the accused with the crime

Question

ANSWER THE QUESTIONS FOR CHAPTER 7 AND 8 CHAPTER 7 and 8 READING BELOW  No less than 7 10 lines long for chapter assigned  CHAPTER must be discussed  Required readings MUST BE used AND referred INCLUDED IN THE ANSWERS to the source Chapter 7 If selective incapacitation and gross incapacitation do not reduce serious crimes, what actions can be taken to decrease such crimes  Is it necessarily CJ factors and answers that can help  Are there other social institutions that can impact the crime rate  How so  While the text provides some examples, a fundamental question should surround how incarcerations impact families and communities  Discussion should encompass personal responsibilities and economics  Chapter 8 Determine if there are special courts that handle certain cases (i e , drug, domestic violence, mental health, etc) locally  Determine if specialty units, even when faced with the evidence in the text, can provide more for the victim and or offender and provide support for their stance  Debate the use of mental institutions or prisons jails as confinement facilities for those who have mental health issues  Where do students believe those persons should carry out their criminal sentence  Why  As both banning plea bargains and reforming plea negotiations result in speed and efficiency of cases, which option is more fiscally responsible  Support should be provided  Given the finality of the death penalty, should those persons on death row be allowed to exhaust all possible appeals or should they be limited in the number of appeals to file  support your opinion (e g , economics, time and effort of the courts, attempt to decrease frivolousness, the majority are guilty   factually and legally, etc)  If applicable, determine the state's stance on death row appeals  Chapter 7 Lock 'Em Up Learning Objectives GETTING CRIMINALS OFF THE STREET Identify incarceration proposals as liberal or conservative List the incarceration strategies noted in the chapter Describe the events leading up to the two bail reform movements as well as the backlash resulting from them Compare and contrast the impact of the Washington D C  preventive detention law with the Federal Bail Reform Act Defend the argument that defendants out on bail are not a danger to society Explain the role the prediction problem plays in preventive detention by discussing pretrial drug testing and the natural experiment Appraise the argument that speedy trial is a good way to reduce both crime on bail and FTAs THE PHILOSOPHY OF INCAPACITATION Define incapacitation and differentiate it from other goals of punishment Define and differentiate between the selective and gross incapacitation Explain the process used by Zedlewski to reach his conclusion that incarceration saves money Critique Zedlewski's findings regarding the cost savings from incarceration Identify the various costs of overimprisonment MANDATORY SENTENCING Define mandatory sentencing and provide specific examples of it   THE NATION'S TOUGHEST DRUG LAW  Describe the Rockefeller Drug Law and its purpose Discuss the immediate and long term impact of the law Explain how mandatory sentencing laws are affected by the criminal justice law of thermodynamics THE FEDERAL SENTENCING GUIDELINES Describe the impact of Federal Sentencing Guidelines and mandatory sentencing THREE STRIKESWE ARE ALL OUT Summarize three strikes sentencing laws and their related variations Discuss the extent with which states use their three strikes sentencing laws Defend the argument that three strikes laws are ineffective at reducing serious crime JUST KEEP THEM AWAY FROM US  SEX REGISTRATION AND NOTIFICATION LAWS Describe Megan's law, the rationale for it and the impact that it has had Discuss the reoffending rate of sex offenders and why registration and notification laws do not protect society Discuss the problems associated with the current registration and notification requirements Outline GETTING CRIMINALS OFF THE STREET In 2009, the harsh and punitive sentences that fell under New York's 1973 Rockefeller Drug Law, which served as the model for similar sentences in the U S, were either eliminated or scaled back The incarceration of offenders has been argues by conservatives as an effective policy in reducing crime, while liberals have posited that the practice has resulted in various consequences (e g , costs, fund diversion, racial disparities, and prison overcrowding) Locking up offenders and keeping them locked up is a main conservative crime control strategy  Lock 'em up  proposals include preventive detention, incapacitation and mandatory sentencing These strategies seek to limit the discretion of judges, because they are too lenient and American policies encourage not locking people up Preventive Detention Conservatives believe people on bail commit a lot of crime Preventive detention raises the constitutional question of whether the Eighth Amendment prohibits detention for the purpose of preventing crime and the empirical question of whether preventive detention will reduce serious crime In United States v  Salerno (1984) the Supreme Court ruled there is no right to bail and preventive detention is legitimate A Short History of Bail Reform Preventive detention is a backlash against the first bail reform movement of the 1960s that found defendants who could not afford bail were more like to be convicted and imprisoned Current data support earlier findings that pretrial detention increases the likelihood that one will be convicted of a felony and incarcerated In order to correct these problems bail reform in the form of release on recognizance (ROR) was directed by federal and adopted by state courts Bail reform reduced the percentage of people in jail awaiting trial, but did not eliminate discrimination against the unemployed or the practice of keeping defendants in jail by setting high bail Seriousness and prior record influence pretrial decisions The bail reform movement coincided with the rise in serious crime between the sixties and seventies and led conservatives to argue bail reform contributed to the rising crime rate A backlash involved publicly supported preventive detention laws An Early Test  Preventive Detention in Washington, D C  In 1970 a D C  law allowed a judge to hold a defendant charged with a violent or dangerous crime for 60 days if they had been convicted of a crime in the last 10 years, a narcotics addict or on pretrial release, probation or parole The law was hardly ever used Federal prosecutors exercised their discretion not to use the law because they continued to set high bail as a method of pretrial detention The practice of setting high bail for purposes of detention continues today The 1984 Federal Bail Reform Act This act allowed judges to detain a defendant without bail to assure the safety of the community and its extensive use has increased the number of detained defendants, especially for drug offenses The overall detention rate did not increase, because the law gave judges the legal authority to do what they had previously done covertly None of the studies has evaluated the impact of preventive detention on overall crime rates, but only a small percentage of defendants were rearrested on bail both before and after the Federal Bail Reform Act Crime on Bail  Myths and Realities Defendants on bail can fail by failing to appear at a scheduled court hearing (FTA) or by committing a crime Defendants on bail do not commit that much crime Few defendants intentionally flee and become fugitives from justice The Prediction Problem Revisited The point of preventive detention is to detain only those defendants likely to commit crime on bail Predicting Dangerousness  Pretrial Drug Testing People believe testing arrestees for drug use would be a reliable method of predicting the likelihood they will commit a crime on bail, but pretrial drug testing did not predict rearrests, except for heroin use Cocaine use was a predictor of FTAs  the best predictor of rearrest was the number of prior arrests A Natural Experiment A New York law authorizing preventive detention of juveniles who posed a  serious risk  produced a natural experiment, because an appeal later found the law to be unconstitutional Judges ordered some juveniles detained which allowed for an examination of the accuracy of their predictions Judges were reasonably accurate in their predictions (excluding predicting violent behavior), but had a high rate of false positives The goal of policy reform is to make marginal improvement, but the use of an actuarial method for making preventive detention decisions would have translated to five false positives for every true positive This led Fagan and Guggenheim to conclude the accuracy of prediction remains questionable and preventive detention is unjustified due its costs and limited marginal gains Proposition 20  Preventive detention will not reduce serious crime Speedy Trial  A Better Way Speedy trial is a good way to prevent crime on bail and FTA because many rearrests occur within a short time following pretrial release Unfortunately, speedy trial laws have been evaded by courtroom work groups Proposition 21  Speedy trials can reduce crime while preserving constitutional rights THE PHILOSOPHY OF INCAPACITATION Incapacitation seeks to reduce crime by keeping offenders off the street, without trying to deter or rehabilitate them Selective incapacitation is designed to lock up only the few high rate offenders or career criminals Gross incapacitation involves locking up large numbers of offenders regardless of their criminal histories Selective Incapacitation  The Rand Formula Selective incapacitation was hot in the 1970s and 1980s In a 1982 study by Peter Greenwood and Rand, it was estimated that a selective incapacitation strategy could reduce crime while reducing the prison population The Rand sentencing proposal was based on the Rand Inmate Survey (RIS) which estimated controversial annual offending rates The Rand system suffered from the prediction problem as well as the problem of estimating annual offending rates because averages are inflated by extremely high rates for the worst offenders The Rand prediction scale used employment history as a criterion for sentencing with as much weight as a prior conviction The political obstacle facing Rand was that the idea of not imprisoning low risk and medium risk offenders was what corrections experts were advocating as far back as the 1960s Proposition 22  Selective Incapacitation is not a realistic strategy for reducing serious crime Gross Incapacitation  Zedlewski's New Math Selective incapacitation has been ignored and gross incapacitation has been adopted and is the main reason the prison population has soared Zedlewski reported that for every dollar spent on prison $17 is saved in social costs, although his methodology was seriously flawed by using one of the highest estimates of 187 crimes per year, thus deliberately misrepresenting the facts He did not account for the problem of diminishing returns where locking people up skims off high rate offenders, leads to incarceration of less serious offenders and gives us lower returns in crime reduction and dollar savings His estimate of dollar savings is flawed because a reduction in crime does not produce a direct reduction in CJS costs The most devastating attack were his estimates of crime reduction  using the highest average offending rates means crime would have been eliminated Offenders don't average 187 crimes a year and while some offenders are incarcerated, others replace them (known as the replacement factor) Incapacitation  A Sober Estimate Zimring and Hawkins used a sophisticated model to conclude that each incarceration prevented 3 5 crimes per year in CA  Locking up 115,000 people would reduce the crime rate by 15  Zimring and Hawkins concluded it was not clear that incapacitation was the primary cause of the drop in crime, due to some unexpected data trends A cross state comparison of changes in incarceration rates and crime rates showed no clear patterned relationship Crime declined in the 1990s, but we've been on an imprisonment binge for 25 years  You can't claim success for a prescription that failed for 19 years and then suddenly appeared to work in the twentieth year  Proposition 23  Gross incapacitation does not reduce serious crime Collateral Damage  The Cost of Overimprisonment Prison overcrowding Directly contributes to the resource crisis Inability to Provide Treatment Alternatives Imprisonment diverts funds from drug courts and other treatment initiatives that are more effective High Prison Medical Expenses Longer terms, overcrowding and risky behaviors in prison result in various medical expenses associated with elderly inmates, communicable diseases, HIV and Hepatitis C Crowding Out Other Social Needs Mass imprisonment has diverted funds from education Between 1987 2007, states increased spending on prison 127 , while spending on education increased only 21  Racial and Ethnic Discrimination People of color represent two thirds of the prisoners serving life sentences, and 90  of the NY inmates convicted under the Rockefeller Drug laws Destructive Social Effects Gross incapacitation impacts families (e g , child support), communities and democracy itself (e g , the right to vote) MANDATORY SENTENCING All states had some form of mandatory sentence by 1994 that typically apply to certain offenses Leading conservative crime control strategy and is operationalized in two ways  mandatory imprisonment fo certain crimes and mandatory minimums prison sentences Its popularity can be explained by the celebrated case syndrome   THE NATION'S TOUGHEST DRUG LAW  1973 New York law (known as the Rockefeller Drug Law) was designed to incapacitate and deter future use through mandatory and long prison terms, restrictions on plea bargaining and mandatory prison terms Three categories of offenders were major, middle level and minor dealers The law attempted to prevent the abuse of plea bargaining Enormous slippage or leakage occurred between arrest and conviction that actually resulted in decreased indictment and conviction rates The law did not completely fail in its objectives  for those convicted, the rate of incarceration increased, however almost half evaded mandatory sentencing provisions The slippage or leakage is explained by the CJ law of thermodynamics An increase in the severity of the potential punishment results in pressure to avoid its actual application Much slippage involved CJ officials adapting to the harsh terms of the law Slippage can also occur after sentencing as more offenders sentenced for longer terms results in overcrowding and the response is to release prisoners early Finally, the law had no significant effect on crime or drug use The Long Term Impact   and the 2009 Reform Rockefeller Drug laws resulted in a dramatic increase in the number of people sent to prison on drug charges  primarily impacting lower level offenders, minorities, and resulting in prison overcrowding The 2009 reform reduced the penalties Eliminating mandatory sentences for lower level drug offenses Expanding treatment and alternative options to incarceration Allowed for resentencing of some currently imprisoned offenders THE FEDERAL SENTENCING GUIDELINES Implemented in 1987, the guidelines included several mandatory sentencing provisions that have contributed to the increase in the federal prison population There is mixed evidence on the compliance of prosecutors and judges Less than half of offenders eligible for mandatory minimums are receiving them and defendants are allowed to avoid them through plea bargaining Through prosecutorial discretion mandatory sentences are not necessarily mandatory in practice which makes them more arbitrary The Growth of Life Sentences By 2008, 1 in 11 inmates were serving a life term The harsher sentences encourage prosecutorial discretion to avoid them Public pressure for getting tough has affected pardons and commutations for those ith life sentences Life terms are disproportionate to the risk of reoffending  recidivism decreases with age Life terms aggravate the costs of dealing with elderly inmates Mandatory Sentencing and Crime 1996 report found no correlation between incarceration rates and crime rates Proposition 24  Mandatory sentencing is not an effective means of reducing serious crime THREE STRIKESWE ARE ALL OUT Three strikes is the most popular idea in mandatory sentencing  it generally calls for a mandatory life prison sentence for anyone convicted of a third felony State laws vary considerable in terms of strikable offenses and second strikes The idea has been almost universally condemned by criminologists and other sentencing experts It is criticized for not focusing on serious repeat offenders It is actually not new as most states had repeat offender laws for decades, though they were rarely used Implementation Besides CA and GA states have not used their three strikes laws, so they have become plea bargaining tools Impact on Crime CA law was more punitive and far reaching as it applied for any felony The law sent a lot of people to prison for long terms, but did not send as many as had been expected because it was not implemented in most counties The law weighed most heavily on less serious non violent offenses and compounded racial disparities as more African Americans received it The law did not produce a reduction in crime and would have only had a modest impact if it was fully implemented Summary  Striking Out Classic example of overreaction to celebrated case Crude policy that sweeps nondangerous criminals rather than a precise instrument that locks up dangerous repeat offenders Laws are not consistently implemented so they are arbitrary They upset the going rate and impose new costs on the CJS There is no clear evidence that these laws will reduce serious crime Old repeat offender laws failed to distinguish among seriousness (gravity), repetitiveness (prior record or criminal career), intensity (rate of annual offending), and dangerousness (assessment of harm the offender might do in the community) Proposition 25  Three strikes and you're out laws are a terrible crime policy JUST KEEP THEM AWAY FROM US  SEX REGISTRATION AND NOTIFICATION LAWS All 50 states have Megan's Laws designed to control sex offenders through registration and community notification An expansion of the categories of sex offenders required to register was established with the Adam Walsh Act of 2006 Advocates believe sex offenders pose a high risk of reoffending and registration will assist law enforcement in surveillance and arrest and notification will allow residents to take protective measures Less than one third of sex offenders recidivate, demonstrating that reoffending by sex offenders is greatly exaggerated Research shows parolees convicted of rape have lower rearrest rates than for all felons combined as well as lower than robbers and burglars Data suggests registration and notification do not protect the public from the real potential offenders, given the majority of victims know their offender The Celebrated Case Syndrome Again There are a number of problems that exist with current registration and notification laws for sex offenders Overbreadth  The laws cover a vast amount of persons who are not truly dangerous offenders (e g , public order offenses, consensual sex, prostitution, and childish pranks, such as playing doctor)  additionally there is overbreadth in the amount of time people are required to register with 17 states requiring lifetime registration Residency Restrictions  The restrictions limit where sex offenders can live and are considered the harshest and most arbitrary Enforcement Problems Given the overbreadth, law enforcement cannot keep track of all sex offenders The restrictions drive the offenders underground and separate offenders from family Notification hinders the readjustment to society (e g , difficulty finding housing and employment, generating threats and harassment, and creating an atmosphere of social ostracism) Registration, restriction and notification interfere with effective treatment for sex offenders Failure to Protect Society Offenders are likely to recidivate if they travel far from their current living location Most offenders meet their victims through social networking sites, not as strangers on the street Are There Effective Treatment Programs  Cognitive behavioral therapy (CBT) has shown promising, however its success depends on offender's cooperation Proposition 26  Sex offender registration, notification, and residency restrictions laws are not effective in preventing repeat sex crimes, and in certain respects inhibit effective control and treatment of offender CONCLUSION Lock 'em up strategies appear to be simple and effective but they are not simple in practice We can't precisely identify the small group of high rate offenders Gross incapacitation policies create problems for the CJS Because of such problems the courtroom work group tends to evade extremely punitive laws No conclusive evidence indicates locking people up will reduce crime It is not clear that even if they reduced crime that they would be worth the enormous financial investment Key Terms United States v  Salerno   A 1984 Supreme Court ruling that there is no right to bail and that preventive detention is a legitimate regulatory measure ROR   An innovative bail reform measure which allowed a defendant to be released without any financial consideration Incapacitation   A crime policy that seeks to reduce crime by keeping criminals off the street without trying to rehabilitate or deter them Selective Incapacitation   Is designed to lock up only the few high rate offenders or career criminals Gross Incapacitation   Involves locking up large numbers of offenders regardless of their criminal histories Average Annual Offending Rate   The rate at which an average offender (or high rate offender) commits in a given year Mandatory Sentencing   An incapacitation strategy that takes the form of mandatory imprisonment for a certain crime and or a mandatory minimum prison term Slippage or Leakage   A process explained by the criminal justice law of thermodynamics where CJ professionals evade the implementation of a new law or policy that results in more people escaping conviction and punishment than was intended Three Strikes   Is form of mandatory sentencing that generally calls for a mandatory life prison sentence for anyone convicted of a third felony, but many variations (such as second strike provisions) exist Megan's Law   A federal law requiring sex offenders who are released to the community to register with state officials Chapter 8 Close the Loopholes Learning Objectives PROSECUTE THE CAREER CRIMINALS Compare and contrast horizontal and vertical prosecution Discuss the research findings that compare special prosecution units and traditional prosecutions Describe the effects of the San Diego Major Violator Unit and explain why these effects occurred Defend the argument that special prosecution units do not result in any better or worse results than traditional prosecutions ABOLISH THE INSANITY DEFENSE Explain how the Hinckley case distorted public opinion about the insanity defense Defend the argument that defendants who successfully use the insanity defense are not beating the rap Explain the dangerousness of the criminally insane Evaluate the use and effectiveness and impact of the insanity defense, specifically NGRI and GBMI Construct and defend an argument regarding abolishing the insanity defense that includes the important role of mens rea ABOLISH OR REFORM PLEA BARGAINING  Differentiate between conservative and liberal views of plea bargaining Appraise the effects of Alaska's plea bargaining ban Explain the plea bargaining reforms made in King County and its impact on overall case handling RESTRICT APPEALS List the ways in which appeals are thought to undermine criminal justice administration according to conservatives Explain the Habeus Corpus Act and the impact of the Fay v  Noia decision on Habeus Corpus proceedings Defend the argument that limiting appeals will not reduce serious crime Outline PROSECUTE THE CAREER CRIMINALS Conservatives believe that many dangerous criminals beat the system and escape punishment through loopholes in the system To make sure dangerous criminals are punished, prosecutors have created major offender or career criminal prosecution programs Horizontal prosecution passes a case along from one prosecutor group of prosecutors to another prosecutor group of prosecutors as the case makes its way from initial filing and arraignment to trial and plea bargaining Vertical prosecution involves one prosecutor throughout the trial process (charges, trial plea bargains) and has a number of advantages Close involvement from start to end allows for inclusion of all relevant details Due to involvement in the case and with victims, there is less likelihood of negotiating lesser charges Crime victims deal with only one prosecutor Prosecutor specializes in certain areas (e g , sex crimes, gun crimes) Continuity eliminates disparities Does a Special Prosecutorial Unit Make a Difference  Comparing Two Cities Comparison research of one site with a special prosecutorial unit   vertical prosecution   (Kansas City, MO) and one without   horizontal prosecution   (Miami, FL) demonstrated that in both offices the strength of evidence and the likelihood of conviction shaped decisions  no loophole existed to allow for offenders to slip through and escape charges The San Diego Major Violator Unit The San Diego Major Violator Unit involved a program with continuity of prosecution targeting robbery and special cases of robbery related homicide The program also restricted charge bargains The program had only a modest impact on conviction rates and rates of inmates sentenced to prison, because prosecutors were already tough The program increased the percentage of convicted offenders sent to prison, because the category included split sentences Public misunderstanding about split sentences contributes to perceptions of the system as lenient, but offenders are not beating the system Length of incarceration increased during the program, but it was rising across the country so some increase would have occurred without it The evaluation did not measure the impact of the program on the crime rate, but small changes in conviction and incarceration suggest minimal impact The overall findings on prosecution of career criminals demonstrate The CJS is tough on repeat offenders The patterns of prosecution and sentencing show the going rate agreed by the local courtroom workgroup Proposition 27  Special prosecution units do not produce either higher conviction rates or lower crime rates ABOLISH THE INSANITY DEFENSE John W  Hinckley Hinckley's acquittal in the attempted assassination of President Ronald Reagan in 1981 sparked a national outcry and changes in laws on the insanity defense People were outraged over Hinckley's verdict of not guilty by reason of insanity which made people think guilty people beat the rap and get off due to technicalities, though Hinckley was and remains institutionalized In one public opinion survey 87  of respondents felt the insanity defense was a loophole and 40  called it a rich person's defense The conservative response is to close the loophole and there are six ways to do so  abolish the insanity defense, change the test of insanity, shift the burden of proof to the defendant, create new guilty but mentally ill verdict, revise trial procedure for raising an insanity plea, changing procedures for committing a person found NGRI Sorting Out the Issues The issues include the extent the insanity defense is used, the fate of those who win acquittal, predicting dangerousness and the effect of abolishing the insanity defense The Reality of the Insanity Defense The insanity defense is very rarely used successfully (less than 1  of all indictments) though polls have found that people believed 40  of all criminal defendants use it and half of them wanted it abolished Therefore, closing the loophole would not impact crime and it wouldn't impact robbery and burglary since the defense is most often raised in murder cases Successful use of the insanity defense occurs in as a result of plea bargaining or stipulated finding agreed to by the courtroom workgroup Another myth about the insanity defense is that dangerous people use it  those who do use the insanity defense have serious mental health issues and slipped through many safety nets Aftermath of Acquittal Liberals claim people committed to mental institutions after winning NGRI verdicts spend more time in mental hospitals than they would have in prison Mentally ill people used to be hospitalized for years, but the case of Baxstrom v  Herold (1966) necessitated procedures for continued confinement For all crimes except murder, persons hospitalized after being found NGRI still spend more time confined in hospitals than comparable offenders found guilty spend in prison A study attempting to determine whether defendants found incompetent to stand trial  beat the rap  found they spent an average of two years in prison prior to conviction  the system is not turning dangerous psychotics loose Danger to the Community The forced release of criminal defendants created a natural experiment testing the dangerousness of the criminally insane  A total of 14 5  appeared to be dangerous and recidivism rates for persons acquitted by reason of insanity was no greater than of felons This data translates into six false positives for each true positive, so prediction is still a problem The Impact of Abolition Abolishing the insanity defense presents complex legal problems around the issue of innocent until proven guilty, guilty beyond a reasonable doubt and the establishment of actus reus, mens rea and a connection between the two The key issue with the insanity defense is the different degrees of intent Some people are recognized as lacking full criminal intent because they do not understand what they are doing M'Naughton case established the right wrong test in 1843 and alternatives such as the irresistible impulse test have been created since then Attempts to abolish the insanity defense could be interpreted to mean an abolishment of the mens rea requirement and degrees of crime States that have tried to abolish the insanity defense have created laws that were later declared unconstitutional under due process clauses of the states A limited interpretation might result in an affirmative defense of not guilty by reason of insanity rather than an ordinary defense It is hard to say what would happen if insanity were abolished as an affirmative defense, because few states have done it and there are so few cases, but the underlying issues would likely reappear in a different form The flaws of GBMI are that it strikes indirectly at the mens rea requirement, creates a lesser and included offense that might be a compromise and does not guarantee treatment for the person declared mentally ill Prisons and jails cannot handle current inmates with mental problems, so GBMI may find themselves in a cycle of deteriorated mental health in prison and improved health upon transfer to a mental hospital GMBI is a bogus reform because it involves people who would have been found guilty, not defendants who would have been found NGRI Evaluation of another state's GBMI law found to reduction in insanity pleas, more confused jurors and offenders receiving GBMI placed on probation rather than receiving medical treatment Proposition 28  Abolishing or limiting the insanity defense will have no impact on serious crime ABOLISH OR REFORM PLEA BARGAINING  Plea bargaining is disliked by all as conservatives see it as a loophole and liberals feel it is a source of injustice as some people get better deals and defense attorneys do not fight for their clients In 2004, 97  of felony cases in large urban counties were settled by guilty plea Comparative analysis between the U S  and European countries conclude that unchecked prosecutorial discretion is a distinct feature of the U S  CJS Efforts to eliminate issues with plea bargain fall into two categories  abolish or reform Abolishing Plea Bargaining  Alaska Tries The most celebrated attempt to abolish plea bargaining attacked it by forbidding sentence and charge bargaining and establishing procedures for plea negotiations The traditional defense that plea bargaining is an essential tool to handle heavy caseloads proved to be false The prediction that discretion would simply shift also did not occur as the rate of dismissals remained high before and after the ban Cases actually moved through the courts faster because there was less to negotiate The most significant result was that the ban had no impact on defendants charged with serious crimes or with substantial criminal records because dangerous offenders had not been beating the system beforehand The ban did produce more severe sentences in less serious cases which is known as the bait and switch No evaluation addressed whether the plea bargaining ban affected the crime rate, but since it has no real affect on case disposition, it likely did not Reforming Plea Bargaining in King County, Washington King County, WA, uses a more structured process for handling cases, with clear rules for plea negotiations and higher levels of supervision A horizontal approach to prosecution is used in which cases are first handled by the Charging Unit and then passed to the Early Plea Unit (EPU)  cases not settled though a guilty plea are then handled by the Trial Unit Regulations maintain that plea bargains must go through the EPU or they are not accepted  cannot occur at trial, and must be in writing The net result was a high level of consistency in case processing  70  of cases were settled by EPU, the courtroom workgroup worked together for appropriateness of charges, and a conservative charging policy was in place Adaptations did occur due to long standing personal relationships among courtroom workgroup members The more formal process in place in King County did not result in significant changes in case handling, although greater efficiency and openness occurred due to rules being known and increased supervision enhanced case consistency In Search of Plea Bargains Plea bargaining is a phantom loophole  it survives due to the CJ wedding cake and the shared norm of proportionality held by the courtroom work group Proposition 29  Abolishing plea bargaining will not reduce serious crime RESTRICT APPEALS Conservatives believe post conviction appeals undermine CJS by allowing offenders to escape punishment all together or to have final resolution delayed which undermines the deterrent effect  additionally, appeals turn the criminal process into a  game  There are many possible avenues for appeal that are  seemingly  endless Limiting Appeals 1981 Attorney General's Task Force on Violent Crime recommended a three year statute of limitations on habeas corpus petitions and a prohibition on federal courts' holding evidentiary hearings Habeas Corpus Act of 1679 is a device to challenge the detention of a person taken into custody In Fay v  Noia (1963) the Supreme Court expanded the ability of an offender convicted in a state court to obtain a rehearing in federal court The Reality of Postconviction Appeals Postconviction appeals play a minor role in the administration of justice as only 1  of them succeed A study on whether offenders abuse the right to appeal found that the equivalent of only 1 4  of offenders filed habeas corpus petitions, which is because most convictions are obtained through plea bargains The workload of the courts has been exaggerated when in reality appeals represented only 4  of civil case filings in U S  District Courts An exception to the rule includes people on death row who exhaust every possible appeal and should because mistakes happen Another exception involves  writ writers  or file innumerable appeals in federal court challenging their conviction or prison conditions, but these individuals are a tiny proportion of all inmates  since few succeed their impact on the crime rate would be negligible Appeals do not delay finality and undermine the deterrent effect, because appeals are filed in few cases and could not have broad impact  besides, many factors affect the deterrent effect so appeals are only a minor factor Proposition 30  Limiting habeas corpus appeals of criminal convictions will have no effect on serious crime Conclusion Closing loopholes will not reduce serious crime, because loopholes do not exist The idea that criminals beat the system through the insanity defense, plea bargains, and appeals is a perception based on a small number of unrepresentative celebrated cases Te justice system is fairly harsh with serious offenders who have been arrested Key Terms Major Offender Prosecution Programs   A prosecution program that focuses special attention on career criminals to make sure they are prosecuted, convicted and incarcerated Split Sentences   A sentence where the offender does some time in jail followed by a release on probation Actus Reus   The fact that the accused committed the act that must be established by the prosecution in order to prove guilt  this must be connected to mens rea Mens Rea   The fact that the accused had criminal intent that must be established by the prosecution in order to prove guilt  this must be connected with the actus reus M'Naughton Rule   The right wrong test of insanity  To prove insanity it must be demonstrated that the accused did not know the difference between right and wrong Affirmative Defense   Says that the accused killed the victim and intended to but s he does not have criminal responsibility for the act because of the defense they are using Ordinary Defense   At attempt to show that the prosecution has failed to connect the accused with the crime

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