America’s Courts and the Criminal Justice System, 13th Edition Chapter 10 From Arrest and Bail Through Arraignment

Learning Objectives (1 of 3) Define the two methods of estimating the amount of crime in the United States. Discuss how arrests made by the police impact the criminal court process. List the four ways that criminals are formally charged in court and the major actors in each of these important documents. List the four most common ways that defendants secure pretrial release.

Learning Objectives (2 of 3) Compare and contrast “law on the books” and “law in action” approaches to bail setting, including the overall effects of the bail system on criminal defendants and their cases. Explain the role bail agents play in the criminal justice system. Contrast how the “law on the books” approach to criminal justice and the “law in action” perspective offer contrasting views of the preliminary hearing.

Learning Objectives (3 of 3) Explain why some jurisdictions use grand juries extensively and others do not. Delineate the three major reasons for case attrition. Describe the four layers of the criminal justice wedding cake.

Thinking Point: Las Vegas Shooting Consider the case of the Las Vegas shooting (2017). What type of crimes were committed? Are crimes such as this occurring more and more, or are they just receiving increased media attention? What can be done to curb public violence? What are the statistics regarding this kind of violence? What can we as a society do to curb crime?

Uniform Crime Reporting (UCR) Dramatic increase in crime from 1960s to 1980s Crime is reported annually in the FBI’s Uniform Crime Reports (UCR—Uniform Crime Reporting). Voluntary reporting to FBI Index crimes Eight serious Type I offenses

National Incident-Based Reporting System (NIBRS) Location of crime Crime was completed or attempted Type of weapon used Type/value of property damaged/stolen Personal characteristics of offender/victim Problems with crime measurement

A Comparison of Type I and Type II UCR Offenses (1 of 2) Part I: Index Crimes Part II: Other Crimes Violent crimes Murder/nonnegligent manslaughter Forcible rape Robbery Aggravated assault Simple assault Property crimes Burglary Larceny/theft Motor vehicle theft Arson Embezzlement Forgery/counterfeiting Fraud Stolen property offenses Vandalism Status offenses by juveniles None Curfew/loitering offenses Runaways

A Comparison of Type I and Type II UCR Offenses (2 of 2) Part I: Index Crimes Part II: Other Crimes Other crimes None Disorderly conduct Driving under the influence Drug offenses Drunkenness Gambling Liquor law offenses Loitering Prostitution Offenses against the family (e.g., child neglect) Sex offenses (other than forcible rape) Vagrancy Weapons offenses

Arrest (1 of 2) Every year the police make an estimated 10.8 million arrests for nontraffic offenses. Mostly relatively minor crimes Simple assault, public drunkenness, disorderly conduct, petty theft, and possession of small amounts of illegal drugs 1.97 million of these arrests are for the serious crimes Homicide, rape, arson, aggravated assault, robbery, burglary, auto theft, and larceny

Arrest (2 of 2) Quality of arrests Keys to conviction Police have a lot to do with what happens in court after arrest Keys to conviction Collection of tangible evidence Locating cooperative witnesses Police departments differ in quality of arrests

Clearance Rates for UCR Type I Offenses Source: Federal Bureau of Investigation. 2016. Crime in the United States—2015 (Table 29: Estimated Number of Arrests). Washington, DC: Government Printing Office.

Initial Appearance Gerstein v. Pugh (1975) Occurs within a few hours or a few days of arrest Generally 48 hours, excluding weekends, as stated by the Supreme Court Most misdemeanor defendants enter a plea of guilty and are sentenced immediately. Felony defendants can’t offer a plea at this point, so it is a brief affair.

Thinking Point: Local Arrests Research and locate two current arrests in your community. Discuss the crime, what the decision of the judge was at the first appearance, and decide whether you believe the decision was fair. Discuss why or why not you think the decision was fair.

Case Close-Up: County of Riverside v. McLaughlin McLaughlin’s name went first in a class action lawsuit filed on behalf of him and other plaintiffs regarding a prompt hearing before a magistrate. How prompt is prompt? Supreme Court granted certiorari. Balances between individual’s rights to liberty and society's need for effective law enforcement Supreme Court defined prompt as 48 hours.

Courts, Controversy, and Economic Inequality Are white-collar criminals underprosecuted? What do you think? Are white-collar crimes underprosecuted? Would white-collar crimes be better deterred by more prosecutions or more government regulations?

Charging Documents Complaint Information Arrest warrant Indictment

Law on the Books: Prosecutorial Control Prosecutors decide whether and what charges should be filed Wide discretion given to prosecutors by courts No review of decisions

Law in Action: Police Influence In some jurisdictions prosecutors defer to the police. Power has been essentially transferred to the police. In some jurisdictions, the police influence the prosecutor’s decision. In some jurisdictions, prosecutors control filing of charges. 20–50% of all felony arrestees do not get charged.

Courts and Controversy: Charging Decisions Legal reformers Efficiency Problem is that prosecutors’ decisions are isolated

Law on the Books: The Monetary Bail System Bail procedures Forms of bail Preventative detention

Law in Action: Context of Bail Setting Trial court judges have discretion in fixing bail. Flight risk/nonappearance Risk to self/others Situational justice

Forms of Bail (1 of 2) Release on recognizance (ROR) Cash bond Judges release a defendant from jail without monetary bail if they believe the person is not likely to flee. Used most often for defendants accused of minor crimes and for those with substantial ties to the community Cash bond Accused posts either the full amount of cash bail or a percentage in the form of a cash bond. All of this money will be returned when all court appearances are satisfied. Because it requires a large amount of cash, this form of bail is seldom used.

Forms of Bail (2 of 2) Property bond Bail bond Most states allow a defendant (or friends/ relatives) to use a piece of property as collateral. If the defendant fails to appear in court, the property is forfeited. Property bonds are also rare, because courts generally require that the equity in the property must be double the amount of the bond. Bail bond The arrestee hires a bail agent (often called a bail bondsman), who posts the amount required and charges a fee for services rendered, usually 10% of the bond amount.

Bail Agents and Bounty Hunters Financial resources Cash/property bail Conditions of bail posting Jurisdictional constraints

Effects of Bail System Direct and indirect effects on defendants Jail conditions Race/ethnicity Failure to appear Bench warrant or capais Case disposition Bail reform Are bail schedules unconstitutional? Reducing or eliminating commercial bonds

Pretrial Release Risk assessment Pretrial supervision Nonfinancial conditions of release Travel restrictions Court-monitored supervision Residence Employment Drug, alcohol, or mental health programs Access to firearms

Preliminary Hearing: Weighing Probable Cause Preliminary hearing is first time someone other than a law enforcement official reviews the case. In grand jury states a prosecutor can still go to the grand jury if a magistrate rules there is insufficient evidence. Prosecutor has to establish probable cause of a crime and that the defendant committed it—bound over for adjudication.

Variations in Using the Preliminary Hearing Factors weighed by defense attorneys in deciding whether to demand a preliminary hearing Practices of the local prosecutor Strategic and tactical considerations Client control Overview of evidence and opportunity for discovery

Grand Jury (1 of 3) Grand juries make accusations, while trial juries decide guilt or innocence Fifth Amendment right Applies only to federal prosecutions Hurtado v. California (1884)

Grand Jury: Shield and Sword Law on the books: Buffer between state and citizens Investigatory powers Indictment (true bill), no true bill Many legal protections not applicable at grand jury stage Authority to grant immunity from prosecution Transactional immunity Use immunity Subpoena Contempt

Grand Jury: Prosecutorial Domination In theory, prosecutor functions as legal advisor In practice, prosecutor dominates grand jury Often function as a rubber stamp for the prosecutor

Reform the Grand Jury? National Association of Criminal Defense Lawyers Citizens’ Grand Jury Bill of Rights

Variability in State Use of Grand Juries Grand Jury Indictments Required for Most or All Felonies (N = 24) Grand Jury Indictments Optional for Most Felonies (N = 25) Grand Jury Indictments Abolished (N = 2) Alabama, Alaska, Delaware, District of Columbia, Florida, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and West Virginia Arizona, Arkansas, California, Colorado, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maryland, Michigan, Montana, Nebraska, Nevada, New Mexico, Oklahoma, Oregon, South Dakota, Utah, Vermont, Washington, Wisconsin, and Wyoming Connecticut, Pennsylvania

Arraignment Trial court of general jurisdiction Defendant is formally accused of a crime Defendant enters a plea Signifies to courtroom work group that the defendant is likely guilty of the crime charged

Why Attrition Occurs Three Facets of Discretion Legal judgments Policy priorities Personal standards of justice

Case Attrition of Felony Arrests in the 75 Largest U.S. Counties Source: Bureau of Justice Statistics. 2013. Felony Defendants in Large Urban Counties, 2009. Washington, DC: Department of Justice.

The Criminal Justice Wedding Cake (1 of 2) The layers of the criminal justice wedding cake are: Celebrated cases Serious felonies Lesser felonies Misdemeanors

The Criminal Justice Wedding Cake (2 of 2) Source: Samuel Walker. 2015. Sense and Nonsense about Crime, Drugs, and Communities. 8th ed. Stamford, CT: Cengage.