chapter
stringlengths 1.97k
1.53M
| path
stringlengths 47
241
|
|---|---|
It has been a popular notion throughout the ages that fear of punishment can reduce or eliminate undesirable behavior. This notion has always been popular among criminal justice thinkers. These ideas have been formalized in several different ways. The Utilitarian philosopher Jeremy Bentham is credited with articulating the three elements that must be present if deterrence is to work: The punishment must be administered with celerity, certainty, and appropriate severity. These elements are applied under a type rational choice theory. Rational choice theory is the simple idea that people think about committing a crime before they do it. If the rewards of the crime outweigh the punishment, then they do the prohibited act. If the punishment is seen as outweighing the rewards, then they do not do it. Sometimes criminologists borrow the phrase cost-benefit analysis from economists to describe this sort of decision-making process.
When evaluating whether deterrence works or not, it is important to differentiate between general deterrence and specific deterrence. General deterrence is the idea that every person punished by the law serves as an example to others contemplating the same unlawful act. Specific deterrence is the idea that the individuals punished by the law will not commit their crimes again because they "learned a lesson."
Critics of deterrence theory point to high recidivism rates as proof that the theory does not work. Recidivism means a relapse into crime. In other words, those who are punished by the criminal justice system tend to reoffend at a very high rate. Some critics also argue that rational choice theory does not work. They argue that such things as crimes of passion and crimes committed by those under the influence of drugs and alcohol are not the product of a rational cost-benefit analysis.
As unpopular as rational choice theories may be with particular schools of modern academic criminology, they are critically important to understanding how the criminal justice system works. This is because nearly the entire criminal justice system is based on rational choice theory. The idea that people commit crimes because they decide to do so is the very foundation of criminal law in the United States. In fact, the intent element must be proven beyond a reasonable doubt in almost every felony known to American criminal law before a conviction can be secured. Without a culpable mental state, there is no crime (with very few exceptions).
1.03: Incapacitation
Incapacitation is a very pragmatic goal of criminal justice. The idea is that if criminals are locked up in a secure environment, they cannot go around victimizing everyday citizens. The weakness of incapacitation is that it works only as long as the offender is locked up. There is no real question that incapacitation reduces crime by some degree. The biggest problems with incapacitation is the cost. There are high social and moral costs when the criminal justice system takes people out of their homes, away from their families, and out of the workforce and lock them up for a protracted period. In addition, there are very heavy financial costs with this model. Very long prison sentences result in very large prison populations which require a very large prison industrial complex. These expenses have placed a crippling financial burden on many states.
1.04: Rehabilitation
Overall, rehabilitation efforts have had poor results when measured by looking at recidivism rates. Those that the criminal justice system tried to help tend to reoffend at about the same rate as those who serve prison time without any kind of treatment. Advocates of rehabilitation point out that past efforts failed because they were underfunded, ill-conceived, or poorly executed.
There has been a significant trend among prisons today to return to the rehabilitative model. However, this new effort has been guided by “evidence-based” treatment models which requires treatment providers to demonstrate their programs offer significant improvement in recidivism rates. This movement begins during incarceration with programs designed to address specific needs of the offenders. As the offender gets closer to his release date, the focus shifts to reintegrating him or her into society. Prison case managers work with the offender to locate resources available to the offender in the community, work on relationships with families and develop employment opportunities in order for the offender to be a productive member of society. Upon release, the offender often receives support from their probation or parole officer who provides supervision, treatment resources, and employment information.
1.05: Retribution
Retribution means giving offenders the punishment they deserve. Most adherents to this idea believe that the punishment should fit the offense. This idea is known as the doctrine of proportionality. Such a doctrine was advocated by early Italian criminologist Cesare Beccaria who viewed the harsh punishments of his day as being disproportionate to many of the crimes committed. The term just desert is often used to describe a deserved punishment that is proportionate to the crime committed.
In reality, the doctrine of proportionality is difficult to achieve. There is no way that the various legislatures can go about objectively measuring criminal culpability. The process is one of legislative consensus and is imprecise at best. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/01%3A_Concepts_of_Corrections_as_a_Sub-system_of_the_Criminal_Justice_System/1.02%3A_Deterrence.txt |
The United States today can be described as both multiracial and multiethnic. This has led to racism. Racism is the belief that members of one race are inferior to members of another race. Because white Americans of European heritage are the majority, racism in America usually takes on the character of whites against racial and ethnic minorities. Historically, these ethnic minorities have not been given equal footing on such important aspects of life as employment, housing, education, healthcare, and criminal justice. When this unequal treatment is willful, it can be referred to as racial discrimination. The law forbids racial discrimination in the criminal justice system, just as it does in the workplace.
Bigotry is not present in every facet of the criminal and juvenile justice systems, but there are possible incidents of prejudice within both systems. Discrimination has taken place in such areas as criminal sentencing, use of force by police, and the imposition of the death penalty. One topic of recent discussion is a disparity in federal drug policy. While much has recently changed with the passage of the Fair Sentencing Act of 2010, federal drug law was a prime example of disproportion impacts on minority populations.
Courts are not immune to cries of racism from individuals and politically active groups. The American Civil Liberties Union (2014), for example, states, "African-Americans are incarcerated for drug offenses at a rate that is 10 times greater than that of whites." The literature on disproportionate minority sentencing distinguishes between legal and extralegal factors. Legal factors are those things that we accept as legitimately, as a matter of law, mitigating or aggravating criminal sentences. Such things as the seriousness of the offense and the defendant's prior criminal record fall into this category. Extralegal factors include things like class, race, and gender. These are regarded as illegitimate factors in determining criminal sentences. They have nothing to do with the defendant's criminal behavior, and everything to do with the defendant's status as a member of a particular group.
One way to measure racial disparity is to compare the proportion of people that are members of a particular group (their proportion in the general population) with the proportion or that group at a particular stage in the criminal justice system. In 2013, the Bureau of the Census (Bureau of the Census, 2014) estimated that African-Americans made up 13.2% of the population of the United States. According to the FBI, 28.4% of all arrestees were African-American. From this information we can see that the proportion of African-Americans arrested was just over double what one would expect. The population of African-Americans is 13.2%, however they are arrested at a percentage that is double (28%) of their population. This demonstrates they may be arrested more often than would be expected.
The disparity is more pronounced when it comes to drug crime. According to the NAACP (2014), "African Americans represent 12% of the total population of drug users, but 38% of those arrested for drug offenses, and 59% of those in state prison for a drug offense." There are three basic explanations for these disparities in the criminal justice system. The first is individual racism. Individual racism refers to a particular person's beliefs, assumptions, and behaviors. This type of racism manifests itself when the individual police officer, defense attorney, prosecutor, judge, parole board member, or parole officer is bigoted. Another explanation of racial disparities in the criminal justice system is institutional racism. Institutional racism manifests itself when departmental policies (both formal and informal), regulations, and laws result in unfair treatment of a particular group. A third (and controversial) explanation is differential involvement in crime. The basic idea is that African-Americans and Hispanics are involved in more criminal activity. Often this is tied to social problems such as poor education, poverty, and unemployment.
While it does not seem that bigotry is present in every facet of the criminal and juvenile justice systems, it does appear that there are pockets of prejudice within both systems. It is difficult to deny the data: Discrimination does take place in such areas as use of force by police and the imposition of the death penalty. Historically, nowhere was the disparity more discussed and debated than in federal drug policy. While much has recently changed with the passage of the Fair Sentencing Act of 2010, federal drug law was a prime example of institutional racism at work.
Note
Think about it . . . Racism in Law Enforcement
“Is racism an intractable problem for the police, or can other factors explain the disparate rate at which African-Americans are stopped and arrested?”
This is the introduction to a New York Times opinion series called “Black, White, and Blue” which consist of several opinion articles written for the NYT on the subject of racism in American law enforcement. Read these articles. Do you agree with their conclusions and solutions? Disagree? Why? | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/01%3A_Concepts_of_Corrections_as_a_Sub-system_of_the_Criminal_Justice_System/1.06%3A_A_Racist_System.txt |
In the 1980’s, the crime rate in America exploded. While many factors affected the rise, most scholars indicated that the rise was due to drug trafficking and gang activity. Drug traffickers and gangs protected their “turf” by killing the competition. Media would report nightly on the impact it was having in neighborhoods and society demanded action. Legislation responded by creating harsher sentencing laws. Mandatory minimum sentences and three strikes laws greatly changed the way we managed prisons. It led to longer sentences and prison overcrowding. To compound prison overcrowding, many of the offenders who are released are only returned to custody for parole violations. This is called recidivism. According to the California Department of Correction and Rehabilitation, in the early 2000’s the recidivism rate was approximately 65%, reaching its highest point in 2005-2006 where it was 67.5%. By the 2000’s the prison population had reached epidemic proportion.
Figure 1.4 Overcrowding in California State Prison. Public Domain.
Prison overcrowding reached epidemic proportions in California. The inmates filed lawsuits stating their Eighth Amendment rights were being violated. This led to action by the U.S. Supreme Court requiring the state to take immediate action to reduce its population.
California's prisons are currently designed to house approximately 85,000 inmates. At the time of the U.S. Supreme Court's 2011 decision in Brown v. Plata, the California prison system housed nearly twice that many (approximately 156,000 inmates). The Supreme Court held that California's prison system violated inmates' Eighth Amendment rights. The Court upheld a three-judge panel's order to decrease the population of California's prisons by an estimated 46,000 inmates.
-Department of Psychiatry and Behavioral Sciences, University of California-Davis School of Medicine, 2230 Stockton Boulevard, 2nd Floor, Sacramento, CA 95818, USA. [email protected]
Note
Pin It! Brown v. Plata Case Study
Follow the link to understand the impact Brown v. Plata had on Prison overcrowding.
But this is not unique to California, across the United States our prison populations are among the highest in the world. According to a report prepared by American Psychological Association, “One out of every 100 American adults is incarcerated, a per capita rate five to 10 times higher than that in Western Europe or other democracies, the report found.” While there is no easy answer, it is safe to say that we must evaluate the current system and find progressive ways to deal with crime and the criminal offender.
Mandatory Minimum Sentences
In the mid 1980’s, legislators created mandatory minimum sentences for many drug crimes. The Anti-Drug Act created in 1986 dramatically increased the sentences ordered for certain drug charges. The sentences increased depending on the drug and the amount. Many of these sentences started at 10 years in prison up to Life. But this legislation took away the power and discretion of judges. Now the district attorney had significantly more power, based on the charges filed offenders could be facing significant prison time. They would likely plead to a lesser charge than facing a trial where they would be sentenced to prison for decade to Life.
These mandatory minimums which started at the Federal level were soon adopted by the state. But many of these mandatory minimum sentences were applied to low level drug offenders, not the “high-level” suppliers or importers Congress intended the laws to address. Most of these lengthy sentences were handed out to drug couriers, street level dealers or even friends or families of drug offenders.
But reforms are in the works. Recognizing these laws did not have the intended outcomes, judges and citizens have been advocating for repealing these laws and return sentencing power to judges. Several states have already repealed the laws, but more need to follow.
Three-Strikes Law
Three-Strikes legislation, often referred to as habitual offender laws impose harsher sentences for certain crimes (often violent offenses) for repeated violations. For example, in California after the first offense, the second and third crime could result in double the sentence, up to life in prison.
Three Strikes law was to require a defendant convicted of any new felony, having suffered one prior conviction of a serious felony as defined in section 1192.7(c), a violent felony as defined in section 667.5(c), or a qualified juvenile adjudication or out-of-state conviction (a "strike"), to be sentenced to state prison for twice the term otherwise provided for the crime. If the defendant was convicted of any felony with two or more prior strikes, the law mandated a state prison term of at least 25 years to life.
This law was designed to incapacitate offenders (through long sentences) and deter others from committing crimes due to the consequences they will face. But again, this mandatory sentencing took the power away from judges to determine the appropriate sentence based on the crime, offender, victim and circumstances. This law, like mandatory minimum drug sentencing has dramatically increased the American prison population. The intent of this law was to reduce serious, repeat offenders and permanently incapacitate offenders who do not “learn their lesson.” However, critics argue that the law has been used to incorrectly and incarcerate offenders unnecessarily
Figure 1.4 3 Strikes Law is under a CC BY 4.0 license.
Recidivism
Another dynamic issue facing prison overcrowding is recidivism. Recidivism is when offenders are returned to custody for a probation/parole violation or after committing a new offense. Often times offenders are returned to custody not for a new law violation, but what is called a technical violation of community supervision. This is when an offender violates a court order or probation/parole officer’s directive. Usually officials work with offenders before returning them to custody using informal sanctions. But if the offender continues to disregard directives or commits a serious violation of a term; for example, a domestic violence offender harassing the victim; they can be returned to incarceration. When community supervision is revoked, a hearing is held before a judge. Depending on the violation, they could be returned to custody for a short time, or to complete the remainder of their commitment. This hearing is often called a revocation hearing.
Recent changes in California has been implemented to address recidivism and prison population. Enacted in 2011, AB 109 Public Safety Realignment was implemented to address recidivism and prison overcrowding. While there are many facets of this legislation, the biggest change was transferring a significant amount of criminal supervision to local probation departments and out of prison/parole supervision. For a select number of “non-violent” offenses, offenders who used to go to prison would now remain in local custody and released to county probation supervision instead of going to prison. The state redirected funds to county law enforcement agencies to fund evidence-based programs to reduce recidivism. (Evidence-Base Practices will be discussed in the next section.
This realignment had a significant impact on local law enforcement agencies, especially local jails and probation departments. A significant number of offenders would remain the counties responsibility. Jails had to deal with an increased population they were not built to deal with and also longer incarceration rates. Historically, California jails only housed offender sentenced to one year or less. After AB 109, sentences could go as has as decades. Jails were not designed to house offenders’ long term, so this has been a struggle for many local jails. They also didn’t have rehabilitative programs in place for long term offenders. The state has provided jails with funding to establish evidence-based treatment programs in their facilities.
Probation departments were also significantly impacted by the realignment. They now had different classifications of offenders with specific terms of supervision. Historically, probation departments supervised offenders in the community in lieu of a lengthy prison sentence. As long as they complied with the terms and conditions outlined in their sentence, they could remain in the community. If they complied for the term of supervision (usually 3-5 years) they would be successfully completed and could even have their conviction reduce in certain circumstances. However, if they failed to comply; probation could be revoked, and they were then sentenced to prison to serve their commitment. This is called Felony Probation. After realignment, there were two additional probation supervision types: Mandatory Supervision and Post-Release Community Supervision.
Mandatory Supervision was a sentence ordered by the court for felony crimes determined to be “non-violent” and not requiring prison time. These offenders would serve time in local custody and released to probation supervision when jail determined they completed their commitment. (Of course, jail population and overcrowding lead to early releases). The judge orders the in-custody and supervision time at sentencing. For example, for the crime where the confinement time is six years. The judge can order one, two or more years in custody with the remainder of under mandatory supervision. If the judge orders one year in jail, they would spend the remaining five years under Mandatory Supervision. Post-Release Community Supervision is a grant of supervision that occurs after the offender completes this prison commitment but has been determined to be a “non-violent” offender and place under the supervision of a probation officer instead of a parole agent. The term of supervision is one year and if they remain violation free during that one-year period, they are terminated from supervision.
Again, this greatly increased the number of offenders under probation supervision. The state funded the local county probation department for staffing. The state also funded local probation departments for evidence-based treatment programs to address these new offenders. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/01%3A_Concepts_of_Corrections_as_a_Sub-system_of_the_Criminal_Justice_System/1.07%3A_Prison_Overcrowding.txt |
As the prison populations continued to climb through the decades, more and more states are looking for ways to ease the population. The current direction many states are taking is to release “non-violent” offenders and provide rehabilitation services. In this section we review the practice and policy of offender rehabilitation. Rehabilitation programs are nothing new, this idea, once called the medical model dates back to the 1940’s and seeks to treat criminal behavior through treatment as opposed to punishment and incarceration. It lost favor in the 1970’s when correctional professionals determined rehabilitation didn’t work. However, significant research into criminal behavior and new assessment tools have led to a renewal of interest in this method of dealing with crime.
Rehabilitation Programs
Rehabilitation programs are nothing new to the criminal justice system. For many decades we have been providing substance abuse treatment programs, drug diversion programs, domestic violence and DUI treatment programs to deal with illegal behavior with varying success. However, as states have tried to address the overcrowding in jails and prisons, they have tried to apply more treatment programs to what they call “non-violent” offenders. Often this “non-violent” classification addresses drug offenders and offenders convicted of property offenses.
As previously indicated, The State of California passed legislation - AB 109 Realignment - that transferred the incarceration and supervision of these offenders out of state control (prison/parole) to local (jail/probation) control. The theory behind this transition was that local government could provide better treatment options to this non-violent offender and maintain public safety. The State awards local governments funding based on their treatment options and success in reducing recidivism. However, the State also required that the programs met specific goals and the agencies had to adopt “evidence-based” practices to be compliant with to receive funding.
Evidence-Base Practices
According to the National Institute of Corrections, the definition of evidence-based practices is as following:
Evidence-based practice (EBP) is the objective, balanced, and responsible use of current research and the best available data to guide policy and practice decisions, such that outcomes for consumers are improved. Used originally in the health care and social science fields, evidence-based practice focuses on approaches demonstrated to be effective through empirical research rather than through anecdote or professional experience alone.
An evidence-based approach involves an ongoing, critical review of research literature to determine what information is credible, and what policies and practices would be most effective given the best available evidence. It also involves rigorous quality assurance and evaluation to ensure that evidence-based practices are replicated with fidelity, and that new practices are evaluated to determine their effectiveness.
In contrast to the terms "best practices" and "what works," evidence-based practice implies that 1) there is a definable outcome(s); 2) it is measurable; and 3) it is defined according to practical realities (recidivism, victim satisfaction, etc.). Thus, while these three terms are often used interchangeably, EBP is more appropriate for outcome-focused human service disciplines.
This shift in theory drastically changed the way in which correctional facilities and community correction officers managed the treatment of offenders. These agencies were now required to not only state they were making an impact through statistical date, but also needed to provide programs which could also show positive influence on offender behavior. New ways of assessing offenders’ risk to reoffend and determination of criminogenic needs were needed. These tools allow officers to not only use their “professional judgement,” but a validated tool that could provide scientific support to the likelihood and offender would reoffend. These tools also allowed officers to identify those offenders who were at the highest risk to reoffend. Officers could then focus attention (supervision/public safety) and support towards those offenders while allowing moderate and low risk offenders to be placed in more appropriate treatment.
Risk Assessments Tools and Criminogenic Needs
The ability to predict the likelihood to reoffend and determine an offender’s criminogenic needs is important to provide officers and offenders with the appropriate treatment plan. By identifying the offenders who need the most intensive supervision, agencies can allocate the resources to those high-risk individuals. This means officer can provide a higher level of supervision to the right classification of offender. It also allows means officers with these high-risk offenders have lower caseloads. Research indicates that officers who supervise high risk offenders should be in the range of 30-50 offenders. The next step in the process is to conduct detail comprehensive interviews with the offender to identify the specific criminogenic needs of the offender and prepare a case plan. This case plan is shared with the offender, so he become part of his/her rehabilitation. Offenders are not always willing to participate with treatment and this can cause delay in treatment and may require to be returned to custody.
Another important aspect of this approach is that by identify each offender’s risk to reoffend we avoid mixing the population of offenders. For example, high-risk offenders are generally more criminally sophisticated the low or moderate offenders. If we integrate all offenders in similar treatment programs we run the risk of affecting or influencing low/moderate offender with higher risk offenders thereby increasing their risk to reoffend. The higher-risk offenders could negatively influence low/moderate risk offenders when they interact. Significant amount of research indicate low/moderate risk will often complete community supervision with limited contact with supervision officers. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/01%3A_Concepts_of_Corrections_as_a_Sub-system_of_the_Criminal_Justice_System/1.08%3A_States_Shifting_Focus_from_Incarceration_to_Rehabilitation.txt |
In most jurisdictions, the judge holds the responsibility of imposing criminal sentences on convicted offenders. Often, this is a difficult process that defines the application of simple sentencing principles. The latitude that a judge has in imposing sentences can vary widely from state to state. This is because state legislatures often set the minimum and maximum punishments for particular crimes in criminal statutes. The law also specifies alternatives to incarceration that a judge may use to tailor a sentence to an individual offender.
Key Terms:
Presentence investigation report
Victim impact statements
Proportionality Doctrine
Sentencing Hearing
Concurrently or Consecutively Sentence
Probation
Intensive Supervision Probation (ISP)
Boot Camps
Electronic Monitoring
Day Fines
Community Service
Asset Forfeiture
Sentencing Guidelines
Indeterminate sentencing
Determinate Sentence
Good Time
Sentencing Reform Act of 1984
02: Judicial Process andSentencing Practices for Misdemeanants Felons and Juveniles
Many jurisdictions require that a presentence investigation take place before a sentence is handed down. Most of the time, the presentence investigation is conducted by a probation officer, and results in a presentence investigation report. This document describes the convict's education, employment record, criminal history, present offense, prospects for rehabilitation, and any personal issues, such as addiction, that may impact the court's decision. The report usually contains a recommendation as to the sentence that the court should impose. These reports are a major influence on the judge's final decision.
2.10: Indeterminate Sentences
Indeterminate sentencing is a type of criminal sentencing where the convict is not given a sentence of a certain period in prison. Rather, the amount of time served is based on the offender's conduct while incarcerated. Most often, a broad range is specified during sentencing, and then a parole board will decide when the offender has earned release.
2.11: Determinate Sentences
determinate sentence is of a fixed length and is generally not subject to review by a parole board. Convicts must serve all of the time sentenced, minus any good time earned while incarcerated.
2.12: Mandatory Sentences
Mandatory sentences are a type of sentence where the absolute minimum sentence is established by a legislative body. This effectively limits judicial discretion in such cases. Mandatory sentences are often included in habitual offender laws, such as repeat drug offenders. Under federal law, prosecutors have the powerful plea-bargaining tool of agreeing not to file under the prior felony statute.
2.13: Sentencing Guidelines
The Sentencing Reform Act of 1984 was passed in response to congressional concern about fairness in federal sentencing practices. The Act completely changed the way courts sentenced federal offenders. The Act created a new federal agency, the U.S. Sentencing Commission, to set sentencing guidelines for every federal offense. When federal sentencing guidelines went into effect in 1987, they significantly altered judges' sentencing discretion, probation officers' preparation of the presentence investigation report, and officers' overall role in the sentencing process. The new sentencing scheme also placed officers in a more adversarial environment in the courtroom, where attorneys might dispute facts, question guideline calculations, and object to the information in the presentence report. In addition to providing for a new sentencing process, the Act also replaced parole with "supervised release," a term of community supervision to be served by prisoners after they completed prison terms (Courts, 2015).
When the Federal Courts began using sentencing guidelines, about half of the states adopted the practice. Sentencing guidelines indicate to the sentencing judge a narrow range of expected punishments for specific offenses. The purpose of these guidelines is to limit judicial discretion in sentencing. Several sentencing guidelines use a grid system, where the severity of the offense runs down one axis, and the criminal history of the offender runs across the other. The more serious the offense, the longer the sentence the offender receives. The longer the criminal history of the offender, the longer the sentence imposed. Some systems allow judges to go outside of the guidelines when aggravating or mitigating circumstances exist.
2.2: Victim Impact Statements
Many states now consider the impact that a crime had on the victim when determining an appropriate sentence. A few states even allow the victims to appear in court and testify. Victim impact statements are usually read aloud in open court during the sentencing phase of a trial. Criminal defendants have challenged the constitutionality of this process on the grounds that it violates the Proportionality Doctrine requirement of the Eighth Amendment, but the Supreme Court has rejected this argument and found the admission of victim statements constitutional.
2.3: The Sentencing Hearing
Many jurisdictions pass final sentences in a phase of the trial process known as a sentencing hearing. The prosecutor will recommend a sentence in the name of the people or defend the recommended sentence in the presentence investigation report, depending on the jurisdiction. Defendants retain the right to counsel during this phase of the process. Defendants also have the right to make a statement to the judge before the sentence is handed down.
Note
Select Link Below for a sample PSI:
Presentence Investigation Report Example | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/02%3A_Judicial_Process_andSentencing_Practices_for_Misdemeanants_Felons_and_Juveniles/2.01%3A_Presentence_Investigation.txt |
The severity of a sentence usually hinges on two major factors. The first is the seriousness of the offense. The other, which is much more complex, is the presence of aggravating or mitigating circumstances. In general, the more serious the crime, the harsher the punishment. Listed below, are the California Rules of Court which identify the specific criteria for both mitigating and aggravating circumstances.
In the presentence report, probation officers prepare a detailed court report that examines the crime, the criminal history of the defendant, the social factors of the defendant and the applicaple circumstances in aggravation and mitigation to provide the court (judge) with an objective assessment of the crime and a suitable sentence based on all the indicated factors. It is important to note that a majority of criminal cases are resolved through the plea agreement process so the range of sentence was agreed upon before the presentence report is prepared.
Note
Circumstances in Aggravation
Aggravating Factors relating to the crime, whether or not charged or chargeable as enhancements include that:
• The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
• The defendant was armed with or used a weapon at the time of the commission of the crime;
• The victim was particularly vulnerable;
• The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;
• The defendant induced a minor to commit or assist in the commission of the crime;
• The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
• The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;
• The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
• The crime involved an attempted or actual taking or damage of great monetary value;
• The defendant took advantage of a position of trust or confidence to commit the offense.
• The crime constitutes a hate crime.
Aggravating Factors relating to the defendant include:
• The defendant has engaged in violent conduct that indicates a serious danger to society;
• The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
• The defendant was on probation, mandatory supervision, post release community supervision, or parole when the crime was committed; and
• The defendant's prior performance on probation, mandatory supervision, post release community supervision, or parole was unsatisfactory.
Aggravating Circumstances Impact on Sentencing:
The aggravating circumstances is the probation report indicates the factors of aggravation that pertains to the crime, or the defendant. Each crime has sentence triad: a low term, mid-term and upper term. Depending on the weight of the aggravating and mitigating circumstances of the crime and offender, a recommendation will be made in the report to impose one of the three eligible prison terms. The judge will review the report and impose the appropriate sentence based on the totality of circumstances.
Note
Circumstances in Mitigation
Mitigating Factors relating to the crime:
• The defendant was a passive participant or played a minor role in the crime;
• The victim was an initiator of, willing participant in, or aggressor or provoker of the incident;
• The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur;
• The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense;
• The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime;
• The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim;
• The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal;
• The defendant was motivated by a desire to provide necessities for his or her family or self; and
• The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was the defendant's spouse, intimate cohabitant, or parent of the defendant's child; and the abuse does not amount to a defense.
Mitigating Factors relating to the defendant include:
• The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;
• The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;
• The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;
• The defendant is ineligible for probation and but for that ineligibility would have been granted probation;
• The defendant made restitution to the victim; and
• The defendant's prior performance on probation, mandatory supervision, post release community supervision, or parole was satisfactory.
2.5: Concurrent versus Consecutive Sentences
It is not uncommon for a person to be indicted on multiple offenses. This can be several different offenses, or a repetition of the same offense. In many jurisdictions, the judge has the option to order the sentences to be served concurrently or consecutively. A concurrent sentence means that the sentences are served at the same time. A consecutive sentence means that the defendant serves the sentences one after another.
Note
The Federal Statute that Guides Concurrent vs. Consecutive Sentences 18 U.S. Code § 3584 - Multiple sentences of imprisonment
(a) Imposition of Concurrent or Consecutive Terms
If multiple terms of imprisonment are imposed on a defendant at the same time, or if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.
(b) Factors to Be Considered in Imposing Concurrent or Consecutive Terms
The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a).
(c)Treatment of Multiple Sentence as an Aggregate
Multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/02%3A_Judicial_Process_andSentencing_Practices_for_Misdemeanants_Felons_and_Juveniles/2.4%3A_Influences_on_Sentencing_Decisions.txt |
sentence is the punishment ordered by the court for a convicted defendant. Statutes usually prescribe punishments at both the state and federal level. The most important limit on the severity of punishments in the United States is the Eighth Amendment.
The Death Penalty
The death penalty is a sentencing option in thirty-eight states and the federal government. It is usually reserved for those convicted of murders with aggravating circumstances. Because of the severity and irrevocability of the death penalty, its use has heavily circumscribed by statutes and controlled by case law. Included among these safeguards is an automatic review by appellate courts.
Note
Think About It . . . The Death Penalty
The death penalty remains a controversial type of correction in the United States [click here to take a virtual tour of San Quentin Prison lethal Injection facility]. In America there are many pro and con arguments concerning the death penalty, with educated and qualified individuals on both sides of the debate. What do you think about the use of the death penalty as a criminal sentence?
Incarceration
The most common punishment after fines in the United States is the deprivation of liberty known as incarcerationJails are short-term facilities, most often run by counties under the auspices of the sheriff's department. Jails house those awaiting trial and unable to make bail, and convicted offenders serving short sentences or waiting on a bed in a prison. Prisons are long-term facilities operated by state and federal governments. Most prison inmates are felons serving sentences of longer than one year.
Probation
Probation serves as a middle ground between no punishment and incarceration. Convicts receiving probation are supervised within the community and must abide by certain rules and restrictions. If they violate the conditions of their probation, they can have their probation revoked and can be sent to prison. Common conditions of probation include obeying all laws, paying fines and restitution as ordered by the court, reporting to a probation officer, not associating with criminals, not using drugs, submitting to searches, and submitting to drug tests.
The heavy use of probation is controversial. When the offense is nonviolent, the offender is not dangerous to the community, and the offender is willing to make restitution, then many agree that probation is a good idea. Due to prison overcrowding, judges have been forced to place more and more offenders on probation rather than sentencing them to prison.
Intensive Supervision Probation (ISP)
Intensive Supervision Probation (ISP) is similar to standard probation but requires much more contact with probation officers and usually has more rigorous conditions of probation. The primary focus of adult ISP is to provide protection of the public safety through close supervision of the offender. Many juvenile programs, and an increasing number of adult programs, also have a treatment component that is designed to reduce recidivism.
Figure 2.1 Probation Officer Search by Tabitha Raber is used under a CC BY 4.0 license.
Boot Camps
Convicts, often young men, sentenced to boot camps live in a military style environment complete with barracks and rigorous physical training. These camps usually last from three to six months, depending on the particular program. The core ideas of boot camp programs are to teach wayward youths’ discipline and accountability. While a popular idea among some reformers, the research shows little to no impact on recidivism.
House Arrest and Electronic Monitoring
The Special Curfew Program was the federal courts' first use of home confinement. It was part of an experimental program-a cooperative venture of the Bureau of Prisons, the U.S. Parole Commission, and the federal probation system-as an alternative to Bureau of Prisons Community Treatment Center (CTC) residence for eligible inmates. These inmates, instead of CTC placement, received parole dates advanced a maximum of 60 days and were subject to a curfew and minimum weekly contact with a probation officer. Electronic monitoring became part of the home confinement program several years later.
Figure 2.2 Electronic Bracelet. Creative Commons Attribution-Share Alike 3.0 Unported.
In 1988, a pilot program was launched in two districts to evaluate the use of electronic equipment to monitor persons in the curfew program. The program was expanded nationally in 1991 and grew to include offenders on probation and supervised release and defendants on pretrial supervision as those who may be eligible to be placed on home confinement with electronic monitoring (Courts, 2015).
Today, most jurisdictions stipulate that offenders sentenced to house arrest must spend all or most of the day in their own homes. The popularity of house arrest has increased in recent years due to monitoring technology that allows a transmitter to be placed on the convict's ankle, allowing compliance to be remotely monitored. House arrest is often coupled with other sanctions, such as fines and community service. Some jurisdictions have a work requirement, where the offender on house arrest is allowed to leave home for a specified window of time in order to work.
Fines
Figure 2.3 "No Littering Allowed, Finger Print Testing used for ID" - Bernardston, Massachusetts, USA. Image has been designated to the public domain under a CC0 1.0 Universal Public Domain Dedication.
Fines are very common for violations and minor misdemeanor offenses. First time offenders found guilty of simple assaults, minor drug possession, traffic violations and so forth are sentenced to fines alone. If these fines are not paid according to the rules set by the court, the offender is jailed. Many critics argue that fines discriminate against the poor. A \$200 traffic fine means very little to a highly paid professional but can be a serious burden on a college student with only a part-time job. Some jurisdictions use a sliding scale that bases fines on income known as day fines. They are an outgrowth of traditional fining systems, which were seen as disproportionately punishing offenders with modest means while imposing no more than "slaps on the wrist" for affluent offenders.
This system has been very popular in European countries such as Sweden and Germany. Day fines take the financial circumstances of the offender into account. They are calculated using two major factors: The seriousness of the offense and the offender's daily income. The European nations that use this system have established guidelines that assign points ("fine units") to different offenses based on the seriousness of the offense. The range of fine units varies greatly by country. For example, in Sweden the range is from 1 to 120 units. In Germany, the range is from 1 to 360 units.
The most common process is for court personnel to determine the daily income of the offender. It is common for family size and certain other expenses to be taken into account.
Restitution
When an offender is sentenced to a fine, the money goes to the state. Restitution requires the offender to pay money to the victim. The idea is to replace the economic losses suffered by the victim because of the crime. Judges may order offenders to compensate victims for medical bills, lost wages, and the value of property that was stolen or destroyed. The major problem with restitution is actually collecting the money on behalf of the victim. Some jurisdictions allow practices such as wage garnishment to ensure the integrity of the process. Restitution can also be made a condition of probation, whereby the offender is imprisoned for a probation violation is the restitution is not paid.
Community Service
As a matter of legal theory, crimes harm the entire community, not just the immediate victim. Advocates see community service as the violator paying the community back for the harm caused. Community service can include a wide variety of tasks such as picking up trash along roadways, cleaning up graffiti, and cleaning up parks. Programs based on community service have been popular, but little is known about the impact of these programs on recidivism rates.
Figure2.4 On Sept. 8, 2015, inmates at Coyote Ridge Corrections Center watered, fertilized and thinned sagebrush plants. Attribution 2.0 Generic (CC BY 2.0)
Note
Pin It! Prisoners in Community Service
Follow the link to learn more about how inmates at a correction center in Oregon are preserving the vital ecosystems of National parks.
"Scarlet-letter" Punishments
While exact practices vary widely, the idea of scarlet-letter punishments is to shame the offender. Advocates view shaming as a cheap and satisfying alternative to incarceration. Critics argue that criminals are not likely to mend their behavior because of shame. There are legal challenges that of kept this sort of punishment from being widely accepted. Appeals have been made because such punishments violate the Eighth Amendment ban on cruel and unusual punishment. Others have been based on the idea that they violate the First Amendment by compelling defendants to convey a judicially scripted message in the form of forced apologies, warning signs, newspaper ads, and sandwich boards. Still other appeals have been based on the notion that shaming punishments are not specifically authorized by State sentencing guidelines and therefore constitute an abuse of judicial discretion (Litowitz, 1997).
2.7: Asset Forfeiture
Many jurisdictions have laws that allow the government to seize property and assets used in criminal enterprises. Such a seizure is known as forfeiture. Automobiles, airplanes, and boats used in illegal drug smuggling are all subject to seizure. The assets are often given over to law enforcement. According to the FBI, "Many criminals are motivated by greed and the acquisition of material goods. Therefore, the ability of the government to forfeit property connected with criminal activity can be an effective law enforcement tool by reducing the incentive for illegal conduct. Asset forfeiture takes the profit out of crime by helping to eliminate the ability of the offender to command resources necessary to continue illegal activities" (FBI, 2015).
Asset forfeiture can be both a criminal and a civil matter. Civil forfeitures are easier on law enforcement because they do not require a criminal conviction. As a civil matter, the standard of proof is much lower than it would be if the forfeiture was a criminal penalty. Commonly, the standard for such a seizure is probable cause. With criminal asset forfeitures, law enforcement cannot take control of the assets until the suspect has been convicted in criminal court.
2.8: Appeals
An appeal is a claim that some procedural or legal error was made in the prior handling of the case. An appeal results in one of two outcomes. If the appellate court agrees with the lower court, then the appellate court affirms the lower court's decision. In such cases the appeals court is said to uphold the decision of the lower court. If the appellate court agrees with the plaintiff that an error occurred, then the appellate court will overturn the conviction. This happens only when the error is determined to be substantial. Trivial or insignificant errors will result in the appellate court affirming the decision of the lower court. Winning an appeal is rarely a "get out of jail free" card for the defendant. Most often, the case is remanded to the lower court for rehearing. The decision to retry the case ultimately rests with the prosecutor. If the decision of the appellate court requires the exclusion of important evidence, the prosecutor may decide that a conviction is not possible.
2.9: Sentencing Statutes and Guidelines
In the United States, most jurisdictions hold that criminal sentencing is entirely a matter of statute. That is, legislative bodies determine the punishments that are associated with particular-crimes. These legislative assemblies establish such sentencing schemes by passing sentencing statutes or establishing sentencing guidelines. These sentences can be of different types that have a profound effect on both the administration of criminal justice and the life of the convicted offender. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/02%3A_Judicial_Process_andSentencing_Practices_for_Misdemeanants_Felons_and_Juveniles/2.6%3A_Types_of_Sentences.txt |
Key Terms:
The Texas Syndicate
The Mexikanemi
Crips and Bloods
Career Criminals
Elderly Criminals
03: Correctional Clients
The United States Sentencing Commission was directed by Congress to set sentencing guidelines for repeat violent offenders or repeat drug trafficking offenders, known as “Career Offenders,” at or near the statutory maximum penalty. Tracking statutory criteria, a defendant qualifies as a Career Offender in the sentencing guidelines if:
the defendant was at least 18 years of age at the time he or she committed the instant offense the instant offense is a felony that is a crime of violence or a controlled substance offense the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
There were 75,836 federal criminal cases reported to the United States Sentencing Commission during fiscal year 2014. Of the 67,672 cases in which the Commission received complete guideline application information, 2,269 (3.4%) offenders were sentenced as career offenders. Offenders sentenced under the career offender guidelines over the past ten years have consistently accounted for about three percent of federal offenders sentenced each year.
While career offenders account for just 3% of the annual federal caseload, they account for more than 11% of the federal prison population due to their lengthy prison sentences (on average, more than 12 years, or 147 months, in prison).
Career offenders often receive sentences below the guideline range (often at the government’s request), especially when they qualify as career offenders on the basis of drug trafficking offenses alone (“drug trafficking only” pathway).
Although career offenders with a violent instant or prior offense often have more serious criminal histories, the career offender directive has the most significant impact on drug trafficking offenders because they often carry higher statutory maximum penalties than some violent offenses
Despite similar average guideline minimums, “drug trafficking only” career offenders are generally sentenced less severely than other career offenders. In these cases, federal judges impose sentences similar to the sentences recommended in the guidelines for the underlying drug trafficking offense.
While career offenders, as a group, tend to recidiviate at higher rates than non-career offenders, the United States Sentencing Commission found a lower recidivism rate among career offenders qualifying on the basis of drug trafficking offenses alone.
In addition to having a more serious and extensive criminal history, career offenders who have committed a violent offense recidivate at a higher rate and are more likely to commit another violent offense in the future (see the “violent only” and “mixed” groups in the table below).
Drug Trafficking
Only Mixed
Only Mixed
Recidivism Rate:
54.4%
69.4%
69.0%
Median Time to Recidivism
26 Months
20 Months
14 Months
Most Serious Post-Release Event
Trafficking
Assault
Robbery
26.5%
28.6%
35.3%
Table 1. U.S. Sentencing Commission’s Recidivism Study Cohort Followed for Eight Years
Offender Demographics & Offense Characteristics
In fiscal year 2014, Black offenders accounted for more than half (59.7%) of offenders sentenced under the career offender guideline, followed by White (21.6 %), Hispanic (16.0%), and Other races (2.7%). Nearly all offenders sentenced under the career offender guideline were male (97.5%) and U.S. citizens (97.7%). Their average age at sentencing was 38 years.
In 2014, nearly three-quarters (74.1%) of career offenders were convicted of a drug trafficking offense. The remaining offenders would have been sentenced for robbery (11.6%), unlawful receipt, possession, or transportation of firearms (5.4%), aggravated assault (1.6%), and drug offenses occurring near a protected location (1.6%). Other offense types constituted the remaining 5.8 percent. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/03%3A_Correctional_Clients/3.1%3A_Career_Criminals.txt |
As the gang phenomenon has grown and spread in America's cities and counties, there has been a parallel growth and spread of gangs in America's prisons. There's no way to know how many prisons gang member inmates have due, in part, to the fact that "Politics generally determine whether agencies [prisons] ... admit to having STGs [Security Threat Groups like gangs]." It may also be impossible to gather accurate information on how many of America's prisoners are involved in gang activity. However, judging from my own observations and other current research on the subject, one may safely say gangs and their members are prevalent in many prisons in the United States and elsewhere.
In some prisons, inmate gang members were members of gangs prior to their incarceration. They were arrested, incarcerated and, while incarcerated, continue to recruit and build their gang. Other gang members in prison had no gang affiliation prior to their imprisonment but joined one of the prison gangs many of which have counterparts on the streets. In other prisons, notably in California and Texas, gangs have formed which had no counterpart on the street. The gangs were created in prison. Examples of these gangs include the Mexican Mafia, Neta, Aryan Brotherhood, Black Guerrilla Family, La Nuestra Familia and the Texas Syndicate.
According to the Bureau of Justice Statistics, On December 31, 2000, a total of 1,237,469 inmates were confined in state and federal prisons in the United States. A total of 232,900 of these inmates were between the ages of 18 and 24. Those youthful inmates, roughly of gang member age, represent approximately 18% of all the inmates.
Figure 3.1 Image by: NGIC and NDIC 2010 National Drug Survey Data is in the public domain.
There are at least five major prison gangs, each with its own structure and purpose.
The Mexican Mafia (La Eme)
The Mexican mafia started at the Deuel Vocational Center in Tracy, California, in the 1950s and was California’s first prison gang composed primarily of Chicanos, or Mexican Americans. Entrance into La Eme requires a sponsoring member. Each recruit has to undergo a blood oath to prove his loyalty. The Mexican Mafia does not proscribe killing its members who do not follow instructions. Criminal activities include drug trafficking and conflict with other prison gangs, which is common with the Texas Syndicate, Mexikanemi, and the Aryan Brotherhood (AB).
The Aryan Brotherhood
The Aryan Brotherhood, a white supremacist group, was started in 1967 in California’s San Quentin prison by white inmates who wanted to oppose the racial threat of black and Hispanic inmates and/or counter the organization and activities of black and Hispanic gangs. Pelz, Marquart, and Pelz suggest that the AB held distorted perceptions of blacks and that many Aryans felt that black inmates were taking advantage of white inmates, especially sexually, thus promoting the need to form and/or join the Brotherhood. Joining the AB requires a 6-month probationary period. Initiation, or “making one’s bones,” requires killing someone. The AB traffics in drugs and has a blood in, blood out rule; natural death is the only nonviolent way out. The Aryan Brotherhood committed eight homicides in 1984, or 32 percent of inmate homicides in the Texas correctional system, and later became known as the “mad dog” of Texas corrections.
The Aryan Brotherhood structure within the federal prison system used a three-member council of high-ranking members. Until recently, the federal branch of the Aryan Brotherhood was aligned with the California Aryan Brotherhood, but differences in opinion caused them to split into separate branches. The federal branch no longer cooperates with the Mexican Mafia in such areas as drugs and contract killing within prisons, but as of October 1997, the California branch still continued to associate with the Mexican Mafia. Rees suggested that the Aryan Brotherhood aligned with other supremacist organizations to strengthen its hold in prisons. The Aryan Brotherhood also has strong chapters on the streets, which allows criminal conduct inside and outside prisons to support each other.
Black Panther George Jackson united black groups such as the Black Liberation Army, Symbionese Liberation Army, and the Weatherman Underground Organization to form one large organization, the Black Guerrilla Family, which emerged in San Quentin in 1966. Leaning on a Marxist-Leninist philosophy, the Black Guerrilla Family was considered to be one of the more politically charged revolutionary gangs, which scared prison management and the public. Recently, offshoots within the Black Guerrilla Family have appeared. California reported the appearance of a related group known as the Black Mafia.
La Nuestra Familia
La Nuestra Familia (“our family”) was established in the 1960s in California’s Soledad prison, although some argue it began in the Deuel Vocational Center. The original members were Hispanic inmates from Northern California’s agricultural Central Valley who aligned to protect themselves from the Los Angeles-based Mexican Mafia. La Nuestra Familia has a formal structure and rules as well as a governing body known as La Mesa, or a board of directors. Today, La Nuestra Familia still wars against the Mexican Mafia over drug trafficking but the war seems to be easing in California.
The Texas Syndicate
The Texas Syndicate emerged in 1958 at Deuel Vocational Institute in California. It appeared at California’s Folsom Prison in the early 1970s and at San Quentin in 1976 because other gangs were harassing native Texans. Inmate members are generally Texas Mexican Americans, but now the Texas Syndicate offers membership to Latin Americans and perhaps Guamese as well. The Texas Syndicate opposes other Mexican American gangs, especially those from Los Angeles. Dominating the crime agenda is drug trafficking inside and outside prison and selling protection to inmates.
Like other prison gangs, the Texas Syndicate has a hierarchical structure with a president and vice president and an appointed chairman in each local area, either in a prison or in the community. The chairman watches over that area’s vice chairman, captain, lieutenant, sergeant at arms, and soldiers. Lower-ranking members perform the gang’s criminal activity. The gang’s officials, except for the president and vice president, become soldiers again if they are moved to a different prison, thus avoiding local-level group conflict. Proposals within the gang are voted on, with each member having one vote; the majority decision determines group behavior.
The Mexikanemi
The Mexikanemi (known also as the Texas Mexican Mafia) was established in 1984. Its name and symbols cause confusion with the Mexican Mafia. As the largest gang in the Texas prison system, it is emerging in the federal system as well and has been known to kill outside as will as inside prison. The Mexikanemi spars with the Mexican Mafia and the Texas Syndicate, although it has been said that the Mexikanemi and the Texas Syndicate are aligning themselves against the Mexican Mafia (Orlando-Morningstar, 1997). The Mexikanemi has a president, vice president, regional generals, lieutenants, sergeants, and soldiers. The ranking positions are elected by the group based on leadership skills. Members keep their positions unless they are reassigned to a new prison. The Mexikanemi has a 12-part constitution. For example, part five says that the sponsoring member is responsible for the person he sponsors; if necessary, a new person may be eliminated by his sponsor.
Hunt et al. suggest that the Nortenos and the Surenos are new Chicano gangs in California, along with the New Structure and the Border Brothers. The origins and alliances of these groups are unclear; however, the Border Brothers are comprised of Spanish-speaking Mexican American inmates and tend to remain solitary. Prison officials report that the Border Brothers seem to be gaining membership and control as more Mexican American inmates are convicted and imprisoned.
Crips and Bloods
The Crips and Bloods, traditional Los Angeles street gangs, are gaining strength in the prison as well as are the 415s, a group from the San Francisco area (415 is a San Francisco area code). The Federal Bureau of Prisons cites 14 other disruptive groups within the federal system, which have been documented as of 1995, including the Texas Mafia, the Bull Dogs, and the Dirty White Boys. (Citations omitted to save space. You may view the original work which includes the omitted citations.)
If Beck's 1991 estimate that approximately 12% of prison inmates were gang-affiliated could be extrapolated to today, then perhaps as many as 148,496 gang members (12% of all 1,237,469 inmates) were confined in state and federal prisons on December 31, 2000. If, in order to be a gang, at least five characteristics of a gang were required then as many as 74, 245 inmates were gang members (6% of all 1,237,469 inmates). According to the California Department of Corrections there are over 100,000 gang inmates in that state's correctional facility.
A one-year study of over 82,000 federal inmates in the United States revealed that those who were embedded in gangs (referred to as gang embeddedness) were more likely to exhibit violent behavior and misconduct than those who were peripherally involved in gangs. And those who were peripherally involved exhibited more violent behavior and misconduct than those who were unaffiliated.
In gang-dominated prisons, gangs rule the roost. Which inmates eat at what times and where they sit in the dining hall, who gets the best or worst job assignments in the prison, who has money and nice clothes, who lives and who dies - all of these things, and others, are determined by gangs in the prison. Their very presence requires special attention from prison authorities.
Prison staff, too, may be participants in or potential victims of the prison gang culture. As participants, they may be actively or passively involved. As active participants they may collude with inmate gang members by providing alibis, providing opportunities for the commission of certain crimes, or taking bribes or payment for their silence or other form of assistance.
As passive participants in prison gang activity they may simply "overlook" an incident or situation or neglect their duty just long enough for the gang members to do what it is that they wanted to do. In either case, prison staff are not immune to the negative influence of prison gangs. As victims of gang activity, they may be threatened, harassed, extorted, physically or sexually assaulted, or murdered.
Approximately 600,000 inmates were released from American prisons in the year 2005. Some of them were die hard gang members. Upon being discharged from prison (when one's full sentence has been served) or released early parole, prison gang members move back into society. Unless they recant their gang membership, they are likely to continue their gang activity. Their impact on a community may be measured by their continued criminal activity, the harm they inflict upon their victims and their participation in already existing community-based gangs.
Many inmates find it difficult to survive in prison unless they are affiliated with a gang. But there's a twist. The twist may be best explained using an analogy. Do you remember a game called Rock, Scissors, Paper? It's a game kids play using hand signs. Each player chooses rock, scissors, or paper without telling the other players their choice. Then each child displays their chosen hand sign at the same time. Rock is symbolized by a clenched fist and rock beats scissors. Scissors are characterized by a protruding index and middle finger in the shape of scissors blades and scissors beat paper. Paper is shown by holding out an open hand with fingers all touching side by side. If we stop the game there I can use this as an analogy that helps describe the gang situation in prison. In the analogy "rock" is race or ethnicity, "scissors" is a gang, and "paper" is an inmate who is not gang affiliated. Inmates who are not affiliated with a gang are often in peril in a prison setting. They have no one who will come to their aid if they are assaulted or extorted and no one who will join them in retaliation.
There are a few exceptions to this rule. The exceptions include inmates who have organized crime connections on the outside, and those who are knowledgeable about the law and may, therefore, be valued for their ability to help other inmates write legal briefs for their appeals. There are other inmates who are basically left alone because they are seriously ill or very old, and inmates who are so physically powerful or out of their minds that few inmates will assault them.
Most inmates, however, are vulnerable. In our analogy the next class of inmates are the gang members - scissors. They assault non-gang members - those who are "paper" in our analogy, and rival gang members. According to one federal prison administrator, "About one-third of my prison's one thousand seven hundred inmates are not in a gang. They are referred to by the staff as 'lame' or as 'dorks.' They eat meals together in the mess hall with the Native Americans. The unaffiliated are often extorted by gang inmates and used in other ways."
Then there are the rocks - the racial and ethnic groups. They beat all. That is, African-American inmates who are Crips, Bloods, Black Gangster Disciples, or whatever their name, are faced with a new enemy - groups of non-African-Americans. In most instances this means they need protection from Caucasian, Asian, and Hispanic inmates in the prison. Suddenly prior gang affiliation and old hatreds between same-race/same-ethnicity gangs succumb to fears of racial or ethnic conflict. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/03%3A_Correctional_Clients/3.2%3A_Criminal_Gang_Members.txt |
Special administrative and management techniques have been developed to deal with the conflicts which arise out of a gang presence in a prison. One correctional administrator indicated "There is a heavy emphasis on gathering gang intelligence inside and outside the prison in an effort to maintain safety and security. The correctional facility has five Intelligence Officers within the correctional officer cadre, one for each gang - the Blacks, Latinos, Asians, Whites, and Latin Kings." The administrative structure of the prison reflects its gang clientele.
Prison gangs constitute a persistently disruptive force in correctional facilities because they interfere with correctional programs, threaten the safety of inmates and staff, and erode institutional quality of life.
Prison gangs share organizational similarities. They have a structure with one person who is usually designated as the leader and who oversees a council of members that makes the gang's final decisions. Like some street counterparts, prison gangs have a creed or motto, unique symbols of membership, and a constitution prescribing group behavior.
Prison gangs dominate the drug business, and many researchers argue prison gangs are also responsible for most prison violence. Adverse effects of gangs on prison quality of life have motivated correctional responses to crime, disorder, and rule violations, and many correctional agencies have developed policies to control prison gang-affiliated inmates.
The current policy of some prison administrators in their dealings with incarcerated gang members is to use both intervention and suppression strategies. Intervention initiatives are sometimes referred to as "de-ganging" or "renunciation programs" while some institutions segregate or separate gangs from one another in hopes of maintaining peace in the facility. The Taylorville Correctional Center in Illinois is an example of a prison which does not tolerate gang activity. According to the Illinois Department of Corrections:
The department designates Taylorville Correctional Center as a security threat group free prison. Admission to the facility requires inmates to have no documented history of security threat group membership or activity. Strong disciplinary sanctions are employed for any inmate identified as participating in any security threat group activity including transfer, loss of good time, disciplinary segregation and loss of privileges.
According to Meghan Mandeville, News Research Reporter for Corrections Connection, in order to "help inmates who want to break away from that way of life, TDCJ created the Gang Renouncement and Disassociation (GRAD) program to give them a way out."It gives the offenders an avenue to renounce their gang membership, to get out of the gang and to be able to go back to the general population," said Kenneth W. Lee, Program Administrator for TDCJ's STG Management Office. "Then, [they can] be released into the free world and thrive in society.
Conditions of American prison contribute to the problems surrounding prison gangs and their members' impact on the communities to which they return when paroled or released from prison. They state that:
We do not advocate coddling inmates, but we surely do not advocate allowing millions of imprisoned inmates to live with drug addictions, emotional difficulties, and educational and employment skills so poor that only minimum-wage employment awaits them. These are the disabilities that, to some degree define the American inmate population, and these same disabilities will damage the quality of life in our communities when these untreated, uneducated, and marginal inmates return home . . . Prisons are our last best chance to help law-breakers find a lawful, economically stable place in mainstream communities.
Suppression efforts include, among other things, isolation of gang members within the prison and reducing the influence of gang leaders by moving them to different prisons or centralizing them in one prison.
As all these gang-member inmates are released into their home communities, what will their impact be on local gang members? If the receiving communities don't act to provide returning inmates with housing, job training, and jobs, I predict their newly achieved status as ex-convict will result in their being respected in the gang community. They will encourage cooperation with former enemy gangs in pursuit of greater gain and increased criminality.
As we've seen, gangs in prison, much like those on the street, are difficult to eliminate because they have come to serve a purpose - they are functional. They provide their members with protection, security, power, status, income, and association with others of their own kind. This does not bode well when it comes to integrating ex-convict gang members back into the community once they are released or paroled from confinement.
One can only guess, of course, about what the future holds in store as regards gangs in our prisons. It is certain that more gangs and gang members are appearing in prisons where, heretofore, they were seldom found. As of this writing, there are approximately 2,100,000 people confined in prisons and jails in the United States and that number has been growing steadily over the past two decades. Increasingly violent crimes committed by gang members, and the use of imprisonment and longer sentences to control them, suggest more gang members will fill our prisons' cells in the future. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/03%3A_Correctional_Clients/3.3%3A_Managing_Gangs_in_a_Prison_Setting.txt |
Most people attempt to obey the law in their daily lives, but what happens when someone unintentionally commits a crime? A mistake or moment of not paying attention could lead to someone breaking the law without even realizing what they have done. Breaking the law, whether accidentally or intentionally, can lead to serious consequences if the person is found guilty, so it is important to understand the law.
Accident vs Intent
Mens Rea is a legal term that refers to the mental condition in which a person needs to be in to establish whether or not they committed a crime intentionally. A person that accidentally walks off with another person’s jacket in a public area will most likely have a very similar jacket themselves in the same location. The person lacking Mens Rea (criminal mind) would attempt to find the real owner of the jacket once they realize their mistake. By contrast, a person that takes a jacket that he has never seen before, puts it on and then leaves is most likely aware that it does not belong to him and had the criminal intent.
A parent pushing their crying baby through a department store may place items on the stroller with the intent to purchase the items. While tending to the child and attempting to pay for other items, they might forget about the items on the stroller and leave the store without paying for them. Once the parent realizes their mistake, if they are innocent they will most likely return the property to the store, thus throwing in doubt intent and lending credibility to it being an accident.
Sometimes minor crimes will be excused if the officer, prosecutor or judge determines them to be accidental, however there are some laws that end in prosecution regardless of the circumstances or intent. Driving under the influence of alcohol or a controlled substance is an example of Strict Liability. Strict Liability laws do not require criminal liability. Anyone committing the action can be arrested or prosecuted even if they did so unwittingly.
A man might decide to have two glasses of whiskey with dinner and then drive his car to take his date home, believing that he has only consumed a small amount of alcohol and will not be over the legal limit. However, the glasses of whiskey may have been larger than standard servings. A person found operating a vehicle while over the legal alcohol limit will always be prosecuted. Bartenders that unknowingly serve alcohol to minors are also liable to be prosecuted for their actions even if they did not intend to break the law.
An example of a strict-liability prosecution occurred in New Mexico in 1996, Bobby Unser, a three-time winner of the Indianapolis 500, went snowmobiling with a friend. A snowstorm blew in causing whiteout conditions, resulting in Unser and his friend becoming trapped. After two full days and nights, the men found a building with a phone, and called for help. Unser informed the U.S. Forest Service of the incident and was prosecuted for entering a wilderness area even though there was no intent he planned to violate the law. Unser was convicted and fined by a United States Federal Court District Judge. The conviction was appealed and upheld by the Appellate Court.
3.5: Elderly Criminals
An aging population in general coupled with mandatory sentencing laws has caused an explosion in the number. This is an expensive proposition for the American correctional system. A substantial reason for this increased cost is the increased medical attention people tend to require as they grow older. Prisons that rely on prison industry to subsidize the cost of operations find that elderly inmates are less able to work than their younger counterparts. There is also the fear that younger inmates will prey on elderly ones. This phenomenon has caused the federal prison system and many state systems to rethink the policies that contribute to this "graying" of correctional populations.
Substantial growth has also been seen in the number of inmates that are ill. Arthritis and hypertension are the most commonly reported chronic conditions among inmates, but more serious and less easily treated maladies are also common. Many larger jails and prisons have special sections devoted to inmates with medical problems. In addition to the normal security staff, these units must employ medical staff. Recruiting medical staff that are willing to work in confinement with inmates is a constant problem for administrators.
According to many critics of mental health in America, the number of mentally ill inmates has reached crisis level. There has been explosive growth in the incarceration of mentally ill persons since the deinstitutionalization movement of the 1960s. As well-meaning people advocated for the rights of American's mentally ill, they fostered in a sinister unintended consequence: As mental hospitals closed, America's jails became the dumping ground for America's mentally ill population. This problem was exacerbated at the federal level by the passage of the Community Mental Health Act of 1963, which substantially reduced funding of mental health hospitals. With state hospitals gone or severely restricted, communities had to deal with the issue of what to do with mentally ill persons. Most communities responded with the poor solution of criminalizing the mentally ill. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/03%3A_Correctional_Clients/3.4%3A_Accidental_Criminals.txt |
Key Terms:
Split Sentence
John Augustus
Active Supervision
Intensive Probation (ISP)
Boot Camp
Revocation
Absconders
Morrissey vs. Brewer
Restorative Justice
Probation
Intermediate Sanctions
Inactive Supervision
Work Release Programs
Parole
Technical Violation
Halfway Houses
Gagnon vs. Scarpelli
Drug Courts
04: Alternatives to Incarceration
Probation is very similar to parole, and many of the legal issues are identical. Many jurisdictions combine the job of probation and parole officer, and these officers are often employed in departments of community corrections. The most basic difference between probation and parole is that probationers are sentenced to community sanctions rather than a prison sentence. Parolees have already served at least some prison time. Some jurisdictions can sentence an offender to a split sentence. A split sentence requires the offender to stay in prison for a short time before being released on probation.
Most criminal justice historians trace the roots of modern probation to John Augustus, who began his professional life as a businessperson and boot maker. Augustus became known as the father of probation largely due to his strong belief in abstinence from alcohol. He was an active member in the Washington Total Abstinence Society, an organization that believed criminals motivated by alcohol could be rehabilitated by human kindness and moral teachings rather than incarceration. His work began in earnest when, in 1841, he showed up in a Boston police court to bail out a "common drunkard." Augustus accompanied the man on his court date three weeks later, and those present were stunned at the change in the man. He was sober and well kempt. For 18 years, he served in the capacity of a probation officer on a purely voluntary basis. Shortly after his death in 1859, a probation statute was passed so that his work could continue under the auspices of the state. With the rise of psychology's influence in the 1920s, probation officers moved from practical help in the field to a more therapeutic model. The pendulum swung back to a more practical bent in the 1960s when probation officers began to act more as service brokers. They assisted probationers with such things as obtaining employment, obtaining housing, managing finances, and getting an education.
Many jurisdictions have several levels of supervision. The most common distinction between levels of probationers is active supervision and inactive supervision. Probationers on active supervision are required to report in with a probation officer at regular intervals. Probationers can be placed on inactive supervision because they committed only minor offenses. Serious offenders can sometimes be placed on inactive supervision when they have completed much of a long probation sentence without problems.
The preferred method of checking in depends on the jurisdiction. Many require in person visits, but some jurisdictions allow phone calls and checking in via mail. Inactive probationers are not required to check in at all or very infrequently. Checking in with an officer is a condition of probation. Other conditions often include participation in treatment programs, paying fines, and not using drugs or alcohol. If these conditions are not followed, the the probationer is said to be a violator. Violators are subject to probation revocation. Revocations often result in a prison sentence, but some violators are given second chances, and some are sentenced to special programs for technical violations. Many jurisdictions classify absconders differently than other violators. An absconder is a probationer (or parolee) that stops reporting and "disappears."
Following the trend of mass incarceration in the United States over the past several decades has been a similar trend in what has been called "mass community supervision." In 1980, about 1.34 million offenders were on probation or parole in the United States. That figure exploded to nearly 5 million by 2012. The Bureau of Justice Statistics (Maruschak & Parks, 2014) provides a look at these numbers from a different vantage point: about 1 in 50 adults in the United States were under community supervision at yearend 2012. The community supervision population includes adults on probation, parole, or any other post-prison supervision. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/04%3A_Alternatives_to_Incarceration/4.01%3A_Probation.txt |
Many jurisdictions combine the role of probation officer and parole officer into a single job description. In Gagnon v. Scarpelli (1973), the court had this to say of the duties of the such officers: "While the parole or probation officer recognizes his double duty to the welfare of his clients and to the safety of the general community, by and large concern for the client dominates his professional attitude. The parole agent ordinarily defines his role as representing his client's best interests as long as these do not constitute a threat to public safety." This statement suggests a dichotomy in the responsibility of parole (and probation) officers; these must look out for the best interest of the client as well as looking out for the best interest of the public. This fact frequently enters into politics. Liberals tend to focus on the treatment and rehabilitation of the offender, and conservatives focus more on the safety of the public and just deserts for the offender.
Note
Pin It! Gagnon v. Scarpelli Case Study
Is a previously sentenced probationer entitled to a hearing when his probation is revoked? Gagnon v. Scarpelli decides this question
From the perspective of the parole officers, they must perform law enforcement duties that are designed to protect the public safety. These functions very much resemble the tasks of police officers. They are also officers of the court and are responsible for enforcing court orders. These orders often include such things as drug testing programs, drug treatment programs, alcohol treatment programs, and anger management programs.
Officers are often required to appear in court and give testimony regarding the activities of their clients. They frequently perform searches and seize evidence of criminal activity or technical violations. The courts often ask officers to make recommendations when violations do occur. Officers may recommend that violators be sent to prison or continue on probation or parole with modified conditions.
There is ambivalence about the role of probation and parole officers within the criminal justice community. This has to do with an artificial dichotomy, often being characterized as police work versus social work. The detection and punishment of law and technical violations are characterized as the law enforcement role. The rehabilitation and reintegration of the offender are regarded as the social work role. Officers tend to lean more heavily toward one of these objectives than the other. Some officers embrace the law enforcement perspective and seek strict compliance with the law and conditions of parole. Other officers view themselves more as counselors, helping the offender reform, and brokering community resources to help resolve problems. Which model a particular officer exemplifies has many influences. The officer's personal beliefs, the dominate culture of the local office, the policy dictates of agency heads, and legislative enactments driven by political philosophies all play a role in shaping the working personality of each officer. The most effective officers are likely to be hybrids that fall somewhere in between the two archetypes.
4.03: Intermediate Sanctions
Traditionally, a person convicted of an offense was sentenced to probation or sentenced to prison. There was no middle ground. The purpose of intermediate sanctions is to seek that middle ground by providing a punishment that is more severe than probation alone, yet less severe that a period of incarceration. Perhaps the most common among these alternatives is Intensive Supervision Probation (ISP). Offenders given to this sort of intermediate sanction are assigned to an officer with a reduced caseload. Caseloads are reduced in order to provide the officer with more time to supervise each individual probationer. Frequent surveillance and frequent drug testing characterize most ISP programs. Offenders are usually chosen for these programs because they have been judged to be at a high risk for reoffending.
Another common type of alternative to prison is the work release program. These programs are designed to maintain environmental control over offenders while allowing them to remain in the workforce. Most often, offenders sentenced to a work release program reside in a work release center, which can be operated by a county jail, or be part of the state prison system. Either way, work-release center residents are allowed to leave confinement for work related purposes. Otherwise, they are locked in a secure facility.
Correctional boot camps are facilities run along similar lines to military boot camps. Military style discipline and structure along with rigorous physical training are the hallmarks of these programs. Usually, relatively young and nonviolent offenders are sentenced to terms ranging from three to six months in boot camps. Research has found that convicts view boot camps as more punitive than prison and would prefer prison sentence to being sent to boot camp. Research has also shown that boot camp programs are no more effective at reducing long-term recidivism than other sanctions. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/04%3A_Alternatives_to_Incarceration/4.02%3A_Officer_Roles.txt |
The practice of releasing prisoners on parole before the end of their sentences has become an integral part of the correctional system in the United States. Parole is a variation on imprisonment of convicted criminals. Its purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined for the full term of the sentence imposed by the courts. It also serves to lessen the costs to society of keeping an individual in prison. The essence of parole is release from prison, before the completion of sentence, on the condition that parolees abide by certain rules during the balance of the sentence. Under some systems, parole is granted automatically after the service of a certain portion of a prison term. Under others, parole is granted by the discretionary action of a board, which evaluates an array of information about a prisoner and makes a prediction whether he is ready to reintegrate into society.
To accomplish the purpose of parole, those who are allowed to leave prison early are subjected to specified conditions for the duration of their parole. These conditions of parole restrict their activities substantially beyond the ordinary restrictions imposed by law on an individual citizen. Typically, parolees are forbidden to use alcohol and other intoxicants or to have associations or correspondence with certain categories of undesirable persons (such as felons). Typically, also they must seek permission from their parole officers before engaging in specified activities, such as changing employment or housing arrangements, marrying, acquiring or operating a motor vehicle, traveling outside the community, and incurring substantial indebtedness. Additionally, parolees must regularly report to their parole officer.
Parole Conditions-California State
All inmates released from a California State prison who are subject to a period of State parole supervision will have conditions of parole that must be followed. Some parolees will have imposed special conditions of parole which must also be followed. Special conditions of parole are related to the commitment offense and/or criminal history and will discourage criminal behavior, improving the parolee’s chances for success on parole.
Conditions of Parole and Special Conditions of Parole are defined as:
• Conditions of Parole – the general written rules you must follow.
• Special Conditions of Parole - these are special rules imposed in addition to the general conditions of parole and must also be followed. They are related to your commitment offense and/or criminal history and may be imposed by the Board of Parole Hearings, by the court, or by your parole agent.
General Conditions of Parole:
• Your Notice and Conditions of Parole will give the date that you are released from prison and the maximum length of time you may be on parole.
• You, your residence (where you live or stay) and your possessions can be searched at any time of the day or night, with or without a warrant, and with or without a reason, by any parole agent or police officer.
• You must waive extradition if you are found outside of the state.
• You must report to your parole agent within one day of your release from prison or jail.
• You must always give your parole agent the address where you live and work.
• You must give your parole agent your new address before you move.
• You must notify your parole agent within three days if the location of your job changes, or if you get a new job.
• You must report to your parole agent whenever you are told to report, or a warrant can be issued for your arrest.
• You must follow all of your parole agent’s verbal and written instructions.
• You must ask your parole agent for permission to travel more than 50 miles from your residence and you must have your parole agent’s approval before you travel.
• You must ask for and get a travel pass from your parole agent before you leave the county for more than two days.
• You must ask for and get a travel pass from your parole agent before you can leave the State, and you must carry your travel pass on your person at all times.
• You must obey ALL laws.
• If you break the law, you can be arrested and incarcerated in a county jail even if you do not have any new criminal charges.
• You must notify your parole agent immediately if you get arrested or get a ticket.
• You must not be around guns, or anything that looks like a real gun, bullets, or any other weapons.
• You must not have a knife with a blade longer than two inches except a kitchen knife. Kitchen knives must be kept in your kitchen.
• Knives you use for work are allowed only when approved by your parole agent, but they can only be carried while you are at work or going to and from work. You must ask for a note from your parole agent that approves carrying the knife while going to and from work, and you must carry the note with you at all times.
• You must not own, use, or have access to any weapon that is prohibited by the California Penal Code.
The parole officers are part of the administrative system designed to assist parolees and to offer them guidance. The conditions of parole serve a dual purpose; they prohibit, either absolutely or conditionally, behavior that is deemed dangerous to the restoration of the individual into normal society. Moreover, through the requirement of reporting to the parole officer and seeking guidance and permission before doing many things, the officer is provided with information about the parolee and an opportunity to advise him. The combination puts the parole officer into the position in which he can try to guide the parolee into constructive development.
The enforcement advantage that supports the parole conditions derives from the authority to return the parolee to prison to serve out the balance of his sentence if he fails to abide by the rules. In practice, not every violation of a parole condition will automatically lead to a revocation. Typically, a parolee will be counseled to abide by the conditions of parole, and the parole officer ordinarily does not take steps to have parole revoked unless he thinks that the violations are serious and continuing so as to indicate that the parolee is not adjusting properly and cannot be counted on to avoid antisocial activity. The broad discretion accorded the parole officer is also inherent in some of the quite vague conditions, such as the typical requirement that the parolee avoid "undesirable" associations or correspondence. Yet revocation of parole is not an unusual phenomenon, affecting only a few parolees. According to the Supreme Court in Morrissey v. Brewer, 35% - 45% of all parolees are subjected to revocation and return to prison. Sometimes revocation occurs when the parolee is accused of another crime; it is often preferred to a new prosecution because of the procedural ease of recommitting the individual on the basis of a lesser showing by the State.
Note
Pin It! Morrissey v. Brewer Case Study
Does a parolee have the right to defend himself if he breaks parole? Morrisey v. Brewer settles this issue. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/04%3A_Alternatives_to_Incarceration/4.04%3A_Parole.txt |
An “alternative to incarceration” is any kind of punishment other than time in prison or jail that can be given to a person who commits a crime. Frequently, punishments other than prison or jail time place serious demands on offenders and provide them with intensive court and community supervision. Just because a certain punishment does not involve time in prison or jail does not mean it is “soft on crime” or a “slap on the wrist.” Alternatives to incarceration can repair harms suffered by victims, provide benefits to the community, treat the drug-addicted or mentally ill, and rehabilitate offenders. Alternatives can also reduce prison and jail costs and prevent additional crimes in the future. Before we can maximize the benefits of alternatives to incarceration, however, we must repeal mandatory minimums and give courts the power to use cost-effective, recidivism-reducing sentencing options instead.
4.06: Halfway Houses
Halfway houses (also called “community correction centers” or “residential reentry centers” by the federal Bureau of Prisons) are used mostly as an intermediate housing option to help a person return from prison to the community after he has served a prison sentence. Sometimes, though, halfway houses can be used instead of prison or jail, usually when a person’s sentence is very short. For example, halfway houses may be a good choice when a person has served time in prison, been released on parole, and then violated a parole condition and been ordered to serve a few months additional time for that violation. While in halfway houses, offenders are monitored and must fulfill conditions placed on them by the court. Usually, offenders must remain inside the halfway house except when they are going to court or to a job.
Figure 4.1 Bureau of Prisons' Process for Placing Inmates into Residential Reentry Centers (RRC) and Home Confinement. Image is in the public domain.
4.07: Home Confinement Electronic Home Monitoring
Home confinement (also called “house arrest”) requires offenders to stay in their homes except when they are in certain pre-approved areas (i.e., at court or work). Often, home confinement requires that the offender be placed on electronic home monitoring (EHM). EHM requires offenders to wear an electronic device, such as an ankle bracelet, that sends a signal to a transmitter and lets the authorities know where the offender is at all times. Like probation, home confinement usually comes with conditions. If the offender violates those conditions, he can be put in jail or prison. Offenders on EHM usually contact a probation officer daily and take frequent and random drug tests. In many jurisdictions, an offender cannot be placed on EHM unless the court or a jail official recommends it.
4.08: Fines and Restitution
Requiring the offender to pay supervision fees, fines, and court costs can be used as an independent punishment or in addition to other punishments. “Tariff fines” are a set amount applied to every offender when a particular crime is committed (e.g., \$500 for driving while intoxicated), regardless of the offender’s income level or ability to pay. For the wealthy, tariff fines can be too small to be a meaningful punishment. For the poor, tariff fines can be too large, resulting in jail time when the offender cannot pay. “Day fines” are one solution. They are not a flat amount but are based on the seriousness of the crime and the offender’s daily income. Wealthier offenders pay more and pay an amount that is a meaningful loss of income, while those with lower incomes pay an amount they can afford and avoid jail. Restitution requires offenders to pay for some or all of a community or victim’s medical costs or property loss that resulted from the crime. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/04%3A_Alternatives_to_Incarceration/4.05%3A_Treatment.txt |
Community service can be its own punishment or can act as a condition of probation or an alternative to paying restitution or a fine (each hour of service reduces the fine or restitution by a particular amount, until it is paid in full). Community service is unpaid work by an offender for a civic or nonprofit organization. In federal courts, community service is not a sentence, but a special condition of probation or supervised release.
Figure 4.2 File: Community Service Work Detail for 35th District Court Northville Michigan.JPG. This file is licensed under the Creative Commons Attribution 3.0 Unported license.
4.10: Sex Offender Treatment and Civil Commitment
Many sex offenders are placed on probation, with requirements that they attend a sex offender treatment program, report regularly to a probation officer, do not contact their victims, do not use the internet, and do not live or work in certain areas. Sex offender treatment programs can be inpatient (residential) or outpatient (non-residential) and generally use cognitive-behavioral therapy, counseling, and other approaches to reduce the likelihood that the person will commit another sex offense. About 20 states also have “civil commitment” programs, which place sex offenders in secure hospitals or residential treatment facilities for treatment. These offenders typically receive civil commitment only after they have finished serving a prison term for their sex offense. Offenders can be required to stay on civil commitment indefinitely, which means the programs can cost up to four times what it costs to keep an offender in prison.
4.11: Mental Health Courts
Mental health courts, like drug courts, are specialized courts that place offenders suffering from mental illness, mental disabilities, drug dependency, or serious personality disorders in a court-supervised, community-based mental health treatment program. Court and community supervision are combined with inpatient or outpatient professional mental health treatment. Offenders receive rewards for compliance with supervision conditions and are disciplined for noncompliance. They are also linked to housing, health care, and life skills training resources that help prevent relapse and promote their recovery. Often, offenders must first plead guilty to charges before being diverted to mental health court.
4.12: Restorative Justice
Restorative justice is a holistic sentencing process focused on repairing harm and bringing healing to all those who are impacted by a crime, including the offender. Representatives of the justice system, victims, offenders, and community members are involved and achieve these goals through sentencing circles, victim restitution, victim-offender mediation, and formalized community service programs. Sentencing circles occur when the victim, offender, community members, and criminal justice officials meet and jointly agree on a sentence that repairs the harm the offender caused. Victim-offender mediation allows the offender and victim to meet and exchange apologies and forgiveness for the crime committed. Restorative justice practices can be used alone or as a condition of a sentence of probation.
4.13: Boot Camp
Boot camp programs involve intense daily regimens that include physical exercise, individual counseling, educational classes, and studying for a GED. Today, boot camps are no longer used in the federal prison system and are rarely used in state corrections systems. Like a military boot camp, offenders follow a strict disciplinary code that requires them to wear short hair and uniforms, stand at attention before their officers, and address their superiors as “sir.” Offenders who complete the program and find a job can become eligible for early release. Once released, they may be put on probation.
4.14: Public Shaming
Public shaming is public humiliation. It is used rarely and usually only for low-level misdemeanors. For example, a court ordered a convicted mail thief to stand outside a post office for a total of 100 hours wearing a sign that said, “I am a mail thief. This is my punishment.” Public shaming is intended to rehabilitate the offender and discourage him from re-offending.
4.15: Drug Courts
Drug courts are a special branch of courts created within already-existing court systems. Drug courts provide court-supervised drug treatment and community supervision to offenders with substance abuse problems. All 50 states and the District of Columbia have at least a few drug court programs. There are no drug courts in the federal system. Some states have drug courts for adults and for juveniles, as well as family treatment or family dependency treatment courts that treat parents so that they might remain or reunite with their children.
Drug court eligibility requirements and program components vary from one locality to another, but they typically require some or all of the following:
• Require offenders to complete random urine tests, attend drug treatment counseling or Narcotics Anonymous/Alcoholics Anonymous meetings, meet with a probation officer, and report to the court regularly on their progress;
• Give the court authority to praise and reward the offender for successes and discipline the offender for failures (including sending the offender to jail or prison);
• Are available to non-violent, substance-abusing offenders who meet specific eligibility requirements (e.g., no history of violence, few or no prior convictions);
• Are not available on demand – usually, either the prosecutor or the judge handling the case must refer the offender to drug court; sometimes, this referral can only be made after the offender pleads guilty to the offense; and
• Allow offenders who successfully complete the program to avoid pleading guilty, having a conviction placed on their record, or serving some or all of their prison or jail time; some programs also allow successful participants who have already pled guilty to have their drug conviction removed from their record. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/04%3A_Alternatives_to_Incarceration/4.09%3A_Community_Service.txt |
Chapter 5 - Types of Correctional Facilities
Key Terms:
Federal/State/Local Facilities
Pre-trial Detention
Security Levels (Inmates)
Medium Security
Supermax Prisons
Custody Levels
Punishment
Minimum Security
Maximum Security
05: Types of Correctional Facilities
The Federal Bureau of Prisons was established in 1930 to provide more progressive and humane care for federal inmates, to professionalize the prison service, and to ensure consistent and centralized administration of the 11 Federal prisons in operation at that time. Today, the Bureau includes 121 institutions, 6 regional offices, a Central Office (headquarters), and 26 offices that oversee residential reentry centers. The regional offices and Central Office provide oversight and administrative support to the institutions and offices. The Bureau is responsible for the care and custody of more than 208,000 federal inmates, as of spring 2015.1 About 81 percent of these inmates are confined in federal correctional institutions or detention centers, and the remainder are held in secure privately managed or community-based facilities and local jails under contract with the Bureau. The Bureau protects society by confining offenders in prisons and community-based facilities that are safe, humane, cost-efficient, and appropriately secure, and by providing inmates with programs and services to assist them in becoming proactive law-abiding citizens when they return to their communities. The Bureau’s most important resource is its staff. All Bureau staff are expected to conduct themselves in a manner that creates and maintains respect for the agency, the Department of Justice, the Federal Government, and the law.
The Bureau operates institutions at four security levels (minimum, low, medium, and high) and has one maximum-security prison for the less than one percent of inmates who require that level of security. It also has administrative facilities, such as pretrial detention centers and medical referral centers that have specialized missions and confine offenders of all security levels. The Bureau also classifies its institutions based on the level of medical services readily available, as care levels 1-4. The characteristics that help define the security level of an institution are perimeter security (such as fences, patrol officers, and towers), level of staffing, internal controls for inmate 3 movement and accountability, and type of living quarters (for example, cells or open dormitories).
The Bureau’s graduated security and medical classification levels allow staff to assign an inmate to an institution in accordance with his/her individual needs. Thus, inmates who can function with relatively less supervision, without disrupting institution operations or threatening the safety of staff or other inmates, can be housed in lower security level institutions. Regardless of the specific discipline in which a staff member works, all employees are “correctional workers first.” This means everyone is responsible for the security and good order of the institution. All staff are expected to be vigilant and attentive to inmate accountability and security issues, to respond to emergencies, and to maintain a proficiency in custodial and security matters, as well as in their particular job specialty. This approach allows the Bureau to operate in the most cost-effective manner with fewer correctional officers and still maintain direct supervision of inmates.
The Bureau relies on security technologies to help ensure the safety of staff and inmates. Recently new technologies have included whole body imaging devices to detect contraband (including cell phones) and sophisticated walk-through metal detectors, thermal fencing, and thermal camera sensors. These technologies have significantly reduced contraband. Additionally, the Bureau has provided staff additional equipment, such as oleoresin capsicum spray, to further enhance safety.
The Bureau’s philosophy is that preparation for reentry to society begins on the first day of incarceration. Accordingly, the Bureau provides many programs, designed to assign inmates and address their needs such as substance abuse treatment, mental health treatment, education, anger management, parenting and more. Prison work programs provide inmates an opportunity to acquire marketable occupational skills, as well as acquire a sound work ethic and habits. Medically able inmates are required to work some. For some individuals, this represents their first employment experience. Work assignments provide on-the-job training similar to what would be received in the community. For example, inmates work as clerks, landscapers, and electricians. Many work assignments are linked to vocational training programs and may lead to formal apprenticeships.
1) Federal Prison Industries (FPI) and Vocational Training Federal Prison Industries (FPI), trade name UNICOR, is one of the Bureau’s most important correctional programs. It has been proven to substantially reduce recidivism and operates without congressional appropriation. Inmates who participate in FPI are also substantially less likely to engage in misconduct.
2) Education: The Bureau provides education and recreation programs individually: GED, Spanish GED, English As A Second Language, 6 Adult Continuing Education, Post-Secondary, Parenting, Vocational, Apprenticeships, and Release Preparation. Inmates who participate in education programs for a minimum of six months are less likely to recidivate when compared to similar nonparticipating inmates. Recreation programs help teach inmates to make constructive use of leisure time to reduce stress, improve their health and develop hobbies they enjoy. These programs keep inmates constructively occupied and contribute to positive lifestyles and self-improvement.
3) Inmate Faith-Based Programs Federal prisons offer a variety of faith-based services and programs. Inmates are granted permission to wear or retain various religious items, and accommodations are made to observe holy days. Bureau facilities offer religious diets that meet the dietary requirements of various faith groups, such as the Jewish and Islamic faiths. Most institutions have sweat lodges to accommodate the religious requirements of Native Americans. Religious programs are led or supervised by staff chaplains, contract spiritual leaders, and community volunteers. Chaplains oversee inmate worship services and self-improvement programs, and provide pastoral care, spiritual guidance, and counseling. The Bureau offers inmates the opportunity to participate in its Life Connections Program, a residential reentry program as well as Thresholds, the nonresidential version of our program.
4) Residential Substance Abuse Treatment Residential drug abuse treatment programs (RDAPs) are offered at more than 77 Bureau institutions, providing treatment to more than 18,000 inmates each year. Inmates in RDAP are housed in a separate housing unit that operates a modified therapeutic community. RDAPs provide intensive half-day programming, 5 days a week, for 9-12 months. The remainder of each day is spent in education, work skills training, and other programs. The program also includes a community-based component that inmates complete while in a RRC or home confinement. Inmates who complete RDAP are 16 percent less likely to recidivate and 15 percent less likely to have a relapse to drug use within 3 years after release. Nonviolent offenders who complete the program are eligible to have their sentence reduced by up to one year. Other drug programs offered by the Bureau are the Nonresidential Drug Treatment Program, Challenge Program, and Spanish RDAP.
5) Pro-Social Values Programs Encouraged by RDAP’s positive results, the Bureau implemented a number of other programs, including the Secure Mental Health Treatment Program, which treats inmates with serious mental illness and histories of significant violence; the Challenge Program for high security inmates, which treats inmates with a history of substance abuse or mental illness; the Resolve Program for female inmates, which treats inmates with trauma-related mental illnesses; the BRAVE (Bureau Rehabilitation and Values Enhancement) Program for younger, newly-designated offenders, which addresses anti-social attitudes and behavior; the Skills Program for cognitively-impaired inmates, which treats issues with adapting to prison and the community; Mental Health Step Down Units, which provide treatment for inmates with serious mental illnesses releasing from psychiatric hospitalization; the Sex Offender Treatment Program for inmates with a sex offense history; and the STAGES (Steps Toward Awareness, Growth, and Emotional Strength) program for inmates with severe personality disorders, who have a history of behavioral problems or self-harm. As resources allow, the Bureau has expanded these programs to address the significant demand for these services. The Bureau has found that these programs significantly reduce institution misconduct.
Near the end of their sentence, inmates participate in the Release Preparation Program, which includes a series of classes regarding daily living activities in the community including employment, banking, resume writing, job search strategies, and job retention. It also includes presentations by representatives from community-based organizations that help former inmates find employment and training opportunities after release. The Bureau helps inmates maintain ties with their family and friends through visiting, mail, email and the telephone.
The Bureau specifically encourages inmates to maintain and develop bonds with their children through parenting programs that include specialized activities such as day camps and workshops. The Bureau’s Inmate Transition Branch helps inmates prepare release portfolios that include a resume, education and training certificates and transcripts, diplomas, and other significant documents needed to secure employment. Many institutions hold mock job fairs to allow inmates to practice job interview techniques and expose community recruiters to the skills available among inmates. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/05%3A_Types_of_Correctional_Facilities/5.01%3A_Federal_level.txt |
Prisons in the United States today are usually distinguished by custody levels. Super-maximum-security prisons are used to house the most violent and most escape prone inmates. These institutions are characterized by almost no inmate mobility within the facility, and fortress-like security measures. This type of facility is very expensive to build and operate. The first such prison was the notorious federal prison Alcatraz, built by the Federal Bureau of Prisons in 1934.
Maximum-security prisons are fortresses that house the most dangerous prisoners. Only 20% of the prisons in the United States are labeled as maximum security, but, because of their size, they hold about 33% of the inmates in custody. Because super-max prisons are relatively rare, maximum-security facilities hold the vast majority of America's dangerous convicts. These facilities are characterized by very low levels of inmate mobility, and extensive physical security measures.
Figure 5.1 Artist’s render of a supermax prison cell, Creative Commons Attribution-Share Alike 4.0 International
Tall walls and fences are common features, usually topped with razor wire. Watchtowers staffed by officers armed with rifles are common as well. Security lighting and video cameras are almost universal features.
States that use the death penalty usually place death row inside a maximum-security facility. These areas are usually segregated from the general population, and extra security measures are put in place. Death row is often regarded as a prison within a prison, often having different staff and procedures than the rest of the facility.
Medium-security prisons use a series of fences or walls to hold prisoners that, while still considered dangerous, are less of a threat than maximum-security prisoners. The physical security measures placed in these facilities is often as tight as for maximum-security institutions. The major difference is that medium-security facilities offer more inmate mobility, which translates into more treatment and work options. These institutions are most likely to engage inmates in industrial work, such as the printing of license plates for the State.
Minimum-security prisons are institutions that usually do not have walls and armed security. Prisoners housed in minimum-security prisons are considered to be nonviolent and represent a very small escape risk. Most of these institutions have far more programs for inmates, both inside the prison and outside in the community. Part of the difference in inmate rights and privileges stems from the fact that most inmates in minimum-security facilities are "short timers." In other words, they are scheduled for release soon. The idea is to make the often-problematic transition from prison to community go more smoothly. Inmates in these facilities may be assigned there initially, or they may have worked their way down from higher security levels through good behavior and an approaching release date.
Women are most often housed in women's prisons. These are distinguished along the same lines as male institutions. These institutions tend to be smaller than their male counterparts are, and there are far fewer of them. Women do not tend to be as violent as men are, and this is reflected in what they are incarcerated for.
Figure 5.2 Male v. Female Incarceration Rates in the U.S., Image is in the public domain.
Most female inmates are incarcerated for drug offenses. Inmate turnover tends to be higher in women's prisons because they tend to receive shorter sentences.
A few states operate coeducational prisons where both male and female inmates live together. The reason for this is that administrators believe that a more normal social environment will better facilitate eventual reintegration of both sexes into society. The fear of predation by adult male offenders keeps most facilities segregated by gender.
In the recent past, the dramatic growth in prison populations led to the emergence of private prisons. Private organizations claimed that they could own and operate prisons more efficiently than government agencies can. The Corrections Corporation of America is the largest commercial operator of jails and prisons in the United States. The popularity of the idea has waned in recent years, mostly due to legal liability issues and a failure to realize the huge savings promised by the private corporations. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/05%3A_Types_of_Correctional_Facilities/5.02%3A_State_Level.txt |
The idea of jails has a long history, and the historical roots of American jails are in the "gaols" of feudal England. Sheriffs operated these early jails, and their primary purpose was to hold accused persons awaiting trial. This English model was brought over to the Colonies, but the function remained the same. In the 1800s, jails began to change in response to the penitentiary movement. Their function was extended to housing those convicted of minor offenses and sentenced to short terms of incarceration. They were also used for other purposes, such as holding the mentally ill and vagrants. The advent of a separate juvenile justice system and the development of state hospitals alleviated the burden of taking care of these later categories.
Today's jails are critical components of local criminal justice systems. They are used to address the need for secure detention at various points in the criminal justice process. Jails typically serve several law enforcement agencies in the community, including local law enforcement, state police, wildlife conservation officers, and federal authorities. Jails respond to many needs in the criminal justice system and play an integral role within every tier of American criminal justice. These needs are ever changing and influenced by the policies, practices, and philosophies of the many different users of the jail. Running a jail is a tough business, usually undertaken by a county sheriff. Often, much of the Sheriff's authority is delegated to a jail administrator.
Running a jail is such a complicated endeavor partly because jails serve an extremely diverse population. Unlike prisons where inmate populations are somewhat homogenous, fails hold vastly different individuals. Jails hold both men and women, and both children and adults. Most state prisoners are serious offenders, whereas jails old both serious offenders as well as minor offenders who may be vulnerable to predatory criminals. Those suffering from mental illness, alcoholism, and drug addiction often find themselves in jail. It is in this environment that jail staff must accomplish the two major functions of jails: Intake and Custody.
Booking and Intake
The booking and intake function of jails serves a vital public safety function by providing a secure environment in which potentially dangerous persons can be assessed, and the risk these individuals pose the public can be determined.
Custody
The second major function of jails is the idea of custody. That is, people are deprived of their liberty for various reasons. The two most common of these reasons are pretrial detention and punishment.
Pretrial Detention
A major use of modern jails is what is often referred to as pretrial detention. In other words, jails receive accused persons pending arraignment and hold them awaiting trial, conviction, or sentencing. More than half of jail inmates are accused of crimes and are awaiting trial. The average time between arrest and sentencing is around six months. Jails also readmit probation and parole violators and absconders, holding them for judicial hearings. The major purpose of pretrial detention is not to punish offenders, but to protect the public and ensure the appearance of accused persons at trial.
According to the Bureau of Justice Statistics, there are around 3,300 jails currently in operation within the United States. This large number points to a very important fact: Jails are primarily a local concern. Jails (and detention centers) are facilities designed to safely and securely hold a variety of criminal offenders, usually for a short period. The wide variety of offenders comes from the fact that jails have dual roles. They hold criminal defendants waiting on processing by the criminal justice system, and they hold those convicted of crimes and sentenced to a jail term. In addition, jails hold prisoners for other agencies, such as state departments of correction, until bed space becomes available in a state prison.
Figure 5.2 Jail Cell. Free to use by Pixaby
The size of jails can vary widely depending on the jurisdiction the facility serves. Both geographic and legal jurisdiction must be considered. The single most important determinant of jail size is population density. The more people a given jurisdiction has, the more jail inmates they are likely to have. Many rural jails are quite small, but America's largest population centers tend to have massive jail complexes. Most counties and many municipalities operate jails, and a few are operated by federal and other non-local agencies. There has been a trend for small, rural jurisdictions to combine their jails into regional detention facilities. These consolidated operations can increase efficiency, security, and better ensure prisoners' rights.
Punishment
A primary function of jails is to house criminal defendants after arrest. Within a very narrow window of time, the arrestee must appear before a judge. The judge will consider the charges against the defendant and the defendant's risk of flight when determining bail. The judge may decide to remand the defendant to the custody of the jail until trial, but this is rare. Most often, pretrial release will be granted. The arrestees may be required to pay a certain amount of money to ensure their appearance in court, or they may be released on their own recognizance.
As a criminal sanctioning option, jails provide a method of holding offenders accountable for criminal acts. Jails house offenders that have been sentenced to a jail term for misdemeanor offenses, usually for less than one year. There are many ways that jail sentences can be served, depending largely on the laws and policies of the particular jurisdiction. A central goal of incarceration as punishment in the criminal justice system is the philosophical goal of deterrence. Many believe that jail sentences discourage offenders from committing future criminal acts (specific deterrence) and to potential criminals about the possible costs of crime (general deterrence). Rehabilitation and reintegration are sometimes considered secondary goals of incarceration. These goals are not usually deemed amenable to the jail environment, and few programs designed to meet these goals exist. Many local jails do make a modest effort to provide inmates with opportunities for counseling and change to deter future criminal behavior, but always within the constraints of scant resources.
Miscellaneous Functions
Jails in some jurisdictions are responsible for transferring and transporting inmates to federal, state, or other authorities. Jails are also tasked with holding mentally ill persons pending their transfer to suitable mental health facilities where beds are often unavailable. Jails also hold people for a variety of government purposes; they hold individuals wanted by the armed forces, for protective custody of individuals who may not be safe in the community, for those found in contempt of court, and witnesses for the courts. Jails often hold state and federal inmates due to overcrowding in prison facilities. Jails are commonly tasked with community-based sanctions, such as work details engaged in public services.
Jail Populations
Arrestees often arrive at the jail with myriad many problems. Substance abuse, alcohol abuse, and mental illness often mean that jail inmates are not amenable to complying with the directions of jail staff. Many have medical problems, psychological problems, and emotional problems. Inmates can display the full gambit of human emotions: fail staff may see fear, anxiety, anger, and depression every day. Behaviors often mirror emotional state, and at times staff must deal with noncompliant, suicidal, or violent inmates. While inmates are in custody, the jail is responsible for their health and wellbeing.
Jails function in a role as a service provider for the rest of the criminal justice community. Jail administrators have very little discretion in who goes to jail and how long they remain in custody. Law and policy play a big role in dictating who goes to jail, as do the discretionary decisions of probation and parole officers, law enforcement, and judges. Prevalent community attitudes are also important, because voters can place pressure on law enforcement and the courts to make more arrests and prosecute more offenders. When this happens, more people end up in jail. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/05%3A_Types_of_Correctional_Facilities/5.03%3A_Local_Level.txt |
Key Terms:
Institutionalization
“Just Desserts”
Hypervigilance
Alienation
Social withdrawl
Prison “norms”
Diminished self worth
PTSD
Dependence on structure
Prison culture
06: Institutionalization of Inmates in Correctional Facilities
Prisoners in the United States and elsewhere have always confronted a unique set of contingencies and pressures to which they were required to react and adapt in order to survive the prison experience. However, over the last several decades beginning in the early 1970s and continuing to the present time a combination of forces has transformed the nation's criminal justice system and modified the nature of imprisonment. The challenges prisoners now face in order to both survive the prison experience and, eventually, reintegrate into the free world upon release have changed and intensified as a result.
Figure 6.1 Bureau of Prison Statistics March 2018 Report.
Among other things, these changes in the nature of imprisonment have included a series of inter-related, negative trends in American corrections. Perhaps the most dramatic changes have come about as a result of the unprecedented increases in rate of incarceration, the size of the U.S. prison population, and the widespread overcrowding that has occurred as a result. Over the past 25 years, penologists repeatedly have described U.S. prisons as "in crisis" and have characterized each new level of overcrowding as "unprecedented." By the start of the 1990s, the United States incarcerated more persons per capita than any other nation in the modern world, and it has retained that dubious distinction for nearly every year since. The international disparities are most striking when the U.S. incarceration rate is contrasted to those of other nations to whom the United States is often compared, such as Japan, Netherlands, Australia, and the United Kingdom. In the 1990s, as Marc Mauer and the Sentencing Project have effectively documented the U.S. rates have consistently been between four and eight times those for these other nations.
The combination of overcrowding and the rapid expansion of prison systems across the country adversely affected living conditions in many prisons, jeopardized prisoner safety, compromised prison management, and greatly limited prisoner access to meaningful programming. The two largest prison systems in the nation California and Texas provide instructive examples. Over the last 30 years, California's prisoner population increased eightfold (from roughly 20,000 in the early 1970s to its current population of approximately 160,000 prisoners). Yet there has been no remotely comparable increase in funds for prisoner services or inmate programming. In Texas, over just the years between 1992 and 1997, the prisoner population more than doubled as Texas achieved one of the highest incarceration rates in the nation. Nearly 70,000 additional prisoners added to the state's prison rolls in that brief five-year period alone. Not surprisingly, California and Texas were among the states to face major lawsuits in the 1990s over substandard, unconstitutional conditions of confinement. Federal courts in both states found that the prison systems had failed to provide adequate treatment services for those prisoners who suffered the most extreme psychological effects of confinement in deteriorated and overcrowded conditions.
Paralleling these dramatic increases in incarceration rates and the numbers of persons imprisoned in the United States was an equally dramatic change in the rationale for prison itself. The nation moved abruptly in the mid-1970s from a society that justified putting people in prison on the basis of the belief that incarceration would somehow facilitate productive re-entry into the free world to one that used imprisonment merely to inflict pain on wrongdoers ("just deserts"), disable criminal offenders ("incapacitation"), or to keep them far away from the rest of society ("containment"). The abandonment of the once-avowed goal of rehabilitation certainly decreased the perceived need and availability of meaningful programming for prisoners as well as social and mental health services available to them both inside and outside the prison. Indeed, it generally reduced concern on the part of prison administrations for the overall well-being of prisoners.
The abandonment of rehabilitation also resulted in an erosion of modestly protective norms against cruelty toward prisoners. Many corrections officials soon became far less inclined to address prison disturbances, tensions between prisoner groups and factions, and disciplinary infractions in general through ameliorative techniques aimed at the root causes of conflict and designed to de-escalate it. The rapid influx of new prisoners, serious shortages in staffing and other resources, and the embrace of an openly punitive approach to corrections led to the "de-skilling" of many correctional staff members who often resorted to extreme forms of prison discipline (such as punitive isolation or "supermax" confinement) that had especially destructive effects on prisoners and repressed conflict rather than resolving it. Increased tensions and higher levels of fear and danger resulted.
The emphasis on the punitive and stigmatizing aspects of incarceration, which has resulted in the further literal and psychological isolation of prison from the surrounding community, compromised prison visitation programs and the already scarce resources that had been used to maintain ties between prisoners and their families and the outside world.
Support services to facilitate the transition from prison to the free world environments to which prisoners were returned were undermined at precisely the moment they needed to be enhanced. Increased sentence length and a greatly expanded scope of incarceration resulted in prisoners experiencing the psychological strains of imprisonment for longer periods of time, many persons being caught in the web of incarceration who ordinarily would not have been (e.g., drug offenders), and the social costs of incarceration becoming increasingly concentrated in minority communities (because of differential enforcement and sentencing policies).
Thus, in the first decade of the 21st century, more people have been subjected to the pains of imprisonment, for longer periods of time, under conditions that threaten greater psychological distress and potential long-term dysfunction, and they will be returned to communities that have already been disadvantaged by a lack of social services and resources.
Video: Explaining Mass Incarceration in Under 4 minutes… | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/06%3A_Institutionalization_of_Inmates_in_Correctional_Facilities/6.01%3A_The_State_of_the_Prisons.txt |
The adaptation to imprisonment is almost always difficult and, at times, creates habits of thinking and acting that can be dysfunctional in periods of post-prison adjustment. Yet, the psychological effects of incarceration vary from individual to individual and are often reversible. To be sure, then, not everyone who is incarcerated is disabled or psychologically harmed by it. But few people are completely unchanged or unscathed by the experience. At the very least, prison is painful, and incarcerated persons often suffer long-term consequences from having been subjected to pain, deprivation, and extremely atypical patterns and norms of living and interacting with others.
The empirical consensus on the most negative effects of incarceration is that most people who have done time in the best-run prisons return to the free world with little or no permanent, clinically-diagnosable psychological disorders as a result. Prisons do not, in general, make people "crazy." However, even researchers who are openly skeptical about whether the pains of imprisonment generally translate into psychological harm concede that, for at least some people, prison can produce negative, long-lasting change. And most people agree that the more extreme, harsh, dangerous, or otherwise psychologically-taxing the nature of the confinement, the greater the number of people who will suffer and the deeper the damage that they will incur.
Rather than concentrate on the most extreme or clinically-diagnosable effects of imprisonment, however, I prefer to focus on the broader and more subtle psychological changes that occur in the routine course of adapting to prison life. The term "institutionalization" is used to describe the process by which inmates are shaped and transformed by the institutional environments in which they live. Sometimes called "prisonization" when it occurs in correctional settings, it is the shorthand expression for the negative psychological effects of imprisonment. The process has been studied extensively by sociologists, psychologists, psychiatrists, and others, and involves a unique set of psychological adaptations that often occur in varying degrees in response to the extraordinary demands of prison life. In general terms, the process of prisonization involves the incorporation of the norms of prison life into one's habits of thinking, feeling, and acting.
It is important to emphasize that these are the natural and normal adaptations made by prisoners in response to the unnatural and abnormal conditions of prisoner life. The dysfunctionality of these adaptations is not "pathological" in nature (even though, in practical terms, they may be destructive in effect). They are "normal" reactions to a set of pathological conditions that become problematic when they are taken to extreme lengths, or become chronic and deeply internalized (so that, even though the conditions of one's life have changed, many of the once-functional but now counterproductive patterns remain).
Like all processes of gradual change, of course, this one typically occurs in stages and, all other things being equal, the longer someone is incarcerated the more significant the nature of the institutional transformation. When most people first enter prison, of course, they find that being forced to adapt to an often harsh and rigid institutional routine, deprived of privacy and liberty, and subjected to a diminished, stigmatized status and extremely sparse material conditions is stressful, unpleasant, and difficult.
However, the course of becoming institutionalized, a transformation begins. Persons gradually become more accustomed to the restrictions that institutional life imposes. The various psychological mechanisms that must be employed to adjust (and, in some harsh and dangerous correctional environments, to survive) become increasingly "natural," second nature, and, to a degree, internalized. To be sure, the process of institutionalization can be subtle and difficult to discern as it occurs. Thus, prisoners do not "choose" to succumb to it or not, and few people who have become institutionalized are aware that it has happened to them. Fewer still consciously decide that they are going to willingly allow the transformation to occur.
The process of institutionalization is facilitated in cases in which persons enter institutional settings at an early age, before they have formed the ability and expectation to control their own life choices. Because there is less tension between the demands of the institution and the autonomy of a mature adult, institutionalization proceeds more quickly and less problematically with at least some younger inmates. Moreover, younger inmates have little in the way of already developed independent judgment, so they have little if anything to revert to or rely upon if and when the institutional structure is removed. And the longer someone remains in an institution, the greater the likelihood that the process will transform them.
Among other things, the process of institutionalization (or "prisonization") includes some or all the following psychological adaptations. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/06%3A_Institutionalization_of_Inmates_in_Correctional_Facilities/6.02%3A_The_Psychological_Effects_of_Incarceration-_On_the_Nature_of_Institutionalization.txt |
Among other things, penal institutions require inmates to relinquish the freedom and autonomy to make their own choices and decisions and this process requires what is a painful adjustment for most people. Indeed, some people never adjust to it. Over time, however, prisoners may adjust to the muting of self-initiative and independence that prison requires and become increasingly dependent on institutional contingencies that they once resisted. Eventually it may seem more or less natural to be denied significant control over day-to-day decisions and, in the final stages of the process, some inmates may come to depend heavily on institutional decision makers to make choices for them and to rely on the structure and schedule of the institution to organize their daily routine. Although it rarely occurs to such a degree, some people do lose the capacity to initiate behavior on their own and the judgment to make decisions for themselves. Indeed, in extreme cases, profoundly institutionalized persons may become extremely uncomfortable when and if their previous freedom and autonomy is returned.
A slightly different aspect of the process involves the creation of dependency upon the institution to control one's behavior. Correctional institutions force inmates to adapt to an elaborate network of typically very clear boundaries and limits, the consequences for whose violation can be swift and severe. Prisons impose careful and continuous surveillance and are quick to punish (and sometimes to punish severely) infractions of the limiting rules.
Figure 6.1 Which one? by Truid Radtke. (CC BY 4.0)
The process of institutionalization in correctional settings may surround inmates so thoroughly with external limits, immerse them so deeply in a network of rules and regulations, and accustom them so completely to such highly visible systems of constraint that internal controls atrophy or, in the case of especially young inmates, fail to develop altogether. Thus, institutionalization or prisonization renders some people so dependent on external constraints that they gradually lose the capacity to rely on internal organization and self-imposed personal limits to guide their actions and restrain their conduct. If and when this external structure is taken away, severely institutionalized persons may find that they no longer know how to do things on their own, or how to refrain from doing those things that are ultimately harmful or self- destructive.
6.04: Hypervigilance interpersonal distrust and suspicion
In addition, because many prisons are clearly dangerous places from which there is no exit or escape, prisoners learn quickly to become hypervigilant and ever-alert for signs of threat or personal risk. Because the stakes are high, and because there are people in their immediate environment poised to take advantage of weakness or exploit carelessness or inattention, interpersonal distrust and suspicion often result. Some prisoners learn to project a tough convict veneer that keeps all others at a distance. Indeed, as one prison researcher put it, many prisoners "believe that unless an inmate can convincingly project an image that conveys the potential for violence, he is likely to be dominated and exploited throughout the duration of his sentence."
McCorkle's study of a maximum-security Tennessee prison was one of the few that attempted to quantify the kinds of behavioral strategies prisoners report employing to survive dangerous prison environments. He found that "[f]ear appeared to be shaping the life-styles of many of the men," that it had led over 40% of prisoners to avoid certain high-risk areas of the prison, and about an equal number of inmates reported spending additional time in their cells as a precaution against victimization. At the same time, almost three-quarters reported that they had been forced to "get tough" with another prisoner to avoid victimization, and more than a quarter kept a "shank" or other weapon nearby with which to defend themselves. McCorkle found that age was the best predictor of the type of adaptation a prisoner took, with younger prisoners being more likely to employ aggressive avoidance strategies than older ones.
6.05: Emotional over-control alienation and psychological distancing
Shaping such an outward image requires emotional responses to be carefully measured. Thus, prisoners struggle to control and suppress their own internal emotional reactions to events around them. Emotional over-control and a generalized lack of spontaneity may occur as a result. Admissions of vulnerability to persons inside the immediate prison environment are potentially dangerous because they invite exploitation. As one experienced prison administrator once wrote: "Prison is a barely controlled jungle where the aggressive and the strong will exploit the weak, and the weak are dreadfully aware of it." Some prisoners are forced to become remarkably skilled "self-monitors" who calculate the anticipated effects that every aspect of their behavior might have on the rest of the prison population and strive to make such calculations second nature.
Prisoners who labor at both an emotional and behavioral level to develop a "prison mask" that is unrevealing and impenetrable risk alienation from themselves and others, may develop emotional flatness that becomes chronic and debilitating in social interaction and relationships, and find that they have created a permanent and unbridgeable distance between themselves and other people. Many for whom the mask becomes especially thick and effective in prison find that the disincentive against engaging in open communication with others that prevails there has led them to withdrawal from authentic social interactions altogether. The alienation and social distancing from others are a defense not only against exploitation but also against the realization that the lack of interpersonal control in the immediate prison environment makes emotional investments in relationships risky and unpredictable.
6.06: Social withdrawal and isolation
Some prisoners learn to find safety in social invisibility by becoming as inconspicuous and unobtrusively disconnected from others as possible. The self-imposed social withdrawal and isolation may mean that they retreat deeply into themselves, trust virtually no one, and adjust to prison stress by leading isolated lives of quiet desperation. In extreme cases, especially when combined with prisoner apathy and loss of the capacity to initiate behavior on one's own, the pattern closely resembles that of clinical depression. Long-term prisoners are particularly vulnerable to this form of psychological adaptation.
Figure 6.2 Isolation by Trudi Radtke. (CC BY 4.0)
Indeed, Taylor wrote that the long-term prisoner "shows a flatness of response which resembles slow, automatic behavior of a very limited kind, and he is humorless and lethargic." In fact, Jose-Kampfner has analogized the plight of long-term women prisoners to that of persons who are terminally-ill, whose experience of this "existential death is unfeeling, being cut off from the outside (and who) adopt this attitude because it helps them cope." | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/06%3A_Institutionalization_of_Inmates_in_Correctional_Facilities/6.03%3A_Dependence_on_institutional_structure_and_contingencies.txt |
In addition to obeying the formal rules of the institution, there are also informal rules and norms that are part of the unwritten but essential institutional and inmate culture and code that, at some level, must be abided. For some prisoners this means defending against the dangerousness and deprivations of the surrounding environment by embracing all of its informal norms, including some of the most exploitative and extreme values of prison life. Note that prisoners typically are given no alternative culture to which to ascribe or in which to participate. In many institutions the lack of meaningful programming has deprived them of pro-social or positive activities in which to engage while incarcerated. Few prisoners are given access to gainful employment where they can obtain meaningful job skills and earn adequate compensation; those who do work are assigned to menial tasks that they perform for only a few hours a day. With rare exceptions those very few states that permit highly regulated and infrequent conjugal visits they are prohibited from sexual contact of any kind. Attempts to address many of the basic needs and desires that are the focus of normal day-to-day existence in the free world to recreate, to work, to love necessarily draws them closer to an illicit prisoner culture that for many represents the only apparent and meaningful way of being.
However, as I noted earlier, prisoner culture frowns on any sign of weakness and vulnerability and discourages the expression of candid emotions or intimacy. And some prisoners embrace it in a way that promotes a heightened investment in one's reputation for toughness and encourages a stance towards others in which even seemingly insignificant insults, affronts, or physical violations must be responded to quickly and instinctively, sometimes with decisive force. In extreme cases, the failure to exploit weakness is itself a sign of weakness and seen as an invitation for exploitation. In men's prisons it may promote a kind of hypermasculinity in which force and domination are glorified as essential components of personal identity. In an environment characterized by enforced powerlessness and deprivation, men and women prisoners confront distorted norms of sexuality in which dominance and submission become entangled with and mistaken for the basis of intimate relations.
Of course, embracing these values too fully can create enormous barriers to meaningful interpersonal contact in the free world, preclude seeking appropriate help for one's problems, and a generalized unwillingness to trust others out of fear of exploitation. It can also lead to what appears to be impulsive overreaction, striking out at people in response to minimal provocation that occurs particularly with persons who have not been socialized into the norms of inmate culture in which the maintenance of interpersonal respect and personal space are so inviolate. Yet these things are often as much a part of the process of prisonization as adapting to the formal rules that are imposed in the institution, and they are as difficult to relinquish upon release.
?
Think about it . . . Stanford Prison Experiment
The Stanford Prison Experiment was a psychological study that tried to measure humans psychological responses to captivity, in particular, to life as a prisoner. It was conducted in 1971 by Philip Zimbardo of Stanford University. Since then other psychological researches have taken issue with the way Zimbardo conducted the experiment and claim that he skewed the conditions of the experiment and the findings. Click the links to do your own research and come to your own conclusion about this controversial study. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/06%3A_Institutionalization_of_Inmates_in_Correctional_Facilities/6.07%3A_Incorporation_of_exploitative_norms_of_prison_culture.txt |
Prisoners typically are denied their basic privacy rights and lose control over mundane aspects of their existence that most citizens have long taken for granted. They live in small, sometimes extremely cramped and deteriorating spaces (a 60 square foot cell is roughly the size of king-size bed), have little or no control over the identity of the person with whom they must share that space (and the intimate contact it requires), often have no choice over when they must get up or go to bed, when or what they may eat, and on and on. Some feel infantalized and that the degraded conditions under which they live serve to repeatedly remind them of their compromised social status and stigmatized social role as prisoners.
Figure 6.3 Low Self-esteem. By Trudi Radtke. (CC BY 4.0)
A diminished sense of self-worth and personal value may result. In extreme cases of institutionalization, the symbolic meaning that can be inferred from this externally imposed substandard treatment and circumstances is internalized; that is, prisoners may come to think of themselves as "the kind of person" who deserves only the degradation and stigma to which they have been subjected while incarcerated.
6.09: Post-traumatic stress reactions to the pains of imprisonment
For some prisoners, incarceration is so stark and psychologically painful that it represents a form of traumatic stress severe enough to produce post-traumatic stress reactions once released. Moreover, we now understand that there are certain basic commonalities that characterize the lives of many of the persons who have been convicted of crime in our society. A "risk factors" model helps to explain the complex interplay of traumatic childhood events (like poverty, abusive and neglectful mistreatment, and other forms of victimization) in the social histories of many criminal offenders. As Masten and Garmezy have noted, the presence of these background risk factors and traumas in childhood increases the probability that one will encounter a whole range of problems later in life, including delinquency and criminality. The fact that a high percentage of persons presently incarcerated have experienced childhood trauma means, among other things, that the harsh, punitive, and uncaring nature of prison life may represent a kind of "re-traumatization" experience for many of them. That is, some prisoners find exposure to the rigid and unyielding discipline of prison, the unwanted proximity to violent encounters and the possibility or reality of being victimized by physical and/or sexual assaults, the need to negotiate the dominating intentions of others, the absence of genuine respect and regard for their wellbeing in the surrounding environment, and so on all too familiar. Time spent in prison may rekindle not only the memories but the disabling psychological reactions and consequences of these earlier damaging experiences.
Figure 2.4 PTSD. Image has been designated to the public domain by Q .under a CC0 1.0 Universal Public Domain Dedication
The dysfunctional consequences of institutionalization are not always immediately obvious once the institutional structure and procedural imperatives have been removed. This is especially true in cases where persons retain a minimum of structure wherever they re-enter free society. Moreover, the most negative consequences of institutionalization may first occur in the form of internal chaos, disorganization, stress, and fear. Yet, institutionalization has taught most people to cover their internal states, and not to openly or easily reveal intimate feelings or reactions. So, the outward appearance of normality and adjustment may mask a range of serious problems in adapting to the free world.
This is particularly true of persons who return to the free world lacking a network of close, personal contacts with people who know them well enough to sense that something may be wrong. Eventually, however, when severely institutionalized persons confront complicated problems or conflicts, especially in the form of unexpected events that cannot be planned for in advance, the myriad of challenges that the non-institutionalized confront in their everyday lives outside the institution may become overwhelming. The facade of normality begins to deteriorate, and persons may behave in dysfunctional or even destructive ways because all of the external structure and supports upon which they relied to keep themselves controlled, directed, and balanced have been removed. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/06%3A_Institutionalization_of_Inmates_in_Correctional_Facilities/6.08%3A_Diminished_sense_of_self-worth_and_personal_value.txt |
Key Terms:
Aging without Bars
Barriers to success
Female programs
Clients not criminals
Evidence-based rehabilitation
Re-entry programs
Elements of successful re-entry
Pre-release programs
Risk-Needs-Responsivity (RNR)
Logic-model
In this Chapter, we explore new prison programs designed to improve inmates’ skills to improve their transition back into the community. The shift towards rehabilitation and skills training has proven successful in the reduction of recidivism rates.
07: Innovative Programs in Correctional Facilities
Aging Without Bars is a six-week person-centered training that helps inmates age 50 and older prepare to transition to the community. It addresses inmates’ lack of awareness of available resources by providing education and connecting them to case management services prior to their release, when possible. The program is implemented through a collaboration of Area Agencies on Aging (AAA) and jail intake staff, as well as community partners. The AAA became engaged in this area after the 2008-2012 Virginia 4-Year Plan for Aging Services ranked the older prisoner population as among the top areas of concern.
Measuring impact is a priority of this program. There is a pre-test and a post-test follow-up with each participant to assess what they have learned and to help calibrate the person’s needs moving forward. Evaluation of the program indicates that improvements have occurred across each of the performance measures: housing and economic stability, mental and physical health, and social supports. Inmates have shared that this is a life-changing program for them and have commented that they feel less invisible and forgotten as a result of their participation.
7.02: Washington D.C Court Supervision and Offender Release Program
Washington, DC Office on Aging the DC Court Supervision and Offender Release Program and the Washington, DC Office on Aging (the AAA) partnered to address older inmate reentry needs related to employment and housing. The program began several years ago as an ad hoc effort in response to tremendous demand to assist older offenders with reentry. The DC Office on Aging conducted comprehensive pre-screening of mental and physical health status of the participants in order to develop customized plans and partnered to provide job skills training and coaching. The program has now transitioned from the DC Office on Aging to the DC Office of Employment Services, so it can be integrated with other training and skills development programs such as the Senior Community Service Employment Program, the workforce program within the Older Americans Act.
Figure 7.1 CSOSA achieves high successful completion rates as a result of the combination of supports and close supervision and accountability strategies, including partnerships with local law enforcement partners. Image is in the Public Domain.
Because of the program, approximately 80 percent of participants were employed within a six-month period of reentry. Word-of-mouth has continued to increase enrollment. Families reach out proactively to the program to help pave the way when their loved one is released from prison, providing evidence that the community sees the value of this program. Challenges the program works to overcome include bringing participants’ job skills up to date, ensuring participants have photo identification, addressing needs of individuals who did not enter the country legally, and addressing mental health and substance abuse issues.
7.03: Virginia Department of Corrections
The Virginia Department of Corrections and the Virginia Department for Aging and Rehabilitative Services have embarked on a project to offer Chronic Disease Self-Management Education (CDSME) workshops for the aging prisoner population and other offenders living with chronic health conditions. Between 1990 and 2013 in Virginia, the prison population over the age of 50 increased from 822 individuals to 6,709 individuals. The state found that inmates were becoming older, sicker and staying longer behind bars. The program, now known as “Live Well Virginia!” was first introduced to the prison population at Bland Correction Center by District Three Senior Services AAA with the goal of helping Virginia offenders pursue a healthier lifestyle while incarcerated by teaching participants chronic disease self-management strategies and information on weight management, healthy eating, physical activity, rational decision making and relaxation. The program found that a secondary benefit of the program is the interaction and mutual support that the workshop fosters between prisoners. Building upon the success of CDSME at this site, Senior Connections (the AAA in in Richmond, VA) also began offering CDSME at a prison in its service area.
Figure 7.2 Virginia Department of corrections seal. Image in the Public Domain.
Since the workshops began, 37 workshops have been held in five correctional centers from south west to north central Virginia. Approximately 479 offenders have attended these sessions, with 368 inmates completing the workshops (a 77 percent retention rate). The Virginia Department of Corrections Director Harold Clark has stated, “This program helps offenders with chronic conditions take charge of their own well-being, contributing to better health outcomes while they’re incarcerated and successful reentry into their communities when they’re released.” A participant in the program stated, “The lessons you all have taught me will last a lifetime.” Based on the program’s early success, the effort was expanded to other prisons through partnership with additional AAAs. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/07%3A_Innovative_Programs_in_Correctional_Facilities/7.01%3A_Aging_Without_Bars.txt |
The poll and follow-up interviews reveal opportunities for engaging AAAs in supporting older inmates or those being released in the near future. The most important factor contributing to a successful initiative is a relationship between the AAA and the criminal justice system, whether it is a relationship with the local jail or prison in the AAA service area, a relationship with the local parole or probation department, or a contact at the state Department of Corrections. In instances where the jail or prison was not receptive to a partnership, implementing services in the jail or prison ultimately proved unrealistic. In many instances, partners in the criminal justice system (jail, prison, parole, probation, etc.) have recognized the limitations of the services they are able to provide and welcomed the partnership.
An additional predictor of a successful program is when the AAA and correctional system partner are housed within the same county, city government or Council of Governments structure. Having these departments housed under one institution facilitates coordination and communication. For example, the Schuyler County Office on Aging in New York is located in proximity to the probation and parole departments, as both are part of county government.
In Arlington, Virginia, the AAA and the local jail are also part of the same county government structure. Finally, securing buy-in from both staff and community members is essential. Programs benefit from staff who are willing to learn about the needs of older prisoners, and, at times, expand work scopes to accommodate a new initiative. In general, AAAs reported being pleased with support from the community to provide services to older prisoners and recently released individuals and shared that securing this support is another significant contributor to success.
Three Elements to Successful Reentry Programs for Inmates
1. Start early
Until recently, the focus of organizations and government agencies has been predominantly on release programs, while ignoring the significance of pre-release programs. The Federal Bureau of Prisons philosophy states, "release preparation begins the first day of incarceration, and focus on release preparation intensifies at least 18 months prior to release."
Successful reentry programs for inmates rely on more than just helping ex-offenders find jobs; it also requires helping offenders change their attitudes and beliefs about crime, addressing mental health issues, offering educational opportunities and job training, providing mentoring, and connecting them with community resources. Consideration should be given to providing most, if not all, of these things before a person’s release date.
2. Clients, not criminals
When some government agencies and social service organizations see "offenders", they can present a one-size fits all approach that ends up fitting no one. However, the Council for State Governments Justice Center suggests that employment programs need to move beyond traditional services. Instead, they recommend addressing individuals’ underlying attitudes about crime and work, making them more likely to succeed at getting and keeping jobs and less likely to reoffend. Not all offenders share the same levels of risk and learning how to accurately assess these attributes and deliver customized help is an important element to truly helping people get out of the criminal justice system.
3. Evaluate frameworks
According to the Manpower Demonstration Research Corporation, an organization that works to help improve the lives of low-income people, "There is a growing consensus that reentry strategies should build on a framework known as Risk-Needs-Responsivity (RNR)." The framework helps organizations assess individuals’ risk levels for recidivism and provide appropriate levels of response.
Models like Hawaii's Operation “HOPE” aim to change how we look at probation and post-incarceration monitoring. Since more than half of recidivism is a result of technical violations of parole, this is an important part of the reentry process to examine. By trying new methods, tracking efforts and outcomes, the desire is to move towards a system of reentry programs for inmates that serve their function while minimizing negative side effects. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/07%3A_Innovative_Programs_in_Correctional_Facilities/7.04%3A_Common_Factors_of_Successful_Prison_and_Reentry_Programs.txt |
Some of the challenges in serving the prison population are the same that affect the Area Agencies on Aging's (AAA) ability to serve the broader aging community. Lack of funding and staff resources are pervasive challenges for AAAs, no matter the population served. As the aging population has continued to grow, 75 percent of AAA budgets have remained flat or decreased over the last two years. AAAs find it difficult to expand programming to address the needs of new populations while existing programs, such as nutrition, transportation, case management and caregiver programs, are already stretched to the limit. For AAAs serving the older prisoner population, there is often more demand than they can handle, resulting in a need to triage their efforts and develop partnerships when possible.
AAAs would benefit from having efficient and effective tools to track aging prisoner program information to demonstrate the impact of their services. For CDSME programs, having data on how the program improves health outcomes (measuring weight, blood pressure and cholesterol) would be beneficial. For reentry programs, having data on the correlation between connecting recently released individuals to necessary services (such as transportation, housing and employment) and the impact on recidivism, would substantiate the need for these programs. Having the systems in place to track outcomes would underscore the importance of the AAA interventions and may serve to enhance collaboration with the correctional system. While tracking outcomes is important, it has also been necessary for AAAs to establish metrics prior to beginning a program to make the case and secure buy-in from key stakeholders. Some AAAs have struggled to secure data from prison and jail partners, such as the numbers of prisoners who plan to return home to the AAA service area after their discharge.
Some AAAs have found challenges with engaging the correctional system in these programs. While some correctional facilities have been very receptive to partnerships and see the value in providing aging-related services in jails or prisons, others have been reluctant to partner with external organizations. Further education on the unique needs and challenges faced by the aging prison population with criminal justice stakeholders would be beneficial.
An additional challenge that AAAs face in serving this population is overcoming established biases toward this demographic. When core programs are already stretched, stakeholders may question whether inmates or recently released individuals are as deserving of support as those who have not been convicted of crimes. On the other hand, some aging prisoners may have a bias against “the system” and have reservations about using a government-funded program when they feel that the system has not always served their best interests. One example of this type of bias can be seen in the DC reentry program, which was focused on employment. As part of the assessment to ensure clients are matched with the most appropriate resources, questions about mental health and addiction are raised. The DC program found that individuals did not always feel comfortable disclosing this type of information, resulting in employment placements that did not align with the needs or abilities of the individual being served. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/07%3A_Innovative_Programs_in_Correctional_Facilities/7.05%3A_Barriers_to_Success.txt |
Incarcerated women pose is significant difference from incarcerated men. The primary concern is that often times, women are the prime caretaker for children. When they are incarcerated, who cares for the children left behind? This may mean the children must be cared for by the father or extended family members, but this is not always possible, and the children may end up in foster care. To compound this problem, there are fewer female prisons, so they are farther away from their children making visits difficult if not impossible. These issues can have significant impact on the growth and development for the children and women. It can also make the reunification problem difficult.
Another issue for female prisoners is they may be pregnant or have other significant medical issues during incarceration. What happens to the child upon delivery is a significant concern for incarcerated females. They may be unsure of long-term care for the newborn or how to cope with the separation immediately after birth. This can contribute to significant psychological issues for the female prisoner and could affect behavior and treatment.
More and more institutions are recognizing these concerns for female prisoners and started unique programs to address these issues. For example, the State of California has developed the Community Prisoner Mother Program:
The Community Prisoner Mother Program (CPMP) is a community substance abuse treatment program where non-serious, nonviolent female offenders may serve a sentence up to six years. The CPMP has been in existence since 1985 and is mandated by Penal Code (PC) Section 3410. Women are placed in the program from any of the female institutions. Pursuant to PC 3410, program eligibility requires that the female offender have up to two children less than six years of age, have no active felony holds, nor any prior escapes. The female offender must sign a voluntary placement agreement to enter the program, followed by three years of parole. The CPMP facilities are not the property of CDCR, and a private contractor provides program services at our Pomona facility. The treatment program addresses substance issues, emotional functioning, self-esteem, parenting skills, and employment skills.
Figure 7.3 Female Inmate Education Class. Photo by CoreCivic. Image is under a CC.By 2.0 license.
Basic Program Components of the CPMP
• Pregnant and/or parenting mothers and their children under six years of age are provided programs and support services to assist in developing the skills necessary to become a functioning, self-sufficient family that positively contributes to society.
• Individual Treatment Plans are developed for both the mother and child to foster development and personal growth. Program services focus on trauma-informed substance abuse prevention, parenting and educational skills.
• The program provides a safe, stable, and stimulating environment for both the mother and the child, utilizing the least restrictive alternative to incarceration consistent with the needs for public safety.
• Program goals facilitate the mother/child bond, reunite the family, enhance community reintegration, foster successful independent living, and enhance self-reliance and self-esteem. The resultant mission is to break the inter-generational chain of crime and social services dependency.
The primary focus of the CPMP is to reunite mothers with their child(ren) and re-integrate them back into society as productive citizens by (a) providing a safe, stable, wholesome and stimulating environment, (b) establishing stability in the parent-child relationship and providing the opportunity for in-mate mothers to bond with their children and strengthen the family unit. Specific goals are:
1. To PROMOTE community reintegration, independent living and self-reliance;
2. To REDUCE the use of alcohol and drugs, involvement in criminal behavior, the rate of recidivism, Factors which result in trauma to children of incarcerated parents and ultimately long-term costs to the state;
3. To INCREASE parenting skills, emotional stability, and educational and vocational opportunities;
4. To ADDRESS substance abuse issues, behavioral and psychological factors which impact emotional stability, self-esteem, self-reliance, parent-child relationship and appropriate child development;
5. To PROVIDE pre-release planning, employment skills, educational, vocational and parenting skills. (CDCR Website) | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/07%3A_Innovative_Programs_in_Correctional_Facilities/7.06%3A_Female_Prisoners.txt |
In 2004, the State of California began a massive reorganization of their prison system. California was suffering from massive prison overcrowding and there was massive pressure from both inside the system and from the Court. After decades of incapacitation, the Department of Corrections shifted its focus to rehabilitation. However, this time it was going to be measurable and effective by offering evidence-based treatment programs designed to reduce recidivism. Recidivism – returning offenders to custody after a violation or commission of a crime – was one of the biggest factors in the rising prison population. Prisons had become a revolving door with about 43% of released offenders being returned to custody within three years. Something had to change.
One of the first things the California Department of Corrections (CDC) did was to change their name to California Department of Corrections and Rehabilitation (CDCR). This change was to identify their focus was moving to not just incarceration but to focus on rehabilitation. Their mission was to return to the community offenders who could become productive and valuable members of the community. They did this by overhauling their system, adding education programs, job training, effective substance abuse treatment programs, cognitive behavior programs, and re-entry programs to improve the outcomes upon release. Massive overhaul of the California Youth Authority also occurred during this time. (To be discussed in Chapter 8).
California Enacts Major Change with Division of Addiction and Recovery Services (DARS)
Two significant events occurred between May and September 2007. In May 2007, Governor Arnold Schwarzenegger signed landmark legislation, the Public Safety and Offender Rehabilitation Services Act of 2007 (AB 900). This statute fundamentally changes California’s correctional system by focusing on rehabilitative programming for offenders as a direct way to improve public safety upon return of inmates to their communities. In September 2007, the Undersecretary of Adult Programs was 5 appointed, overseeing the DARS, Education and Vocation; Community Partnerships; Correctional Health Care Services; Victim & Survivor Rights and Services; and Prison Industry Authority.
Assembly Bill (AB) 900 is a major effort to reform California’s prison system by reducing prison overcrowding and increasing rehabilitative programming. DARS has responsibility for two of thirteen benchmarks established by AB 900 that must be met prior to the release of funds for construction projects outlined in the bill.
They are:
1.) At least 2,000 substance abuse treatment slots have been established with aftercare in the community. (The bill requires a total of 4,000 new in-prison substance abuse treatment slots with aftercare in the community overall), and
2.) Prison institutional drug treatment slots have averaged at least 75 percent participation over the previous six months.
DARS met the benchmark to add 2,000 in-prison substance abuse slots with aftercare in the community on December 30, 2008. At that point, all of the new programs were operational, and inmates were participating in treatment. DARS added approximately 55,000 square feet of new programming space to five institutions and one community correctional facility. In addition, between April 2007 and December 2008, the Department expanded community care participation by 2,960 treatment slots. This is a 119 percent growth in community care participation from 2,498 in April 2007 to 5,458 participants in December 2008.
In March 1, 2009, DARS began piloting the Interim Computerized Attendance Tracking System (ICATS) at Solano and Folsom State Prisons to monitor in-prison substance abuse program utilization. This system will be implemented at all in-prison substance abuse programs to ensure that substance abuse treatment program utilization is captured and sustained at 75 percent or above. In June 2007, the Expert Panel recommended the California Logic Model as this state’s approach to integrating evidence-based principles into its rehabilitation programming. (See Appendix A, page 60). The Governor’s Rehabilitation Strike Team provided guidelines on how to implement the Expert Panel recommendations.
DARS has been challenged to provide quality evidence-based rehabilitative treatment programs aligned with the California Logic Model. This rehabilitation programming implements programs based on inmate risk to recidivate and assessment of individual needs that will better prepare offenders for successful community reentry and reintegration. The Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) and CDCR’s Addiction Severity Index (ASI) assessment tools will guide CDCR in placing the right offender in the right program at the right time.
DARS is continuing to develop programs that address the substance use disorder needs of its inmate population. Today, DARS delivers a redesigned program model that is trauma-informed, gender-responsive and includes standards and measures. In addition to the current modified Therapeutic Community, Cognitive Behavioral 6 Treatment and Psycho-Educational Treatment models are being included to better address the needs of offenders. Currently, DARS manages more than 12,000 substance abuse treatment slots in 44 programs at 21 institutions. In addition, as of the June 30, 2008, 5,503 parolees participated daily in community-based Substance Abuse Treatment, or “continuing care” programs, throughout the State. DARS achieved major milestones in CDCR’s mission to strengthen substance abuse recovery programs, to reduce recidivism, and to increase public safety.
Return-to-prison rates are significantly reduced for offenders completing in-prison and community-based substance abuse treatment programs
The utility of corrections-based treatment for substance abusing offenders has spurred both research and debate this decade. The Prison Journal contains reports on the nation’s three largest prison-based treatment studies. These studies, being conducted in California, Delaware, and Texas, offer further evidence that substance abuse treatment for appropriate correctional populations can work when adequate attention is given to engagement, motivation, and aftercare. 1 Corrections-based treatment policy should emphasize a continuum of care model (from institution to community) with high quality programs and services. 2 1 (Simpson, D.D., Wexler, H.K., & Inciardi, J.A. (Eds.) (September/December, 1999). Special issue on drug treatment outcomes for correctional settings, parts 1 & 2. The Prison Journal, 79 (3/4). 2 (Hiller, M. L., Knight, K., & Simpson, D. D. (1999). Prison-based substance abuse treatment, residential aftercare and recidivism. Addiction, 94(6), 833-842. DARS’ multi-year commitment to linking inmates who have completed in-prison substance abuse programs with community-based substance abuse treatment programs is proving to be a successful combination. The most recent data which followed offenders who paroled in 2005-06 for a one-year and a two-year period demonstrates that the recidivism rate was reduced for offenders who completed in-prison substance abuse treatment programs – with a more substantial reduction in recidivism for offenders completing in-prison followed by community-based substance abuse treatment programs.
Recidivism, or return-to-prison, is defined as a paroled offender returning to prison for any reason during a specified time period. This includes offenders who are returned to Substance-Abuse Treatment-Control Units in correctional facilities; returned pending a revocation hearing by the Board of Parole Hearings on charges of violating the conditions of parole; returned to custody for parole violations to serve revocation time; or returned to custody by a court for a new felony conviction.
Figure 7.3 Demonstrated a lower return-to-prison rate for female offenders who completed both in-prison and community-based substance abuse treatment in Fiscal Year (FY) 2005-06 (8.8 percent after one year and 16.5 percent after two years) as compared to the return-to-prison rate for all CDCR female offenders (30.1 percent after one year and 43.7 after two years).
Figure 7.4 Demonstrated a lower return-to-prison rate for male offenders who completed both in-prison and community-based substance abuse treatment in FY 2005-06 (25.4 percent after one year and 40.4 percent after two years) as compared to the return-to-prison rate for all CDCR male offenders (41.2 percent after one year and 55.6 percent after two years).
EVIDENCE-BASED REHABILITATION REFORMS
Implemented historic evidence-based rehabilitation reforms
During FY 2007-08, DARS also played a major role in historic reforms to bring evidence-based rehabilitation to California’s correctional system. These reforms use evidence-based rehabilitation – academic, vocational, substance abuse and other programs – to help offenders succeed when they return to their communities and reduce the State’s recidivism rate. The major principles of evidence-based programs include: research-based risk and needs assessments, targeting of criminogenic needs, skills-oriented, responsivity to an individual’s unique characteristics, program intensity (dosage), continuity of care, and ongoing monitoring and evaluation. To integrate these evidence-based principles, DARS:
• Demonstrated that the national research which states that in-prison substance abuse treatment followed by community-based aftercare reduces recidivism.
• Integrated evidence-based treatment services in DARS’ treatment model. DARS solicited input for its treatment model from experts in the field including the CDCR Expert Panel, the DARS Treatment Advisory Committee and outside evaluators. This treatment design now includes Cognitive Behavioral Treatment and Psycho-Educational Interventions as well as the modified Therapeutic Community model. DARS in-prison substance abuse provider contracts now include the requirement that programs offer all of these models. Also included in this expanded treatment model is individualized treatment planning based on risk and needs assessment from COMPAS as an initial screening tool and the ASI as a secondary assessment instrument.
• Implemented recommendations in “The Master Plan for Female Offenders: A Blueprint for Gender-Responsive Rehabilitation 2008” from the Division of Adult Institutions’ Female Offender Programs and Services (FOPS) office, and national experts including Barbara Bloom, Ph.D., Stephanie Covington, Ph.D., Barbara Owen, Ph.D., Nena Messina, Ph.D. and Christine Grella, Ph.D. These recommendations have informed CDCR’s approach to providing Gender Responsive and Trauma-Informed Treatment for female offenders.
• Opened the first-of-its-kind Trauma-Informed Gender-Responsive substance abuse treatment program for female offenders at Leo Chesney Community Correctional Facility. This program was implemented in collaboration with CDCR’s FOPS Division. This evidence-based model will be included in all AB 900 slots being added at Central California Women’s Facility and Valley State Prison for Women.
• Participated in launching a pilot project at California State Prison, Solano, to implement and assess the effectiveness of DARS’ expanded treatment model, which includes science-based risk and needs assessment tools, risk-needs responsive treatment services and integrated treatment services. Placement of inmates is based on their risk to reoffend and their need for rehabilitative programs. CDCR is initially targeting offenders with a moderate to high risk to reoffend for placement in intensive rehabilitation programs that include substance abuse, vocation and education, anger management, and criminal thinking.
New Evidence-Based Rehabilitation Treatment Model
The goal of evidence-based rehabilitation is to reduce recidivism by implementing the five principles of effective intervention:
• Risk Principle: Target high-risk offenders
• Need Principle: Treat risk factors associated with offending behavior
• Treatment Principle: Employ evidence-based treatment approaches
• Responsivity Principle: Tailor treatments to meet special needs
• Fidelity Principle: Monitor implementation, quality, and treatment fidelity
Substance Abuse Programs represent one of several core offender rehabilitation program areas that also include: Education; Vocation; Criminal Thinking, Behaviors and Associations; and Anger, Hostility and Violence Management. Integrated service delivery fosters rehabilitation by incorporating various types of treatment that correspond to each individual’s unique needs, instead of a standard set of services. Practitioners within the fields of education, vocation, substance abuse treatment, and mental health will collaborate to design individualized treatment plans and analyze and monitor the overall impact of all treatment services for each individual.
All in-prison adult programs are being aligned with the California Logic Model.
The California Logic Model is a detailed, sequential description of how California will apply evidence-based principles and practices and effectively deliver a core set of rehabilitation programs. Research shows that to achieve positive outcomes, correctional agencies must provide rehabilitative programs to the right inmate at the right time and in a manner consistent with evidence-based programming design. The Logic Model includes the following eight components:
1) Assess High Risk
2) Assess Needs
3) Develop Behavior Management Plan
4) Deliver Programs
5) Measure Progress
6) Prep for Re-entry
7) Reintegrate
8) Follow-Up.
DARS provides coordinated services for inmates and parolees by working with partners in statewide law enforcement, health, and social services communities. It provides broad-based substance abuse treatment programs in correctional facilities that include transitional programs preparing inmates for release on parole, and community-based substance abuse treatment programs. Community-based organizations and state and local governmental agencies are assisting DARS in carrying out its mission. Community-based substance abuse treatment contractors provide most of the services for DARS inmates and parolee offender participants. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/07%3A_Innovative_Programs_in_Correctional_Facilities/7.7%3A_California_Rehabilitative_Reform.txt |
Key Terms:
State vs. Local Detention
Status offender
Dual Status
Foster Care
Arresting juveniles
Boot Camps
Dependent vs. Ward
Delinquency Code
Juvenile Constitutional Protections
Specialized Care
Detention
Impact of institutionalization
08: Juvenile Corrections
Many jails temporarily detain juveniles pending transfer to juvenile authorities.
Recent research by the Office of Juvenile Justice and Delinquency Prevention (OJJDP) shows that the trend in juvenile incarceration is toward lower numbers and a move toward local facilities. The juvenile offender population dropped 14% from 2010 to 2012, to the lowest number since 1975. In the March 2015 report, it was noted that for the first time since 2000, more offenders were in local facilities than were in state operated facilities.
The degree of security present in juvenile facilities tends to vary widely between jurisdictions. An important measure of security used in OJJDP reports is locking youth in "sleeping rooms." Recent data indicates that public agencies are far more likely to lock juveniles in their sleeping quarters at least some of the time. A majority of state agencies (61%) reported engaging in this practice, while only a relatively small number (11%) of private agencies reported this practice. More than half of all facilities reported that they had one or more confinement features in addition to locking juveniles in their sleeping room (which usually happens at night). These security features usually consist of locked doors and gates designed to keep juveniles within the facility.
Unlike adult jails, juvenile detention takes place in a variety of different environments. According to the OJJDP study, the most common type of facility were facilities that considered themselves to be "residential treatment centers," followed by those that considered themselves to be "detention centers." The classifications of "group home," "training school," "shelter," "wilderness camp," and "diagnostic center" are also used. Group homes and shelters tended to be privately owned, and detention centers tended to be state run facilities.
Figure 8.1. Camp Erwin Owen, located in Kernville, California, was founded in 1938. This non-secure juvenile forestry camp houses 125 wards between the ages of 14 and 18 committed by the Juvenile Court. Camp Erwin Owen by Tabitha Raber is used under a CC BY 4.0 license.
Federal Level
Nearly two-thirds of all youth arrested are referred to a court with juvenile jurisdiction for further processing. Juvenile Offenders and Victims: A National Report, National Center for Juvenile Justice (August, 1995). Cases that progress through the system may result in adjudication and court-ordered supervision or out-of-home placement or may result in transfer for criminal (adult) prosecution. Id. Over the five-year period from 1988 through 1992, the juvenile courts saw a disproportional increase in violent offense cases and weapon law violations. Id.
Many gang members and other violent offenders are under the age of eighteen when they commit criminal acts. Therefore, under 18 U.S.C.A. § 5031, these offenders are classified as "juveniles" for purposes of federal prosecution. Federal crimes committed by the juveniles which would be crimes if committed by an adult or violations of 18 U.S.C.A. § 922(x) are classified as acts of "juvenile delinquency." Gang members are treated as adults for federal criminal prosecutions if they have attained their eighteenth birthday when they commit federal crimes.
At common law, one accused of a crime was treated essentially the same whether he was an infant or an adult. It was presumed that a person under the age of seven could not entertain criminal intent and thus was incapable of committing a crime. [Allen v. United States, 150 U.S. 551, 14 S. Ct. 196, 37 L. Ed. 1179 (1893).] One between the ages of seven and fourteen was presumed incapable of entertaining criminal intent but such presumption was rebuttable. Id. A person fourteen years of age and older was prima facie capable of committing crime. Id.
Prior to 1938, there was no federal legislation providing for special treatment for juveniles. In 1938, the Federal Juvenile Delinquency Act was passed with the essential purpose of keeping juveniles apart from adult criminals. The original legislation provided juveniles with certain important rights including the right not to be sentenced to a term beyond the age of twenty-one. This early law also provided that an individual could be prosecuted as a juvenile delinquent only if the Attorney General in his discretion so directed. The 1938 Act gave the Attorney General the option to proceed against juvenile offenders as adults or as delinquents except with regard to those allegedly committing offenses punishable by death or life imprisonment. The Juvenile Delinquency Act was amended in 1948, with few substantive changes.
In 1974, Congress adopted the Juvenile Justice and Delinquency Prevention Act (hereinafter referred to as "the Act"). Its stated purpose was "to provide basic procedural rights for juveniles who came under federal jurisdiction and to bring federal procedures up to the standards set by various model acts, many state codes and court decisions". (S. Rep. No. 1011, 93 Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 5283, 5284.) The purpose of the Act is to remove juveniles from the ordinary criminal process to avoid the stigma of a prior criminal conviction and to encourage treatment and rehabilitation. [United States v. One Juvenile Male, 40 F.3d 841, 844 (6th Cir. 1994).] This purpose, however, must be balanced against the need to protect the public from violent offenders. Id. The intent of federal laws concerning juveniles are to help ensure that state and local authorities would deal with juvenile offenders whenever possible, keeping juveniles away from the less appropriate federal channels since Congress' desire to channel juveniles into state and local treatment programs is clearly intended in the legislative history of 18 U.S.C.A. § 5032. [United States v. Juvenile Male, 864 F. 2d 641, 644 (9th Cir. 1988).] Referral to the state courts should always be observed except in the most severe of cases. [United States v. Juvenile, 599 F. Supp. 1126, 1130 (D. Or. 1984).]
Title 21, United States Code, Section 860, provides enhanced criminal penalties for those who illegally distribute, possess with intent to distribute, or manufacture a controlled substance in or on, or within 1,000 feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility. The statute also provides a mandatory minimum imprisonment term of not less than one year for violators. [21 U.S.C.A. § 860(a) (West Supp. 1995).] There are additional enhancements for repeat offenders. [21 U.S.C.A. § 860(b) (West Supp. 1995).]
It is a federal offense to possess a firearm in a school zone. 18 U.S.C.A. § 922(g) (West Supp. 1995). However, the Supreme Court ruled the Gun-Free School Zone Act was unconstitutional as exceeding Congress' commerce clause authority in [United States v. Lopez, U.S. , 115 S.Ct. 1624, L. Ed.2d (1995).] Prior to this decision, Congress amended Section 922(g) by expressly stating in the statute the national need to regulate firearms around schools and its nexus to commerce. [18 U.S.C.A. § 922(g)(1) (West Supp. 1995).] Whether this change will accommodate the ruling made the basis for the Lopez decision is yet to be finally determined. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/08%3A_Juvenile_Corrections/8.01%3A_Juvenile_Detention.txt |
The Federal Government often provides guidance and foundation on governance for the states. They provide the guidelines for how to will manage certain processes and then allow the states to determine what best suits their unique populace. States are allowed to create laws, ordinances, and judicial practices as long as they do not violate a citizen’s Constitutional rights. Juvenile processes and procedures are no different than many other areas in the criminal justice system where the Federal Government provides guidance with allowance for adjustments. In this section, we examine the Federal Juvenile Delinquency Code.
Before prosecuting juvenile delinquent conduct, a thorough reading of Chapter 403 of Title 18, United States Code (18 U.S.C.A. §§ 5031-42), should be made. This chapter, codified from the Act, applies to any individual who commits a federal criminal violation prior to his eighteenth birthday. The Act applies to illegal aliens as well as to American citizens. United States v. Doe, 701 F. 2d 819, 822 (9th Cir. 1983). The United States Attorneys' Manual, Title 9-8.000, provides some guidance on prosecuting those committing acts of juvenile delinquency.
Some terms need to be understood when referring to the Act. "Juvenile delinquency" means a federal criminal violation committed prior to one's eighteenth birthday. "Juvenile" means a person who has not attained his eighteenth birthday, or for the purpose of proceedings and disposition under the Act for an alleged act of juvenile delinquency, one who has not attained his twenty-first birthday. "Certification"|B250 is the document filed by the United States Attorney which confirms to the court that delinquency proceedings in federal court are authorized.
A person who commits a crime while aged eighteen or older may not be tried under the Act but must be proceeded against as an adult. [United States v. Smith, 675 F. Supp. 307, 312 (E.D.N.C. 1987).] A person older than twenty-one may, in some situations, be proceeded against as an adult for committing an act of juvenile delinquency. A defendant who commits an act of juvenile delinquency but is not indicted until after he turns twenty-one years of age, is not entitled to protection of the Act and must be prosecuted as an adult. [United States v. Hoo, 825 F. 2d 667, 670 (2d Cir. 1987), cert. denied, 484 U.S. 1035, 108 S. Ct. 742, 98 L. Ed. 2d 777 (1988).] The defendant may have a good objection to an adult charge filed after he turns twenty-one for a prior act of juvenile delinquency, if the delay in prosecuting him causes him substantial prejudice and is an intentional device to gain a tactical advantage. [Id. At 671, citing United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2D 468 (1971).]
The Act imparts considerable prosecutorial discretion as to whether an accused will be tried as an adult even though the criminal conduct charged qualifies as an act of juvenile delinquency. [United States v. Welch, 15 F. 3d 1202, 1207 (1st Cir.), cert. Denied, U.S., 114 S. Ct. 1863, 128 L. Ed. 2d 485 (1994).] The government may bring a motion to transfer|B251 a juvenile defendant to the district court for prosecution as an adult if the juvenile is at least fifteen years of age and the government alleges that the juvenile committed certain enumerated transferrable offenses (e.g., violent crimes or controlled substance violations). [18 U.S.C.A. § 5032 (West Supp. 1995); Welch, 15 F. 3d at 1208.] The government may also implement the mandatory transfer|B253 of a juvenile offender who has previously committed certain crimes. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/08%3A_Juvenile_Corrections/8.02%3A_Federal_Juvenile_Delinquency_Code.txt |
The United States Supreme Court has held that in juvenile commitment proceedings, juvenile courts must afford to juvenile’s basic constitutional protections, such as advance notice of the charges, the right to counsel, the right to confront and cross-examine adverse witnesses, and the right to remain silent. [In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967).] The Supreme Court has extended the search and seizure protections of the Fourth Amendment to juveniles. [New Jersey v. T.L.O., 469 U.S. 325, 333, 105 S. Ct. 733, 738, 83 L. Ed. 2d 720 (1985).] It has also been held that the Fourth Amendment requires that a juvenile arrested without a warrant be provided a probable cause hearing. [Moss v. Weaver, 525 F. 2d 1258, 1259-60 (5th Cir. 1976).] The exclusionary rule also applies to federal delinquency adjudications. [United States v. Doe, 801 F. Supp. 1562, 1567-72 (E.D. Tex. 1992).]
Juveniles are entitled to Fifth Amendment protection against self-incrimination in juvenile proceedings despite the non-criminal nature of those proceedings. [In re Gault, 387 U.S. at 49-50, 87 S. Ct. at 1455-56.] Substance, not form, controls in determining the applicability of the Fifth Amendment to proceedings not labeled criminal. Id. at 49-50, 87 S. Ct. at 1455-56. Since a juvenile defendant's liberty is at stake, the Fifth Amendment applies.
Juveniles are not, however, accorded the full panoply of rights that adult criminal defendants are accorded, such as the right to trial by jury. [McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971).] Most of the opinions reason that a jury trial is not required because the Act does not treat alleged juvenile delinquents as alleged criminals, and therefore, the Constitution does not mandate it.
Figure 8.2 Juvenile Justice Center in Kern County. JJC by Tabitha Raber is used under a CC BY 4.0 license.
The McKeiver court stated that, "(t)here is a possibility, at least, that the jury trial, if required..., will remake the juvenile proceeding into a fully adversary process and will put an effective end to what has been the idealistic prospect of an intimate, informal protective proceeding." [403 U.S. at 545, 91 S. Ct. at 1986.] As a result, juvenile courts still process juvenile delinquents in a manner more paternal and diagnostic than that afforded their adult criminal counterparts. [Alexander S. by and through Bowers v. Boyd, 876 F. Supp. 773, 781 (D.S.C. 1995).]
A juvenile is accorded all due process rights at a juvenile hearing which includes the right to contest the value of the evidence offered by the government. [Kent v. United States, 383 U.S. 541, 563, 86 S. Ct. 1045, 1058, 16 L. Ed. 2d 84 (1966).] Although juvenile adjudications are adjudications of status rather than criminal liability, the government must still prove beyond a reasonable doubt that a juvenile is a delinquent. [In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).]
Proceedings for adjudication of a juvenile as a delinquent shall be in district court. [18 U.S.C.A. § 5032 (West Supp. 1995).] The court may convene at any time and place within the district, in chambers or otherwise, to take up the proceedings of juvenile delinquency. A juvenile may consent to having a magistrate judge preside over cases involving a Class B or C misdemeanor, or an infraction. [18 U.S.C.A. § 3401(g) (West Supp. 1995).] There is a certain advantage to the juvenile in exercising this option since a magistrate judge cannot impose a term of imprisonment in these situations. Id. Proceedings in misdemeanor cases can be ordered to be conducted before a district judge rather than a magistrate judge by the court's own motion or upon petition with good cause by the United States Attorney. [18 U.S.C.A. § 3401(f) (West 1985).]
8.04: Arresting Juveniles
Whenever a juvenile is arrested for an act of juvenile delinquency, he must immediately be advised of his legal rights. [18 U.S.C.A. § 5033 (West 1985).] The Attorney General (United States Attorney) shall be notified. Id. The juvenile's parents, guardian or custodian must also be immediately notified of his arrest as well as his rights and of the nature of the alleged offense. This requirement is not invoked when a juvenile is arrested and placed into administrative detention, but rather is initiated by the juvenile's placement into custody after the filing of an information alleging delinquent conduct. [United States v. Juvenile Male, 74 F.3d 526, 530 (4th Cir. 1996).] Notification made after a statement has been given or made without spelling out the juvenile's right to notify a responsible adult cannot satisfy the statutory mandate. [United States v. Nash, 620 F. Supp. 1439, 1442-43 (S.D.N.Y. 1985).]
Figure 8.3 USMS-Omaha-2 by the Omaha Police Department.is used under a CC BY 2.0 license.
If the juvenile is an alien, a reasonable effort must be made to reach his parents, and if not feasible, prompt notice to his country's Consulate should be made. [United States v. Doe, 862 F. 2d 776, 780 (9th Cir. 1988).]
Figure 8.4 James G. Bowles Juvenile Hall is operated 24 hours a day, 365 days a year by the Kern County Probation Department as a secure detention facility for minors. JGB Juvenile Hall by Tabitha Raber is used under a CC BY 4.0 license.
Regarding cases of juvenile delinquency, the United States Attorney can proceed in different ways. The case can be referred to state authorities, attempts to adjudicate the juvenile as a delinquent can be made, or the United States Attorney can move to transfer the juvenile for criminal prosecution as an adult. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/08%3A_Juvenile_Corrections/8.03%3A_Constitutional_Protections_Afforded_Juveniles.txt |
When we look at juvenile crime and detention, we must look at several issues surrounding the unique nature of the juvenile offender. First, we must differentiate between crimes and status offenses. Most times when a juvenile is arrested, it is thought they must have committed a crime. However, juveniles historically could be detained (incarcerated) for “status” offenses. These are “crimes” that only juveniles can be arrested for such as curfew violations, truancy or being “incorrigible,” basically not listening to your parent. These petty infractions could get a juvenile locked in a detention facility without even a hearing. Today, this no longer happens, and our guidelines have changed in regard to these offenses. However, it is important to know the history and the reason behind the practice. While status offenses are not serious, they are often precursor to more delinquent behavior.
Figure 8.5 Groundbreaking on Future Detention Home in Richmond Virginia, Dated June 14, 1956. Image is under a CC.By 2.0 license.
The Office of Juvenile Justice and Delinquency Prevention (OJJDP) recognized this as a significant issue pertaining to juvenile and provided research into the concern in the following abstract:
Scope of the Problem Status Offending behavior is often a sign of underlying personal, familial, community, and systemic issues, similar to the risk factors that underlie general offending. Sometimes these underlying issues contribute to delinquency later in life, putting youths at a higher risk for drug use, victimization, engagement in risky behavior, and overall increased potential for physical and mental health issues, including addiction (Greenwood and Turner 2011; Chuang and Wells 2010; Buffington, Dierkhising, and Marsh 2010; Henry, Knight, and Thornberry 2012; Mersky, Topitzes, and Reynolds 2012). Ample evidence supports the notion that less serious forms of delinquency often precede the onset of more serious delinquent acts (Huizinga, Loeber, and Thornberry 1995; Elliott, 1994). However, the “precursor to delinquency” view of status offending does not take into account the normal experimentation of childhood and adolescence or the diverse developmental pathways that can lead to serious delinquency (Kelley et al. 1997). Children and adolescents commonly experiment with behaviors that are not considered positive or prosocial, such as lying, being truant, or defying parents. Such experimentation allows youths to discover the negative consequences of their behaviors and learn from their mistakes. Most youths who engage in status and other minor offenses never progress to more serious behaviors (Kelley et al. 1997). States have formulated differing approaches to defining and handling status offenders. The approaches can be broadly divided into three categories: status offenders as delinquents, status offenders as neglected/abused dependents, or status offenders as a separate legislative category. The classification of offense behaviors largely dictates the kind of treatment and services that status offenders are likely to receive. The legal definition of a status offense is critical, as it can impact the treatment and availability of services to a youth in the juvenile justice system (Kendall 2007). Relatively few states define status offenses as delinquent behavior under statute, yet many status offenders end up being treated as de facto delinquents. One such way is through the use of probation as a disposition for status offenders, which is an option in 30 states (Szymanski 2006). Often, status offenders will be placed on probation, only to be later incarcerated as the result of a technical violation, regardless of whether the status offense was serious enough to initially warrant the use of confinement (Yeide and Cohen 2009).
Impact of Institutionalization: Research is limited with regard to the specific impacts of institutionalization on particular subgroups, such as status offenders. However, researchers have examined the general impact of institutionalization on juvenile offenders and consistently demonstrated that confinement in correctional facilities does not reduce reoffending and may increase it for certain youths (e.g., Lipsey and Cullen 2007). In some cases, status offenders are placed in the same facilities as juveniles who have committed more serious crimes, a practice that may increase deviant attitudes and behaviors among status offenders, such as the development of antisocial perspectives and gang affiliation (Levin and Cohen 2014). Juveniles experiencing confinement are eventually forced to navigate the barriers to reentry in the community, home, and school, which increases the chance of being rearrested and re-incarcerated (Levin and Cohen 2014). Further, research has shown that confinement fails to address underlying causes of status-offending behavior, and thus does not deter youths from committing future crimes (Hughes 2011; Holman and Ziedenberg 2006). Although most youths naturally “age out” of delinquency when social controls are enforced (Sweeten, Piquero, and Steinberg 2013; Tremblay et al. 2004), institutionalization can negate this type of development. When handled as delinquents and placed in juvenile facilities, status offenders may be put into environments that can lead to physical and emotional harm. Institutionalizing juveniles may negatively affect their social development by disrupting their social connectedness and support from family, school, and the community (Hughes 2011). Confinement in a secure environment can increase violent tendencies, exacerbate risk factors, and increase recidivism risk (Holman and Ziedenberg 2006). Studies done on juvenile delinquents show that community-based programming can be more effective than detention in preventing future crime (Hughes 2011; Holman and Ziedenberg 2006; Kendall 2007; Salsich and Trone 2013; Petitclerc et al. 2013). Although status offenders are noncriminal youths, they often possess many risk factors for future offending, which can be exacerbated by formal processing through the juvenile justice system. Research illustrates the need for immediate and efficacious community-based alternatives to help status-offending youths and their families. Strengthening of family relationships, social-control mechanisms, and other protective factors are integral in preventing future criminality among status offenders (Salsich and Trone 2013).
Conclusions - Currently, status-offense laws, terminology, and programs and practices vary widely across states (Hockenberry and Puzzanchera 2014). Some states choose to process juveniles formally through the system, with the idea that harsh treatment of young offenders will deter them from future criminal activity. Conversely, some research has shown that by further entangling young people and children in the juvenile justice system, they become more likely to be involved in a life of crime because of their increased exposure to other criminal peers, the justice system, and the effects of “labeling” (Petrosino et al. 2010). A meta-analysis by Petrosino and colleagues (2010) assessed 27 studies and found a small negative effect for formal system processing of juveniles, meaning that juveniles who were formally processed through the juvenile justice system were more likely to recidivate, compared with youths who were diverted from the system (although the difference was not statistically significant). As a result, more states are exploring alternative strategies to divert status offenders from the juvenile court process altogether (Coalition for Juvenile Justice 2012). Some resources have been developed for jurisdictions looking for specific information about options in the treatment of status-offending youths. For example, through its participation in the MacArthur Foundation’s Models for Change Resource Center Partnership, the Status Offense Reform Center (SORC) provides tools and techniques to improve the juvenile justice system in support of the equitable, rational, and effective treatment of status offenders. The SORC, operated by the Vera Institute of Justice (n.d.), serves as an information base for juvenile justice stakeholders and is available to provide information, guidance, and assistance to policymakers and practitioners who are interested in preventing the confinement of status offenders (Salsich and Trone 2013). Jurisdictions can make use of this information to consider options to the processing and treatment of status offenders and ensure that they are deinstitutionalized. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/08%3A_Juvenile_Corrections/8.05%3A_Status_Offender.txt |
It is important to understand the concept of “dual status” in juvenile law and detention. It may be shocking to learn that a majority of juvenile “delinquents” entered the juvenile justice system through dependency. As a result of parental abuse, neglect or incarceration, a child can enter the system at any point in their life as a dependent. This means their parent can no longer care for them. A majority of dependents are placed with another relative, but not all. Those children often end up in foster homes or group homes.
When a juvenile enters the juvenile justice system as a result of parental neglect or abuse it is called dependency. The area of law that governs how we treat juveniles in California falls under the Welfare and Institutions Code section 300:
Note
ARTICLE 6. Dependent Children—Jurisdiction [300 - 304.7]
(Article 6 added by Stats. 1976, Ch. 1068.)
300.
A child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court.
When we look at juvenile delinquency, these are juveniles that have committed a crime. In juvenile courts, this is called wardship and is also guided by the Welfare and Institutions Codes but falls under section 602 in California.
Note
ARTICLE 14. Wards—Jurisdiction [601 - 608]
(Heading of Article 14 renumbered from Article 5 by Stats. 1976, Ch. 1068.)
602.
Except as provided in Section 707, any person who is under 18 years of age when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.
(Amended November 8, 2016, by initiative Proposition 57, Sec. 4.1.)
The concerning part of this distinction is many “juvenile delinquents” who commit crimes began in the juvenile dependency court as a result of abuse or neglect. We refer to these juveniles who fall under both dependency as an abused or neglected child and as a ward after committing a crime as “Dual Status” because they fall under both conditions in the Welfare and Institutions Code.
Note
Pin It! Dual Status
For further research:
8.07: Foster Home Placement
Foster care, a part of the state child welfare system designed to protect abused and neglected children, provides a 24-hour state supervised living arrangement for children who need temporary substitute care because of abuse or neglect. The foster care system in California is a state supervised, county administered system. The California Department of Social Services provides oversight to 58 county child welfare agencies that provide direct administration and supervision of children in the foster care system.
Children are most often placed in foster care after they have been removed from their home by a county child welfare agency, and a juvenile court has found their parents cannot care for them. A child who has been declared a “ward” of the court for committing a violation of law may also be placed in foster care if the court finds that returning the child home would be contrary to the child’s welfare.
Overview of the Juvenile Justice System. Every county child welfare agency must maintain a 24-hour response system to receive and investigate reports of suspected child abuse or neglect. Once a call is received, the agency pursuant to the Emergency Response Protocol must determine if the allegations require an in-person investigation and, if so, whether that investigation must be immediate.
Upon completion of the investigation, the agency must determine whether the allegations are substantiated, inconclusive or unfounded. Based on the risk posed to the child, the agency in all three cases may close the case with or without providing the family with referrals to community organizations for services. If the allegations are substantiated or inconclusive, the agency may keep the case open and offer the family voluntary services to remedy and prevent future abuse or neglect without court intervention. Voluntary services include in home emergency services for up to thirty days or family maintenance services for up to 6 months without removing the child, or voluntary foster care placement services for up to 6 months.
If the allegations are substantiated, the agency may seek court intervention and either:
1) Keep the child in the home, file a petition in juvenile court to declare the child dependent, and provide the family with court supervised family maintenance services; or
2) Remove the child from the home and file a petition in juvenile court (within 48 hours of the child’s removal excluding non-judicial days) to declare the child dependent.
Dependency proceedings may also be initiated by any person through an application to the county child welfare agency. The agency must immediately investigate to determine whether a dependency petition should be filed in juvenile court and notify the applicant within three weeks after the application of its filing decision and the reasons for the decision. If the agency fails to file a petition, the applicant may, within one month after the initial application, seek review of the decision by the juvenile court.
If the child is removed from his or her parents’ home, the social worker will file a petition with the juvenile court requesting that the court become involved in the child’s life because the child is alleged to be abused or neglected.9 The parents must be given notice of the removal, a telephone contact for the child, and the date, time and place of the detention hearing upon filing of the petition in juvenile court.10 The child will be placed in a foster care setting until the court determines whether the child should remain in placement or should be returned to the parent’s home. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/08%3A_Juvenile_Corrections/8.06%3A_Dual_Status___Dependency_vs_Delinquency.txt |
Special Education in Juvenile Delinquency Cases Individual Disability Education Act's (IDEA) comprehensive system of identification, evaluation, service delivery, and review has special relevance for juvenile justice professionals. The purpose of the special education system, like the juvenile justice system, is to provide individualized services designed to meet the needs of a particular youth. The enhanced behavioral intervention and transition service needs requirements in the 1997 IDEA amendments bring special education goals even closer to those of the juvenile court. Moreover, the careful documentation of service needs and ongoing assessment of progress required by IDEA bring valuable informational resources to juvenile justice professionals. This section presents a brief overview of how special education information may be helpful as cases make their way through juvenile court.
Some of the issues discussed, such as insanity or incompetence, arise only occasionally. Others, such as the impact on disposition of whether a child has a disability, are relevant in every case in which a delinquent youth is eligible for special education services.
Figure 8.6 Law enforcement transport juveniles to detention facilities such as this to be booked. Security is a concern and officers must enter through a sally port. This is a secure area where the first door is locked before the second door can be opened into the facility. Booking photo by Tabitha Raber is used under a CC BY 4.0 license.
Intake and Initial Interviews
The short time frame for juvenile court proceedings leaves little room for missed opportunities. Juvenile justice professionals must be alert from the earliest moment for clues to the youth’s special education status or existing unidentified disabilities. This process, which should become part of the standard operating procedure, includes carefully interviewing the youth and his or her parents, routinely gathering educational records, procuring examinations by educational and mental health experts, investigating educational services at potential placement facilities, and coordinating juvenile court proceedings with the youth’s IEP team.
Under the 1997 IDEA amendments, whenever a school reports a crime allegedly committed by a youth with a disability, school officials must provide copies of the youth’s special education and disciplinary records to the appropriate authorities to whom the school reports the crime, but only to the extent that the Family Educational Rights and Privacy Act (FERPA) permits the transmission. FERPA allows school officials to transmit school records to law enforcement officials only if parents’ consent in writing to the transmission and in certain other narrowly tailored situations (see 34 C.F.R. § 99.30). This requirement should help ensure that, at least in appropriate school-related cases, special education history, assessments, and service information are readily available early in the court process.
Juvenile justice professionals can learn to recognize disabilities by carefully reading the legal definitions of disability. It is important to understand that youth may have a variety of impairments that are not immediately apparent. Numerous checklists and screening instruments are available to help recognize signs of disabilities and to determine eligibility for special education services (National Council of Juvenile and Family Court Judges, 1991).
If circumstances suggest the need for an eligibility evaluation, modification of a previously existing IEP, or some other exercise of the youth’s rights under special education law, juvenile justice professionals should ensure that appropriate action is expeditiously taken. They should request that parents give written consent for the release of records and should submit a written request for information, evaluation, or review to the LEA.
Juvenile justice professionals could start by contacting the LEA to obtain its policies and procedures for providing special education services to youth in the juvenile justice system. Some districts have designated an individual to deal with compliance issues, and that person may be helpful in expediting or forwarding requests to the right person or agency. Most jurisdictions have a number of other groups that can provide advocacy or other assistance in navigating the special education system. Protection and advocacy offices, special education advocacy groups, learning disabilities associations, and other groups providing support or advocacy for particular disabilities may greatly assist juvenile justice professionals.
Determination of Whether Formal Juvenile Proceedings Should Go Forward
Nothing in IDEA prohibits an agency from “reporting a crime committed by a child with a disability to appropriate authorities” or prevents law enforcement and judicial authorities from “exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability. These provisions, outlined in the 1997 amendments, were made in response to concerns that IDEA’s procedural protections could be interpreted to preclude juvenile court jurisdiction over school-related crimes committed by youth with disabilities. In the past, at least one court ruled under State law that a school could not initiate a juvenile court prosecution as a means of evading the procedural requirements of IDEA. Other courts found the juvenile court lacked jurisdiction in cases involving noncriminal school related misconduct in which special education procedures had not been followed.
In at least one case decided after the 1997 amendments, the court confirmed that IDEA does not prevent juvenile courts from exercising jurisdiction over students with disabilities, even if the school is attempting to evade its special education responsibilities. Nonetheless, intake officers and prosecutors should scrutinize whether such evasion has occurred in determining whether a particular case belongs in the juvenile justice system and how it should be processed. Courts and hearing officers have stressed that the school’s responsibility to comply with IDEA procedural requirements does not end when a youth with a disability enters the juvenile justice system.
Even if courts have the power to act, that does not mean the power should be exercised in every case. Long before the 1997 IDEA amendments, a number of courts found that the best course was to dismiss the juvenile court case or defer it until special education proceedings stemming from the misbehavior could be completed.
Many juvenile justice professionals have encountered cases in which a youth enters the juvenile justice system for a relatively minor offense and his or her stay escalates into long-term incarceration because of the youth’s inability to succeed in programs developed for low-risk delinquent youth. This may happen either because the disability-related behavior makes it difficult for the youth to understand or comply with program demands or because his or her behavior is misinterpreted as showing a poor attitude, lack of remorse, or disrespect for authority.
If the juvenile court petition involves a youth with an identified or suspected disability, juvenile justice professionals should first consider whether school-based special education proceedings could provide services or other interventions that would obviate the need for juvenile court proceedings. This is particularly true for incidents occurring at school. The 1997 IDEA amendments require thorough scrutiny of behavioral needs and implementation of appropriate interventions that may far exceed what most juvenile courts are able to provide. In appropriate cases, the juvenile court may wish to consider:
• Continuing or deferring the formal prosecution pending the outcome of special education due process and disciplinary proceedings that may alleviate the need for juvenile court intervention.
• Placing first-time offenders and/or youth alleged to have committed offenses that are not considered too serious for informal handling into diversion or informal supervision programs. Through such programs, the court imposes specific conditions on the youth’s behavior, such as regular school attendance, participation in counseling, observation of specified curfews, or involvement in community service programs. If the youth successfully complies with these conditions, the case is dismissed at the end of a specified period—usually 6 months to 1 year. Allowing the youth to remain in the community, subject to such conditions, may facilitate the completion of special education proceedings while ensuring heightened supervision of the youth. Through IEP development or modification, the youth might be determined eligible for services that supplant the need for formal juvenile court proceedings.
• Dismissing the case in the interest of justice. This option should be considered in cases in which the disability is so severe that it may be difficult or impossible for the youth to comply with court orders. This may occur, for example, if the offense is relatively minor; the youth suffers from mental illness, emotional disturbance, or mental retardation; and/ or services are forthcoming through the special education system.
Note
Think about it . . . Mental health treatment
Many young people in South Carolina have better access to mental health care in juvenile jail than they do outside the fence, back in their own communities. Read these personal interviews of youth in the system in treatment centers. Do you think this approach to treating juvenile delinquents with mental illness instead of jailing them is effective? Why or why not?
Detention
Youth taken into secure custody at the time of arrest are entitled to judicial review of the detention decision within a statutory time period. Depending on the jurisdiction and characteristics of the case, the length of detention may range from several hours to several months. Many professionals view the detention decision as the most significant point in a case. Detention subjects the youth to potential physical and emotional harm. It also restricts the youth’s ability to assist in his or her defense and to demonstrate an ability to act appropriately in the community.
Unfortunately, youth with disabilities are detained disproportionately (Leone et al., 1995). Experts posit that one reason for this is that many youths with disabilities lack the communication and social skills to make a good presentation to arresting officers or intake probation officers. Behavior interpreted as hostile, impulsive, unconcerned, or otherwise inappropriate may reflect the youth’s disability. This is another reason why it is important to establish the existence of special education needs or suspected disabilities early in the proceedings. Juvenile justice professionals must be sensitive to the impact of disabilities on case presentation at this initial stage and work to dispel inaccurate first impressions at the detention hearing.
In some cases, it may be appropriate for the court to order the youth’s release to avoid disrupting special education services. This is particularly true if adjustments in supervision (e.g., modification of the IEP or behavioral intervention plans) may reduce the likelihood of further misbehavior pending the jurisdictional hearing. Similarly, if there are early indications that a special education evaluation is needed, it may be important for the youth to remain in the community to facilitate the evaluation. Many jurisdictions have home detention programs that facilitate this type of release by imposing curfews or other restrictions on liberty that allow the youth to live at home and attend school pending the outcome of the delinquency proceedings.
Education
Education may be the single most important service the juvenile justice system can offer young offenders in its efforts to rehabilitate them and equip them for success. School success alone may not stop delinquency, but without it, troubled youth have a much harder time (Beyer, Opalack, and Puritz, 1988). When special education needs are evident, they should be an essential part of the social study report prepared by the probation department to guide the court in making its disposition order. Moreover, juvenile justice professionals should coordinate disposition planning with education professionals to avoid conflict and to take advantage of the rich evaluation resources and services available through IDEA.
The resulting disposition order should reflect the court’s review of special education evaluations and the goals, objectives, and services to be provided under the IEP. If the youth is to be placed out of the home, the court should demand specific assurance that the facility will meet the youth’s educational needs under IDEA. The juvenile court should also use its disposition powers to ensure special education evaluation and placement for previously unidentified youth who show indications of having a disability.
In deciding whether or where to place a youth with a disability, it is also important for the court to understand the impact of the disability on behavior. Youth with attention deficit disorder (ADD), for example, commonly act impulsively, fail to anticipate consequences, engage in dangerous activities, have difficulty with delayed gratification, have a low frustration threshold, and have difficulty listening to or following instructions. They may begin to associate with delinquents or self-medicate through drugs and alcohol because they are rejected by others. Proper medication has a dramatic effect in helping many of these youth control their behavior, and a variety of professionals are skilled in treating ADD in medical, psychiatric, or educational settings (Logan, 1992). Unless the characteristics of ADD and the existence of effective interventions are recognized, youth with this disability stand a good chance of being treated harshly, often through incarceration, based on the outward manifestations of their disability. Juvenile justice professionals should respond appropriately to evidence of such disabilities by ensuring that appropriate medical, mental health, and other services are provided.
Juvenile justice professionals also must learn to recognize potential problems for youth with certain disabilities in particular settings, so as not to set the youth up for failure. This does not mean that juvenile justice professionals need to become diagnosticians or clinicians. However, they should consult with education, mental health, and medical professionals. It is important to seek professional advice about the kinds of settings in which the youth can function best and the kinds of settings most likely to lead to negative behavior. For example, a youth with an emotional disturbance may not be able to function in the large dormitory setting typical of some institutions. Such youth may feel especially vulnerable because of past physical or sexual abuse or may simply suffer from over stimulation in an open setting. They may require a setting in which external stimuli are reduced to the greatest extent possible and intensive one-on-one supervision is provided. Youth with other disabilities may need programs that minimize isolation and emphasize participation in group activities. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/08%3A_Juvenile_Corrections/8.08%3A_Special_care_placement.txt |
Key Terms:
LGBTQ Population
Non-citizen populations
Criminal Alien Program
Women in Prison
Discrimination/Prejudice Issues
Immigration Policy
Detention and Removal Policy (ICE)
Aged and Elderly Populations
09: Special Populations in a Correctional Setting
Throughout history, prisons have reflected the society they are intended to protect-sometimes the most troubling aspects, sometimes the most difficult and intractable aspects, and often the tensions and conflicts that exist within a society. The present California prison crisis is no different.' The crisis is a product of policy decisions made by the state legislature and the people - including determinate sentencing, the abolishment of discretionary parole, and the three-strikes law - and the popular law-and-order rhetoric of "tough on crime" and the "war on drugs.", The prison crisis is also a reflection of society's attitudes towards prisoners as the focus of programs has shifted away from rehabilitation to deterrence and punishment, and as many in prison go without necessary mental health or medical treatment. Special populations fare no differently in the California prison system.
Their treatment in the criminal justice system generally reflects not only society's view of prisoners, but also mirrors government policies concerning these groups and the discrimination or prejudices that these groups face. This mirroring happens through deliberate actions, as exemplified by the cooperation between county jails and Immigration Customs Enforcement ("ICE"), or through willful ignorance, as illustrated by the prevalent policy of anatomically classifying transgender prisoners for housing purposes with the result being high instances of sexual assault and rape among this population. The criminal justice system is not only a reflection of our society; the system and its policies shape other institutions and the attitudes of the society.
Given time constraints, the conference limited its panel on special populations to three groups: transgender, immigrant, and women prisoners. Thus, this piece is limited accordingly. In discussing these populations, certain commonalities arose. Receipt of appropriate medical care was discussed, including concerns regarding inadequate medical care because of language difficulties and reluctance to provide hormone treatment to transgender individuals. In addition, housing assignments and facilities placement was a shared concern. Given the increased collaboration between the Department of Homeland Security and local and state governments, immigrants face the possibility of out-of-state placement or deportation. Women and transgender individuals are particularly vulnerable to sexual violence in correctional institutions, thus, housing assignment is key in preventing these occurrences. Although this issue has been addressed to a large extent for the non-transgender female population, the transgender population continues to face high risks of violence, and the state is now considering legislation that would ostensibly provide some protection. Of course, there are specific differences among these special populations that arose as well, such as the intersection between the federal and state government policies concerning the immigrant population in prison. In addition, in examining these three populations, it is important to note that there are some prisoners who belong to more than one of these communities and, thus, may face further dangers and difficulties in prison.
Figure 9.1 A rally in Washington, DC in support of the equal health and livelihood of trans people, that included basic information about trans health issues and stories of denied / inappropriate care, as well as hope for the future. Taken March 30, 2013. Image is under a CC.By 2.0 license.
For many decades, the treatment of transgender individuals in prison was largely ignored in California. However, in the past decade, there has been a growing awareness and focus on this issue as illustrated by research studies highlighting the high incidence of sexual assault and rape against transgender prisoners, a series of legal cases against the California Department of Corrections and Rehabilitation ("CDCR"), and recently introduced legislation regarding housing assignments intended to protect transgender prisoners. Although there has been no official count of the number of transgender prisoners within the California correctional system, Alexander Li-Hua Lee, the founder and former Legal Director of the Transgender, Gender Variant, and Intersex Justice Project and a panelist at the conference, has estimated that there are probably two hundred transgender prisoners and at least another thousand that are gender variant. The incarceration rate among transgender individuals is disproportionately high. A study by the San Francisco Department of Health found that close to two-thirds of male-to female transgender individuals in San Francisco had previously been incarcerated.
The high incarceration rate has been attributed to exclusion of this population from the legal economy, which forces many of its members to turn to illegal activities and thus greatly increases their risk of arrest.
The transgender community is particularly vulnerable to sexual assault and rape within prison. The number of individuals who have been victims of sexual violence in prison is staggering. A recent CDCR study showed that sixty-seven percent of lesbian, gay, bisexual, and transgender ("LGBT") prisoners report having experienced sexual assault - a rate that is fifteen times higher than the rate for overall population.
A CDCR-UC Irvine study revealed that fifty-nine percent of transgender women were sexually assaulted while in California correctional facilities, translating to the disturbing fact that transgender women are thirteen times more likely to be sexually assaulted while in prison. While two or three percent of general population in correctional facilities reported rape, forty-one or fifty percent of transgender individuals reported rape. In contrast to non-transgender prisoners, who reported general awareness and responsiveness from prison officials when sexual assault incidents occurred, transgender prisoners reported that officials were generally unaware of the incidents, and no medical attention was provided most of the time.
The vulnerability of the transgender population to sexual assault and rape in prison is caused in large part by the prison system's classification of transgender individuals and the repercussions of that classification on their housing placements. The prison system relies heavily on a dichotomous, sex-based means of classification. Prisoners are classified by their biological attributes rather than their gender identification. As described by William ("Joe") Sullivan, Associate Secretary of the CDCR in December 2008, "the classification process is gender-neutral .... We really don't distinguish between transgender and non-transgender inmates.” Thus, preoperative, male-to-female transgender prisoners are often placed in men's facilities. Although CDCR recently amended its Department Operations Manual in April of 2009, to require consideration of whether the prisoner has been a victim of sexual assault in initial and subsequent assignments to double-cell housing, this consideration does not affect the classification of prisoners as male or female for purposes of facilities assignment.
Recent legislation may help address this issue. Assembly Member Tom Ammiano introduced AB 382 in the California Assembly in February of 2009. AB 382, entitled the LGBT Prisoner Safety Reform Act, would amend the Sexual Abuse in Detention Elimination Act of 2005 by adding self-reported safety concerns related to sexual orientation and gender identity" to a list of factors to be considered for purposes of classification and housing assignments of prisoners.
Note
Think about it . . .Transgender Prisoners
In 2015 California became the first state in the nation to agree to pay for transgender prison inmates to receive sexual reassignment surgery. Prison officials released specific guidelines in the wake of several lawsuits. Follow the link above to understand why some people feel that this is an important issue and why others believe it is unnecessary. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/09%3A_Special_Populations_in_a_Correctional_Setting/9.01%3A_LGBTQ_Populations.txt |
Non-Citizens represent approximately seventeen percent of the adult prison population in California. In addition to those who are undocumented (i.e., without legal status in the United States), others are non-citizens who are legally within the United States as long-term permanent residents or on visas. Strikingly, the institutionalization rates for these non-citizen populations are significantly lower than their U.S.-born counterpart. However, given the large number of non-citizen (immigrants) in California and the complex intersections between federal immigration law and the criminal justice system, the immigrant experience in California prisons is truly distinctive. Moreover, the laws and policies discussed in this section affect not only non-citizens (whether illegal or legal) but can at times affect U.S. citizens who are perceived to be noncitizens due to their race, appearance, name, or birth abroad.
Figure 9.2 Immigration/Deportation Demonstration in San Francisco April 4, 2014. Image is under a CC.By 2.0 license.
Note
Think about it . . . Non-Citizen Inmates
“About one in five inmates in federal prison are foreign-born, and more than 90 percent of those are in the United States illegally, according to a report compiled by the Department of Homeland Security and the Department of Justice in 2017. Some immigration experts claims that the Trump administration has inflated these number to justify a firmer stance on immigration issues. What do you think? Consult this NYT article for more information and sources and this topic.
The ongoing debate concerning immigration policy - combined with the public's fear about immigrant involvement in criminal activity and the current correctional crisis in California have led to the blending of federal immigration and national security policies with state and local correctional policies. The result is a unique set of policies and procedures that are applied to noncitizens or perceived noncitizens who enter the criminal justice system. Federal immigration enforcement programs such as the Criminal Alien Program, Secure Communities, and the 287(g) programs in most cases encourage and often rely on local authorities to work with ICE from the time of arrest throughout the criminal justice process to identify all suspected noncitizens who may be removable from the United States. In California, the Criminal Alien Program is the most extensively employed.
The Criminal Alien Program focuses on identifying "criminal aliens, who are detained in federal, state, and local facilities and seeks their removal prior to their release from criminal custody. This program begins with local police and jails collecting place-of-birth information from individuals at arrest or upon booking into jail. This information is shared with ICE's Office of Detention and Removal Operation ("DRO"), whose officers screen and interview the identified individuals. Upon the initial suspicion that an individual may be a noncitizen, including a lawful permanent resident who may be subject to removal from the United States, a "detainer" or immigration "hold" is placed on the individual, preventing his or her release until custody is transferred ICE. A person can be transferred to ICE at any point in the criminal process, even if they are not charged or convicted of an offense. In California, individuals who are convicted and sentenced and have an ICE hold placed on him or her are transferred to ICE custody after completion of their California sentence. Upon taking of custody, ICE either transports the prisoner to a detention center pending immigration proceedings or immediately removes them from the country.
In addition to these programs designed to identify "criminal aliens" for purposes of deportation, states and counties receive federal reimbursements for housing undocumented immigrants through the State Criminal Alien Assistance Program ("SCAAP"). The State of California is the largest recipient of SCAAP funds, having received upwards of \$85 million through this program in recent years.
Immigrant and civil rights advocates have voiced multiple concerns regarding the increased coordination between federal agencies and state and local authorities, arguing that the blending of immigration enforcement with the criminal justice system is problematic and fraught with error. From the outset, there has been much criticism that the process of identifying potential noncitizens is laden with racial and ethnic bias, and that appearance and last names are used as proxies for citizenship to determine who should be scrutinized. In addition, critics argue that given the complexity of immigration law there is much room for error in the process of identifying potential noncitizens, and that many individuals who are actually U.S. citizens have had ICE holds placed on them. In one poignant example, Mark Lyttle, an American citizen who is bipolar, was deported after signing statements that he was a Mexican citizen, although he had a valid Social Security number. On a broader scale, immigrant and civil rights advocates contend that these federal and state partnerships have fueled anti-immigrant sentiment and the criminalization of immigrants in the media and the public at large.
Immigrant prisoners continue to be at the forefront of the political debate about the California corrections crisis. State politicians and CDCR have specifically identified the immigrant population as a way to ameliorate the overcrowding crisis facing state prisons. Following the Governor's Prison Overcrowding State of Emergency Proclamation in 2006, CDCR has prioritized the involuntary transfer of noncitizens, including those who are legal residents, to out-of-state facilities. Recently, CDCR implemented a new policy to discharge criminal aliens from state parole once deported, ensuring that should they reenter the country, they are taken into federal rather than state custody. As the immigration reform debate continues nationwide and as California continues to grapple with the overcrowding crisis in its prisons, the fate of immigrant prisoners in the California correctional system remains to be seen. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/09%3A_Special_Populations_in_a_Correctional_Setting/9.02%3A_Non-Citizen_Populations.txt |
There are over 11,000 women in prison in California, constituting approximately seven percent of the overall prison population. Although a seemingly small percentage, the female prison population has been growing more rapidly than its male counterpart since the mid-1980s. Since the 1970s, the female prison population in California has increased more than ten-fold. In 1977, California penal institutions housed 671 female prisoners; in 1987, there were 4,152 women incarcerated in CDCR facilities; in 2007, there were 11,416. As with the general prison population, experts have attributed the increase in the numbers of incarcerated females to California's shift away from the indeterminate sentencing regime in the 1970s, various "tough on crime" policies, legislation enacted as part of the "war on drugs," and other developments in law enforcement and parole policy generally, including a policy shift from reform and rehabilitation to punishment and deterrence.
Figure 9.3 Graph of Women Arrested vs. Women in the labor force. Image is in the public domain.
Most incarcerated women have been convicted of nonviolent offenses. In 2007, only 32.1% of women prisoners were convicted of crimes against persons; the remaining 67.9% were convicted for nonviolent property crimes, drug crimes, and other nonviolent crimes. In contrast, 53.5% of the men incarcerated in 2007 were convicted of crimes against persons. Because of the nature of the crimes for which they are convicted, females tend to have sentences that are far shorter than their male counterparts. The median sentence for women prisoners in CDCR institutions in 2007 was nine months. Similar to the male population, formerly incarcerated females have a high rate of recidivism. A recent study by CDCR found that forty-six percent of women released in 2003 returned to prison within three years; another CDCR study indicated that between twenty-seven to thirty-three percent of female parolees recidivate within a year.
Figure 9.4 Graph of Women arrested (%) for Violent crimes vs. Property crimes. Image is in the public domain.
Although sharing some characteristics with their male counterparts, certain differences in the profile of incarcerated women reveal gendered causes for their imprisonment, and unsurprisingly, their incarceration has certain gendered effects. As with the prison population generally, the majority of women prisoners are women of color; many come from neighborhoods entrenched in poverty; and many have substance abuse issues. However, a disproportionately greater percentage of women prisoners have experienced physical and sexual abuse prior to admission into prison. There are also higher levels of physical and mental health issues among female prisoners. In addition, almost half of incarcerated women are the sole caregivers for their children. Thus, incarceration has an immediate effect on the children who often end up in foster care, as well as a fragmenting effect on their families generally and their communities.
Given the relatively unique characteristics of this population - including the nonviolent nature of the offenses, the shorter sentences, socio-economic factors, and motherhood - advocates, academics, and community members have strongly criticized the placement and treatment of incarcerated women in the existing institutions and programs and have strongly urged for the adoption of gender responsive approaches. These sentiments were echoed by the Little Hoover Commission, an independent state oversight agency in 2004.
Figure 9.5 Pie Chart of numbers and percentages of inmates by gender.
Since the Commission's findings in 2004, California has undertaken various reform measures to address some of these concerns. In 2005, CDCR established the office of Female Offender Programs and Services within the Division of Adult Institutions and created the Gender Responsive Strategies Commission ("GRSC") as an advisory committee. In addition, CDCR developed a phased housing plan to shift Level I and II women prisoners to community based facilities and generally has begun a new gender-responsive classification system for women. In 2007, the legislature enacted California Penal Code section 3430 that required CDCR to develop a "Female Offender Reform Master Plan" and to create policies, operational practices, and programs designed "to ensure a safe and productive institutional environment for female offenders, as well as gender-responsive rehabilitative programs and needs-based case and risk assessment.
Despite these efforts, Women's prisons still remain at over two hundred percent overcrowding levels. Many of the rehabilitative programs have yet to be implemented, and the construction of many of the community-based facilities have been delayed. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/09%3A_Special_Populations_in_a_Correctional_Setting/9.03%3A_Women.txt |
Over the past two decades, the number of state prisoners age 55 or older sentenced to more than 1 year increased from 26,300 to 131,500 prisoners. This represented an increased from 3% of the state prison population in 1993 to 10% in 2013. Between 1993 and 2013, the median age of prisoners increased from 30 to 36 years. The prison population’s changing age structure has implications for the management and care of inmates. Two main factors contributed to the aging of state prisoners between 1993 and 2013: a greater proportion of older prisoners were serving longer sentences, predominantly for violent offenses, and the number of admissions of older persons increased. Both the admission rate and yearend imprisonment rate for state prisoners age 55 or older increased from 1993 to 2013, which indicates that the aging U.S. resident population was not solely responsible for the growth in older offenders in prison.
The imprisonment rate for prisoners age 55 or older sentenced to more than 1 year in state prison increased from 49 per 100,000 U.S. residents of the same age in 1993 to 154 per 100,000 in 2013. Forty percent of state prisoners who were age 55 or older on December 31, 2013, had been admitted to prison when they were at least age 55, and 60% turned age 55 while serving time in prison. Additionally, 40% of state prisoners age 55 or older on December 31, 2013, had been imprisoned for at least 10 years, compared to 9% in 1993.
The growth in state prison admissions from 1993 to 2003 was driven by people ages 40 to 54 (up 162%) and those age 55 or older (up 124%). Admission to prison of people age 55 or older increased 82% between 2003 and 2013. During the same period, state prison admissions declined 12% for those age 39 or younger and 11% for those ages 40 to 54. People age 55 or older accounted for 1% of state prison admissions in 1993, 2% in 2003, and 4% in 2013. The mean age at admission also increased, from 30 years in 1993 to nearly 34 years in 2013.
Prisoners age 55 or older had consistently higher mean sentence lengths, increasing from 76 months in 1993 to 82 months in 2013 across all offenses. In comparison, prisoners ages 18 to 39 were sentenced to a mean of 64 months in 1993 and 69 months in 2013. The mean sentence length for new inmates ages 40 to 54 increased from 65 months in 1993 to 71 months in 2013. Across all age groups and offense types, the mean time prisoners expected to serve on a new court commitment when entering state prison increased from 29 months in 1993 to 39 months in 2013. Prisoners age 55 or older convicted of new violent crimes received longer sentences and could be expected to serve a higher proportion of their sentences than younger offenders. Prisoners admitted in 2013 when they were age 55 or older could expect to serve an average of more than 182 months (15 years) for new violent offenses, compared to 116 months (10 years) for those admitted at ages 40 to 54 and 55 months (almost in 5 years) for those ages 18 to 39.
Figure 9.6 Two elderly & disabled prisoners walking down 'A' wing of HMP & Young Offenders Institute ‘Littlehey’. Image is used under a Creative Commons Attribution-Share Alike 4.0 International license.
Many older prisoners in the past two decades were serving long sentences for violent crimes. More than 65% of state prisoners age 55 or older were serving time for violent offenses between 1993 and 2013, compared to a maximum of 58% of other age groups. In 2013, 48% of state prisoners age 55 or older were serving sentences for murder or non-negligent manslaughter or sexual assault, compared to 31% of those ages 45 to 54 and 27% of those ages 35 to 44.
Although the rapid rise in the aging prison population is often attributed to the overall rise in the U.S. aging population, researchers attribute several factors to the recent growth. The Bureau of Justice Statistics cites two primary reasons in the Aging of the State Prison Population 1993–2013 Report. First, data indicate there has been an increase in the number of older adults who commit crimes and enter the prison system at an older age. While there were 2 million fewer arrests in 2012 than in 1993, arrests of people age 55 and older increased by 77 percent in the same time period. Another factor contributing to the growth of the older prison population is longer prison terms. The number of prisoners aged 55 and older who were sentenced to more than one year in prison increased from 26,300 in 1993 to 131,500 in 2013—a 400 percent increase. Older people may have longer criminal histories and therefore be more likely to be affected by multiple strike laws. Additionally, individuals who entered the system in young or middle age are aging in place in the prison setting. For example, between 1993 and 2003, prisoners aged 45–49 were the fastest-growing age bracket in the prison population. Thus, by 2013, many had aged into the category of older prisoner.
The aging of the prison population has implications for the quality and type of services they receive in the correctional system, as well as for reentry services since the vast majority of prisoners return to the community at some point. In terms of care for aging prisoners within the correctional systems, considerations include the need for a physical infrastructure within the prison facility that supports people as they age (accessible cells, grab bars, alternatives to bunk beds), programming geared for older inmates (employment, skills training, recreation), health needs (addressing physical and mental health conditions, medication management), prison workforce needs (additional staff may be needed to provide personal care assistance with bathing, dressing and moving around the institution). There is also support needed when older inmates are paroled or prepare to return to the community to ensure successful reentry into society and prevent recidivism. Access to services such as transportation and housing, assistance finding employment, connection with a social support system, access to physical and mental health care, and help with signing up for benefits are important factors in a successful reentry.
With the Bureau of Prisons’ changes to the compassionate release program in 2013, prison systems have given greater attention to compassionate release programs. The concept behind compassionate release is that it provides a community-based option for prisoners who have an “extraordinary or compelling” reason for release, such as a terminal illness, progressive illness or debilitating injury from which they will not recover. Compassionate release may also be a factor in helping to address prison overcrowding, particularly since older prisoners are less likely to recommit crimes. However, compassionate release options are not always well-utilized due to eligibility limitations, the bureaucracy of navigating the compassionate release process, and lack of public support for these programs. When compassionate release is utilized, it can present different challenges. For example, finding an appropriate placement for individuals who are terminally ill and setting up appropriate benefits in advance to ensure that the released individual has resources to pay for care can be challenging. As a result, nursing homes have reported situations where older prisoners have been “dumped” in their facilities with little or no resources or services in place for the person to live successfully. Lack of social acceptance and fear of this population returning to the community or entering a community-based long-term care setting is an ongoing challenge. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/09%3A_Special_Populations_in_a_Correctional_Setting/9.04%3A_Aged_and_Elderly_Populations.txt |
Key Terms:
Duties of Corrections Officers
Private Prisons
Infectious Diseases
Contraband
Role Conflict/Role Ambiguity
Public Misconception
Specialized Personnel
Education/Training/Qualities
Work Related Dangers
Prison Gangs
Riots
Work/Family Conflict
Political Scrutiny
Correctional Officer Wellness Programs
10: Correction as a Career Field
Correctional officers are responsible for overseeing individuals who have been arrested and are awaiting trial or who have been sentenced to serve time in jail or prison. Bailiffs, also known as marshals or court officers, are law enforcement officers who maintain safety and order in courtrooms. Their duties, which vary by court, include enforcing courtroom rules, assisting judges, guarding juries, delivering court documents, and providing general security for courthouses.
Figure 10.1 Superior Court County of Kern by Tabitha Raber is used under a CC BY 4.0 license.
Note
Think about It . . . Serving 9 to 5: A Correctional Officer's Diary (NPR)
“To work in a prison you have to be a special type of person”
Sergeant Furman Camel spent 27 years in a North Carolina Prison, that’s as many years as Nelson Mandela spent behind bars. But Camel did his time, as he likes to say, in 8 hour shifts.
“I wear this uniform with pride. Every day that I come in here I’m creased down. My shoes are shined. And I smell good. The uniform is 90% of the job. Looking the part.”
Listen to Camel’s story and more audio diaries from officers who work behind bars at the Polk Youth Institution in North Carolina.
Duties
Correctional officers typically do the following:
• Enforce rules and keep order within jails or prisons
• Supervise activities of inmates
• Inspect facilities to ensure that they meet security and safety standards
• Search inmates for contraband items
• Report on inmate conduct
• Escort and transport inmates
Bailiffs typically do the following:
• Ensure the security of the courtroom
• Enforce courtroom rules
• Follow court procedures
• Escort judges, jurors, witnesses, and prisoners
• Handle evidence and court documents
Figure 10.2 Probation Officer in the Court by Tabitha Raber is used under a CC BY 4.0 license.
Inside the prison or jail, correctional officers enforce rules and regulations. They maintain security by preventing disturbances, assaults, and escapes, and by inspecting facilities. They check cells and other areas for unsanitary conditions, contraband, signs of a security breach (such as tampering with window bars and doors), and other rule violations. Officers also inspect mail and visitors for prohibited items. They write reports and fill out daily logs detailing inmate behavior and anything else of note that occurred during their shift.
Correctional officers may have to restrain inmates in handcuffs and leg irons to escort them safely to and from cells and to see authorized visitors. Officers also escort prisoners to courtrooms, medical facilities, and other destinations.
Bailiffs’ specific duties vary by court, but their primary duty is to maintain order and security in courts of law. They enforce courtroom procedures that protect the integrity of the legal process. For example, they ensure that attorneys and witnesses do not influence juries outside of the courtroom, and they also may isolate juries from the public in some circumstances. As a neutral party, they may handle evidence during court hearings to ensure that only permitted evidence is displayed.
Bailiffs held about 18,600 jobs in 2016. The largest employers of bailiffs were as follows:
71%
29.00%
Table 10.1 Bailiff Employment
Correctional officers and jailers held about 450,000 jobs in 2016. The largest employers of correctional officers and jailers were as follows:
State government, excluding education and hospitals
54%
Local government, excluding education and hospitals
37%
Facilities support services
5%
Federal government
4%
Table 10.2. Correctional Officers
Correctional officers may work indoors or outdoors, and bailiffs generally work in courtrooms. They both may be required to stand for long periods. Correctional officers usually work full time on rotating shifts. Because jail and prison security must be provided around the clock, officers work all hours of the day and night, including weekends and holidays. Many officers are required to work overtime. Bailiffs’ hours are determined by when court is in session.
Working in a correctional institution can be stressful and dangerous. Correctional officers may become injured in confrontations with inmates, and they have one of the highest rates of injuries and illnesses of all occupations. The job demands that officers be alert and ready to react throughout their entire shift.
Correctional officers and bailiffs typically attend a training academy. Although qualifications vary by state and agency, all agencies require a high school diploma. Federal agencies may also require some college education or previous work experience. Many agencies establish a minimum age for correctional officers, which is typically between 18 and 21 years of age.
Note
California Department of Corrections Recruitment Video
Select Link Below to Launch Video
https://youtu.be/04UNMqu1Ucc
Education
Correctional officers and bailiffs must have at least a high school diploma or equivalent.
For employment in federal prisons, the Federal Bureau of Prisons requires entry-level correctional officers to have at least a bachelor’s degree or 1 to 3 years of full-time experience in a field providing counseling, assistance, or supervision to individuals.
Training
Correctional officers and bailiffs complete training at an academy. Training typically lasts several months, but this varies by state. The International Association of Directors of Law Enforcement Standards and Training maintains links to states’ Peace Officer Standards and Training (POST) programs. Academy trainees receive instruction in several subjects, including self-defense, institutional policies, regulations, operations, and security procedures.
Note
Pin It! Correctional Officer Entry Exam Example
Click here for an example of an employment entry exam utilized by the California Department of Corrections and Rehabilitation.
Important Qualities
• Decision making skills. Correctional officers and bailiffs must use both their training and common sense to quickly determine the best course of action and to take the necessary steps to achieve a desired outcome.
• Detail oriented. Correctional officers and bailiffs follow and enforce strict procedures in correctional facilities and courts to ensure everyone’s safety.
• Interpersonal skills. Correctional officers and bailiffs must be able to interact and communicate effectively with inmates and others to maintain order in correctional facilities and courtrooms.
• Negotiating skills. Correctional officers must be able to assist others in resolving differences to avoid conflict.
• Physical strength. Correctional officers and bailiffs must have the strength to physically subdue inmates or others.
• Self-discipline. Correctional officers must control their emotions when confronted with hostile situations.
Note
California Department of Correction - Physical Fitness Test Video
Select Link for Video
https://youtu.be/hVRBfDfH6n0 | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/10%3A_Correction_as_a_Career_Field/10.01%3A_Public_agencies.txt |
Staffing and Employment Private facilities reported a total of 13,344 regular and non-payroll support staff. The number of full-time, or regular, staff ranged from as low as 19 at the smallest institution to 532 at the largest. Correctional officers accounted for 63.2 percent of employees at private facilities in 2015; a similar percentage were employed as security staff at public correctional facilities. Professional treatment staff accounted for 12 percent of private correctional employees, followed by clerical (7.9 percent), educational (5.8 percent), and maintenance and food service (5.5 percent).
Private state prisons have higher proportions of minority employees compared with public prisons. Fifty-three percent of the staff at private facilities were white (table 11), whereas 31.7 percent (table 8) of the inmate population was white. At public facilities, the corresponding figures in 1995 were 71.3 percent (table 11) and 35.5 percent (table 8), respectively. The racial composition of staff to inmates was similar for blacks at both types of facilities. Blacks comprise 22.4 percent of the staff and 43.9 percent of inmates at private state prisons versus 20 percent of staff and 47.7 percent of inmates at public facilities. Hispanics, on the other hand, comprise 14.4 percent of the inmate population at federal and state public facilities but only 6.3 percent of the correctional staff. Among the 65 private state facilities surveyed, Hispanics made up 20.7 percent of the inmate population and 18 percent of the staff.
When the three facilities located in Puerto Rico were excluded from the analysis, the private facilities still had a larger percentage of Hispanic staff (13 percent staff and 17 percent inmate population) than those employed at public facilities.
According to the United States Bureau of Labor, the average starting salary for correctional officers in 2016 was \$32,290. The number of staff hired and terminated is largely driven by the number of facilities in operation and facility size—large and medium-sized institutions tend to have higher staff turnover rates. Only one private facility in the United States is unionized.
Correctional officers in privately operated prison facilities are becoming increasingly more available as growth in the private prison industry continues year after year. Regardless how you feel about private interests getting involved in the housing of prisoners and the building of detention facilities for profit, the fact remains that for those seeking employment as a corrections officer, this is a solid way to go.
Figure 10.3 Rise of Private Prison Stock Prices from 2002 to 2012. Creative Commons CC0 1.0 Universal Public Domain Dedication.
The privately-owned prison industry accounts for approximately 10% of the 2.3million prisoners currently being held in the United States at a cost of 55 million dollars per year.
There are a number of private prison operators in the United States but the two top companies are Corrections Corporation of America or (CCA) and The Geo Group, (GEO). Forty percent of the revenue that these companies receive is from the government for the housing of inmates and the operation of their private prison facilities. CCA is the largest private prison operator with about 67 facilities in the USA while The GEO Group has facilities both in the USA and internationally. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/10%3A_Correction_as_a_Career_Field/10.02%3A_Private_sector.txt |
Correctional Officer Job Responsibilities
Correctional officers (COs) play a pivotal role within the wider prison system as they are tasked with numerous responsibilities designed to ensure that their respective facilities are operating efficiently. As the front-line bureaucrats of the prison institution (Lipsky, 2010), COs are charged with supervising the activities of inmates, enforcing rules and regulations, affording offenders access to social services, and perhaps most importantly, maintaining order (Crawley, 2004; Kauffmann, 1989). They are also tasked with responding to administrative demands; searching cells for drugs, weapons, and other contraband; and intervening to resolve potentially violent disputes among inmates (Bureau of Labor Statistics, 2013). COs play such a fundamental role in the functioning of any prison system that Archambeault and Archambeault (1982) remarked that officers “represent the single most important resource available to any correctional agency” (p. 72).
Figure 10.4 Example of prison contraband. This is commonly referred to in the prison as a “shiv” and it’s a sharp-edged weapon that inmates’ fashion out of common prison items. These are very dangerous, and a significant amount of effort is made by correctional officers to search, find and destroy these items before they are used by inmates. Creative Commons CC0 1.0 Universal Public Domain Dedication.
Recent scholarship has suggested that COs work under dangerous conditions that can threaten their general safety and wellness. Following several legislative reforms that started in the 1970s and included “get tough on crime” policies such as mandatory minimum sentences and habitual offender laws (Mackenzie, 2001), correctional institutions experienced dramatic changes in the composition of the inmate population. Not only did the total number of incarcerated offenders skyrocket from roughly 300,000 to more than 1.5 million between 1975 and 2013, but the percentage of offenders imprisoned for violent crimes increased from about 40 percent in 1985 to more than 60 percent by 2013 (Walmsley, 2013). Although incarceration rates have declined in recent years, the modern-day CO is still required to interact with and supervise individuals in a dangerous environment (Glaze & Kaeble, 2014).
Officers are further responsible for maintaining safety in a setting with significant numbers of gang members (Lombardo, 1989), offenders with mental illness (Kupers, 1999; Turner, 1975), drug addicts (Ross, 1981), and even terrorists (Crawley, 2004), all of whom pose elevated safety and health risks to COs. Further compounding these issues is that prisons have long been described as “total institutions,” defined as places “where a large number of like-situated individuals, cut off from the wider society for an appreciable period of time, together lead an … enclosed life” (Goffman, 1961, p. xiii). As a result, officers are required to interact with and supervise potentially dangerous offenders in relatively unsafe and secluded surroundings. Collectively, these observations have prompted correctional scholars and practitioners to characterize prisons as dangerous environments that carry increased risk of harm to the people working in them (Beck, Harrison, & Adams, 2007; Crawley, 2004; Hensley, Koscheski, & Tewksbury, 2005).
Correctional Officer Health Outcomes
The position of CO carries with it the intrinsic danger of physical injury and mental stress. In terms of the former, figures from Harrell (2011) revealed that between 2005 and 2009, the rate of sustained nonfatal workplace injuries per 1,000 COs was 33.0, which, among 26 different professions, ranked third only to police officers and security guards (77.8 and 65.0, respectively). Harrell (2011) further found that in 2011, COs experienced 544 work-related injuries or illnesses that required absences from work per 10,000 full-time officers — the third highest rate of nonfatal workplace injuries, again surpassed only by police officers and security guards. Additional reports from Brower (2013) and the Bureau of Labor Statistics (2013) noted that between 1999 and 2008, a total of 113 U.S. COs lost their lives in the line of duty — a fatality rate of 2.7 per 100,000 full-time employees — the 22nd highest among 115 professions.
Concerning mental health, there is evidence that COs experience high levels of stress, burnout, and a variety of other mental health-related consequences as a result of their employment (Brower, 2013; Stack & Tsoudis, 1997). According to the Management and Training Corporation (2011), between 22 percent and 33 percent of COs report high stress levels. Other studies (Lambert et al., 2005; Ferdik, Smith, & Applegate, 2014a) found that more than 35 percent of officers in the sample recorded high stress levels. Together, the impact of negative physical and mental health outcomes for COs can have deleterious effects on the wider prison institution. Staff shortages and officer absences from work can create a cycle whereby low officer-to-inmate ratios and high turnover in officer staffing threaten the effective implementation of a correctional facility’s security mandates (Brower, 2013; Crawley, 2004; Ferdik, Smith, & Applegate, 2014a).
Literature Search Strategy
As previously mentioned, the intent of this report is to offer a comprehensive synthesis of the literature so as to highlight any inherent limitations and offer recommendations for future research and policies designed to enhance the overall well-being of COs. Information from published and peer-reviewed journal articles, state and federal government reports, university and academic thinktank reports, and commercially published books was retrieved and summarized. Emphasis was placed on collecting research conducted since 2000 to account for current safety and wellness concerns confronting COs, although some earlier research is referenced to provide a baseline understanding of the various issues related to CO safety and wellness. The search phrase “correctional officer” was cross-referenced with the words “safety,” “wellness,” “risk,” “stress,” “burnout,” “depression,” “danger,” “health,” “wellbeing,” “injury,” and “fatality” in the following literature search engines: JSTOR, Social Services Abstracts, Sociological Abstracts, Criminal Justice Abstracts, EBSCOHost, Academic Search Complete, MEDLINE with full text, Applied Social Sciences Index and Abstracts, Hein On-Line, ProQuest Dissertations and Theses, and Google Scholar.
This initial search led to the dual findings that (1) COs are exposed to unique workplace dangers that can jeopardize their general welfare and (2) exploring CO perceptions of workplace safety and risk is an important and emerging area of research. Using the same search engines, a specialized literary search of specific dangers to which COs are exposed as well as officer judgments of workplace safety and risk was conducted by cross-referencing the search phrase “correctional officer” with “gang,” “disruptive inmate,” “riot,” “mentally ill inmate,” “contraband,” “disease,” “risk perception,” and “safety perception.” Each resulting citation was reviewed by both authors to determine its eligibility for the literature synthesis. Reference pages of all obtained reports were scanned to exhaust all pertinent literature related to the topic of CO safety and wellness.
Several themes emerged that form the basis of discussion for this synthesis. These themes include the dangers and risks confronting COs, CO perceptions of workplace safety and wellness as well as the consequences of their exposure to risk, the policies designed to enhance officer wellbeing, and finally considerations for future research. This report will conclude with a discussion of how the safety and wellness issues of law enforcement personnel compare with those of COs and an overview of the salient findings from this literature synthesis and how they can be used to inform decisions regarding CO well-being.
Dangers and Risks Confronting Correctional Officers
Before proceeding to a discussion of the unique workplace dangers and risks that COs face, it is important to note conceptual differences between these terms. Reichman (1986) distinguished risks from dangers in the following manner: “The concept of risk should not be confused with that of danger; dangers are the causes of risk” (p. 151). Reichman added that risks entail the “uncertainty of loss, or the probability that loss will occur,” and that “dangers are those conditions which contribute to the probability of loss” (p. 152). This is a key distinction as this report identifies the risks confronting COs and the dangers that contribute to them. COs are exposed to a number of safety and wellness-related risks. Most notable are the risks of death or physical injury, but of equal concern are mental health-related risks such as stress and burnout (Dowden & Tellier, 2004; Lambert et al., 2005). These risks can accumulate and place significant pressure on a correctional administration, particularly when a fatigued staff and high turnover rates limit the degree to which officers can effectively engage in the surveillance of inmates. Expanding on Brower’s (2013) typology, the categories of dangers contributing to officer safety and wellness-related risks can be broadly described as work-related, institution related, and psycho-social. Using this tripartite schema, this report examines the most salient workplace dangers that threaten CO safety and well-being and their consequences. Exhibit 1 summarizes the identified dangers under their respective categories and the multiple mental and physical health-related risks connected to each danger as identified in extant literature.
Work-Related Dangers
Work-related dangers are directly connected to officer safety and well-being. Under the work-related category are the dangers of infectious and communicable diseases (Macalino et al., 2004); the presence of prison gangs, disruptive inmates, and contraband (Bouchard & Winnicki, 2000; Fleisher & Decker, 2001; Garcia, 2008); working alongside inmates with mental illness (Adams & Ferrandino, 2008); and riots (Carrabine, 2005). Each of these dangers presents an elevated risk of harm to COs in terms of both physical and mental health issues. These dangers are examined in greater detail below.
Figure 10.5 Correction officers have many responsibilities such as keeping track of inmate location, medications, security levels and scheduling activities during the day. Additionally, they must be aware of the surroundings due to acts of violence by inmates. These many responsibilities can create higher stress levels for officers. Image is under a CC.By 2.0 license.
Inmates with Infectious Diseases
There is ample evidence that inmates disproportionately suffer from infectious and communicable diseases (e.g., Hepatitis B and C; Human Immunodeficiency Virus, or HIV; and tuberculosis) (Alaird & Marquart, 2009; Bick, 2007). For example, Ruiz and colleagues (2002) found that in 2000, of the 5,730 inmates from a random sample of California prisons who received intake physical examinations during a two month period, 1.4 percent tested positive for HIV, 3.5 percent tested positive for Hepatitis B, 33 percent tested positive for Hepatitis C, and 7 percent tested positive for tuberculosis. According to a report from the World Health Organization (2013), these estimates far surpass those for the general population. Moreover, Alaird and Marquart (2009) noted that, as of 2008, 1.7 percent of the total U.S. custody population was infected with HIV and that between 12 percent and 35 percent had either Hepatitis B or C. Similarly, a 2006 report issued by the Bureau of Justice Statistics found that the rate of confirmed Acquired Immunodeficiency Syndrome (AIDS) cases was between three and five times higher for prisoners than for the general population, with 0.55 percent of inmates and 0.10 percent of the general public having contracted the disease. This represents a serious challenge to daily operations for COs.
COs are susceptible to the risk of contracting potentially fatal diseases on account of occupational mandates that require them to routinely perform pat-down and cell searches, intervene in offender altercations, and respond to medical emergencies, accidents, and other “situations where they may encounter sharp objects, blood, and bodily fluids” (Alaird & Marquart, 2009, p. 441). High risk behaviors engaged in by inmates, such as unprotected sex, intravenous drug use, and tattooing, make officers particularly vulnerable to risk. Although there are little empirical data on the rates at which COs contract any of the above-noted illnesses, practitioners and scholars consider infectious and communicable diseases among inmates to be a significant threat to the health and safety of COs.
Work Related Dangers
Institution Related Dangers
Psycho-Social Related Dangers
Mental Health Risks
Physical Health Risks
Riots
Understaffing
Media / Political scrutiny
Burnout
Death
Table 3. Summary of Dangers and Risks Confronting Correctional Officers
Prison Gangs
Across correctional institutions, officers must interact with noncompliant and potentially violent inmates on a one-to-one basis to ensure adherence to institutional regulations. When inmates merge into groups, such as prison gangs, the threat to security can become even more severe. Fleisher and Decker (2001) opined that “prison gangs are a … prison manager’s biggest nightmare” (p. 2). A report from the FBI’s National Gang Intelligence Center (2011) further stressed that gangs are increasing in number across correctional facilities (particularly those found in the southeastern U.S.), and that gang affiliates are escalating in their level of violence and criminal sophistication. Lyman (1989) defined a prison gang as “a violent organization that operates within the prison system as a self-perpetuating criminally oriented entity, consisting of a select group of inmates who have established an organized chain of command and are governed by a code of conduct” (p. 48). Prison gangs share many similarities with their counterparts on the outside, as one person is usually designated as a leader, and that person oversees the other members and their criminal operations. Gangs have been described as violent, secretive, and abiding by a creed, motto, or constitution that dictates member behavior, and further as organizations that adopt unique symbols to define membership status (Fleisher & Decker, 2001). Several major gangs have been identified as being most problematic or influential in the prison system, including the Mexican Mafia (La Eme), the Aryan Brotherhood, Black Panther groups (e.g., the Black Liberation Army), the Symbionese Liberation Army, the Weatherman Underground Organization, the La Nuestra Family, and the Texas Syndicate (Skarbek, 2014). These groups are motivated by a desire to earn money and exploit often overcrowded and understaffed prisons, thereby further threatening the safety of COs (Fleisher & Decker, 2001).
Disruptive Inmate Behavior
Disruptive inmate behavior is viewed as violent conduct against staff or other inmates (Rocheleau, 2014). Examples of this type of behavior include, but are not limited to, successful or attempted physical and sexual assault, murder, suicide, and even rape (Byrne, Hummer, & Taxman, 2008). Disruptive inmate behavior has been shown to increase the rate of CO turnover (Patenaude, 2001), the rate of injury and death sustained by COs (Crawley, 2004), and the prevalence of self-destructive behavior, such as officers resorting to drugs and alcohol as coping mechanisms (Crawley, 2004).
Although Byrne and colleagues (2008) noticed a decline in the national rate of inmate-on-inmate fatalities from 3.2 to 2.4 per every 1,000 offenders between 1995 and 2000, they noted that these rates of violent death remained a major concern for correctional institutions. Between 1995 and 2000, these researchers noted an increase from 27.0 to 28.0 in the national rate of inmate-on-inmate assault per every 1,000 incarcerated offenders. Rates of inmate assault against COs also increased during this period, from 14.1 to 15.6 per every 1,000 officers (Byrne, Hummer, & Taxman, 2008). More recent figures from Wolff and colleagues (2007) showed that across a nationally representative sample of U.S. prisons, the rate of inmate-on-inmate assault ranged from 129 to 346 per 1,000 offenders, and inmate-on-officer assault ranged from 83 to 321 per 1,000 COs. Variability in these rates was largely attributed to variance in institutional characteristics (i.e., some prisons housed more violent offenders than others) and to differences in reporting systems across correctional facilities.
Prison sexual assault has been a topic of considerable importance for correctional administrators and researchers over the past few decades. In their study of a maximum-security prison in the southern U.S., Hensley, Koscheski, & Tewksbury (2005) found that 18 percent of inmates reported inmate-on-inmate sexual threats and 8.5 percent reported that they had been sexually assaulted by another inmate while incarcerated. Moreover, Beck and colleagues (2007) documented 3.75 alleged inmate-on-inmate sexual assaults per every 1,000 inmates in state-run prisons. Younger inmates and offenders serving longer sentences initiated the majority of these assaults (Beck, Harrison, & Adams, 2007).
The role of place is also important to inmate behavior, suggesting that there are important differences both between and within prisons. Garcia (2008) noted that maximum-security facilities and facilities populated by a higher percentage of younger offenders are more likely to report higher rates of disruptive inmate behavior. Hensley and colleagues (2005) echoed some of these findings by revealing that maximum-security facilities are statistically more likely to report higher levels of inmate sexual assault than are lower security agencies. Since COs are responsible for controlling any type of disruptive inmate behavior and for ensuring that all individuals within the prison are protected, they become more susceptible to the violence in these facilities, thus elevating their risk for physical and mental harm. They must also intervene in incidents that involve disruptive inmate behavior, noncompliance, physical and sexual violence, and aggression. Combined, these issues further compromise the safety and wellness of COs and increase their risk of victimization.
Contraband Presence
Although prison administrators attempt to remove or reduce the presence of contraband, a system of illicit contraband circulation has developed in many institutional facilities, which has led to increased concern among correctional practitioners about the potential for harm associated with this illegal enterprise. Contraband can include weapons, fermented alcoholic beverages, drugs, narcotics, restricted medications, and state-owned equipment, tools, and other supplies (Burke & Owen, 2010). Cellular telephones, a more modern form of contraband in U.S. prisons, have also raised safety concerns for correctional officers and practitioners (Fitzgerald, 2010). In recent years, inmates have even coordinated the use of drones to import contraband into prisons (Fitzgerald, 2010). Somewhat surprisingly, especially considering the potential for harm associated with contraband, some COs have been found to import contraband items into the prison in the form of cigarettes, drugs, and weapons (Jurik, 1985; Tracy, 2004). According to nationally representative data from 101 U.S. prisons, contraband distribution was connected with more than 200 inmate injuries and 30 CO injuries (Biermann, 2007), further reinforcing the point that contraband circulation represents a considerable health risk to COs.
Inmates with Mental Illnesses
A notable rise in the incarceration rate of people with mental illnesses has been observed across the U.S. over the past several decades. As early as 1972, Abramson coined the phrase “criminalization of the mentally ill” (p. 101) to describe the growing number of individuals with mental illnesses serving time in custody. McLearen and Ryba (2003) attributed much of that increase to the deinstitutionalization movement of the 1970s, which saw large numbers of patients released from psychiatric facilities. Upon their release back into the community, many former patients found themselves under the control of the criminal justice system. These authors commented that this occurred because individuals afflicted with mental illnesses such as bipolar disorder or schizophrenia often suffer an inability to restrain their behaviors and practice self-control. Sometimes, they unknowingly perpetrate acts such as assaults that are classified as legal transgressions, thereby landing them under criminal justice system supervision. Combined with widespread closures of mental health institutions and inadequate services to address the needs of this particular population, this has contributed to a drastic explosion of the number of individuals with mental illness under custodial control (McLearen & Ryba, 2003; Robertson, 2013). Significant growth in the population of inmates with mental illness made the Los Angeles County Jail (15,000/23,000), New York Rikers Island (5,500/10,000), and Cook County Jail in Chicago (5,000/10,000) the “three largest psychiatric institutions in the country” in 2007 (Adams & Ferrandino, 2008, p. 913). Parenthetical figures reflect the average daily number of diagnosed mentally ill inmates per the average total daily inmate population of all three jail facilities. James and Glaze (2006) further noted that in 2005, 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of those in jail reported symptoms of at least one mental health problem.
COs are often ill prepared to address the complex symptomology presented by inmates with mental illness. These vulnerable inmates require expensive medical services such as therapy, detoxification, and medication. They are more likely than other inmates to have histories of drug and alcohol dependency and to suffer from a chronic physical health condition. Research has found that inmates suffering from mental illnesses are more susceptible to physical and sexual assault (Robertson, 2013), present a greater physical threat to themselves and others (McLearen & Ryba, 2003), and are more likely to recidivate than inmates who do not experience mental illness (Robertson, 2013).
Prison administrators and staff are severely limited in their ability to meet the needs of these inmates because of budgetary constraints and insufficient resources (McLearen & Ryba, 2003). COs will typically assist inmates with mental illness when possible; however, officers rarely receive specific training in this area. These inmates may be considered a challenge to the safety and wellness of officers because of the multiplicity and complexity of their needs.
Riots
A prison riot is the most serious threat to the safety and well-being of COs. Fortunately, they are relatively rare occurrences. From 1774 to 1990, the United States witnessed 300 prison riots, 90 percent of which took place during the mid-to-late 20th century (Martin & Zimmerman, 1990). Two of the most notorious examples of inmate rioting in the United States are the 1971 Attica (New York) and 1980 New Mexico prison riots (Carrabine, 2005). Together, those riots resulted in more than 100 officer and inmate casualties, numerous reported physical injuries, and a complete breakdown of state control. The riots also resulted in more than \$30 million in structural damage to the prisons themselves (Carrabine, 2005).
Figure 10.6 Correction officers may have to deal with high risk offenders. Prison have specially trained officers to deal with these situations. Image is under a CC.By 2.0 license.
Adams (1992) described a prison riot as “part of a continuum of practices … that involves dissenting and/or protesting activities by individuals or groups of prisoners that interrupt their imprisonment by means of which they take over all or part of the prison resources and either express one or more grievances or a demand for change, or both” (pp. 13-14). Post-hoc analyses of prison riots typically find similar causes, such as retaliation against inhumane conditions, prison overcrowding, economic factors, racial tensions, the disproportionate presence of young, violent offenders, and poor building design (Carrabine, 2005). Although prison riots are rare, they can quickly become highly consequential and produce numerous physical and mental health concerns for COs.
Institution-Related Dangers
Institution-related dangers pose greater mental health-related risks than physical risks. Many of the institution-related dangers discussed here have been linked to increases in officer stress and burnout, with the former conceptualized as “a particular relationship between a person and an environment that is appraised by the individual as taxing … and … endangering his/her well-being” (Lazarus & Folkman, 1984, p. 19). Job burnout has been defined as a “gradual loss of caring or emotional exhaustion about a job, co-workers, or clients” (Thompson & Prottas, 2006, p. 100). Included in the list of institution-related dangers are role conflict and role ambiguity (Lambert et al., 2005); demanding workloads, a lack of administrative leadership and officer input into institutional decision-making, and inadequate benefits and resources (Brower, 2013; Finney et al., 2013); prolonged work hours, understaffing, and poor recruitment, selection, and training of officers (Hessl, 2001; Lambert, Hogan, & Allen, 2006); and finally co-worker conflict (Morgan, 2009; Morse et al., 2011; Swenson, 2008).
Role Conflict and Role Ambiguity
Lambert and colleagues (2005) defined role stress as “the degree of incongruity of expectations associated with the role of the employee and the results from work roles” (p. 35). Two variations of CO stress analyzed in this report are role conflict and role ambiguity. Lambert and colleagues (2005) explain role conflict as a situation in which “compliance with one set of pressures makes compliance with another set difficult” and define role ambiguity as “uncertainty or a lack of information in carrying out the duties and responsibilities of a given position” (p. 35). For several decades, prisons across the United States have shifted among correctional philosophies, including treatment/rehabilitation, retribution, deterrence, and incapacitation (Lambert et al., 2005).
Figure 10.7 Correctional officers are often faced with conflicting roles in their jobs. In one capacity, they are responsible for the safety and security of the institution, inmates and co-workers. And they are also tasked to provide inmates with treatment and rehabilitation. The conflicting nature of this profession can cause stress and conflict. Image is under a CC.By 2.0 license.
Fluctuations in punishment ideologies have been shown to negatively impact COs, as they are frequently left questioning their occupational role. Literature has shown that role conflict and ambiguity significantly impact several outcomes. Lambert and colleagues (2013) found that higher levels of role conflict significantly and negatively affect correctional staff job commitment, which, in turn, increases officer stress. Occupational and general stress measures were significantly increased by higher levels of both role conflict and ambiguity in Castle and Martin’s (2006) study. Researchers have linked heightened stress as a result of role conflict and ambiguity to increased officer turnover (Leip & Stinchcomb, 2013; Matz et al., 2013; Minor et al., 2010). Magnified officer stress levels as well as elevated rates of turnover, in turn, can jeopardize the security of correctional facilities by resulting in higher inmate-to-officer ratios and a reduced sense of safety for COs (Leip & Stinchcomb, 2013).
Other Occupational Dangers
A National Institute of Justice (NIJ) study (Finn and Kuck, 2005) reported that high caseloads, combined with demanding paperwork and deadlines, constituted the greatest institution-related dangers affecting CO stress levels. Scholars have found that demanding shift work, extended work hours, poor pay and benefits, elevated perceptions of workplace danger and risk, and insufficient staffing and resources each contributed to increased stress levels (Armstrong & Griffin, 2004; Garcia, 2008; Keinan & Malach-Pines, 2007; Lambert, Hogan, & Barton, 2002; Morgan, 2009; Morse et al., 2011; Swenson, 2008). Many officers are asked to perform additional tasks with limited resources, mostly because of widespread budget constraints that have financially handcuffed correctional administrative officials. As reported by Summerlin and colleagues (2010) and Brower (2013), hiring freezes and terminations have forced many COs to work with outdated equipment and limited training.
These problems have subsequently contributed to higher officer stress and burnout levels as well as low morale. According to Brower (2013), budgetary problems can also lead to strained relationships between COs and correctional administrators. Adding to these issues, Paoline and colleagues (2006) found that officers who perceived American Correctional Association (ACA) directives as confusing, and those who believed that inmates were afforded more social services than COs, were significantly more likely to report higher levels of job-related stress. COs’ negative perceptions about managerial decision-making practices can create friction between both sides and contribute to higher levels of CO stress and burnout (Finney et al., 2013; Lambert, Hogan, & Allen, 2006). Lambert and colleagues (2012) found that officer stress and burnout could be predicted by their distrust of the prison administration.
Other institution-related dangers include a lack of administrative leadership and an absence of officer input into decision making (Lambert, Cluse-Tolar, & Hogan, 2007; Tewksbury & Higgins, 2006a, 2006b). Brower (2013) explained that mistrust can have deleterious effects on the wider prison system, as officers may become more disengaged from their jobs, which can, in turn, increase inmate violence levels as well as the general level of danger in a facility. If administrative officials desire to maintain harmony with correctional staff, it is imperative, according to Brower (2013), that they forge trusting and long-lasting partnerships with their subordinates.
One final institution-related danger that can contribute to CO stress involves the relationships they forge with co-workers. Paoline and colleagues (2006) found that positive relationships with co-workers significantly reduced officer stress and improved officer evaluations of job satisfaction. Dowden and Tellier’s (2004) meta-analysis of CO stress found that strained co-worker relations predict increased stress, and their aggregated findings support many of the results reported in this section.
Psycho-Social Dangers
Psycho-social dangers are issues and challenges that COs encounter as they move between work and community surroundings, including their home environments. These dangers include work-family conflict, public misperceptions, and political scrutiny from individuals possessing limited knowledge of the daily challenges faced by officers.
Work-Family Conflict
The most pressing issue related to work family conflict for COs is the fact they must balance what is termed “dual role conflict” (Brower, 2013, p. 13). In their professional lives, COs are surrounded by and required to supervise potentially violent individuals as well as people with special needs (e.g., mental and physical health care and drug rehabilitation). Few other professionals work under such demanding conditions. Officers’ daily tasks include using unique communication strategies designed to reinforce behavioral boundaries and compliance when interacting with inmates. The communication style required by the prison environment may be described as assertive, direct, and unemotional. However, this communication style may have no effect or a negative effect on family members at home. What works for communicating in prison may not work at home.
When COs experience dissonance between work and family environments, their level of well-being decreases dramatically (Brower, 2013). This can manifest in the form of “chronic fatigue, cynicism, pessimism, sarcasm, flattened drama/stress response and exposure to trauma and other disturbing behaviors” (Brower, 2013, p. 8). Finn (1998) suggested that this pattern can be cyclical, as at-risk COs may direct their frustrations at family members who, in turn, redirect more frustration toward the CO. Obidoa and colleagues (2011) add that work-family conflict can also manifest as depressive symptoms.
Figure 10.8 Officers conducting an active shooter simulation. Correctional officers, like many law enforcement officers are always in heightened state of awareness based on the nature of their work. This leads to many issues such as stress, cynicism, and pessimism. This can affect those the officer lives with and their home life. Creative Commons CC0 1.0 Universal Public Domain Dedication.
Of course, the challenge for COs is to balance family demands with the stressors of working in a correctional facility. This requires adaptation to two often incompatible milieus — the prison context versus the family. One of COs’ most common reactions to this incompatibility is to become withdrawn and isolated (Brower, 2013). COs may experience difficulties in discussing daily work events with spouses and loved ones (Crawley, 2004). Devoid of outlets for expressing their work-related frustrations and concerns, COs may experience elevated levels of emotional stress and burnout (Brower, 2013; Crawley, 2004). These issues can contribute to days missed from work, job-related apathy, and increased security risks in their work environments (Crawley, 2004; Lambert et al., 2005).
Public Misperceptions and Political Scrutiny
Apart from an inability to discuss work experiences with loved ones, COs are also often reluctant to discuss their work with the general public because of misconceptions about their profession. The misconceptions are often rooted in the frequently negative characterizations of COs by the news media (Crawley, 2004; Moon & Maxwell, 2004), which often involve negative events such as inmate escapes, inappropriate staff-inmate relationships, and violations of inmate rights. The portrayals of COs in other forms of media, such as movies and music, can be even more damaging. COs are often depicted as brutal, cruel, racist, and educationally deficient. Moreover, because the general public has very little experience with corrections and correctional employees, they are apt to believe these stereotypes (Schaufeli & Peeters, 2000). These misguided characterizations of COs can influence political figures who are responsible to the public and its concerns. If the public typecasts COs in a stereotypically negative way, the same political figures who are responsible for ensuring that officers conduct themselves appropriately may express little to no support for those officers (Brower, 2013). Absent public or political support, COs may experience a lack of respect and appreciation for their important work, resulting in higher stress levels, isolation, and reduced self-esteem (Brower, 2013). The isolated nature of prisons and jails may exacerbate this negative state of affairs by reinforcing the stereotypes and further amplifying mental health-related consequences for COs.
Correctional Officers’ Perceptions of Workplace Safety and Wellness
Given the harms to which COs are exposed, it is surprising that little research has been conducted on their perceptions of workplace safety and wellness. Scholars have discovered that employee perceptions of the work environment can fundamentally shape outcomes such as job performance, co-worker and supervisor treatment, and the intention to voluntarily resign (Ferdik, Smith, & Applegate, 2014a; Konovsky & Pugh, 1994; Schein, 1990). Since COs play such a crucial role in establishing and maintaining order in their institutions, it is vital to understand how they perceive safety. A literature search produced eight studies on this topic. A detailed discussion of each study is provided below, with the accompanying table in the appendix providing a comprehensive breakdown of each study’s methodology and findings.
COs were surveyed on a variety of safety related issues, including their general perceptions of danger (Garcia, 2008), the risk of contracting an infectious disease (Alaird & Marquart, 2009; Dillon & Allwright, 2005; Hartley et al., 2012), their risk of injury from specific prison-based dangers (Ferdik, 2014), and their fear and risk of victimization by both inmates and co-workers (Gordon, Moriarty, & Grant, 2003; Gordon, Proulx, & Grant, 2013; Lai, Wang, & Kellar, 2012). The officers surveyed worked in a variety of correctional institutions, including juvenile detention facilities and minimum-, medium-, and maximum-security adult prisons. In the studies that surveyed officers’ perceptions of their risk of contracting an infectious disease, respondents perceived those risks as moderate to high. Specifically, Alaird and Marquart (2009) reported that 54 percent of respondents believed that they were at risk of contracting HIV/AIDS, and Dillon and Allwright (2005) found that an overwhelming 92.2 percent to 95.2 percent of their sample believed that they were at risk of contracting either Hepatitis B or C, or HIV/AIDS. Another study found that a majority of COs judged their entire work environment to be dangerous, with many officers reporting that they felt physically threatened by both inmates and co-workers (Hartley et al., 2012). Hartley and colleagues (2012) also found that more than half of their respondents perceived an elevated risk of contracting an infectious disease while on the job. Several statistically significant covariates of officer risk perceptions surfaced among the studies, including findings that greater knowledge levels about HIV/AIDS and additional years of formal education reduced perceived risk (Alarid & Marquart, 2009), and older and male officers perceived statistically significant increased levels of risk as compared to their counterparts (Dillon & Allwright, 2005).
Other studies examined COs’ perceptions of either fear or risk of victimization by inmates and co-workers but found lower levels of perceived risk when compared to the aforementioned investigations. For example, Gordon and colleagues (2003) and Lai and colleagues (2012) found that less than half of the officers sampled feared victimization by either inmates or co-workers. Furthermore, only a few officers in Gordon and colleagues’ (2003) study perceived a risk of such victimization. Authors of both studies attributed these comparatively lower rates of perceived risk and fear to the types of inmates that officers were responsible for supervising. For example, whereas officers in Alaird and Marquart’s (2009) and Dillon and Allwright’s (2005) examinations were employed in higher-security facilities, COs in the latter studies worked in juvenile detention and minimum-security, adult prisons. Those officers worked among inmates who posed reduced health and safety threats as opposed to officers employed in higher-security facilities populated by more dangerous offenders. Even considering this point, however, Gordon and colleagues (2003) and Lai and colleagues (2012) argued that despite being employed in lower-security facilities, officers were still cognizant of the fact that health risks were a part of their job.
In Gordon and colleagues’ (2013) investigation, for which COs employed across predominantly medium- and maximum-security facilities were surveyed, between 57 and 73 percent of respondents expressed moderate to high degrees of risk of victimization by inmates. Gordon and colleagues (2003, 2013) and Lai and colleagues (2012) found that statistically significant predictors of officers’ risk perceptions held across gender, race, and education levels. Women perceived additional risk, as did non-white COs and those with more formal education.
Two final studies examined COs’ perceptions of job-related danger and risk (Garcia, 2008; Ferdik, 2014). Garcia (2008) used multi-level modeling techniques and secondary data from the Prison Social Climate Survey to assess federal COs’ perceived levels of danger using an inventory measure of this outcome. Roughly half of all officers across Garcia’s sample expressed some perceived job-related danger. Statistically significant predictors of this outcome, at both the individual and institutional levels, included race, gender, and security level, with non-white, female, and officers employed in higher-security facilities perceiving greater danger levels than their counterparts.
Ferdik (2014) asked a statewide population of COs in maximum-security facilities to rate their risk of injury from six specific workplace dangers, which included the presence of gangs and contraband. Not only did a majority of the sample perceive a high degree of injury risk from each danger, but additional years of job-related employment positively predicted officers’ perceived risk of injury.
Assessments of COs and their general perceptions of workplace safety and risk carry a number of important considerations. When COs perceive high levels of any type of risk in their work environments, this perception can adversely influence their job performance and even contribute to high levels of turnover and a poorly managed prison facility (Ferdik, Smith, & Applegate, 2014a). COs’ heightened risk perceptions can also elevate their stress and job dissatisfaction levels (Garcia, 2008), which may, in turn, engender hostile interactions between officers and offenders, thereby leading to mismanagement of the inmate population (Gordon, Moriarty, & Grant, 2003; Gordon, Proulx, & Grant, 2013). Since COs play perhaps the most important role in successful prison management, gathering insight into their levels of perceived workplace risk can aid interested audiences in better understanding the specific threats to officer safety and wellness which, in turn, can lead to policies and programs directly related to enhancing the overall well-being of COs.
Consequences of Risks to Correctional Officer Safety and Wellness
Numerous consequences have been linked to the safety and wellness risks confronting COs. For example, contentious relationships between officers and their co-workers and supervisors as a result of increased stress levels were revealed in various studies (Finney et al., 2013; Lambert, 2004). This, in turn, led to many COs reporting decreased work performance and even being distracted while on the job (Brower, 2013; Finn, 2000). Griffin and colleagues (2009) found that higher levels of stress were significant predictors of three variations of officer burnout: depersonalization, emotional exhaustion, and job ineffectiveness. Lambert and colleagues (2002) and Hogan and colleagues (2006) found that stress adversely and significantly impacted the level of commitment of officers to their work. In a rare study that evaluated the influence of stress levels on perceived danger, Garcia (2008) found that higher individual and institutional stress levels significantly increased perceptions of danger in a sample of federal COs.
Many studies have found safety and wellness risks within the correctional environment to significantly influence officers’ desire to use administrative sick leave (Lambert et al., 2005; Lambert, Hogan, & Altheimer, 2010), as well as their desire to resign (Ferdik, Smith, & Applegate, 2014b; Patenaude, 2001; Udochukwu et al., 2007). The Management and Training Corporation (2011) estimated that between 2000 and 2008, 16.2 percent of all American COs resigned from their posts after only three years on the job. More troubling figures were reported in individual corrections departments, most notably those of Vermont and South Carolina, where each respectively reported that 35 percent of their COs voluntarily resigned in 2009 alone (South Carolina Department of Corrections (SCDC), 2013; Vermont Department of Corrections (VDC), 2013). Fiscal problems have been recorded by various correctional administrative officials as a result of losing so many officers, with the SCDC operating at a \$45.5 million deficit in 2009. Budget constraints subsequently forced remaining officers to work with inoperable weapons, radios, and other necessary equipment (SCDC, 2013). Deprived of the most essential resources with which to successfully perform their jobs, COs often find that their health and safety come under additional threat. Elevated rates of officer turnover and absenteeism can lead to higher inmate-to-officer ratios and greater numbers of inmate-on-inmate and inmate-on-staff assault (Lambert, 2004; Steiner, 2008).
Researchers have also found that COs experience disproportionately higher rates of physical health problems such as chronic neck, back, and knee injuries, heart disease, diabetes, high cholesterol, and hypertension, as compared with other professionals such as crisis counselors, teachers, and law enforcement personnel (Dowden & Tellier, 2004; Morgan, 2009). Much of this can be attributed to the demanding nature of this line of work, including prolonged work hours, irregular sleep patterns due to constantly changing shift assignments, and being tasked with extra duties that extend beyond their traditional responsibilities (Brower, 2013). Previously referenced dangers such as role conflict and ambiguity, public misconceptions about the CO’s job, and work-family conflict also exacerbate physical health problems for COs (Morgan, 2009; Swenson, 2008). Even life expectancy rates are lower for officers. One seminal study (Cheek, 1984) noted that the average lifespan of individuals in this line of work was 59 years, some 16 years below the national average of 75. A more recent study by the New Jersey Police Suicide Task Force (2009) also found an average 59-year lifespan among COs.
Figure 10.9 Correctional officers may suffer from Post-traumatic Stress Disorder after being placed in dangerous and stressful situation in their line of work. Correctional officers suffer from PTSD at a higher rate than the general public. Pixaby license Free for commercial use No attribution required
Crawley (2004) and Swenson (2008) expanded on the above findings, noting that the physical demands of this profession can disrupt officers’ biological clocks and sleeping patterns; impair their cognitive, emotional, and motor functions; and compromise their eating habits. These problems can manifest as multiple psychological and emotional disorders. For example, Morse and colleagues (2011) found that 31 percent of COs reported serious psychological distress, twice the rate of the general public. Spinaris and colleagues (2012) found in a study of more than 3,000 corrections professionals that 27 percent of officers reported symptoms of post-traumatic stress disorder (PTSD), which surpassed rates of PTSD experienced by combat veterans, who reported just 14 percent. PTSD symptoms among COs have been further linked to memory impairment, depression, obesity, and a higher prevalence of substance abuse (Spinaris, Denhof, & Kellaway, 2012).
Intensive interviews with COs conducted by Crawley (2004) revealed that high levels of stress led more than half of interviewees to resort to self-destructive behaviors such as alcohol and drug consumption to cope with their jobs. The effects spilled over to families, as many officers brought work-related problems home. This led to increased levels of tension between domestic partners and, in some cases, officer suicide. Stack and Tsoudis (1997) found the suicide rate for COs to be 39 percent higher than that of the general working-age population. This finding was supported by research by the New Jersey Police Suicide Task Force (2009), which found the rate of suicide for COs to be double that of police officers and the general population.
Health and safety concerns, as demonstrated by the empirical literature referenced thus far, appear to be attendant consequences of employment as a CO. Officers are tasked with demanding and often conflicting work responsibilities that increase their risk for physical and mental health problems such as injuries, stress, and even death. Officers must interact with and supervise potentially dangerous individuals such as gang members, inmates with mental illness, and those with communicable diseases, which further complicates officers’ health issues. According to the research cited above, officers, regardless of security assignment, recognize the danger to which they are subject as a result of their profession. Many scholars conclude that employment as a CO is among the most dangerous and life threatening of all professions, including law enforcement. Given how COs are heavily relied upon to supervise inmate behavior, establish order in their facilities, and maintain wider institutional security, it is paramount that correctional practitioners, researchers, administrative officials, and other interested stakeholders begin developing more effective and widely used strategies for enhancing the general well-being of this critically important workforce.
Fortunately, changes have begun. Policies that include employee assistance and peer support programs have been implemented across some prison systems. Despite the well-intentioned purposes of these programs, few have come under scientific scrutiny, meaning little evidence attesting to their effectiveness exists. These programs are few and far between, implemented in only a few prisons. Although for several years’ researchers have extensively documented the numerous dangers and health risks associated with CO employment, relatively little is known about how to best address these problems. Moreover, with the exception of a handful of studies, little is also known about how COs judge the dangerousness of their jobs and the steps they take to protect themselves from workplace dangers and risks.
The next section of this report describes the policies and programs designed to assist officers from a wellness standpoint, the empirical literature (or lack thereof) related to their effectiveness, and an argument for why more research on CO safety and wellness is needed. Although much is known about why and how the CO’s job is dangerous, we still do not have a foundational understanding of what can be done to enhance their safety — a critical area of research, given the essential role officers play in the functioning of any prison system.
Correctional Officer Wellness Policies and Considerations for Future Research
Policies That Support Correctional Officer Safety and Wellness
Because COs are exposed to many occupational dangers, correctional practitioners, researchers, and administrative officials must develop methods for enhancing officers’ well-being. Such efforts have been slow to develop (Armstrong & Griffin, 2004; Brower, 2013). Although some prison facilities have begun to institute mental health counseling and other measures designed to improve the general welfare of COs, many of these programs are in their infancy, have not been evaluated using scientific methods, and exist in only a handful of correctional facilities (Armstrong & Griffin, 2004; Brower, 2013; Morse et al., 2011). Many pundits have remarked that to better address the safety and wellness threats to COs, it is perhaps best to examine the broader law enforcement profession and what it is doing to ensure the well-being of police officers (Armstrong & Griffin, 2004; Brower, 2013; Delprino, 2001; Finn, 1998, 2000; Roland, 2011).
Figure 10.10 California Department of Correction has an employee portal available to employees and family to see health and wellness programs offered by the department. Creative Commons CC0 1.0 Universal Public Domain Dedication.
Some scholars have discouraged applying police research and policies to the correctional context because police officers and COs are employed in dramatically different working conditions (Brower, 2013). For example, although police officers are exposed to many occupational dangers such as gangs and physical retaliation from community members (Anson, Johnson & Anson, 1997; Jones & Newburn, 2002), when compared to the dangers confronting COs, marked contrasts exist. Brower (2013) suggests that the daily dangers and pressures “faced by COs far exceed those experienced by police officers” (p. 5). Whereas the dangers faced by law enforcement personnel are periodic, those faced by COs are constant. In fact, COs experience continued exposure to violent and dangerous offenders throughout the entirety of their work shifts. In addition, although police officers must interact with unpredictable citizens who may pose a risk of harm, they also have multiple opportunities to forge partnerships with prosocial community members who can help law enforcement maintain community harmony (Brower, 2013). For COs, these opportunities are largely absent as they are responsible for overseeing offenders who may be frustrated with their current conditions and may express those grievances against the very individuals charged with monitoring their behavior.
Other differences exist as well. Police officers are permitted to carry lethal and less-lethal devices for protection, whereas COs are not (Farkas & Manning, 1997). In addition, although there are negative portrayals of the police in mainstream media, they are often counterbalanced by positive images of law enforcement officers engaging in heroic acts (Chermak & Weiss, 2005). The same cannot be said for COs, with many media depictions stereotyping them as inhumane figures who have a fundamental disregard for human suffering (Crawley, 2004). All these issues can predispose correctional officers to greater levels of stress, injury, and even fatality when compared with law enforcement (Garland, 2002).
Specific occupational differences aside, it is widely recognized that both police officers and COs are exposed to various dangers that can threaten their welfare, and some experts have noted the potential benefits to corrections agencies of learning more about law enforcement strategies to protect their officers (Brower, 2013). Police departments are frequently staffed by psychiatrists and other mental health professionals trained to assist law enforcement personnel. Moreover, the mental health field now recognizes police psychology as a discrete area of academic study. The American Psychological Association (APA), for example, now issues board certification to individuals specializing in this field (Brower, 2013). A variety of policies specially designed to protect officers from physical and mental threats, such as peer-support programs, have also been implemented on a mass scale across police agencies (Brower, 2013; Chermak & Weiss, 2005). It appears that the broader policing profession has received the required attention from counselors and other mental health professionals who have been trained and certified to help police officers cope with the dangers inherent in the job. Unfortunately, the same cannot be said for the corrections field.
Currently, no psychological discipline focused on corrections exists. Many prison institutions lack the resources (whether monetary or otherwise) that could be used to introduce mental health counseling for COs, and no established professional organizations address the unique psychological and physical needs of COs (Brower, 2013; Delprino, 2001; Roland, 2011). Much of this deficit can be attributed to difficulties in locating adequately trained treatment providers who are knowledgeable about best practices related to correctional psychology. Additional impediments include mental health treatment providers’ lack of awareness of psychological selection strategies and laws specific to corrections, PTSD treatment for COs, and how family matters interact with work problems for COs (Brower, 2013; Finn, 1998; Roland, 2011). As this white paper notes, not only is corrections a dangerous field of employment, but some studies have found that COs experience disproportionately higher levels of injury and stress as compared with other workers such as law enforcement officers (Brower, 2013; Harrell, 2011). Programs and policies designed to address these issues are critical to improving the health conditions of COs, and perhaps lessons can be borrowed from law enforcement.
Despite the professional differences between police and COs outlined above, lessons for the corrections field can be learned from the literature on police officer well-being (Brower, 2013). Like COs, law enforcement personnel are exposed to physically demanding work conditions, constantly rotating work shifts, inconsistent sleep patterns, trauma, and a host of other dangers (Anson, Johnson, & Anson, 1997; Jones & Newburn, 2002). These problems can contribute to increased stress levels, physical problems such as heart disease and diabetes, and even the risk of suicide (Stack & Tsoudis, 1997). Because corrections and police officers experience similar problems, an argument can be made that the corrections field needs to begin to borrow ideas from the policing discipline. Brower (2013) remarked that the policing literature potentially has much to offer in terms of improving health conditions for COs, and that prison systems do not necessarily need to “reinvent the wheel in order to do this” (p. 13). This report describes some specific strategies, largely borrowed from policing, that correctional agencies can implement to improve officer safety and wellness. Also referenced are health improvement recommendations provided by correctional scholars, with critical insight into whether policies are effective and should be adopted.
Some corrections departments have begun instituting employee assistance programs (EAPs) that are borrowed directly from policing (Sauter, 2001). EAPs are designed to offer specialized services to assist organizations in addressing front-line worker productivity and in identifying and resolving the personal concerns and problems of subordinates. According to Brower (2013), essential components of EAPs include providing consultations to organizational leaders to help manage troubled employees, active promotion of assistance services, confidential and timely provision of services, and referral of employees to treatment providers. Significant numbers of law enforcement agencies across the United States have implemented EAPs for troubled officers, but this has not been observed in corrections departments. A 2013 report issued by the ACA noted that of the more than 4,000 prisons in operation across the U.S., fewer than 100 had any type of EAP. Moreover, very few of these programs have been scientifically evaluated to determine their effectiveness in improving CO well-being.
Finn (2000) identified another strategy that could be used to ameliorate officer stress and noted that a number of correctional agencies nationwide have adopted this technique, which includes the establishment of peer-support programs. Peer-support programs recruit workforce colleagues who can offer emotional and social support to those who may have undergone traumatic experiences while on the job. Peers offer counseling and recommendations to their colleagues to help them cope with the consequences of their job-related experiences. Successful implementation of peer-support programs involves the provision of social support through colleagues, experiential knowledge, trust, confidentiality, and easy access (Roland, 2011). Examples of these programs can be found in Pennsylvania, which instituted the Critical Incident Stress Management Program, and Massachusetts, which established the Peer Stress Unit Program (Finn, 2000). Military and policing organizations that have adopted this strategy reported high levels of success. Although some correctional institutions have recently incorporated peer-support programs, those programs have yet to undergo scientific evaluation. Like EAPs, little is known about whether peer-support programs work in the correctional context (Finn, 2000).
Other recommendations for improving CO health have been scientifically evaluated. Two such evaluations come from McCraty and colleagues (2009) and Farbstein and colleagues (2010), who each evaluated mental health treatment programs for officers in four correctional institutions. The first study randomized 88 officers from three prisons into either an experimental stress-reduction program (HeartMath’s Power to Change Performance Program) or a waitlist control group. Following program intervention, treatment recipients experienced statistically significant reductions in stress, cholesterol, heart rate, and blood pressure levels when compared to a similarly matched control group. In the second study, after a prison installed a mural depicting a nature scene, significant reductions in CO stress and heart rate levels were observed when compared to the period before the mural was installed. With only two such studies in existence that have empirically assessed these types of stress-reduction programs, additional confirmatory research is needed.
Although limited in scope, studies by Finn (1998, 2000) noted that some prisons and jails across the U.S. have incorporated critical incident stress-reduction units that specifically address the needs of officers who have experienced traumatic events while on the job, including hostage takeovers, riots, or the murder of fellow officers and inmates. Such units provide debriefings and counseling for officers who may have mental health consequences because of these experiences. However, reports from NIJ (Finn and Kuck, 2005) and Finn (1998, 2000) noted that these programs are not seen on a massive scale across correctional facilities, largely because of correctional administrators’ failure to recognize the health concerns of officers as well as inadequate funding to support these programs.
Elliot and colleagues (2015), noting high stress levels present within corrections, recommend the following strategies to officers to improve their well-being: maintain a healthy body weight, exercise for at least 30 minutes per day, consume five servings of fruits and vegetables daily, and visit physicians twice annually. Of course, correctional administrative officials cannot oversee and regulate the dietary intake and exercise regimens of their officers, but they can recommend that officers adopt these lifestyle habits to promote health. An investigation by Triplett and Mullings (1996) that directly questioned officers about the measures they take to improve their health uncovered some interesting information: COs often use a variety of coping mechanisms in response to stress, including seeking social support from others and selectively ignoring stress-inducing stimuli. Moreover, the study found that officers who used these coping strategies reported reduced stress when compared with their counterparts. According to the ACA and Keinan and Malach-Pines (2007), prison administrative officials can follow certain recommendations to increase officer wellness. The study suggested that administrative officials promote greater teamwork among line staff, reduce role ambiguity, improve officers’ job satisfaction by rotating their shifts to make them less physically taxing, screen incoming officer applicants to determine their susceptibility to stress, increase officer pay and benefits, better prepare officers to confront workforce dangers, and offer positive reinforcement to productive line staff.
Summary of Policies on Correctional Officer Safety and Wellness
Correctional researchers, administrative officials, and prison systems in general have largely neglected the health and safety concerns of COs, which is a crucial area of focus given the important role that officers play in maintaining order in correctional facilities. Recently, some programs designed to improve CO health, borrowed largely from the broader policing discipline, have been instituted in some prison facilities, but few have been systematically evaluated using social science research methods. More concerted efforts must be undertaken across the correctional field to improve CO health and safety, as a result.
An important first step is recognizing that this field of employment is perilous and accompanied by many threats to CO health. Brower (2013) remarked that policies and programs designed to improve officer health have not been instituted in many prison facilities because administrative officials fail to recognize the dangers attached to the job. Improvement of CO health starts by changing this mindset among not only administrative officials but also other relevant stakeholders in the correctional field. Keinan and Malach-Pines (2007) identified an additional impediment to successful implementation of safety and wellness programs: the widespread attitude known as “machismo” among COs. Machismo prevents officers from requesting any type of assistance because they perceive such requests as a sign of inherent weakness. It is imperative that we begin to change the cultural mindset in corrections and recognize that this is a dangerous field wherein external sources of assistance are sometimes required to improve officer well-being.
Psychiatrists, counselors, and other mental health professionals have made considerable strides in improving police officers’ health, but similar efforts for COs have not been observed. Further study must be undertaken of the sources and consequences of CO stress and other harms to which these front-line prison personnel are exposed. Knowledge of these subject areas can help improve our understanding of CO health and inform policies designed to enhance their overall well-being. On this point, Brower (2013) noted that the American Board of Professional Psychology has begun to consider the idea of creating a subspecialty in correctional psychology. Such a subspecialty could contribute significantly to the development of educational and training programs that are specifically designed to address COs’ physical and mental health needs.
Police agencies have incorporated a number of programs focused on improving officer health, including peer-support programs and EAPs. These programs are not seen across correctional facilities, and the few that exist have not been evaluated to determine their effectiveness, so few definitive conclusions can be drawn about whether these programs are applicable to the correctional context. Researchers are strongly encouraged to apply rigorous social science research methodologies to examine whether these programs are effective, which in turn, will help determine whether they should be adopted on a broader scale.
Although much has been written about the mental health risks associated with employment as a CO and some policies have been designed to address these concerns, very little, if any, literature exists on policies tailored to address COs’ concerns about physical health. Researchers have noted that dangers such as prison gangs, the presence of contraband, and inmates with mental illness, among others, pose considerable threats to the physical health of correctional officers (Burke & Owen, 2010; Fleisher & Decker, 2001; McLearen & Ryba, 2003). Administrative officials of the correctional system are therefore encouraged to consider policy interventions designed to minimize the injurious risks connected to such dangers. If these are the very dangers most likely to inflict harm upon correctional officers, then strategies aimed at mediating their threats must be implemented on a mass scale across penitentiaries. Policies could include heightened intake procedures to identify problematic inmates, improved communication channels between correctional line staff so they can discuss potentially threatening offenders and what can be done to handle them, separation of gang members to limit their ability to correspond with one another, ensuring officers always have back-up support when dealing with troublesome offenders, instruction/training for officers on mediation tactics that de-escalate volatile situations, and provision of additional therapeutic services, where possible, for offenders afflicted with mental disorders (Burke & Owen, 2010; Fleisher & Decker, 2001; McLearen & Ryba, 2003). Implementation of such policies targeted at decreasing and addressing correctional-based dangers could have the dual benefits of enhancing officer wellness and establishing wider institutional order. With all of this information in mind, what follows is a discussion of what scholars and researchers can do in terms of future research on the broad topic of CO safety and wellness.
Considerations for Future Research
A considerable body of research on CO safety and wellness has been amassed over the past several decades. Findings have provided important insight into the working conditions of officers and what can be done to improve their general well-being. Although this research is informative, a number of limitations restrict our ability to draw definitive conclusions regarding officer safety and wellness. This section identifies inherent weaknesses in this literature and recommends directions for future research.
A variety of sources have shown that COs frequently fall victim to workplace injuries and even fatalities (Finn, 1998; Konda et al., 2013). Largely unknown, though, are the contextual factors that influence these phenomena or the specific types of injuries befalling officers. Lacerations, cuts, bruises, and head trauma are some of the many types of harm that COs can experience while on the job, yet researchers have not specifically explored this issue.
Furthermore, officers of the prison system are forced to work alongside dangerous offenders such as gang members and inmates who create and distribute contraband. Some officers are assigned to more dangerous units of the prison (e.g., administrative segregation), which can increase their risk of physical and mental health problems (Crawley, 2004). Researchers are therefore encouraged to ask the following questions: What are the specific factors that contribute to fatal and nonfatal workplace injuries experienced by COs? Are there individual and institutional differences in the rates of injury and fatality experienced by COs? Are officers employed in more overcrowded prisons more likely to experience injury and fatality? Are officers who work alongside inmates who have infectious and communicable diseases as well as those with mental disorders more likely to fall victim to physical harm? From a broader institutional standpoint, what are the consequences of officers experiencing injury and fatality while on the job? What specific types of policies, training regimens, or programs can address these dangers? We know from the extant studies on CO safety and wellness that dangers such as the presence of contraband pose physical threats to officers, but we need to better understand how to address them. The psycho-social dangers inherent in employment as a CO have not been adequately studied. This category includes problems such as work-family conflict and public misperceptions about the CO’s job (Crawley, 2004). Researchers should consider the following questions: Is this danger an actual threat to officer wellbeing? What are the potential consequences of exposure to psycho-social dangers? If this is determined to be of significant concern, what can be done to address the consequences of exposure to psycho-social dangers?
Research has noted that COs experience high rates of stress and other mental health problems because of role conflict and ambiguity, work-family conflict, poor co-worker relations, and other factors (Ferdik, 2014; Lambert et al., 2005). Less known are the strategies that correctional agencies can implement to address these mental health concerns. Future scholars should consider asking the following questions: What policies and programs work best to address the mental health consequences associated with CO employment? Although there is some information regarding the correlates of officer stress, there has not been sufficient research into what can be done to resolve this issue. Applying what is known about the correlates of stress can help answer this question.
Researchers have noted that COs experience significantly higher rates of suicide than both police officers and the general public (Morgan, 2009). Brower (2013) remarked that “much more research is needed to develop a better understanding of the prevalence and causes of suicide among correctional officers” (p. 11). Future researchers should ask: What factors lead to increased suicide rates among COs? What can be done to prevent officer suicide? What impact does officer suicide have on the wider correctional facility?
Various programs and policies designed to enhance officer well-being have been introduced by correctional systems, but few have been empirically assessed (Brower, 2013). Some prisons offer peer-support programs, EAPs, and in some cases, trained mental health professionals, but the greater scientific community still lacks a clear understanding of whether these programs are worthwhile. Rigorous social science research methods (e.g., experimental and quasi-experimental designs) should be used to better understand the efficacy of these programs. Future research questions might include: Do peer-support programs and EAPs help improve CO well-being? What other programs, policies, and larger preventive measures that can effectively address the broader health concerns of COs should be implemented?
Other areas of research that should be explored include the physiological effects of this line of work. Some scholars have noted that CO work can lead to physical health problems such as diabetes, heart disease, and chronic neck, back, and knee injuries (Dowden & Tellier, 2004; Morgan, 2009). Only a handful of studies have investigated this issue, and more research into this area is recommended. Because COs experience high rates of stress and other mental health problems, researchers should also ask whether officers hold negative outlooks on life and humanity as compared with individuals not employed in this field. These negative outlooks could have harmful effects on social relationships, and more research into this area is needed.
Although scholars have devoted considerable effort to exploring the harmful effects of correctional employment on officers (Crawley, 2004; Finn, 1998; Moon & Maxwell, 2004; Obidoa et al., 2011), little is known about the deleterious effects that this line of work can have on the family environment. Domestic partners’ reactions to their spouses’ employment in the prison industry and the effects such employment can have on family cohesion are just some of the many research questions that future scholars could explore as we attempt to better understand the intersection between correctional employment and the home environment.
Another area requiring additional scholarship is COs’ perceptions of workplace safety and wellness. To date, only eight studies have questioned officers about their perceptions of the correctional work environment; clearly, much more research is needed in this area. For example, we do not have a fundamental understanding of the factors that contribute to the disparate levels of fear and risk reported by officers. Also absent from the correctional literature is a solid understanding of the variables that officers’ risk perceptions could influence, such as the intention to voluntarily resign, stress levels, and relationships with inmates. Perceptions of the workplace have been shown to influence a variety of outcomes (Powell & Ansic, 1997); however, much of this research has been restricted to non-correctional settings. Scholars interested in these issues are encouraged to ask: What are officer judgments regarding workplace safety and wellness? What factors influence officers’ perceptions of their jobs? What variables are influenced by officers’ perceptions of the workplace? With the exception of one identified study (Triplett & Mullings, 1996), no researchers have asked correctional officers for their input about strategies designed to improve their welfare. Triplett and Mullings (1996) discovered that COs use coping strategies, and these strategies are quite effective at reducing stress levels. Future researchers could employ mixed methodologies of data collection in the form of surveys and structured interviews to expand our understanding about CO stress-reduction efforts.
In addition to soliciting COs’ input about their jobs, it would also be beneficial to understand what correctional administrative officials believe needs to be done to address officer safety and wellness. Some scholars have noted that administrative officials have largely neglected the safety issues of their officers (Brower, 2013). Future researchers are encouraged to gather more information about and insight into the viewpoints of administrative officials about CO health. Questions might include: How do correctional administrative officials perceive the dangerousness of the CO’s job? Do the officials believe that measures need to be instituted to address officer safety and wellness? If so, what strategies do they recommend for improving CO health?
Countless individual studies on the correlates of CO stress have been conducted, but only one meta-analytic synthesis of this research has been performed, and even that is somewhat dated (Dowden & Tellier, 2004). Approximately 13 years have elapsed since the publication of that study; therefore, another quantitative synthesis of this literature would be a welcome addition to the scholarship on CO safety and wellness.
Conclusion
Synthesis of the Report on Correctional Officer Safety and Wellness
COs are employed under stressful and dangerous conditions that are distinct from other occupational milieus (Ferdik, 2014). Being employed alongside inmates who may be violent, manipulative, or mentally and physically ill requires a strong focus on institutional safety and security (Crawley, 2004). However, over time, correctional employment has been shown to have negative effects on officer safety and well-being. For prison facilities to operate efficiently, it is important that they be staffed with officers who are physically and mentally sound and able to respond to the numerous challenges that this line of work presents. This report highlighted the high rates of injury and fatality that are inherent in CO work and some strategies designed to enhance their welfare. The report concludes by summarizing its major findings and offering additional suggestions for how these results can be used to improve officer well-being. This synthesis of the literature on CO safety and well-being revealed three distinct dangers confronting officers: work-related, institution-related, and psycho-social. To date, work-related dangers have received the most attention in the research literature because these issues are intrinsic to the correctional context. These dangers include exposure to infectious and communicable diseases, prison gangs, disruptive inmate behaviors, the presence of contraband, inmates with mental illness, and riots.
The second category of dangers related to CO safety and well-being encompasses institution-related dangers, which are largely influenced by the prison administration. Examples include role conflict and ambiguity, as well as low pay, extended work hours, and insufficient staffing and resources. In today’s correctional environments, as documented by the research on institution-related dangers, officers are being asked to accomplish more with fewer resources, which elevates their mental health risks.
A final category of work-related dangers threatening officer well-being comprises psycho-social dangers, which are arguably the most understudied and underappreciated aspects of correctional work. Researchers know relatively little about the impact of work family conflict on COs. Some studies have explored this phenomenon (Crawley, 2004), but there is a need for greater academic attention in this area.
Another objective of this literature synthesis was to identify studies that have questioned COs specifically about their perceptions of workplace safety and wellness. A review produced eight empirical investigations, suggesting that more research is needed in this area. Overall, this research indicates that officers of the correctional system are aware of the perils that accompany this line of work, as even low-level security and juvenile detention facility officers expressed some degree of concern about their general safety and wellness. Given that increased perceptions of harm can elevate officers’ stress and burnout levels (Armstrong & Griffin, 2004; Dowden & Tellier, 2004; Ferdik, Smith, & Applegate, 2014a), it is vital that future researchers continue to expand on this body of work to contribute to a more refined understanding of how officers judge the dangerousness of their profession.
Two final objectives of this report were to evaluate the literature on CO wellness programs and identify gaps in the overall body of knowledge on officer well-being. Although some policies to enhance officer safety have been introduced, few have been subjected to empirical scrutiny. It is strongly advised that researchers begin exploring this area through the application of rigorous research methods.
Prisons function efficiently when they are staffed with healthy officers and understanding ways to improve officers’ overall well-being can contribute to safer and more orderly correctional facilities. Given the gaps in the wider scholarship on CO safety and wellness, several unresolved questions remain. Researchers interested in expanding the knowledge base concerning CO safety and wellness are encouraged to explore some of the focus areas identified in this report. The policing discipline and research on law enforcement officer well-being can provide a starting point for correctional agencies. Although police and COs are employed under different occupational conditions, both are exposed to dangers that can threaten their welfare. Police departments have taken important steps to enhance officer well-being. Although these initiatives (e.g., peer support programs and EAPs) have yet to be comprehensively evaluated within the corrections context, they offer a stepping stone for better understanding how to address issues that threaten CO safety and wellness (Brower, 2013).
Only within the past few years has attention been directed at examining issues of CO safety and wellness. This report provides a comprehensive synthesis of the most recent and salient studies that explore this topic. Although this review does not constitute the final word on all issues related to officer well-being, it does offer a general perspective of the threats confronting officers and the strategies required to improve their safety. Scholars and practitioners who read this report are encouraged to learn from the research of others, institute best practices designed to enhance officer well-being, and further study the major issues related to CO safety and wellness.38 | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/10%3A_Correction_as_a_Career_Field/10.03%3A_Correctional_Officer_Safety_and_Wellness_%28National_Institute_of_Justice%29.txt |
California Prison Industry Authority (CPIA) has opportunities at various locations statewide to employ many individuals with experience and expertise in specialty trades.
CPIA has more than 150 different job classifications, ranging from marketing professionals, a full cost accounting department, Human Resources, IT support, Web and graphics designers, legal services, contracts and procurement analysts, and 84 operational specific enterprises.
Figure 2. CPIA workers Replacing offensive grave markers at Mormon Island Relocation Cemetery. Image is in the Public Domain: (U.S. Army Photo/Chris Gray-Garcia)
Note
Pin It! CPIA in Action
In the above image Folsom Prison inmates are working under the California Prison Industry Authority place new grave markers at Mormon Island Relocation Cemetery in El Dorado Hills, Calif., Oct. 19, 2011, replacing original markers that contained an offensive racial epithet. The U.S. Army Corps of Engineers Sacramento District moved the 36 graves from the original Negro Hill Cemetery to the relocation cemetery during the construction of Folsom Dam in 1954, and created the offensive markers. El Dorado County, which manages the cemetery, and the California Prison Industry Authority collaborated on the project to replace the markers. Visit CALPIA’s official website to discover their mission.
CALPIA hires according to civil service system rules that require that vacancies be filled using eligibility lists created as a result of civil service examinations. All current and non-state employees must compete in an examination and attain list eligibility in order to be considered for vacant positions.
Distribution and Delivery
This enterprise includes the receipt, storage, issuing and shipping of finished products, food supplies, raw materials, component parts, etc. in a CALPIA Warehouse. Employment opportunities include the following jobs:
• Heavy Equipment Mechanic (Correctional Facility)
• Heavy Truck Driver (Correctional Facility)
• Industrial Warehouse and Distribution Manager, Prison Industries
• Industrial Warehouse and Distribution Specialist, Prison Industries
• Industrial Warehouse and Distribution Supervisor, Prison Industries
• Skilled Laborer
• Warehouse Worker (Correctional Facility)
Construction Services
This enterprise is responsible for direct supervision of a wide variety of day labor/offender or ward labor construction projects at assigned State correctional facilities. Employment opportunities include the following jobs:
• Construction Supervisor I (Correctional Facility)
• Construction Supervisor II (Correctional Facility)
• Construction Supervisor III (Correctional Facility)
Facilities Maintenance
This is an all-inclusive custodial service designed to meet California Correctional Healthcare Service (CCHCS) needs statewide. The program will train offenders with the necessary knowledge and skill level needed to meet the highest possible standards for healthcare environmental standards. Employment opportunities include the following jobs:
• Custodian (Correctional Facility)
• Lead Custodian (Correctional Facility)
• Custodian Supervisor II (Correctional Facility)
• Custodian Supervisor III (Correctional Facility)
Maintenance and Repair
This enterprise involves the safe and proper preventive maintenance and repair of all industrial systems, equipment and facilities to ensure the successful, on-going operation of each industry. The maintenance and repair enterprise include the areas of welding, hydraulics, pneumatics, plumbing, boiler maintenance, electrical, electrical trouble shooting, and others. Employment opportunities include the following jobs:
• Equipment maintenance Supervisor
• Heavy Equipment Mechanic
• Industrial Supervisor, Prison Industries (Maintenance & Repair)
• Prison Industries Superintendent I (Maintenance & Repair)
• Prison Industries Superintendent II (Maintenance & Repair)
• Skilled Laborer
Fabric Products
This enterprise involves garment manufacturing on a large variety of sewn products, such as: coveralls, institutional clothing, fire protection gear, vests and more.
Knitting Mill
This enterprise involves the manufacturing and finishing of circular and tubular knitted materials in such items as T-shirts, hosiery, and underwear.
General Fabrication
This enterprise manufactures various lines of freestanding conventional furniture and modular system furniture (MSF), which is comprised of several hundred components that can be combined to create various office space configurations.
Metal Fabrication/Products
This enterprise involves the manufacturing of a variety of metal products, including but not limited to, license plates, signs, beds, chairs, tables, lockers, file cabinets, desks, shelves, and stools.
Mattress & Bedding
This enterprise involves the manufacturing of mattresses, pillows, and other bedding.
Shoe Manufacturing
This enterprise involves the shoe manufacturing process, specializing in cutting, stitching, lasting, injection molding, finishing and packing.
Tool & Die
This enterprise involves the handling of silkscreen materials and equipment such as Ink Jet Printer, Thermal Printer, Semi-Automatic Screen Printing, printing carousel, screen drying equipment, and exposing unit.
Upholstery
This enterprise involves the manufacturing of upholstery products, such as chairs and lounges
Wood Products
This enterprise involves the manufacturing of a large variety of wood furniture for dormitories, libraries, offices, recreational areas, and other fine wood specialty products.
Employment opportunities include the following jobs:
• Industrial Supervisor, Prison Industries
• Prison Industries Superintendent I
• Prison Industries Superintendent II
Enterprises:
Bindery
This enterprise manufactures heat-sealed binders, turned edge binders, polyethylene binders, mesh signs and vests using heat-sealed lettering, press-board files, diploma covers, and various other silkscreen printed specialty items.
Dental Laboratory
This enterprise provides dental services to the California Department of Corrections. The laboratory maintains a complete dental prosthesis selection ranging from custom trays, bite blocks, try-ins, night guards, partial and full dentures, and cast metal framework.
Detergent Plant
This enterprise involves working in quality control factory in a lead capacity role for a detergent/ cleaning product manufacturing organization, which produces a wide range of detergent products including California Green cleaning products.
Digital Services
This enterprise involves the production of digital mapping data used in Geographical Information Systems (GIS); Closed-Captioning services; tactile printing for the visually impaired; transcription services and more
Laundry
This enterprise involves providing laundry services for State, local governmental entities, public agencies.
Optical Products
This high-volume enterprise involves the manufacturing and assembly of plastic and poly-carbonate lenses used in safety and ophthalmic eye wear.
Printing
This enterprise involves the printing of decals, stickers, tags, forms, envelopes, business cards and other specialty printing items using digital copy, letterpress, offset web and sheet fed printing equipment.
Employment opportunities include the following jobs:
• Industrial Supervisor, Prison Industries
• Prison Industries Superintendent I
• Prison Industries Superintendent II
Enterprises:
Agriculture/Crops Farm
This enterprise involves the farming, producing, and harvesting of a large variety of crops, including corn, alfalfa, oats, sudan, small grains, and almonds, to be used for livestock or human consumption at State institutions or public sale.
Bakery
This enterprise involves the mass production of white and wheat breads.
Coffee Roasting & Grinding
This enterprise involves roasting and grinding green coffee beans for sale to State and local agencies.
Dairy
This enterprise involves multiple aspects of the dairy industry including dairy husbandry practices such as feeding, milking, medicating, breeding, and the daily operations of a dairy. In addition, it involves the processing of the milk including standardizing, pasteurizing, packaging and preparing shipments of fluid milk for delivery.
Egg Production
This enterprise involves the brooding/growing of chicks and managing mature laying hens for the purpose of shell egg production; the shell egg production is composed of grading, candling, shipping, and storage of shell eggs; this enterprise also receives and ships fresh and frozen egg products.
Food & Beverage Packaging
This enterprise, depending on the factory, involves the packaging of bread, cookies, peanut butter, and jelly; and or beverage products in gable top cartons for individual servings. It also involves coordinating bulk deliveries of various types of food and beverage products to customers.
Meat Cutting/Processing
This enterprise involves the daily operational functions of a meat processing plant involving the processing of primal cuts and box beef, which includes cutting, boning, the making of various sausage products, and packing and shipping; and inspects product for compliance with quality control under United States Department of Agriculture procedures.
Poultry Processing
This position involves the processing of poultry products.
Sausage Making/Cured Meats
This enterprise involves the mixes/blends of ground meats and condiments to make various cooked/smoked sausage products
Employment opportunities include the following jobs:
• Industrial Supervisor, Prison Industries
• Prison Industries Superintendent I
• Prison Industries Superintendent II
Note
Pin It! CALPIA Employment Opportunities
Many different types of employment opportunities are available. For information on how to apply for correctional jobs within the state federal correctional systems click on the following links. | textbooks/workforce/Corrections/Introduction_to_Corrections_(Wymore_and_Raber)/10%3A_Correction_as_a_Career_Field/10.04%3A_Specialized_Personnel.txt |
“A good investigator needs to be conscious of his or her own thinking, and that thinking needs to be an intentional process.”
It is too bad we can not just provide you with a basic template to follow every time you needed to conduct a criminal investigation; but it is not that simple. Criminal investigations can be imprecise undertakings, often performed in reaction to unpredictable and still-evolving events with incomplete information to guide the process. As such, it is impossible to teach or learn a precise methodology that can be applied in every case. Still, there are important concepts, legal rules, and processes that must be respected in every investigation. This book outlines these concepts, rules, and processes with the goal of providing practical tools to ensure successful investigative processes and investigative practices. Most importantly, this book informs you on how to approach the investigative process using “investigative thinking.” In this first chapter, we set the foundation for the book by calling attention to five important topics:
1. Criminal investigation as a thinking process
2. The need to think through the process
3. Towards modern-day investigation
4. The path to becoming an investigator
5. Understanding the investigative mind
Topic 1: Criminal Investigation as a Thinking Process
Criminal investigation is a multi-faceted, problem-solving challenge. Arriving at the scene of a crime, an officer is often required to rapidly make critical decisions, sometimes involving life and death, based on limited information in a dynamic environment of active and still evolving events. After a criminal event is over, the investigator is expected to preserve the crime scene, collect the evidence, and devise an investigative plan that will lead to the forming of reasonable grounds to identify and arrest the person or persons responsible for the crime. To meet these challenges, police investigators, through training and experience, learn investigative processes to develop investigative plans and prioritize responses.
In this book, these investigative responses, information analyses, and plan-making skills are broken out using illustrations of both tactical and strategic investigative thinking. The aim of the book is to guide you into the structured practices of tactical investigative response and strategic investigative thinking.
Criminal investigation is not just a set of task skills, it is equally a set of thinking skills. To become an effective investigator, these skills need to be consciously understood and developed to the point where they are deliberately engaged to work through the problem-solving process that is criminal investigation. Trained thinking and response can be difficult to adapt into our personal repertoires because we are all conditioned to be much less formal and less evidence driven in our everyday thinking. Still, as human beings, we are all born investigators of sorts. As Taber (2006) pointed out in his book, Beyond Constructivism, people constantly construct knowledge, and, in our daily lives, we function in a perpetual state of assessing the information that is presented to us. Interpreting the perceptions of what we see and what we hear allows us reach conclusions about the world around us (Taber, 2006). Some people are critically analytical and want to see evidence to confirm their beliefs, while others are prepared to accept information at face value until they are presented facts that disprove their previously held beliefs. Either strategy is generally acceptable for ordinary people in their everyday lives.
Topic 2: The Need to Think Through the Process
Diametrically opposing the analysis processes of everyday people, in the role of a police investigator, the process of discovering, interpreting, and determining the validity of information is different and this difference is critical. As an investigator, it is no longer sufficient to use the strategies that ordinary people use every day. Instead, it is incumbent on investigators to critically assess all the information they encounter because every investigation is an accountable process in which the investigator is not just making a determination about the validity and truth of the information for personal confirmation of a belief. Rather, the police investigator is responsible and empowered under the law to make determinations that could significantly affect the lives of those being investigated as well as the victims of crime.
The investigator’s interpretation of information and evidence commonly requires answers to many questions that can lead critical of decisions, actions, and outcomes, such as:
• What must be done to protect the life and safety of persons?
• Should force, up to and including deadly force, be used to resolve a situation?
• Who will become the focus or subject of a criminal investigation?
• What is the best plan to apprehend the person or persons responsible for a criminal act?
• Will someone be subjected to a search of their person or of their home?
• Will someone be subjected to detention or arrest and questioning for a criminal act?
• Will someone have a criminal charge sworn against them?
• Will someone be subjected to a criminal trial?
• Will someone’s liberty as a free person be at risk?
• Will justice be served?
• Will the community be protected?
Significant to these possible outcomes, the investigator must always be ready to explain their thinking and actions to the court. For example, when an investigator is asked by a court, “How did you reach that conclusion to take your chosen course of action?” an investigator must be able to articulate their thinking process and lay out the facts and evidence that were considered to reach their conclusions and form the reasonable grounds for their actions and their investigative decision-making process. For an investigator speaking to the court, this process needs to be clear and validated through the articulation of evidence-based thinking and legally justifiable action. Thinking must illustrate an evidence-based path to forming reasonable grounds for belief and subsequent action. Thinking must also demonstrate consideration of the statutory law and case law relevant to the matter being investigated.
Considering this accountability to outcomes, it is essential for police investigators to have both the task skills and the thinking skills to collect and analyze evidence at a level that will be acceptable to the criminal justice system. Investigation is the collection and analysis of evidence. To be acceptable to the court, it must be done in a structured way that abides by the legal rules and the appropriate processes of evidence collection. Additionally, it must be a process the investigator has documented and can recall and articulate in detail to demonstrate the validity of the investigation.
Obviously, it is not possible for someone to remain in a constant state of vigilance where they are always critically assessing, documenting, and determining the validity of every piece of information they encounter. However, when on duty, it is frequently necessary for a police investigator to do this. For a police investigator, this needs to be a conscious process of being mentally engaged and “switched on” to a more vigilant level of information collection, assessment, and validation while on duty. A police investigator must master this higher and more accountable level of analytical thinking for both tactical and strategic investigative response. The “switched on” police investigator must:
• Respond appropriately to situations where they must protect the life and safety of persons
• Gather the maximum available evidence and information from people and locations
• Recognize the possible offence or offences being depicted by the fact pattern
• Preserve and document all evidence and information
• Critically analyze all available information and evidence
• Develop an effective investigative plan
• Strategically act by developing reasonable grounds to either identify and arrest those responsible for criminal acts, or to eliminate those who are wrongfully suspected
Most traditional police training provides new officers with many hours of instruction in the task skills of investigation. However, the learning of investigative thinking skills is expected to develop through field experience, learning from mistakes, and on the job mentoring. This learning does not always happen effectively, and the public expectations of the justice system are evolving in a model where there is little tolerance for a mistake-based learning.
The criminal investigation of serious crimes has always drawn a substantial level of interest, concern, and even apprehensive fascination from the public, the media, and the justice system. Police actions and investigations have been chronicled and dissected by commissions of inquiry and the media. From the crimes of the serial killers like Paul Bernardo (Campbell, 1996), and Robert Pickton (Oppal, 2013) to the historical wrongful convictions of David Milgaard (MacCallum, 2008) and Guy Paul Morin (Kaufman, 1998), true life crimes are scrutinized and the investigations of those crimes are examined and critically assessed.
When critiquing past investigations, the same types of questions are frequently asked:
• Is it possible that the wrong person was arrested or convicted?
• Is it possible that other persons were involved?
• Were all the possible suspects properly eliminated?
• Was information properly shared among police agencies?
• Did the investigators miss something?
• Was all the evidence found?
• Was the evidence properly interpreted?
• Were the investigative theories properly developed and followed to the correct conclusion?
• Was tunnel vision happening and misdirecting the investigation?
Today, transparency throughout the criminal justice system and public disclosure of evidence through investigative media reports make it much easier for the public and the media to examine the investigative process. Public and media access to information about police investigative techniques and forensic tools has created an audience that is more familiar and sophisticated about police work. The ability of both social and traditional media to allow public debate has created a societal awareness where a higher standard for the investigation of serious crimes is now an expectation.
One only needs to look at the historical and contemporary judicial reviews and public inquiries to appreciate that there is an expectation for police investigators and police organizations to maintain and demonstrate a high level of competency. In a judicial review, it is often too late if an investigator discovers that they have pursued the wrong theory or they have failed to analyze a piece of critical information or evidence. These situations can be career-altering or even career-ending. A good investigator needs to be conscious of his or her-own thinking, and that thinking needs to be an intentional process.
Topic 3: Towards Modern-Day Investigation
Today, criminal investigation is a broad term encompassing a wide range of specialities that aim to determine how events occurred, and to establish an evidence-based fact pattern to prove the guilt or innocence of an accused person in a criminal event. In some cases, where a person is found committing the criminal act and apprehended at the scene, the criminal investigation is not a complex undertaking. However, in cases where the criminal event is discovered after the fact, or when the culprit is not readily apparent, the process of criminal investigation becomes more complex and protracted.
Although in both cases the criminal investigator must follow practices of identifying, collecting, recording, and preserving evidence; in the case of the unknown suspect, additional thinking skills of analysis, theory development, and validation of facts must be put to work.
The craft of criminal investigation has been evolving since the birth of modern policing in the mid-1700s when the Chief Magistrate of Bow Street, Henry Fielding, organized a group of volunteer plainclothes citizens and tasked them to attend the scenes of criminal events and investigate crimes. This group became known as the Bow Street Runners. Their existence speaks to an early recognition that attending a crime scene to gather information was a timely and effective strategy to discover the truth of what happened (Hitchcock, 2015).
From these early investigators, one of the first significant cases using forensic evidence-based investigation was recorded. To summarize the account by McCrery (2013) in his book Silent Witness; in one notable recorded case in 1784, the Bow Street Runners removed a torn piece of paper wadding from a bullet wound in the head of a murder victim who had been shot at point-blank range. In this early era of firearms, flintlock muskets and pistols required muzzle loading. To muzzle load a weapon, gunpowder would be poured down the barrel of the weapon, and then a piece of “wadding paper” would be tamped into place on top of the gunpowder using a long metal rod. The wadding paper used in this loading process was merely a piece of thick dry paper, usually torn from a larger sheet of paper kept by the shooter to reload again for the next shot. The musket ball bullet would be pushed down the barrel on top of the wadding paper. When the gun was fired, the wadding paper would be expelled by the exploding gunpowder, thus pushing the lead ball-bullet out of the barrel as a deadly projectile. This loading process required the shooter to be in possession of dry gunpowder, wadding paper, and musket balls to reload and make the weapon ready to fire. The Bow Street Runners considered this weapon loading practice and knew their shooter might be in possession of wadding paper. Upon searching their prime suspect, they did find him in possession of that kind of paper and, in a clever forensic innovation for their time, they physically matched the torn edges of wadding paper found in the victim’s wound to a larger sheet of wadding paper found in the pocket of their suspect. From this evidence, the accused was convicted of murder (McCrery, 2013).
This use of forensic physical matching is an example of circumstantial forensic evidence being used to link a suspect to an offence. This type of early forensic evidence also illustrates the beginnings of what exists today as a broad variety of forensic sciences to aid investigators in the development of evidence. This is also the beginning of forensic evidence being recognized as an investigative tool. In 1892, not long after the Bow Street Runners investigation, Sir Francis Galton published his book on the study of fingerprints. In 1900, Galton’s work was used by Sir William Henry who developed and implemented the Henry System of fingerprint classification, which is the basis of the fingerprint classifications system still in use today (Henry, 1900).
Only a few years earlier, in 1886, the use of photography for the first Rogues Gallery of criminal photographs was implemented by the New York City Police Department. This first Rogues Gallery was an organized collection of photographs of known criminals taken at the time of their most recent conviction for a crime (Byrnes, 2015). Prior to this organized collection of criminal photos, facial characteristics on wanted posters had been limited to sketch artists’ renderings. With the advances evolving in photography, having the ability to preserve an actual picture of the suspect’s face amounted to a significant leap forward. With this innovation of photography, the use of mugshots and photographic identification of suspects through facial recognition began to evolve.
These early forensic innovations in the evolution of criminal investigation (such as physical matching, fingerprint identification, and facial recognition systems) demonstrate a need for investigators to develop the knowledge and skills to locate and utilize physical evidence that enables circumstantial links between people, places, and events to prove the facts of criminal cases. Physical evidence is the buried treasure for criminal investigators. Physical evidence can be collected, preserved, analyzed, and used in court to establish a fact. Physical evidence can be used to connect an accused to their victim or used at a crime scene to establish guilt or innocence. Forensic evidence may prove a point in fact that confirms or contradicts the alibi of an accused, or one that corroborates or contradicts the testimony of a witness.
Another significant development in forensic evidence from the 1800s started with the work of French criminal investigator Alphonse Bertillon who developed the Bertillon system of recording measurements of physical evidence (Petherick, 2010). One of Bertillon’s students, Dr. Edmond Locard, a medical doctor during the First World War, went on to further Bertillon’s work with his own theory that a person always leaves some trace of themselves at a crime scene and always takes some trace of the crime scene with them when they leave. This theory became known as “Locard’s Exchange Theory” (Petherick, 2010). To this day, Locard’s theory forms the foundational concepts of evidence transfer theory.
Today, the ability of forensic experts to identify suspects and to examine physical evidence has increased exponentially when compared to early policing. Scientific discoveries in a wide range of disciplines have contributed to the development and evolution of forensic specialities in physical matching, chemical analysis, fingerprints, barefoot morphology, odontology, toxicology, ballistics, hair and fibre, biometric analysis, entomology, and, most recently, DNA analysis.
Many of these forensic science specialties require years of training and practice by the practitioner to develop the necessary level of expertise whereby the courts will accept the evidence of comparisons and subsequent expert conclusions. Obviously, it is not possible for a modern-day investigator to become a proficient practitioner in all of these specialties. However, the modern-day investigator must strive to be a forensic resource generalist with an understanding of the tools available and must be specialist in the deployment of those tools to build the forensic case.
In a criminal investigation, there is often a multitude competing possibilities guiding the theory development of how a criminal incident occurred with circumstantial links pointing to who committed the crime. Competing theories and possibilities need to be examined and evaluated against the existing facts and physical evidence. Ultimately, only strong circumstantial evidence in the form of physical exhibits, testimony from credible witnesses, or a confession from the accused may satisfy the court beyond a reasonable doubt. Critically, the quality of an investigation and the competency of the investigators will be demonstrated through the manner in which that evidence was located, preserved, analyzed, interpreted, and presented.
In the past, police officers generally took their primary roles as first responders and keepers of the peace. Criminal investigation was only a limited component of those duties. Now, given the accessibility to a wide range of effective forensic tools, any police officer, regardless of their assignment, could find themselves presented with a scenario that requires some degree of investigative skill. The expectation of police investigators is that they be well-trained with the knowledge and skills to respond and investigate crime. These skills will include:
• Critical Incident Response
• Interpretation of criminal law and offence recognition
• Crime scene management
• Evidence identification and preservation
• Engaging forensic tools for evidence analysis
• Witness assessment and interviewing
• Suspect questioning and interrogation
• Case preparation and documentation
• Evidence presentation in court
In addition to these task skills of process and practice, investigators must also have strategic analytical thinking skills for risk assessment and effective incident response. They must have the ability to apply deductive, inductive, and quantitative reasoning to examine evidence and form reasonable grounds to identify and arrest suspects.
Engaging these higher-level thinking skills is the measure of expertise and professionalism for investigators. As our current justice system continues to change and evolve, it relies more and more on information technology and forensic science. With this evolution, the need for investigators to demonstrate higher levels of expertise will continue to grow.
Topic 4: The Path to Becoming an Investigator
For many people, their idea of what an investigator does is based on what they see, hear, and read in the media, movies, TV, and books. These depictions characterize personas ranging from dysfunctional violent rebels fighting for justice by their own rules, to by-the-book forensic investigators who get the job done clinically using advanced science and technology. The truth is, good investigation and real-life investigators are unlikely to make a captivating fictional script. Professional investigators and competent investigation is about the tedious processes of fact-finding and sorting through evidence and information. It is about eliminating possibilities, validating events, and recording evidence, all the while engaging in an intentional process of thinking, analyzing, and strategically working towards predetermined goals; not to mention extensive note taking and report writing.
Sometimes, new police investigators are, at first, deluded by fictional representations, only to find out, by experience, that the real job, although having moments of action, satisfaction, and excitement, is more about hard work and deliberate attention to detail.
Another common misnomer about the job is the conception that investigation is the exclusive domain of a police officer. Although this may have been true in the earlier evolution of the investigative craft, it has become much less the case today. This change is a result of the enactment of many regulatory compliance statutes that require investigative knowledge, skills, and thinking. Compliance investigators maintain adherence to regulated activities which often involve legal compliance for industries where non-compliance can pose significant risks that threaten the lives and safety of people or the environment. These regulated activities are often responsibilities of the highest order. What starts as a regulatory violation can escalate into criminal conduct. The investigative skills of compliance investigators and inspectors must be capable of meeting the same tests of competency as the police.
Not just anyone can become an investigator. There are certain personal traits that tend to be found in good investigators. Among these traits are:
• Being passionate about following the facts to discover the truth, with a goal of contributing to the process of justice
• Being detail-oriented and observant of the facts and the timelines of events
• Being a flexible thinker, avoiding tunnel vision, and being capable of concurrently examining alternate theories while objectively using evidence as the measure to confirm or disconfirm validity of theories
• Being patient and capable of maintaining a long-term commitment to reaching a conclusion
• Being tenacious and not allowing setbacks and false leads to deter continued efforts
• Being knowledgeable and skilled at the tasks, process, and procedure while respecting legal authorities and the limitations to take action
• Being self-aware of bias and intuitive responses, and seeking evidence to support gut-feelings
• Being trained in the processes of critical thinking that provide reliable analysis of evidence that can later be described and articulated in reports and court testimony
Considering this list of traits, we can appreciate that good investigators are people with particular attitudes, aptitudes, and intentional thinking processes. These traits all form part of the investigative mindset. Although you cannot teach someone to be passionate about discovering the truth, anyone who has these traits can work towards developing and refining their other traits and skills to become an investigator. Developing the mindset is a learning journey, and the first step of this journey is to become intentionally aware of and engaged in your own thinking processes.
Toward this point, the investigator must always be mindful of the proposition of Shah and Oppenheimer (2008) in their book Heuristics Made Easy: An Effort Reduction Framework. Shah and Opprenheimer remind us that people have learned to become quick thinkers using mental short cuts, known as heuristics, in an effort to make decisions quickly and problem solve the challenges we encounter. They offer the proposition that heuristics reduce work in decision-making by giving the user the ability to scrutinize a few signals and/or alternative choices in decision-making, thus diminishing the work of retrieving and storing information in memory. This streamlines the decision-making process by reducing the amount of integrated information necessary in making the choice or passing judgment (Shah, 2008).
In this book, we will point out that these heuristic shortcuts are often instinctive or intuitive reactions, as opposed to well-reasoned, evidence-based responses. Although they may serve us well in our everyday thinking, they must be monitored and recognized for their short-falls when we are required to investigate matters where the outcomes are critical.
To achieve the investigative mindset and be an objective investigator, it is important to be aware of the heuristic shortcuts and other negative investigative tendencies that can become obstacles to successful outcomes. For example, a good investigator needs to be focused on the objective of solving the case and making an arrest in a timely manner, but becoming too focused can lead to “tunnel vision,” which is the single-minded focus on a favourite suspect or theory to the extent that other suspects or alternate theories are ignored. Moreover, a good investigator needs to take responsibility and be accountable for the outcomes of the investigation; however, taken to the extreme, this can lead to an investigator taking complete ownership of the investigation to the exclusion of allowing the ideas of others to provide guidance and influence. Finally, a good investigator needs to be careful about how much information is shared with others. However, excessive secrecy can inhibit information sharing with those who might contribute to the successful conclusion of the case.
Thinking as an objective investigator, it is often necessary to consider and evaluate several competing theories or possibilities of how a crime was committed and who the suspect may be. Often, new investigators, or those uninitiated to the objective mindset, will focus on a favourite theory of events or a favourite suspect, and rush to be first to reach the conclusion and to make the arrest. There is a trap in shortcuts and the focused rush to make a fast arrest. In this trap, other viable suspects and theories are too quickly ignored or discarded. This sometimes leads to investigations being derailed by “tunnel vision.” Worse yet, tunnel vision can lead to the misinterpretation of evidence, ultimately leading to charges against an innocent person, while the guilty remain undiscovered.
To summarize the observations made by Kim Rossmo (2009) in his book on criminal investigative failures, tunnel vision and lost objectivity have been part of the findings in many public inquiries. Commissioners at public inquiries have concluded that, at times, investigators relentlessly pursue a favourite suspect. Sometimes an alternate suspect should have been apparent, or exculpatory evidence was present that should have caused the investigators to stop and re-evaluate their favourite suspect, but tunnel vision had set in and the objective investigative mindset had been lost (Rossmo, 2009).
Similarly and not totally unrelated to tunnel vision, other negative thinking responses also come into play, and can be observed in the behaviours of case ownership and excessive secrecy. It may seem that an investigator taking ownership for his or her investigation, and maintaining some degree of secrecy in the management of case related information, is completely acceptable and perhaps even desirable. However, as happens with any human behaviour, it can negatively influence the outcome of investigations. Information appropriately shared with the right people can often reveal connections that contribute to the evidence of a case, and investigators must remain open to this appropriate sharing. Many negative examples can be found where a police investigator, or even an investigative team, adopted the attitude that the conduct of an investigation is their own exclusive domain (Campbell, 1996). With that exclusive ownership, no one else is entitled or allowed to participate, and relevant information that needs to be shared with others can be jealously guarded. Opportunities are missed for other investigators to see details that could connect a similar fact pattern or make the connection to a viable suspect.
Topic 5: Understanding the Investigative Mindset
When we talk about the investigative mindset, in part, we are talking about the self-awareness and the organizational-awareness to avoid negative outcomes. Once learned and practiced, this awareness can be a safety net against destructive investigative practices (i.e. tunnel vision, case ownership, and excessive secrecy). Criminal investigation can require complex thinking where the investigator must assess and determine the validity of information and evidence to guide the investigative process. This thinking strives to move from a position of mere suspicion to one of reasonable grounds for belief to make an arrest and ultimately articulate evidence upon which the court can make a finding of guilt beyond a reasonable doubt. This is a conscious process of gathering and recording information, and thinking analytically to form reasonable grounds for belief supporting defendable actions of arrest and charges. From this conscious process, the investigator in court can articulate a mental map to describe how they derived their conclusions.
As we proceed towards learning the investigative thinking process, keep in mind that:
• Investigative thinking is disciplined thinking, and investigators must be consciously aware of and consciously in control of their own thinking
• This is a process of being intentionally engaged at a high level of analytical thinking
• This thinking process is strategically focused, prioritizing investigative plans and actions to achieve outcomes
• Developing a mental map, the investigator deliberately selects a path of the investigation will follow. He or she travels that path with the knowledge that the outcomes of the investigation will only be accepted by the court if the rationale for the path taken can be recalled accurately and articulated in detail
Summary
In this chapter, we have identified the investigative thinking processes as being distinctly different from the thinking processes used by most people in their everyday lives. The critical responsibilities that exist for police investigators in conducting their duties demand that investigators learn to think and respond in a structured and accountable manner. To this end, we have illustrated some of the common negative thinking processes that investigators must avoid, and we have looked at the traits and values that need to be pursued to become a criminal investigator. We have described structured and accountable thinking as the means to achieve an investigative mindset. You will find that investigative thinking and the investigative mindset are a theme throughout this book.
Study Questions
1. Provide two reasons why it is very important for a police investigator to routinely critically assess all of the information they encounter.
2. Provide two reasons why evidence gathered as part of an investigation must be collected in a structured way.
3. What do we mean when we say that an investigator must be “switched on”?
4. In a single sentence, summarize “Locard’s Exchange Theory” (Petherick, 2010).
5. List seven characteristics commonly found in good investigators.
6. What are the skills a modern-day officer must achieve to respond to events and investigate crimes?
7. What is the first step in developing an investigative mindset?
8. What is the level of forensic knowledge that a modern-day investigator must achieve to become an effective investigator?
9. Why must police investigators be mindful of the heuristic shortcuts discussed by Shaw and Oppenheimer (2008)?
10. In addition to heuristic shortcuts, what are the other three negative investigative tendencies that can become obstacles to successful investigative outcomes?
11. Why must investigators be mindful of excessive secrecy? | textbooks/workforce/Corrections/Introduction_to_Criminal_Investigation_-_Processes_Practices_and_Thinking_(Gehl_and_Plecas)/1.01%3A_Introduction.txt |
“There are many legal rules, concepts, principles, doctrines, and protocols investigators must be attentive to as they work through an investigation, and each must be incorporated into their thinking process.”
It would be impossible to properly appreciate the investigative process without first establishing an understanding of the real-life forum in which it occurs. That forum is the criminal justice system and in particular, the court system. The investigative process also exists within the statutory rules of law, including the Canadian Charter of Rights and Freedoms, and case law rulings adjudicated by the courts. Considering the existence of these conditions, obligations, and case law rules, there are many terms and concepts that an investigator needs to understand to function appropriately and effectively within the criminal justice system. The purpose of this chapter is to introduce some of the basic legal parameters and concepts of criminal justice within which the criminal investigation process takes place. These include:
1. Fundamental justice and the Charter of Rights and Freedoms
2. Roles of the judges, the prosecutors, the defence, and the police in the justice system
3. The burden of proof
4. Belief beyond a reasonable doubt
5. Reasonable grounds for belief
6. Proof within a balance of probabilities
7. The adversarial system
8. Statutory law
9. Common law (Case law)
10. Actus Reus and Mens Rea
11. Prima facie case, elements of the offence, and the information
12. Duty to investigate and use of discretion
13. Arrest and detention of a suspect
Topic 1: Fundamental Justice and the Charter of Rights and Freedoms
Criminal justice systems exist to protect society using a broad range of laws and regulations designed to define, control, and prohibit unacceptable behaviour and conduct. The behaviour and conduct to be prohibited or controlled can range from criminal acts of terrorism and murder, to infractions of a minor nature, such as exceeding the speed limit or watering one’s lawn outside of permitted time periods. These laws and regulations can result in a variety of sentences, restrictions, and interventions to personal freedom or penalties against offenders. In Canada, penalties can range from life imprisonment with no parole eligibility for 25 years, to fines, probation, or a warning. As a core principle in the application of any of these laws, there are strong social values that reflect the expectations of citizens who live under the protection of the laws. Citizens expect and demand that the law be enforced and administered fairly and in a manner that respects their rights and freedoms as individuals. This expectation most particularly pertains to any person suspected of or charged with an offence.
These values and expectations of fairness have origins dating back to ancient Rome and of English common law, which eventually defined the principles of “natural justice,” now more commonly referred to in Canada as “fundamental justice” (Dostal, 2012h).
At the core of these principles of “natural justice” or “fundamental justice,” some basic operational imperatives have been established to guide the outcomes of the justice system and ensure fundamental justice for persons charged for an offence. For example, one who alleges an offence to have taken place must prove it, the person accused of an offence has the right to see the evidence against them, the person accused has the right to answer to the charge and provide a defence, the trier of fact (i.e. most commonly a judge) must not be biased, and the trier of fact must base their decision upon evidence and must articulate the evidence considered when the decision is handed down. Further entrenching these principles of “fundamental justice,” the Canadian Charter of Rights and Freedoms Sections 7–14 was enacted into law in 1982, replacing the existing Canadian Bill of Rights (Government of Canada, 2015).
Excerpt from Charter of Rights and Freedoms Sections 7–14, “Legal Rights”:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
14. A party or witness in any proceeding who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter (Government of Canada, 2015).
As demonstrated by these eight explicit sections of the charter, any person accused of a crime has a significant level of protection from being presumed guilty or from being treated unfairly by the justice system because of an accusation.
In the criminal justice system, police investigators are very often the first point of contact and they hold a primary obligation to respect the rights and freedoms afforded by the CanadianCharter of Rights and Freedoms. The steps that must be taken by an investigator to ensure that the rights and freedoms are protected and the principles of fundamental justice are followed will be outlined in detail later in this book.
Topic 2: The Role of the Judge, the Prosecutor, the Defence, and the Police
As operational players within the criminal justice system, judges, crown prosecutors, defence lawyers, and police all contribute to the process of “natural justice” or “fundamental justice.” Each of these participants has specific and independent roles to play and duties to perform. For example, the role of the police investigator is to gather information, physical evidence, and witness evidence to form the reasonable ground that a particular suspect committed an offence. Once these reasonable grounds for belief have been formed, the evidence can be presented to the Crown Prosecutor to determine if a charge should be laid. The role of the crown prosecutor is to examine the evidence gathered by police investigators. If charges are laid, the crown prosecutor presents that evidence to a judge who will determine the guilt or innocence of the accused based upon the test of proof beyond a reasonable doubt. The role of the defence counsel is to represent the accused through examination of the evidence presented, testing the strength of the evidence presented, and challenging the reasonable grounds for belief. The defence’s goal is to demonstrate that the test of proof beyond a reasonable doubt has not been met.
Many are the occasions where police have identified and arrested the correct suspect, but the evidence collected in their investigation was rejected by the court because procedural rules were not properly applied. These kinds of cases, lost to errors in process or in misunderstanding of the rules, provide valuable lessons for the police investigator who failed; but sadly, they are a disappointing and a negative experience for the victim of the crime and the public who expect investigators to always get it right.
Topic 3: The Burden of Proof
For a police investigator, it is important to understand that matters under investigation can end up being presented in a criminal or civil court of law. Each of these court venues requires and applies a different burden of proof to the evidence presented. It is entirely possible that a police investigator will be called to present evidence of their investigation in either type of court. For instance, it is possible in cases, such as a motor vehicle crash, that the evidence collected by the police for a criminal court charge of Impaired Driving or Dangerous Driving could be used in a civil court trial where an injured victim sues the impaired driver for damages resulting from their injuries or the loss of their vehicle.
The criminal court is the one most commonly encountered by police investigators. These courts hear cases investigated under the Criminal Code and under Federal, Provincial, and Municipal Statues. Cases can cover offences ranging from personal and property offences to those covered under Municipal Statutes. For criminal courts, judges or judges and juries use the burden of proof described as “proof beyond a reasonable doubt” to determine if they will convict or acquit an accused person. Civil courts take responsibility for making decisions in relation to matters where one party is seeking a non-criminal judgement, damages, or a decision against another party. These can be cases related to personal injury cases, contractual disputes, divorce proceedings, and contested wills or estates. In these cases, the parties involved are referred to as the plaintiff and the defendant. The plaintiff is the party that initiates the civil court action, and the defendant is the party against whom the civil action is filed. In these civil actions, the burden of proof considered by the court is described as “proof within a balance of probabilities.” This is a much lesser test than proof beyond a reasonable doubt as the court seeks to determine, on the balance of probabilities, which side is most likely correct.
Topic 4: Proof Beyond a Reasonable Doubt
Proof beyond a reasonable doubt is the standard measure of proof that the criminal court will apply when determining if evidence presented by the prosecution is sufficient to convict the person charged with an offence. If the evidence is sufficient, and the burden of proof has been satisfied, the court may convict the accused. In these cases, the onus to prove all the elements of the charge rests completely with the prosecution. The accused person is not required to prove that they are innocent.
The Supreme Court of Canada has outlined the concept of proof beyond a reasonable doubt suggesting that it should be explained to juries as follows:
The standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence (R v Lifchus, 1997).
• The burden of proof rests on the prosecution throughout the trial and never shifts to the accused.
• A reasonable doubt is not a doubt based upon sympathy or prejudice, and instead, is based on reason and common sense.
• Reasonable doubt is logically connected to the evidence or absence of evidence.
• Proof beyond a reasonable doubt does not involve proof to an absolute certainty. It is not proof beyond any doubt, nor is it an imaginary or frivolous doubt.
• More is required than proof that the accused is probably guilty. A jury which concludes only that the accused is probably guilty must acquit.
The Supreme Court of Canada emphasized in R v Starr, that an effective way to explain the concept is to tell the jury that proof beyond a reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities.” It is not enough to believe that the accused is probably guilty, or likely guilty. Proof of probable guilt, or likely guilt, is not proof beyond a reasonable doubt (R v Starr, 2000).
It is important for investigators to understand that “proof beyond a reasonable doubt” is a different test from what they are required to meet when considering the value of evidence during their investigation. Later in this book, we will examine the importance of collecting, documenting, and properly preserving as much evidence as possible to assist the court reaching their belief beyond a reasonable doubt.
Topic 5: Reasonable Grounds to Believe
Reasonable grounds to believe, sometimes referred to as reasonable and probable grounds to believe, is the test a police investigator must apply when considering the evidence to exercise their powers during the investigation of an offence. Establishing reasonable grounds to believe that a person is responsible for an offence allows the investigator to exercise powers that are provided under the criminal code. These are the powers to arrest with or without a warrant, the power to search and seize evidence with or without a warrant, and the power to swear an information against a person once reasonable grounds to believe have been established.
Forming reasonable grounds for belief is a subjective thinking process. It is arguably the most important thinking processes an investigator will undertake. It is a thinking process based upon the consideration of information, evidence, and facts the investigator has collected during their investigation. These reasonable grounds for belief must be based upon the investigator’s assessment of the information and evidence available to them at the time the decision to act is made. Evidence of guilt discovered after an action (such as when an arrest or a search has taken place) cannot be used to retroactively justify that action of arrest or search. As such, when the court considers if the investigator was correct and justified in forming reasonable grounds to believe based upon the evidence available at the time of the action, the judge will think about the nature of the evidence the investigator has described in their testimony.
Justice Cory in R v Storrey (1990) provided a very common sense deliberation to be applied in determining if the investigator had reasonable grounds to believe:
The Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest. (R v Storrey, 1990)
Reasonable grounds to believe is a very important concept for an investigator to understand, and it must not be confused with the more onerous test of “proof beyond a reasonable doubt” (R v Starr, 2000), which is the test the court will use in weighing the evidence to determine if a conviction for the offence is justified. Confusing these two levels of belief is an error sometimes made by investigators, and it can cause an investigator to hesitate because they do not believe they have reached the adequate level of belief to take action.
It is fortunate that this lesser level of belief, reasonable grounds, is available for police investigators because it requires that police articulate only a subjective belief in the information and evidence available to them at the time of their investigation. It allows police investigators to form reasonable grounds of belief based on physical evidence they have seen, records they have reviewed, and hearsay information acquired from witnesses. In situations where time is of the essence to protect life and safety, protect evidence, or to bring a situation under control, it does not require the investigator to undertake any validation of the information they are relying on. The information may be taken at face-value.
Establishing reasonable grounds to believe and taking the action of making an arrest or conducting a search will not necessarily be the precursor to collecting enough evidence to lay charges. In some cases, an arrest is made because reasonable grounds existed and, after additional information and evidence are accessed, it becomes clear that the person is not guilty of the offence. Consequently, the process of laying a charge does not take place and the person is released. Remaining open to the outcome of determining innocence is truly a test of objectivity for investigators. This objectivity can sometimes be difficult to achieve when there is serious pressure to capture a dangerous offender. The mistake of being too quick to proceed with charges, or even discounting and ignoring evidence that indicates innocence, is a trap that has led many investigators to the end their careers under accusations of lost objectivity or even incompetence (Pennington, 1999).
When charges are laid, objectivity can become a key issue at the trial and the defence may demand that the investigator provide an accurate account of evidence that was considered or ignored in the thinking process to establish their reasonable grounds to believe. Forming reasonable grounds is a process that should be undertaken with careful consideration of the facts. Forming reasonable grounds requires a diligent intent to remember the facts, keeping in mind that an articulation of the subjective analysis used in forming reasonable grounds for belief may be required as testimony in a court.
This degree of self-awareness is a critical step in building the thinking skills to become a good investigator. With these thinking skills in mind, tools will be provided later in this book that can assist an investigator with the practice of thinking through investigations using a step-by-step process.
Topic 6: Proof Within a Balance of Probabilities
As mentioned above, the balance of probabilities is the civil court standard of proof that is less onerous than the criminal court standard of proof beyond a reasonable doubt. For something to be proven within a balance of probabilities means that it is more likely than not to have occurred. On a scale of equal balance, if the likelihood is more than 50% that something occurred, the test of being “within a balance of probabilities” has been met. In most cases, if the criminal test of proof beyond a reasonable doubt has been met, that same evidence presented at a civil trial is likely to meet the required threshold of being within a balance of probabilities (Allen, 1991). It is important for a criminal investigator to understand that, even though there may not be enough evidence to meet the requirement for a criminal charge or establish proof beyond a reasonable doubt, the evidence may still be successful in establishing civil liability within a balance of probabilities. The possibility of civil action makes it important for investigators to remain diligent in collecting and preserving evidence, even if they believe there will not be a criminal charge proceeding.
Topic 7: The Adversarial System
In the trial of a person charged with an offence in a criminal court proceeding, the judge will hear the evidence and arguments presented by both the prosecution and the defence. The prosecution and the defence exist in court in an adversarial relationship with the onus resting with the prosecution to prove the facts of the case beyond a reasonable doubt. The defence may challenge the evidence, question the testimony and the credibility of witnesses, and present alternate theories of events or evidence, where the accused person could be considered not responsible or sometimes less responsible for the alleged offence. The facts required to be proven will vary depending on the offence being alleged; however, the prosecutor’s task to achieve a conviction requires that every element of the charge is proved beyond a reasonable doubt.
As an investigator, you will often work in partnership with the prosecutor assembling evidence to be presented in court. However, once in court, the police are merely witnesses for the court and do not play active role in the prosecution of an accused. Police investigators are not adversaries to the defence or the accused and should not consider themselves as such. Very often in court, a police investigator will have their evidence aggressively challenged by the defence lawyer in a very adversarial manner, and it will certainly feel as if the investigator is being challenged as an adversary. It is sometimes even a defence strategy to provoke the police investigator into a confrontation where they take an adversarial stance against the defence of the accused. In these cases, it is important for an investigator to remember that their credibility as an objective investigator can be compromised by the demonstration of an adversarial attitude or demeanour in court. This is not to say that an investigator must be submissive to the defence — providing evidence in an objective, respectful, and balanced manner is the key.
To share some advice once provided to this writer by a seasoned senior investigator:
“Your job ends on the court house steps. Do your investigation and take your evidence to court. Give your testimony and your job is done. Let the court make their decision and the case is done. If you allow yourself to take ownership of every decision the court makes, you will not last as an investigator. Let your job end on the court house steps” (Fookes, 1973).
Police investigators are officers of the justice system, independent to the crown prosecutor’s office. Police investigate and collect the evidence, and the crown prosecutor presents the evidence collected by the police to the court. The crown prosecutor does not and should not direct or interfere with police investigations. In Canada, this concept of independent functions between the police and the prosecutor’s office is sometimes misunderstood. This misconception can sometimes happen due to our exposure to the American justice system where district attorneys, as prosecutors, do become very involved in directing the investigative processes in American jurisdictions.
Topic 8: Statutory Law
Statutory law is written law enacted by different levels of government. These written laws regulate the conduct of citizens. Laws are enacted with escalating levels of authority from the three levels of government in Canada. The most serious laws are the domain of the federal government, which takes responsibility for controlling criminal conduct under the Criminal Code of Canada, as well as criminal conduct ascribed to be of national concern under a broad spectrum of other federal statues, such as:
1. The Criminal Code of Canada
2. The Controlled Drug and Substances Act for drugs offences
3. The Fire Arms Act for the control of firearms and restricted weapons
4. The Canadian Environmental Protection Act for environmental offences
5. The Canada Revenue Agency Act for Income tax offences
6. The Canadian Customs and Border Services Act for border security
Statues, such as the Motor Vehicles Acts or the Liquor Control and Licencing Acts, are enacted by the provincial governments, and these laws vary somewhat from province to province. Each province has discretion to independently regulate issues, such as speed-limits or minimum drinking age, reflecting the cultural tolerances and social norms of their jurisdiction. At the lowest level, municipal governments enact by-law statues exclusive to their local concerns, such as parking or littering laws.
The Criminal Code of Canada is the most important and instructive federal statute for investigators. It provides police investigators with their authorities to use force, make arrests, enter private property, search for and seize evidence, and to lay charges against offenders. The wording of the Criminal Code of Canada is very clear regarding the types of action and conduct that constitute criminal offences. The Criminal Code also is generally clear about the rules for when and how a police officer may use force, arrest a suspect, enter private property, search and seize evidence, and lay a criminal charge against a suspect. However, there remains a significant amount of subjective interpretation in the code that must be done in the mind of an investigator to effectively use the various stated authorities to enforce the law. This need to interpret statutory law exists because of case law decisions and the common law precedents that have been established from those case law decisions.
Topic 9: Common Law (Case Law)
Common law is law that is not written down as legislation or a statue and is based on rulings and precedents of past cases to guide judges in making later decisions in similar future cases. It cannot be found in any statute or body of legislation, but only in past decisions. It is flexible and adapts to changing circumstances.
Fulfilling the role of a police investigator requires an understanding of specific statutory authorities, along with the case law and common law definitions for utilizing those authorities. Statutory authorities provide powers for arrest and use of force, powers for entry to private property, and powers to search for and seize evidence. Case law and common law are procedural in nature. They help define limits within statutory authorities and dictate the way the law is administered by the court. By extension, case law and rules of evidence define the way police investigations should be conducted, the way suspects should be treated, and the processes for collecting evidence and preserving it for court. The ability of an investigator to properly interpret and follow these statutory laws, case laws, and rules of evidence, can play a large part in determining if the evidence from an investigation is accepted or rejected by the court.
Case law and common law exist because, over the years, the courts have continually found that applying statutory law cannot happen without interpretation and consideration of exceptions. Critical points of subjective analysis, deciding issues of fairness to the accused, and balancing the need to protect society from criminal conduct have caused the courts to interpret how the law should be applied. These interpretations, when accepted by the judicial system, become precedents and sometimes even doctrines of law. Many of them directly comment on the matters an investigator should consider when making specific decisions to take action. With these stated matters of case law in mind, investigators are called upon to subjectively interpret the circumstances, evidence, and information relating to an event, and to determine if the specific facts and circumstances will meet the tests that allow action to be taken.
Many of an investigator’s interpretations and subsequent actions can be critical to the court accepting the evidence collected when the case goes to court, such as:
• Using physical force, up to and including deadly force
• Forming reasonable grounds to detain or arrest suspect
• Entering private property with or without a warrant
• Using the rules of exigent circumstances to protect life and safety of person or evidence
• Using discretion to take actions, other than charges, when an offence has been committed
In addition to these case law decisions, common law also provides several doctrines of law that define consistent rulings of the courts when making assessments of the evidence being presented in relation to some specific common issues. A doctrine is established through repeated application of the same legal precedents, and there is an expectation that the lower courts will respect the application of these legal precedents in stated cases of the higher courts. Knowing these doctrines, and considering how the court might apply them to the evidence being presented, assists investigators on the proper ways to collect evidence that will best inform the court.
The Common Law Doctrine of Necessity
Under criminal law, the defence of necessity can be invoked by the defence in cases where the accused seeks to provide a rationale that committing the offence was the unavoidable result of some serious circumstance beyond his or her control. In considering this defence, the court will apply a very strict standard in order to meet the conditions prescribed in the common law doctrine of necessity (Gecker, 1989). It is important for an investigator to know the criterion that the court will apply, in-as-much as it will allow the investigator to seek out evidence that either supports or negates the necessity defence. The leading case in Canada for such a defence is R v Perka where Justice Dickson described the rationale for the defence as a recognition that:
A liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience.
However, it must be “strictly controlled and scrupulously limited.” and [sic] can only be applied in the strictest of situations where true “involuntariness” is found. Three elements are required for a successful defence:
1. the accused must be in imminent peril or danger
2. the accused must have had no reasonable legal alternative to the course of action he or she undertook
3. the harm inflicted by the accused must be proportional to the harm avoided by the accused
The peril or danger must be more than just foreseeable or likely. It must be near and unavoidable.
At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable.
With regard to the second element, if there was a reasonable legal alternative to breaking the law, then there can be no finding of necessity. Regarding the third element requiring proportionality, the harm avoided must be at least comparable to the harm inflicted (R v Perka, 1984).
Clearly, the standard for the defence of necessity sometimes requires the interpretation of complex issues. This interpretation determines if the circumstances and evidence fall within the ascribed definitions to be considered necessity. This interpretation is the job of the court assessing the evidence to reach their belief beyond a reasonable doubt.
If an investigator has discovered sufficient evidence and has reasonable grounds to believe an offence has been committed, there are sufficient grounds to lay the charge. In serious cases, where harm to persons, or significant property damage has occurred, police investigators do not have the discretion to consider if an accused person should be afforded the defence of necessity due to the complexity of the issues. In lesser cases, for instance where a police officer stops a car for speeding and the driver shows that they are speeding to get a critically injured person to the hospital, a police officer might use discretion and accept the excuse of necessity to forgo the speeding ticket. Conversely, if an accused person made the decision to cut a lifeline that caused a mountain climber to fall to his death to save himself from being pulled over the edge, that decision of necessity needs to be made by a judge in a court of law.
In serious cases, it is important for an investigator to remember that their job does not include making any final interpretation regarding the defence of necessity, even if evidence of necessity may exist. The investigator’s task is restricted to recognize and collect all evidence that may assist the court to make their decision on the issues of necessity. This would include recognizing and collecting evidence to show:
1. The nature of the danger being imminent or not
2. Evidence of other legal alternatives or actions that were available to the accused
3. Evidence that might indicate the danger was either avoidable or unavoidable
4. Evidence to demonstrate the anticipated harm from the threat, compared to the harm resulting from the accused’s action
Doctrine of Recent Possession
The doctrine of recent possession refers to the possession of property that has been recently stolen. It permits the court to make the inference that the possessor of the stolen property had knowledge that the property was obtained in the commission of an offence, and, in certain circumstances, was also a party to the initial offence (R v Terrence, 1983; & R v Kowlyk, 1988). When considering whether to make the inference of recent possession, the prosecution must consider all the circumstances (R v Abernathy, 2002). This includes common sense factors, such as the amount of time that passed between possession and the offence (R v Gagnon, 2006). Factors to consider whether the possession was recent include the nature of the object, the rareness of the object, the readiness with which the object can and is likely to pass to another, and the ease of identification. To achieve an inference, the Crown must establish that the accused was found in possession of the item and that the item was recently stolen without an explanation (R v Gagnon, 2006). When the accused is found in recent possession without explanation, the prosecution can draw the inference and make the presumption that the accused had a role in the theft or related offences. The defence can present an argument to counter the presumption by providing evidence of a reasonable explanation (R v Graham, 1974).
Doctrine of Wilful Blindness
Wilful blindness, also called ignorance of the law or contrived ignorance, is something the court will consider when an accused provides a defence claiming that they were not aware of the facts that would make them either criminally or civilly liable for a criminal offence or a civil tort. As an example, this can arise where a person has purchased an expensive item of stolen property for a very small price, then attempts to defend against a charge of possession of stolen property by claiming that they did not to know the item was stolen and/or did not know the true value of the item. In applying the doctrine of wilful blindness, the court will carefully examine the circumstances to determine what the accused should have known or if the accused should have inquired further.
The Supreme Court of Canada articulated the thinking behind the assessment of wilful blindness in R v Briscoe:
“Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries” (R v Briscoe, 2010).
The manner in which the court should examine these issues is further expressed in Sansregret v The Queen, [1985] 1 S.C.R. 570 and R v Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in R v Jorgensen (at para. 103):
“[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge? Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating.”
As the Court explained further in Sansregret v The Queen (at p. 584):
“…while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry“ (Sansregret v The Queen, 1985).
For an investigator who anticipates that wilful blindness may become an issue at trial, it is important to recognize the need to gather the additional evidence that might demonstrate the accused knew or should have known the nature of the offence taking place, and deliberately failed to inquire.
Topic 10: Actus Reus and Mens Rea
To recognize the types of evidence that need to be collected with respect to various offences, an investigator must become intimately familiar with the concept of actus reus, which is a Latin term definable as “the guilty act” or “the criminal act,” and the concept of mens rea, another Latin term meaning “guilty mind” or “the intent to commit a crime.” For any specific offence, the actus reus will be described by the wording of the statute that prohibits the conduct. For example, for the offence of theft, under the Criminal Code of Canada, the guilty act of theft, and variations of what constitute theft, are described in detail under section 322 (Criminal Code, 1985, s 322(1, 2)) of the Criminal Code of Canada:
Theft 322. (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
(b) to pledge it or deposit it as security;
(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.
(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.
The definition of the offence of theft provides a broad range of actions that will constitute the guilty act of theft. It defines items that can be stolen as anything, whether animate or inanimate. It includes conversion of the use of an item as being a theft, and it even defines the time a theft is completed, saying theft occurs when a person merely begins to cause something to be movable. For an investigator to collect evidence to prove the guilty act of theft, these definitions create a range of activities where evidence can be collected to illustrate a theft has occurred; but, just proving one of the actions that define the guilty act of theft occurred is insufficient because theft is one of the criminal offences that requires the act to be intentional. This is where the concept of mens rea comes into play.
The concept of mens rea seeks to determine if the accused person had the intent to commit the offence. Going back to the wording for the offence of theft, you will see that the words “with intent” are part of that offence wording. The words “with intent” allow that if a person takes someone’s property by accident or without the intent to steal, the offence of theft is not completed. For an investigator, this is an important concept because with this term, there is an added obligation to look for evidence that can assist the court in determining if the accused did in fact have the intent to commit the offence.
In the case of a theft, evidence of intent may be part of the observed actions of the accused, such as where a shoplifter is seen stuffing store merchandise into their pockets and then walking out the nearest exit of the store without paying. In such a case, it would not be enough for the investigator to show that the accused removed the property from the store. The act of concealing the items in the pockets is critical to demonstrate the intent to commit the offence. So, for offences where the term “with intent” forms part of the wording of the offence, the investigator needs to look for those extra pieces of evidence to demonstrate intent to the court.
It should be noted that intent does not form part of the wording for all offences. There are some offences where intent is not required. These are called a “strict liability offence” in Canada, and, with these offences, it only needs to be shown that the guilty act occurred. Some less serious offences, like speeding or failing to stop at a stop sign, are “strict liability” offences, and the investigator does not need to show that there was intent to commit the offence. There are also more serious strict liability offences, such as criminal negligence causing death or bodily harm, where proof of intent is not required. For offences sometimes called “crimes of omission,” it is only necessary to find evidence showing that the accused failed to meet the standard of care that is expected, and that they acted in a reckless manner. In other words, their reckless disregard caused or allowed the harm to occur.
Criminal Negligence
219. (1) Everyone is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
Definition of “duty”
(2) For the purposes of this section, “duty” means a duty imposed by law (Criminal Code, 1985, s 219).
Even though intent in not a required element for this kind of charge, careful investigation of the evidence could elevate the offence from criminal negligence causing death or bodily harm to assault or even murder, if evidence of intent can be demonstrated. To demonstrate this point, let us examine a case where three men go hunting together and each is carrying a rifle. A shot is fired and one of the men is killed. The investigation of this death reveals that the shooter had been drinking heavily and was walking along with his loaded rifle and the safety on the rifle was off. The muzzle of his rifle was pointed in the direction of the victim walking beside him. The shooter confesses that he stepped over a log, tripped, and the gun discharged killing the victim. This evidence of drinking, the safety being off, and pointing a gun at the victim might support a charge for criminal negligence causing death.
Further investigation results in a statement from the third hunter who states that the victim and the shooter were business partners, and they had been arguing all morning over how they should divide the assets of the business they were selling. At one point, the shooter was heard telling the victim, “Be reasonable or I will just get rid of you and keep it all for myself.” This statement could be interpreted as an indication of motive and perhaps even intent to kill, and could be enough to elevate the criminal negligence causing death to a charge of murder. Hence, Actus Reus and Mens Rea become core concepts of investigative thinking. As the investigation proceeds, the investigator will undertake an ongoing process of evidence collection, offence recognition, and theory development to determine if an offence occurred, how the offence occurred, and why the offence occurred or is there evidence of intent. These concepts and the thinking to conduct theory development and evidence collection will be discussed in greater detail in the proceeding chapters of this book.
Topic 11: Prima Facie Case, Elements of the Offence, and the Criminal Information (Charge)
It is the job of the crown prosecutor to present evidence to the court that proves a prima facie case. Prima facie means at first sight and is the minimum amount of evidence required to prove each element of the formal charge against the accused. The elements of the offence include proving the specific acts alleged in the offence, such as assault or robbery; however, the elements of the offence also include other critical facts that a police investigator must consider to collect the correct evidence. It is the presentation of evidence that, if believed, would establish each of the elements necessary for the prosecution to succeed. In assessing whether a prima facie case is made, a judge does not decide whether the evidence is likely to be believed; but merely whether, if it were, it would establish the necessary elements for a conviction (Legal Information Institute, 2016).
The formal charge against a person in Canadian criminal law is called an ‘Information’, and there are specific elements or facts within that information that need to be proven. The information is a document sworn by a police officer alleging that the offence has taken place and accusing a person of that offence. The standard wording of a criminal information is as follows:
Criminal Information
I, Constable (name of the informant), do solemnly swear that I have reasonable and probable grounds to believe and do believe that, on or about (date of offence), at or near (place of offence), in the Province of (province name), (name of accused), did unlawfully (statement of actions of the accused), and did thereby commit the offence of (name of the offence) contrary to the provision of (section number the offence under the criminal code or other statute), sworn before me this date of information swearing.
Signature of Judge or JP Signature of the Informant
In the above Information, the elements that need to be proven to establish a prima facie case are:
1. The identity of the accused person named on the information
2. The date or time frame in which the offence occurred
3. The place where the offence occurred (establishing this place is within the jurisdiction of the presiding court)
4. The action or actions taken by the accused person that will show they committed the offence contrary to the law
In court, this information or charge becomes the first document for consideration by the judge. This information, also known as a criminal charge, is read to the accused on their first appearance in court and after the reading of the charge, the judge will ask the accused person to enter a plea of either guilty or not guilty. If the plea is guilty, the judge will hear circumstances of the offence that will determine the sentence or the penalty for the offence. If the plea is not guilty, the judge will determine if the offence is one that should be heard by a judge-and-jury or a judge alone; and, if it is one of the serious offences where the option for judge-and-jury is available, the accused will be asked to decide which type trail they would prefer. Having received a plea of not guilty, the judge will then schedule a trial date.
When the trial begins, the prosecutor will present evidence to establish the truth of each element of the information beyond a reasonable doubt. Because the court system is an adversarial system, the defence lawyer may challenge any piece of the evidence presented with the goal of not allowing the prosecution to prove one or more of the required elements to make out the prime facie case. The prime facie case is complete when sufficient evidence is presented to prove each element of the charge before the court. If any one element of the information is not proven, the prima facie case is not established beyond a reasonable doubt and the court will make a ruling of not guilty.
Topic 12: The Duty to Investigate and the Use of Discretion
An appointment as a peace officer and the duties of a police officer in Canada are made under the authority of various provincial police acts and at the federal level under the RCMP Act. The designation of a peace officer under any one of these acts enables the appointed person to exercise the powers and authorities of a peace officer described in those acts, as well as the powers and authorities to function as a peace officer under the provisions of the Criminal Code of Canada and any other federal and provincial statutes. In addition to these powers and authorities to act, persons designated as peace officers also have some limited protection from criminal charges and civil liabilities in cases where they unintentionally make an error or cause injury to a person. These protections from criminal and civil liability are provided under the Criminal Code for some criminal acts and under Provincial Police Acts and the RCMP Act for civil torts. These protections are not available, or can be withheld, where an officer is found to have acted with criminal intent or is found to have been reckless or criminally negligent in the execution of their duties.
So, police officers are endowed with powers and authorities to act as keepers of the peace. For the police, this responsibility is equated to doing their duty. To fully understand what this entails, one must consider these two most critical questions:
• What are those duties?
• Who decides when or if they have been properly done?
These questions have a long history of both philosophical and legal arguments, dating all the back to the origins of policing in England (Reith, 1943). In those early times, the police were predominately considered to be peace-keepers. As such, the neighbourhood “Bobby” would intervene to settle local disputes. Criminal charges were the last resort. This ability of police officers to settle local disputes using their own judgement and discretion became a valued function of policing skills. The use of discretion remains today at the core of community policing, restorative justice initiatives and alternate dispute resolution programs.
The arguments surrounding police use of discretion and alternate dispute resolution are twofold. Some have argued that police with too much discretion will misuse it and become corrupt, while others contend that the justice system will become overloaded with minor cases if the police do not have the discretion to try to resolve some disputes without laying charges (R v Beare, 1988).
“Directly on this point, Justice La Forest J. stated; Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid” (R v Beare, 1988).
Implicitly supporting the ongoing use of discretion, legislators continue to only provide very general definitions regarding what the duties of the police should be. Statements of police duties, such as the following are the norm.
“… (Police Officers) must perform the duties and functions respecting the preservation of peace, the prevention of crime and offences against the law and the administration of justice assigned to it or generally to peace officers by the chief constable, under the director’s standards or under this Act or any other enactment” (Government of British Columbia, 2015).
Even under the Criminal Code of Canada, there is an implied discretion indicating that the laying of an information is a matter of may and not a requirement of will.
Section 504 CCC. Anyone who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged
(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides (Criminal Code, 1985, s 504(1)(a)).
For investigators, this implied discretion to not take the action of laying a charge seems to leave the door open for a great deal of latitude and interpretation. Historically, this has been the case; but recently, there have been several cases where the incorrect use of discretion has resulted in case law providing more prescriptive direction and defined process for the use of discretion (R v Beaudry, 2007).
To examine the use of discretion, R v Beaudry (2007) has been very instructive in defining the criterion for officers. The brief facts of the case are as follows: the accused, Sgt. Beaudry, was a Quebec police officer who stopped a vehicle on September 22, 2000. The driver turned out to be intoxicated. Upon discovering that the driver was also a police officer whom he had met on a previous occasion, Sgt. Beaudry decided not to demand a breathalyser test from the driver. Sgt. Beaudry believed the driver to be depressed and stated that he was using discretion to give him a chance. Sgt. Beaudry was charged with and convicted of obstruction of justice. The court ruled that he had improperly used his discretion by allowing favouritism. Ultimately, the Supreme Court of Canada’s ruling clarified some of the limitations that they would assign to police discretion. It stated:
“discretion is not absolute. Far from having a carte blanche, police officers must justify their decisions rationally.”
In R v Beaudry, SCC ruled that the justification or using discretion must have three elements:
1. It must be an informed decision, based on evidence that constitutes reasonable ground
2. There must be concrete reasons for the decisions to use discretion that are not based on favouritism or bias
3. The officer must have both a subjectively and objectively honest belief in the reason for using the discretion, and the judge must determine that the officer’s belief reflected reality (R v Beaudry, 2007).
In addition to these three elements, the Supreme Court also stated that:
“Justification for discretion has to be proportional to the offence and has to be in the interest of public safety” (R v Beaudry, 2007).
From the R v Beaudry (2007) ruling, a set of seven principles were outlined and these principles serve as guidelines for police use of discretion in Canada:
1. Discretion is vital to the operation of the criminal justice system. Not all offenders must be charged.
2. The police still have discretion, but it is not absolute, it is limited.
3. Limited discretion means discretion must be proportional to the seriousness of the offence.
4. Use of discretion must be justified with concrete reasons.
5. Improper use of discretion does not automatically constitute “Obstruct Justice.”
6. A simple error of judgement is not “Obstruct Justice.”
7. “Obstruct Justice” is committed when discretion is disproportionate, unjustified, and intended to obstruct, pervert, or defeat the course of justice (R v Beaudry, 2007).
In 2007 following this ruling, in the landmark civil case of Hill v Hamilton-Wentworth Regional Police, the Supreme Court of Canada added an additional rule to the existing Beaudry list of principles:
The decision not to charge an offender cannot be based on the selfish desire to avoid potential civil liability (Hill v Hamilton-Wentworth Regional Police Services Board, 2007).
Topic 13: Arrest and Detention
Arresting or detaining a suspect are two of the most critical actions that a police investigator can take in the process of any investigation. Each is a distinct course of action and offers the investigator strategic advantages to control the investigative environment by:
• Bringing suspected persons under control in secure custody;
• Stopping an offence in progress or preventing an offence about to be committed;
• Enabling the search for items that may cause danger to the police investigator or others;
• Enabling the search for evidence of the offence;
• Establishing the identity of suspected persons; and
• Compelling accused persons to attend court to face charges.
The concept of arrest for police investigators relates to the process of taking a person into custody upon reaching reasonable grounds to believe that an offence has been committed by the person being arrested. There are many statutes, both federal and provincial, that provide the police with powers of arrest. However, the Criminal Code of Canada provides direction for all police investigators in Canada. Section 495 of the Criminal Code of Canada states:
Arrest without warrant by peace officer
Section 495
(1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
Limitation
(2) A peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned in section 553,
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or
(c) an offence punishable on summary conviction,
in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law (Criminal Code, 1985, s 495(1, 2)).
As a specific power to take action, arrest provides police investigators with a means to intervene in criminal situations and stop persons in the process of dangerous or unlawful acts by taking them into custody. With any arrest, there is an obligation to bring the arrested person before the court for release or otherwise to release the person but compel them to court by other means, such as a summons or promise to appear.
As a lesser power, the police action of detaining a suspect has evolved in common law to allow police to take a person into custody for a shorter time. This detention can be used where reasonable grounds to believe the person has committed an offence have not yet been established, but there is some evidence or circumstances that point to the person as a suspect in the offence being investigated.
For police investigators, the actions of arrest and detention need to be considered as strategic functions of the investigative process. Making an arrest or detaining the suspect are not final outcomes, but merely strategic steps in the process of identifying the offender and gathering sufficient evidence to proceed with a charge. The powers and authorities that exist for police investigators to detain a subject or make an arrest are complex. Detaining a suspect or making an arrest may damage the investigation and threaten the admissibility of evidence flowing from detention or arrest if it is not done on the basis of real facts and circumstances that the officer can adequately articulate to the court.
There is extensive case law that speaks to the issues surrounding both the detention and arrest of a suspect. Case law makes a significant distinction that an investigator needs to consider if they are about to detain or arrest a subject. In the simplest of terms that distinction is:
• To arrest a suspect, a police investigator needs to have reasonable grounds to believe that a person has committed the offence and in contrast,
• To detain a suspect, a police investigator only requires a reasonable suspicion that a suspect is somehow implicated in the offence under investigation.
The distinction between forming reasonable grounds to believe a person has committed the offence and having a reasonable suspicion that a person is somehow implicated in the offence under investigation is a matter of evaluating the evidence available at the time detention or arrest are being considered.
To form reasonable grounds to believe a suspect has committed the offence, the investigator must have evidence that points directly to that suspect. This kind of evidence could be a witness identifying the suspect as committing the offence or strong circumstantial evidence such as fingerprints or DNA connecting the suspect to the scene or the victim. These types of evidence could provide the necessary reasonable grounds to believe the suspect committed the offence. In contrast, reasonable suspicion that a person is implicated in the offence under investigation requires significantly less concrete evidence. An investigator finding circumstantial evidence that points to a person as being implicated can be sufficient to make the detention. In articulating case law, judges have elaborated on the police common law powers to utilize detention as part of an investigation.
In 2004 in the case of R v Mann, the Supreme Court of Canada stated that, in spite of the fact that there is no general power for investigative detention, police may detain a person if there are reasonable grounds to suspect, in all the circumstances, that the individual is connected to a crime and the detention of that person is reasonably necessary on an objective view of the circumstances. The circumstances to be considered should include the extent to which a suspect’s liberty is interfered with in order for the police officer to conduct the required duties, and the individual being detained for investigation, must be told in simple language about the reason for that detention. The detention must be as short as possible in duration, and detention does not impose any obligation to answer questions. In addition, if a police officer has reasonable grounds to believe his safety or the safety of others is at risk, the officer may conduct and pat-down search on the detained subject and this kind of search is not the same as a search subsequent to an actual arrest (R v Mann, 2004).
With these distinctions for arrest and detention in mind, consider the following scenario to illustrate some of the decision-making an investigator must consider.
Scenario #1
It is 3 AM on a Wednesday morning and you are a uniform patrol officer working the night-shift alone in your patrol car. Your unit and two other patrol units are dispatched to attend a break and enter alarm at a warehouse building located in an industrial area on the edge of the city. This industrial area is a complex with many warehouses and manufacturing facilities, and it borders a residential subdivision area. As you proceed to the scene of the alarm, you are advised on the radio that the two other units have already arrived at the warehouse. They are confirming that a break-in has taken place. They advise that the main entry glass doors of the warehouse have been smashed. The two other units are awaiting your arrival to commence a search for any suspects inside the warehouse. On the radio, you hear that the two other units have observed an unoccupied green Ford pickup truck parked on the street near the warehouse complex. Upon running the licence plate of the vehicle, it is determined that the vehicle is registered to a Larry Lurken. Criminal records check on Lurken reveal that he has a prior criminal record for several past offences of break enter and theft.
As you proceed to the industrial area, you approach the entry road through the residential subdivision. The warehouse you are going to is only one block inside the industrial area from your entry point off the subdivision. As you approach the entrance, you see a young man standing partly hidden behind a tree on the boulevard that separates the subdivision from the industrial complex. The young man is dressed in dark blue jeans and a dark hoodie and, as you approach him, he starts to walk away.
This is a typical case where the strategy of investigative detention could be used. The facts and circumstances facing you as an investigator are:
• You have a young man dressed in dark clothing;
• He is standing partly hidden behind a tree;
• It is 3 AM;
• This location is on the border of an industrial complex, only one block away from the scene of a confirmed break-in; and
• He is starting to walk away.
These are sufficient grounds to suspect that this person may be involved in the criminal offence under investigation. In this case, the goal for you as the investigator would be to detain and determine the identity of this person. To properly observe the rights of this person, you would advise the young man as follows:
“I am conducting an investigation into a break-in at a nearby warehouse building and I am detaining you for my investigation of this break-in. You are not obliged to say anything and anything you do say can be used as evidence. You have the right to retain and instruct counsel without delay.”
After you provide this advice of detention and the appropriate charter and caution, this person is not obliged to answer any questions, other than to provide his identity. The fact that the detainee is not obligated to talk, does not mean you as an investigator are not permitted to ask questions. After all, there may be a reasonable explanation that this man can provide for being at this location at this time, and, as an objective investigator, you must always be prepared to hear these possibilities. He may tell you he lives in the house across the street from where he is standing, and when he heard the alarm going off at the warehouse, he came outside to see what was happening. If that was his claim, and you subsequently check his identification and confirm it to be true, your grounds to suspect he is involved in the offence become greatly diminished, likely to the point where he should be released from detention.
If, on the other hand, he only provides identification and refuses to answer questions about being at this location, your suspicion would remain. Your pat-down safety search of this suspect may reveal something incriminating, such as break-in tools or keys to a Ford truck, or perhaps even a walkie-talkie, which might indicate he is standing look-out for others who were doing the actual break-in. You may find shards of broken glass on his running shoes that may be like the glass from the broken front door of the warehouse, or you may run his name through the police databases to determine that he has a past record for breaking and entering, or perhaps is shown and being an associate of Larry Lurken, the owner of the vehicle parked near the break-in location. Any of these kinds of facts or associations would be sufficient to justify the continued investigative detention of this suspect. These facts could be the beginning of circumstantial evidence from which reasonable grounds to believe could be formed to make an arrest of this suspect.
If the warehouse is searched and Larry Lurken is found inside, Lurken has the matching walkie-talkie to your detained suspect, and it is then discovered that the Ford key in the detainee’s pocket is the key to Lurken’s parked Ford truck, sufficient circumstantial evidence would then exist to form reasonable grounds to believe your detained suspect was a party to this offence of breaking and entering.
If, upon arriving in the area and seeing this suspicious looking young man, you had immediately made an arrest, that arrest would not have been a lawful arrest because it would not have been supported by evidence that could pass the test of forming reasonable grounds for belief. Evidence located later, such as the walkie-talkie and vehicle keys found as part of that arrest, could be excluded by the court because they were not seized as part of a lawful search incidental to lawful arrest. In the foregoing case, detention was justified by the suspicious circumstances and the subsequent discovery of other incrimination evidence after that lawful detention could lead to an arrest on reasonable grounds that could be properly articulated to the court.
As previously mentioned, the process of detention and arrest are authorized actions that an investigator may take to progress through an investigation. These actions are part of the investigative process and they must be taken after careful consideration of evidence that justifies either having a reasonable suspicion to detain or forming reasonable grounds for belief to make an arrest. It is important for an investigator to undertake careful consideration of the available information and evidence before either of these actions are taken. Any arrest or detention of a suspect should be made with awareness that the evidence considered to support the decision for action will need to be articulated later in court.
Summary
In this chapter, we have outlined and discussed many of the legal rules that must be considered by an investigator to guide their investigative process. In common for each of these legal definitions, concepts, principles, doctrines, and protocols is the need for each to be incorporated into the investigator’s thinking process. The investigator needs to consider the circumstances being encountered and apply the law as it exists specifically to those events. These legal definitions, concepts, principles, doctrines, and protocols form the basis of the knowledge that an investigator needs to incorporate into his or her mental map to successfully navigate the investigative process. An understanding of these issues and their appropriate application will demonstrate for the court that the investigator is aware of their duty to act, their authorities to act, and it will enable the investigator to properly articulate a justification of their action.
Study Questions
1. What exactly do we mean when we refer to “fundamental justice” for people who are charged with a criminal offence in Canada?
2. What protection regarding life, liberty and security is provided by Sec 7 of the Canadian Charter of Rights and Freedoms?
3. What protection regarding search and seizure is provided by Sec 8 of the Canadian Charter of Rights and Freedoms?
4. What protection regarding detention or imprisonment is provided by Sec 9 of the Canadian Charter of Rights and Freedoms?
5. What protection on arrest or detention is provided by Sec 10 of the Canadian Charter of Rights and Freedoms?
6. What protection to witnesses is provided by Section 13 of the Canadian Charter of Rights and Freedoms?
7. What language protections are provided by Section 14 of the Canadian Charter of Rights and Freedoms?
8. What is the difference between “proof within a balance of probabilities” and “proof beyond a reasonable doubt”?
9. What is the general test for “reasonable grounds to believe”?
10. When must an investigator remain diligent in collecting and preserving evidence, even though they believe they will not be proceeding with a criminal charge?
11. What is the role of the investigator in court when presenting evidence?
12. Why does the police investigator have to be attentive to common law?
13. Can a police investigator decide whether or not an accused should be afforded the defence of necessity?
14. What common law doctrine can be applied when an accused is found in recent possession of stolen property?
15. What evidence must a police investigator gather to demonstrate that an accused was willfully blind?
16. What does the term “Mens Rea” mean and why is it important?
17. What is a prima facie case?
18. What is a criminal information?
19. Is a police investigator protected from criminal or civil liability if they make an error or cause injury to a person?
20. In applying his/her discretion to not lay a charge where there is reason to believe a person has committed an indictable offence, what must a police investigator remember?
21. When can a police investigator arrest without a warrant?
22. When can a police investigator detain a person? | textbooks/workforce/Corrections/Introduction_to_Criminal_Investigation_-_Processes_Practices_and_Thinking_(Gehl_and_Plecas)/1.02%3A_Some_Important_Basic_Concepts.txt |
“Evidence forms the building blocks of the investigative process and for the final product to be built properly, evidence must be recognized, collected, documented, protected, validated, analyzed, disclosed, and presented in a manner which is acceptable to the court.”
The term “evidence,” as it relates to investigation, speaks to a wide range of information sources that might eventually inform the court to prove or disprove points at issue before the trier of fact. Sources of evidence can include anything from the observations of witnesses to the examination and analysis of physical objects. It can even include the spatial relationships between people, places, and objects within the timeline of events. From the various forms of evidence, the court can draw inferences and reach conclusions to determine if a charge has been proven beyond a reasonable doubt.
Considering the critical nature of evidence within the court system, there are a wide variety of definitions and protocols that have evolved to direct the way evidence is defined for consideration by the court. Many of these protocols are specifically addressed and defined within the provisions of the Canada Evidence Act (Government of Canada, 2017).
In this chapter, we will look at some of the key definitions and protocols that an investigator should understand to carry out the investigative process:
1. The probative value of evidence
2. Relevant evidence
3. Direct evidence
4. Circumstantial evidence
5. Inculpatory evidence
6. Exculpatory evidence
7. Corroborative evidence
8. Disclosure of evidence
9. Witness evidence
10. Hearsay evidence
11. Search and seizure of evidence
12. Exclusion of evidence
Topic 1: The Probative Value of Evidence
Each piece of relevant evidence will be considered based on its “probative value,” which is the weight or persuasive value that the court assigns to that particular piece of evidence when considering its value towards proving a point of fact in question for the case being heard. This probative value of evidence goes towards the judge, or the judge and jury, reaching their decision of proof beyond a reasonable doubt in criminal court, or proof within a balance of probabilities in civil court.
Eye Witness Evidence
A competent, compellable, independent, eye witness with excellent physical and mental capabilities, who has seen the criminal event take place and can recount the facts will generally satisfy the court and provide evidence that has high probative value. In assessing the probative value of witness evidence, the court will consider several factors that we will discuss in more detail in our chapter on witness management. These include:
• The witness type as either eye witness or corroborative witness
• The witness competency to testify
• The witness compellability to testify
• The level of witness independence from the event
• The witness credibility based on assessment of physical limitations
Physical Evidence
The court will also generally attribute a high probative value to physical exhibits. The court likes physical evidence because they are items the court can see and examine to interpret the facts in issue for proof beyond a reasonable doubt. Physical evidence can include just about anything, such as weapons, fingerprints, shoe prints, tire marks, tool impression, hair, fibre, or body fluids. These kinds of physical exhibits of evidence can be examined and analyzed by experts who can provide the court with expert opinions that connect the item of evidence to a person, place, or the criminal event. This allows the court to consider circumstantial connections of the accused to the crime scene or the accused to the victim. For example, in the case where the fingerprints of a suspect are found at a crime scene, and a DNA match of a murder victim’s blood is found on that suspect’s clothing, forensic connections could be made and, in the absence of an explanation, the court would likely find this physical evidence to be relevant and compelling evidence with high probative value.
Topic 2: Relevant Evidence
Relevant evidence speaks to an issue before court in relation to the charge being heard. Relevant evidence includes both direct evidence and indirect circumstantial evidence. For either direct or indirect circumstantial evidence to be considered relevant to the court, it must relate to the elements of the offence that need to be proven. If the evidence does not relate to proving the place, time, identity of the accused, or criminal acts within the offence itself, the evidence will not be considered relevant to the charge. The prosecution may present evidence in the form of a physical exhibit that the court can see and examine to consider, or they may present evidence in the form of witness testimony, in which case the witness is telling the court what they perceived within the limits of their senses.
Topic 3: Direct Evidence
Direct evidence is evidence that will prove the point in fact without interpretation of circumstances. (Justice Department Canada, 2017). It is any evidence that can show the court that something occurred without the need for the judge to make inferences or assumptions to reach a conclusion. An eyewitness who saw the accused shoot a victim would be able to provide direct evidence. Similarly, a security camera showing the accused committing a crime or a statement of confession from the accused admitting to the crime could also be considered direct evidence. Direct evidence should not be confused with the concept of direct examination, which is the initial examination and questioning of a witness at trial by the party who called that witness. And, although each witness who provides evidence could, in theory, be providing direct testimony of their own knowledge and experiences, that evidence is often not direct evidence of the offence itself.
Topic 4: Circumstantial Evidence
Indirect evidence, also called circumstantial evidence, is all other evidence, such as the fingerprint of an accused found at the crime scene. Indirect evidence does not by itself prove the offence, but through interpretation of the circumstances and in conjunction with other evidence may contribute to a body of evidence that could prove guilt beyond a reasonable doubt (Justice Department Canada, 2017). Strong circumstantial evidence that only leads to one logical conclusion can sometimes become the evidence the court uses in reaching belief beyond a reasonable doubt to convict an accused. It requires assumptions and logical inferences to be made by the court to attribute meaning to the evidence.
“When one or more things are proved, from which our experience enables us to ascertain that another, not proved, must have happened, we presume that it did happen, as well in criminal as in civil cases” (MacDonell, 1820).
Circumstantial evidence demonstrates the spatial relationships between suspects, victims, timelines, and the criminal event. These spatial relationships can sometimes demonstrate that an accused person had a combination of intent, motive, opportunity, and/or the means to commit the offence, which are all meaningful features of criminal conduct.
Circumstantial evidence of intent can sometimes be shown through indirect evidence of a suspect planning to commit the offence, and/or planning to escape and dispose of evidence after the offence. A pre-crime statement about the plan could demonstrate both intent and motive, such as, “I really need some money. I’m going to rob that bank tomorrow.”
Circumstantial evidence of conflict, vengeance, financial gain from the commission of the offence can also become evidence of motive.
Circumstantial evidence of opportunity can be illustrated by showing a suspect had access to a victim or a crime scene at the time of the criminal event, and this access provided opportunity to commit the crime.
Circumstantial evidence of means can sometimes be demonstrated by showing the suspect had the physical capabilities and/or the tools or weapons to commit the offence.
Presenting this kind of circumstantial evidence can assist the court in confirming assumptions and inferences to reach conclusions assigning probative value to connections between the accused and a person or a place and the physical evidence. These circumstantial connections can create the essential links between a suspect and the crime.
There are many ways of making linkages to demonstrate circumstantial connections. These range from forensic analysis of fingerprints or DNA that connect an accused to the crime scene or victim, to witness evidence describing criminal conduct on the part of an accused before, during, or after the offence. The possibilities and variations of when or how circumstantial evidence will emerge are endless. It falls upon the investigator to consider the big picture of all the evidence and then analytically develop theories of how events may have happened. Once a reasonable theory has been formed, evidence of circumstantial connections can be validated through further investigation and analysis of physical exhibits to connect a suspect to the crime.
Topic 5: Inculpatory Evidence
Inculpatory evidence is any evidence that will directly or indirectly link an accused person to the offence being investigated. For an investigator, inculpatory evidence can be found in the victim’s complaint, physical evidence, witness accounts, or the circumstantial relationships that are examined, analyzed, and recorded during the investigative process. It can be anything from the direct evidence of an eyewitness who saw the accused committing the crime, to the circumstantial evidence of a fingerprint found in a location connecting the accused to the victim or the crime scene.
Naturally, direct evidence that shows the accused committed the crime is the preferred inculpatory evidence, but, in practice, this it is frequently not available. The investigator must look for and interpret other sources for evidence and information. Often, many pieces of circumstantial evidence are required to build a case that allows the investigator to achieve reasonable grounds to believe, and enables the court to reach their belief beyond a reasonable doubt.
A single fingerprint found on the outside driver’s door of a stolen car would not be sufficient for the court to find an accused guilty of car theft. However, if you added witness evidence to show that the accused was seen near the car at the time it was stolen, and a security camera recording of the accused walking off the parking lot where the stolen car was dumped, and the police finding the accused leaving the dump site where he attempted to toss the keys of that stolen car into the bushes, the court would likely have proof beyond a reasonable doubt.
If an abundance of inculpatory circumstantial evidence can be located for presentation to the court that leads to a single logical conclusion, the court will often reach their conclusion of proof beyond a reasonable doubt, unless exculpatory evidence is presented by the defence to create a reasonable doubt.
Topic 6: Exculpatory Evidence
Exculpatory evidence is the exact opposite of inculpatory evidence in that it tends to show the accused person or the suspect did not commit the offence. It is important for an investigator to not only look for inculpatory evidence, but to also consider evidence from an exculpatory perspective. Considering evidence from the exculpatory perspective demonstrates that an investigator is being objective and is not falling into the trap of tunnel vision. If it is possible to find exculpatory evidence that shows the suspect is not responsible for the offence, it is helpful for police because it allows for the elimination of that suspect and the redirecting of the investigation to pursue the real perpetrator.
Sometimes, exculpatory evidence will be presented by the defence at trial to show the accused was not involved in the offence or perhaps only involved to a lesser degree. In our previous circumstantial case of car theft, there is strong circumstantial case; but what if the defence produces the following exculpatory evidence where:
• A tow truck dispatcher testifies at the trial and produces records showing the accused is a tow truck driver;
• On the date of the car theft, the accused was dispatched to the site of the car theft to assist a motorist locked out of his car;
• The accused testifies that he only assisted another male to gain entry to the stolen car because he could see the car keys on the front seat;
• The accused explains that, after opening the car, he agreed to meet this male at the parking lot where the car was left parked;
• He accepted the keys of the stolen car from the other male to tow the vehicle later to a service station from that location;
• When approached by police, he stated that he became nervous and suspicious about the car he had just towed; and
• He tried to throw the keys away because he has a previous criminal record and knew the police would not believe him.
Provided with this kind of exculpatory evidence, the court might dismiss the case against the accused.
Having read this, you may be thinking that this exculpatory evidence and defence sounds a little vague, which is the dilemma that often faces the court. If they can find guilt beyond a reasonable doubt, they will convict, but if the defence can present evidence that creates a reasonable doubt, they will make a ruling of not guilty. Experienced criminals can be very masterful at coming up with alternate explanations of their involvement in criminal events, and it is sometimes helpful for investigators to consider if the fabrication of an alternate explanation will be possible. If an alternate explanation can be anticipated, additional investigation can sometimes challenge the untrue aspects of the alternate possibilities.
Topic 7: Corroborative Evidence
The term corroborative evidence essentially refers to any type of evidence that tends to support the meaning, validity, or truthfulness of another piece of evidence that has already been presented to the court. A piece of corroborative evidence may take the form of a physical item, such as a DNA sample from an accused matching the DNA found on a victim, thus corroborating a victim’s testimony. Corroborative evidence might also come from the statement of one independent witness providing testimony that matches the account of events described by another witness. If it can be shown that these two witnesses were separated and did not collaborate or hear each other’s account, their statements could be accepted by the court as mutually corroborative accounts of the same event.
The courts assign a great deal of probative value to corroborative evidence because it assists the court in reaching their belief beyond a reasonable doubt. For investigators, it is important to not just look for the minimum amount of evidence apparent at the scene of a crime. Investigation must also seek out other evidence that can corroborate the facts attested to by witnesses or victims in their accounts of the event. An interesting example of corroborative evidence can be found in the court’s acceptance of a police investigators notes as being circumstantially corroborative of that officer’s evidence and account of the events. When a police investigator testifies in court, they are usually given permission by the court to refer to their notes to refresh their memory and provide a full account of the events. If the investigator’s notes are detailed and accurate, the court can give significant weight to the officer’s account of those events. If the notes lack detail or are incomplete on significant points, the court may assign less value to the accuracy of the investigator’s account.
For the court, detailed notes properly made at the time corroborate the officer’s evidence and represent a circumstantial guarantee of trustworthiness for the officer’s testimony (McRory, 2014).
Topic 8: Disclosure of Evidence
It is important for an investigator to be aware that all aspects of their investigation may become subject to disclosure as potential evidence for court. As part of the process of fundamental justice within the Canadian Charter of Rights and Freedoms, a person charged with an offence has the right to full disclosure of all the evidence of the investigation (R v Stinchcombe, 1991). This means that any evidence or information gathered during the police investigation must be available for the defence to review and determine if that evidence could assist the accused in presenting a defence to the charge before the court.
In the disclosure process, the decision to disclose or not to disclose is the exclusive domain of the crown prosecutor and, although police investigators may submit information and evidence to the prosecutor with the request that the information be considered an exception to the disclosure rules, the final decision is that of the crown. That said, even the decision of the crown may be challenged by the defence and that then becomes a final decision for the Judge. The prosecutor will ask the police to provide a full disclosure of the evidence gathered during their investigation.
The list of what should form part of a normal disclosure will typically include:
• Charging document
• Particulars of the offence
• Witness statements
• Audio/video evidence statements by witnesses
• Statements by the accused
• Accused’s criminal record
• Expert witness reports
• Notebooks and Police reports
• Exhibits
• Search warrants
• Authorizations to intercept private communications
• Similar fact evidence
• Identification evidence
• Witnesses’ criminal records
• Reports to Crown Counsel recommending charges
• Witness impeachment material
It is worth stressing that police notes and reports relating to the investigation are typically studied very carefully by the defence to ensure they are complete and have been completely disclosed. Disclosure will also include investigation notes and reports that relate to alternate persons considered, investigated, and eliminated as suspects in the crime for which the accused is being tried. If alternate suspects were identified and not eliminated during the investigation, that lack of investigation may form the basis for a defence to the charge.
The issues relating to the disclosure of evidence have been the subject of several Supreme Court of Canada rulings and a few exceptions to disclosure had been identified where certain information does not need to be disclosed. These exceptions to disclosure were outlined in the benchmark disclosure case of R v Stinchcombe (1991). These exceptions include:
• Information that is clearly irrelevant
• Information that is considered privileged
• Information that would expose an ongoing police investigation
• Information that would compromise the safety of a witness
For an investigator, the requirement to comply with disclosure is one of the best reasons to make sure notes and reports are complete and accurately reflect the investigation and actions taken during the investigation. From the court’s perspective, there will never be any excuse for a police investigator to intentionally conceal or fail to disclose evidence or information.
Topic 9: Witness Evidence
Witness evidence is evidence obtained from any person who may be able to provide the court with information that will assist in the adjudication of the charges being tried. This means that witnesses are not only persons found as victims of a crime or on-scene observers of the criminal event. They may also be persons who can inform the court on events leading up to the crime, or activities taking place after the crime.
These after-the-crime activities do not just relate to activities of the suspect, but also include the entire range of activities required to investigate the crime. Consequently, every police officer involved in the investigation, and every person involved in the handling, examination, and analysis of evidence to be presented in court, is a potential witness.
Issues relating to the collection of witness evidence will be discussed in more detail in Chapter 7 on Witness Management.
Topic 10: Hearsay Evidence
Hearsay evidence, as the name implies, is evidence that a witness has heard as a communication from another party. In addition to verbal communication, legal interpretations of the meaning of hearsay evidence also include other types of person-to-person communication, such as written statements or even gestures intended to convey a message. As defined by John Sopinka in his book, The Law of Evidence, hearsay is:
Written or oral statements or communicative conduct made by persons otherwise than in testimony at the proceedings in which it is offered, are inadmissible if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein” (Sopinka, 1999, p. 173).
Hearsay evidence is generally considered to be inadmissible in court at the trial of an accused person for several reasons; however, there are exceptions where the court will consider accepting hearsay evidence (Thompson, 2013). The reasons why hearsay is not openly accepted by the court include the rationale that:
• The court generally applies the best-evidence rule to evidence being presented and the best evidence would come from the person who gives the firsthand account of events;
• The original person who makes the communication that becomes hearsay, is not available to be put under oath and cross-examined by the defence;
• In hearing the evidence, the court does not have the opportunity to hear the communicator firsthand and assess their demeanour to gauge their credibility; and
• The court recognizes that communication that has been heard and is being repeated is subject to interpretation. Restatement of what was heard can deteriorate the content of the message.
The court will consider accepting hearsay evidence as an exception to the hearsay rule in cases where:
• There is a dying declaration
• A witness is the recipient of a spontaneous utterance
• The witness is testifying to hearsay from a child witness who is not competent
Dying Declarations
Exceptions to the hearsay rule include the dying declaration of a homicide victim. This type of declaration is allowed since it is traditionally believed that a person facing imminent death would not lie. Justice Eyre in the 1789 English case of R v Woodcock stated:
The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; the situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice” (R v Woodcock, 1789).
Per the rules of the Canada Evidence Act (Government of Canada, 2015), for a dying declaration to be acceptable to the court, the victim:
• Must be a victim of 1st or 2nd degree murder, manslaughter, or criminal negligence causing death;
• Must be making a statement in regards to the cause of death;
• Must know at the time they make the statement that their death is imminent;
• Must be someone who would have been a competent witness had they lived; and
• Must die of their injuries within a reasonable time after the statement was made.
This is a delicate area because in cases where the victim of a serious assault is in danger of dying, the investigator may have the opportunity to gain evidence by taking a statement from that victim; however, that statement would need to include some acknowledgement by the victim that they believed they are in imminent danger of dying (Sebetic, 1950).
Recipient of a Spontaneous Utterance
In cases where a witness hears a spontaneous utterance of a victim, the court may accept the witnesses restating of that utterance if, according to Ratten v R (1971):
“… the statement providing it is made in such conditions of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused” (Ratten v R, 1971).
Hearsay of Statement from a Child Witness Who is Not Competent
In cases where a child witness is not competent or available to provide evidence, the parent or another adult, who has heard a statement from that child, may be permitted to provide that information by way of hearsay to the court. These circumstances have been illustrated in case law from the case of R v Khan (1990). In this case, the mother of a 3 ½ year old girl was not present when the child was sexually assaulted by her doctor during an examination. However, immediately after the examination, the child made explicate statements of what happened to the mother and provided descriptions of acts that a child could not have made up. From this case, the court did consider hearsay evidence as an exception to the hearsay rule. The case of R v Khan created what has become known as the “principled approach” and it allows that hearsay evidence may be admissible if two conditions are proven. These conditions are necessity and reliability.
In R v Khan (1990), the S.C.C. defined necessity as instances where:
• A child was not competent to testify by reason of young age;
• A child is unable to testify;
• A child is unavailable to testify; or
• In the opinion of an expert psychologist providing testimony would be too traumatic and harmful to the child.
In R v Khan (1990), the court defined reliability factors as relating to the credibility of the person’s observations and these included:
• When the hearsay statement was made about the offence;
• The nature of the child’s demeanour;
• The level of the child’s intelligence and understanding; and
• The lack of a reason for the child to have fabricated the story.
Since the adoption of the Khan Rule, the rules of hearsay have expanded on the principled approach that if the evidence is considered necessary to prove a fact in issue at the trial, the hearsay evidence being submitted is found to be reliable (Dostal, 2012). To prove reliability, the crown must submit evidence that demonstrates the circumstantial guarantee of trustworthiness. This definition of reliability was further articulated in R v Smith:
“The criterion of ‘reliability’ or the circumstantial guarantee of trustworthiness — is a function of the circumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be ‘reliable,’ i.e., a circumstantial guarantee of trustworthiness is established” (R v Smith, 1992).
An interesting aspect of hearsay evidence that sometimes confuses new investigators is that during any investigation, the investigator is searching out and retrieving hearsay accounts of events from various witnesses. From these hearsay accounts, the investigator is considering the evidence and using that hearsay information to form reasonable grounds to believe and take action. This is a totally acceptable and legally authorized process, and, if ever questioned in court regarding the process of forming reasonable grounds on the basis of hearsay, the investigator can qualify their actions by pointing out their intent to call upon the original witness to provide the court with the unfettered firsthand account of events. Investigators are merely the people empowered to assemble the available facts and information from various sources found in witnesses and crime scene evidence. As an investigator assembles the evidence they are empowered to form reasonable grounds for belief and take actions of search, seizure, arrest, and charges to commence the court process. Once in court, the investigator’s testimony will only relate to the things they have done in person or statements they have heard as exceptions to the hearsay rule while forming of reasonable grounds to take action.
Topic 11: Search and Seizure of Evidence
In order for items of physical evidence to be accepted by the court as exhibits, each item of evidence must meet the test of having been searched for and seized using the correct lawful authorities. There are a number of ways in which items of evidence may be legally searched for and seized.
Investigators may search for and seize or receive items of evidence:
• By consent of the person being searched
• On authority of a search warrant under Section 487(1) of the Criminal Code of Canada
• As part of a search incidental to the lawful arrest of a suspect
• As part of a safety search incidental to the lawful detention of a suspect
• Under the doctrine of evidence in plain view at a lawfully entered crime scene
It is important to note that when evidence is being presented to the court, the investigator will be held accountable to provide an explanation of the circumstances under which an item of evidence was searched for and seized. This may involve the investigator articulating not only details of how they discovered the item, but also circumstances to illustrate the offence committed and their authority to arrest, detain, and/or enter a crime scene lawfully
With similar accountability, when a Section 487(1) Criminal Code warrant is issued, the police are required in advance to swear an affidavit of facts articulating their reasonable grounds to believe that an offence has been committed and the evidence of that offence exists in the premises to be searched. This warrant and the affidavit of facts can be examined and challenged at the trial. As we proceed through this book we will discuss the process of developing the mental map that enables an investigator to meet the challenge of seeing and articulating the issues of lawful authority to search and seize evidence.
Topic 12: Exclusion of Evidence by the Court
In hearing any case, the court has the authority to either accept or exclude any piece of evidence being presented. An evaluation is applied to all evidence to determine if it will be admissible or excluded. The types of evidence that can be admitted or excluded range from the physical exhibits found at the crime scene, to the accounts of events provided by witnesses to a confession taken from a suspect. For investigators, it is important to understand that any piece of evidence could be challenged by the defence for exclusion. If challenged, the court will decide if evidence should be excluded based on a number of rules and depending on the type of evidence being presented.
In the case of witness evidence, the court will first consider if the witness is competent and compellable to give evidence. A competent witness is generally a compellable witness (R v Schell, 2004). Competent means legally qualified to testify, and compellable means legally permitted to testify. Witness competence and compellability are each decided based upon several factors that will be discussed later in the witness management portion of this book.
If a witness is found to be both competent and compellable, the court will hear their testimony and will then consider the value of the evidence provided after assessing the credibility of the witness. If a witness is found to be either not competent or not compellable, their evidence will be excluded at trial.
Like witness evidence, physical evidence is also evaluated by the court to determine its admissibility at trial based upon a number of factors. These factors will be discussed further in our chapter on crime scene management; however, they include:
• If the evidence was lawfully seized
• How the evidence was collected, marked, and preserved
• If the evidence was somehow contaminated
• If the chain of continuity for the evidence has been properly maintained
A flaw in any of these factors can result in evidence being excluded at trial. In addition, the court can completely exclude any evidence that has been obtained following a violation of the Charter Rights and Freedoms of the accused person. Such infringements on these guaranteed rights and freedoms would include:
• Improper or unauthorized search of a person or a person’s property
• Improper taking of a statement from a suspect by failing to provide the appropriate warning and caution under section 10 of the Charter
• Failing to provide proper opportunity for the arrested or detained person to speak with counsel after arrest or detainment
• Failing to properly disclose all the evidence prior to trial to allow the accused to make full defence to the charge
Section 24 of the Canadian Charter of Right and Freedoms states:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Practices regarding what evidence may be brought against an individual in trials are addressed by section 24(2). When evidence is obtained through the violation of a Charter right, the claimant is able to apply to have the evidence excluded from the trial under this section (Government of Canada, 2015).
The exclusion of evidence flowing from a Charter violation is not automatic, and there is significant case law that the court will consider to determine if evidence will be excluded.
In the case R v Grant (2009), the Supreme Court of Canada created a new test to determine when the administration of justice has been brought into disrepute (replacing the 1987 test in R v Collins). The Grant test lists three factors the courts must consider:
(1) the seriousness of the Charter infringing conduct (focusing on a review of how society would view the actions of the state),
(2) the impact of the breach on the Charter protected interests of the accused (focusing on a review of how the state’s actions affected the accused), and
(3) society’s interests in the adjudication of the case on its merits (focusing on a review of the importance and reliability of the evidence) (R v Grant, 2009).
Knowing the rules for evidence collection, handling, and preservation can assist an investigator to avoid errors that could exclude evidence at trial. Following the rules that define Charter violations can assist an investigator to avoid having valuable evidence excluded completely at trial because of a charter violation. These topics will all be covered in more detail as we proceed through the various chapters to follow.
Summary
Evidence is a key feature to any investigation, so it is important for investigators to understand the various legal definitions of evidence, the various types of evidence, and the manner in which evidence is considered and weighed by the court. Evidence forms the building blocks of the investigative process and for the final product to be built properly, evidence must be recognized, collected, documented, protected, validated, analyzed, disclosed, and presented in a manner that will be acceptable to the court. As we proceed through this book, evidence will continue to be a key element for consideration in the development of proper investigative processes.
Study Questions
1. What do we mean when we say that evidence will be considered by the court on its “probative value”?
2. What is direct evidence?
3. Provide three examples of direct evidence.
4. Can an accused be convicted of circumstantial evidence alone?
5. What is inculpatory evidence?
6. What is exculpatory evidence?
7. What is corroborative evidence?
8. What are the exceptions to the requirement of full disclosure?
9. Is hearsay evidence ever admissible in court?
10. When can evidence be excluded by a court?
11. If evidence was illegally obtained, is it automatically excluded by the court?
Long Descriptions
Evidence Types long description: There are two types of evidence: direct and indirect. Direct evidence will prove point in fact without interpretation of circumstances. Indirect evidence is circumstantial evidence; interpretation is required to prove point in fact. [Return to Evidence Types] | textbooks/workforce/Corrections/Introduction_to_Criminal_Investigation_-_Processes_Practices_and_Thinking_(Gehl_and_Plecas)/1.03%3A_What_You_Need_To_Know_About_Evidence.txt |
“For the court to be satisfied that the investigator acted lawfully and within the bounds of legally prescribed authority, the judge needs to hear the investigator describe their thinking processes to form reasonable grounds, or in some emergency cases, to have a reasonable suspicion that justifies the action taken.”
An effective strategy for learning any new skill is to define it and break it down into logical steps, establishing a progression that can be followed and repeated to reach the desired results. The process of investigation is no exception and can be effectively explained and learned in this manner. In this chapter, you will learn how each of the following issues relates to the process of investigation.
1. The distinction between investigative tasks and investigative thinking
2. The progression of the investigative process
3. The distinction between tactical investigative and strategic investigative responses
4. The concepts of event classification and offence recognition
5. The threat vs. action response dilemma
6. The distinction between active events and inactive events
7. The connection of active events and Level 1 priority results to the powers afforded under exigent circumstance
8. The Response Transition Matrix (RTM) and the critical need to transition from tactical response to strategic response
Topic 1: The Distinction Between Investigative Tasks and Investigative Thinking
To understand the process of investigation, it is necessary to comprehend the distinction between investigative tasks and investigative thinking. Investigative tasks relate to the information gathering processes that feed into investigative thinking and the results. Investigative thinking, on the other hand, is the process of analyzing information and theorizing to develop investigative plans. Let us consider this distinction in a little more depth.
Investigative Tasks
Investigative tasks relate to identifying physical evidence, gathering information, evidence collection, evidence protection, witness interviewing, and suspect interviewing and interrogation. These are essential tasks that must be learned and practiced with a high degree of skill to feed the maximum amount of accurate information into the investigative thinking process. Criminal investigation is aimed at collecting, validating, and preserving information in support of the investigative thinking process. Accordingly, it is important to learn to do these evidence collection tasks well.
Investigative Thinking
Investigative thinking is aimed at analyzing the information collected, developing theories of what happened, the way an event occurred, and establishing reasonable grounds to believe. Those reasonable grounds to believe will identify suspects and lead to arrest and charges. Investigative thinking is the process of analyzing evidence and information, considering alternate possibilities to establish the way an event occurred and to determine if they are reasonable.
Topic 2: Progression of the Investigative Process
The investigative process is a progression of activities or steps moving from evidence gathering tasks, to information analysis, to theory development and validation, to forming reasonable ground to believe, and finally to the arrest and charge of a suspect. Knowing these steps can be helpful because criminal incidents are dynamic and unpredictable. The order in which events take place, and the way evidence and information become available for collection, can be unpredictable. Thus, only flexible general rules to structured responses can be applied. However, no matter how events unfold or when the evidence and information are received, certain steps need to be followed. These include collection, analysis, theory development and validation, suspect identification and forming reasonable grounds, and taking action to arrest, search, and lay charges.
In any case, as unpredictable as criminal events may be, the results police investigators aim for are always the same. And, you should always keep the desired results in mind to provide focus and priority to the overall investigative process. We will talk more later in this book about developing a mental map of the investigative process to assist in recording, reporting, and recounting events. It is mentioned now because a mental map is an appropriate metaphor to illustrate the investigative thinking process.
In this process, even though the path we will take to investigate may be unclear and unpredictable at first, the destination, the results we seek in our investigation, will always be the same and can be expressed in terms of results and their priorities.
Results and priorities focus first on the protection of the lives and safety of people. They focus second on the priorities of protecting property, gathering and preserving evidence, accurately documenting the event, and establishing reasonable grounds to identify and arrest offenders.
Priorities refer to Level One Priorities, as the protection of the lives and safety of people. This includes the protection and safety of the police officer’s own life and the life and safety of other officers.
The Level Two priorities are the four remaining aforementioned results, and these may be considered equal value to each other. Depending on circumstances, a rationale can be made for choosing to concentrate on one Level Two priority at the expense of another depending on the circumstances presenting.
The critical point to be made here is that under no circumstances should an investigator ever choose to focus his or her efforts and attention to a Level Two priority if doing so would compromise the Level One priority of protecting the life and safety of a person, including police officers themselves. In the event that evidence is lost or destroyed, or that a suspect is not identified or apprehended because investigators were taking care of the Level One priority, that is a justifiable outcome. A response that would sacrifice the safety of people to achieve a level two priority would not be justifiable, and could even lead to civil or criminal outcomes against the investigators making such a choice.
Now that we have looked at the critical aspects of investigative tasks and the response priorities police investigators need to apply to decision making when they take action, we can proceed to examine the two different types of investigative response. We will refer to these as the Tactical Investigative Response and the Strategic Investigative Response.
Topic 3: Distinction Between a Tactical Investigative Response and a Strategic Investigative Response
These two different types of investigative responses are defined by the nature and status of the event that the investigator is facing. If it is an active event, it will require a Tactical Investigative Response and if it is an inactive event it will require a Strategic Investigative Response. It is important for an investigator to understand these two different levels of response because they include different response protocols, different legal authorities, and limitations to authority.
Tactical Investigative Response
Tactical Investigative Response is faced by operational officers who are engaged in the frontline response to criminal events. As mentioned earlier, police are often challenged to respond to events, sometimes life and death situations, where information is limited and critical decisions need to be made to take action. In these Tactical Investigative Responses, the responding officers often have little or no time to undertake the tasks of gathering information. They must rely on the information of a dispatched complaint, coupled with their own observations made once they arrive at the scene. If an officer takes the action of making an arrest or using force to bring the situation under control, they are accountable for the action they have taken, and they may be called upon by the court to articulate their thinking, albeit based on limited information.
Strategic Investigative Response
Once an investigator has arrived at the scene of an event and has brought the event under control by either making an arrest or by determining that the suspect has fled the scene and no longer poses a threat to the life or safety of persons, the investigation becomes a strategic investigative response. With this expiration of life and safety issues, also comes the expiration of exigent circumstances and the additional authorities to detain persons suspected and to enter and search private property without a warrant.
Clearly understanding and being able to define and articulate the circumstances of either an active event and tactical response, or a controlled event and a strategic response is critical. In court, it becomes important for a police investigator to describe what they were told going into the complaint, what they saw and heard when they arrived at the complaint, and, most importantly, what they were thinking to justify the action that was taken. For the court to be satisfied that the investigator acted lawfully, the judge needs to hear the investigator describe their thinking process to form reasonable grounds, or in some emergency cases, to have a reasonable suspicion that justifies the action taken.
To properly articulate their thinking in these investigative responses, it is important for the officer to understand the situational elements that can help define their thinking process when they testify in court. Two of the most important situational elements to understand are event classification and offence recognition.
Topic 4: Event Classification and Offence Recognition
In order to enter any investigation in either the tactical or the strategic response mode, an investigator must engage their thinking processes and make decisions about the event they are confronting. Is it an active event in progress that requires immediate and decisive tactical actions; or is it an inactive event where a less urgent, slower, and more strategic approach can be taken? This slower and more considered approach is the strategic investigative response, and the situational elements of this approach will be discussed in detail later in this chapter. Thinking about these situational elements of active event or inactive event is call event classification.
Considering the possible crime being committed in the event is called “offence recognition,” and this recognition of a specific offence activates the investigator’s thinking to look for the evidence that supports the elements of that recognized offence.
Topic 5: Classifying the Event as Either an Active Event or an Inactive Event
For each of these classifications of active event or inactive event, the investigator has some different legal authorities to put into action, as well as some immediate responsibilities for the protection, collection, and preservation of evidence. When attending the scene of any reported event, the investigator should assume that the event is active until it has been established to be inactive.
In many cases, an event can be re-classified as an inactive event when it is determined that the suspect has left the scene of the event, or the event has concluded by the suspect being arrested. In cases where the suspect is still at the scene of an active event, the investigator needs to be thinking about the possibility of detaining the suspect or making an arrest of that suspect for an offence in progress. To make that detention or arrest, the investigator should be thinking about what possible offence they are being called to investigate by the initial complaint, and also by the evidence they are seeing and hearing upon arrival.
The classification of active event or inactive event is critical. It is a distinction that will guide an officer to determine what powers of detention, arrest, use of force, entry to property, and search may be relied upon to take action. The defining elements between active event and inactive event are:
An Active Event
1. The criminal act is or may still be in progress at the scene.
2. The suspect is or may still be at the scene of the event.
3. The situation is, or may be, a danger to the life or safety of a person, including the life or safety of attending police officers.
An Inactive Event
1. The criminal act has concluded at the scene.
2. The suspect or suspects have left the scene or have been arrested or detained.
3. The situation at the scene no longer represents a danger to the life or safety of a person, including police officers.
Topic 6: Threat vs. Action Analysis Dilemma
The critical elements of this Threat vs. Action Analysis Dilemma were demonstrated in what became known as “Active Shooter calls” flowing from the incident at Columbine High School in 1999 (Police Executive Research Forum, 2014). In this incident, two armed teenagers went on a shooting spree in the high school killing 13 people and wounding 20 others before turning their weapons on themselves and committing suicide. Officers responding to that call followed departmental protocols of that era. These protocols dictated they should wait for the arrival of their Emergency Response Team in events where armed suspect confrontations were taking place. The fact that these first responders waited despite ongoing killing taking place inside the high school led to a determination that police have a duty to take action in such cases, and waiting is not the correct response. As a result of these determinations, active shooter response protocols were adopted across North America and police agencies re-trained their personnel to respond to active shooters with more immediate action and strategies to enter and confront the shooters in order to protect lives of possible victims.
The Threat vs. Action Analysis Dilemma response protocols in the active shooter response situations now provide the standard or benchmark that a responding officer must consider when faced with the decision to enter a dangerous situation alone and take action, or to wait for back-up before entering to take action. For active shooter situations, the protocols across North America are now prescribed responses, where responding officers are trained to enter and confront with minimal back-up. That said, not every potentially dangerous Threat vs. Action Analysis Dilemma is going to be an active shooter. Responding officers will often be faced with other calls where danger exists to the safety of persons and the decision to enter or wait for back-up must still be made. In these cases, the responding officer must weigh the available information and respond or wait for back-up per their own threat vs risk assessment of the facts. The active shooter protocols have provided something of a calibration to this analysis where extreme ongoing threat to life and safety of person equals high duty and high expectation to take action.
Topic 7: Rules of Engagement for an Active Event or an Inactive Event
Police officers may be called to action by many different means. It may be a radio dispatch 911 call to attend an emergency, a citizen flagging down the passing police car to report an incident, or an officer coming upon a crime in progress. Whatever the means of being called to action, this is the first step of the police officer becoming engaged in a thinking process to gather and evaluate information, make decisions, and take action. The first step of this thinking process for the investigator is to make the evaluation and ask the questions:
1. Is this an Active Event requiring a Tactical Investigative Response?
2. Is this an Inactive Event requiring a Strategic Investigative Response?
As a subsequent part of this evaluation determining an Active Event or Inactive Event, the investigator should also be alert to the type crime being encountered. For example, is it an assault, a robbery, or a theft? From the perspective of police tactical investigative response, an investigator confronted with an active event must first assess the threat level. Is there a danger to the life or safety of persons that would require a Level One Priority Result, taking immediate action to protect life and safety of persons, including the life and safety of attending police officers?
In assessing these threat levels to life and safety, police are often faced with very limited information. Sometimes there is only a possible threat, or an implied threat to the life or safety of persons. In such cases, it is only necessary for the police to suspect that there is a threat to the life or safety of a person to evoke the extended powers provided by exigent circumstances. In these cases of implied threats, police are authorized to rely on the powers afforded by exigent circumstances to enter private property without a warrant and to detain and search suspects who may present a danger. These are significant powers and an investigator must be aware that if they use these powers, there is a strong possibility they will later be called upon to justify the exercise of those powers. Let us consider that section of the Criminal Code that authorizes officers to enter a dwelling without a warrant, and then apply that understanding to some scenarios:
Authority to enter dwelling without warrant under the Criminal Code of Canada
529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. (Criminal Code, 1985, s 529(1))
Exigent circumstances
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence. (Criminal Code, 1985, s 529(2)(a,b))
Where warrant is not necessary pursuant to the Criminal Code of Canada
487.11 A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1)(Criminal Code, 1985, s 487(1)) or
492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. (Criminal Code, 1985, s 492(1))
Scenario #1
A uniform patrol officer receives a call to attend a complaint through radio dispatch. The 911 caller is reporting that he has just witnessed his neighbour punch his wife in the front yard and then drag her forcibly into their house. The responding officer is immediately able to classify this event as an active event. The officer’s offence recognition of the criminal act is that it is likely an assault and possibly a forcible confinement. Given this assessment, the situation requires a Tactical Investigative Response. The suspect is still at the scene and there is an ongoing possibility of danger to the life or safety of the suspect’s wife. In this type of case, the officer can draw upon the extended powers under exigent circumstances to ensure the safety of the wife. Considering the information that has been reported, the officer may go to the residence with a view to using the necessary force to enter without a warrant to investigate the safety and well-being of the identified victim. If, after entering the home, further investigation provides evidence to confirm an assault, the officer can arrest the identified suspect for that offence. In this scenario, the information that allows the classification of the active event and the offence recognition is fairly clear in the reported circumstances.
Scenario #2
Sometimes an event cannot be immediately classified as either an active event or an inactive event. In these cases, where the information is less clear, the investigator may be justified to assume an ongoing danger to the life or safety of persons, and remain in the tactical investigative response mode utilizing the powers afforded under exigent circumstances to pursue the investigation until it is determined that an implied danger no longer exists. For example, consider the situation where police dispatch receives a 911 call from a woman crying. Before any further information can be obtained from the caller, the call is terminated from the caller’s end. A patrol unit is dispatched to attend the residential address associated with the identified phone number. Upon arrival at the front door of the caller’s address, attending officers are met by a male resident of the home who identifies himself as the home owner. The attending officers advise the male that a terminated 911 call from a crying woman was received from this address. The male states that there is nothing wrong in his home and he refuses to allow officers to enter the premises. The officers advise the male that they need to enter the premises to satisfy themselves that there is no ongoing threat to the life or safety of the crying woman caller. The officers warn the man that they will be entering the premises and if he resists he will be arrested for obstructing a police officer.
The man steps aside and the officers enter the home and find a woman in the bedroom area with a bleeding nose and a bruised face. The woman tells officers that the male, her husband, punched her in the face during an argument and when she attempted to call police he ripped the phone cord from the wall and struck her again. She states that he threatened to kill her if she cried out when the police came to the door. The man is arrested for assault, forcible confinement, and uttering threats. He is provided with his Charter Rights and warning, and he is then asked if he wishes to make any statement.
To evaluate this scenario, the officers had very little information in the first instance that would allow them to make a determination of active event or inactive event. The information to identify a criminal act was equally limited. Fortunately, case law has evolved to recognize this kind of information-limited case, and it provides a framework for making a response that can protect life and safety. In such situations, an officer is still empowered to act under the authority of “exigent circumstances.” Considering information-limited circumstances like this, the officer only needs to have a suspicion that there is a threat to the life or safety of a person to act. That threat may be simply implied by the circumstances being presented. In this case, the implied threat to life or safety of a person was the disconnected 911 call. The officers had a duty to attend and resolve the possible threat to life or safety of a person implied in this disconnected 911 call (R v Godoy, 1999).
As you might imagine, an officer attending the calls outlined in the preceding scenarios needs to be very clear on the circumstances where implicit distress and exigent circumstances can be interpreted to use the powers to enter private property. This same need extends to using appropriate levels of force and making an arrest. Considering these are active and still evolving criminal events, there is urgency to act. It is critical for the investigating officer to have a clear understanding of these principles to quickly assess the presented facts, make the event classification, and take the necessary action in an expedient manner.
As outlined earlier in this book, there is a significant difference between reasonable grounds to believe and reasonable grounds to suspect, and an officer who is not clear on the distinction might have a difficult time articulating to the court how and why they took the initiative to act or not to act. It is these types of cases, where there is implied distress, or an implied threat to life or safety, that an investigator must be clear on their interpretation of the event and on their authorities to take action. The thinking involved might be described as an active event and an explicit or implied threat to life or safety equals exigent circumstances.
More on Offence Recognition
At the same time the event is being classified as either active event or inactive event, the investigator should be engaging in the thinking process of offence recognition. In other words, what offence is being reported or what is the offence being observed in the fact pattern that is unfolding? With this offence recognition, the investigator will begin to assemble a mental inventory of the evidence and information that will be required to support the recognized offence(s). Having an offence in mind, the investigator will also begin to consider their range of powers and authorities that can be used under the law regarding that offence. The investigator will ask them self;
• Is this a summary conviction offence where the suspect must be found committing to justify an arrest?
• Or, is it an indictable or dual procedure offence where there is direct evidence or strong circumstantial evidence to support an arrest?
If the investigator determines that they are attending to an Active Event and their offence recognition suggests that there may be a danger to the life or safety of a person, such as assault causing bodily harm, they will know that they need only find evidence to form reasonable grounds to believe in order to make an arrest. As part of attendance to the scene of the event, the investigator should be classifying the location to determine what their legal requirements are for their authority to enter. Consideration of the possible authorities to enter private property would include:
• Consent of the property owner
• Section 487 CCC warrant to search
• Exigent circumstances to suspect a need to protect the life or safety of a person
• Exigent circumstance with reasonable grounds to believe there will be a destruction of evidence of an indictable offence
• Fresh pursuit of a suspect found committing an offence
If the investigator arrives at the scene where a suspect is immediately apparent, the investigator can make an immediate detention or perhaps even an arrest. The investigator may rely on the Section 529 (2) of the Criminal Code of Canada (1985) under exigent circumstance to enter private property without a warrant to make the arrest and ensure the safety of persons at the scene. If the investigator makes an arrest after forming reasonable grounds for belief, they are required by the Canadian Charter of Rights and Freedoms to tell the suspect what offence they are being arrested for.
Required Warnings
The following is the standard Charter of Rights (Canadian Charter, 1982, s 10(a,b)) warning and police warning. These standard caution warnings are given as follows:
I am arresting you (or detaining you) for [name of offence(s)].
POLICE WARNING
I wish to give you the following warning: You need not say anything. You have nothing to hope from any promise or favour, and nothing to fear from any threat whether or not you do say anything. Anything you do or say may be used as evidence.
Do you understand? (Transit Police, 2015)
CHARTER WARNING
You have the right to retain and instruct counsel without delay. You also have the right to free and immediate legal advice from duty counsel by making free telephone calls to [toll-free phone number(s)] during business hours and [toll-free phone number(s)] during non-business hours.
Do you understand?
Do you wish to call a lawyer?
You also have the right to apply for legal assistance through the provincial legal aid program.
Do you understand? (Transit Police, 2015)
Let us consider the following scenario to illustrate these principles in action.
Scenario #3
An officer is dispatched to attend the complaint of an assault with a weapon and determines that it is taking place in a residential dwelling house in a nearby subdivision. Upon arrival, the officer is met on the front lawn by a man claiming to have witnessed the owner of the home stab a visitor to the home during an altercation as a second male runs out the front door holding his side and bleeding from an apparent wound. A third man holding a bloody knife comes to stand in the front doorway and the witness identifies him as the owner of the home. The officer directs the man with the knife to drop it on the ground and step out of the residence. The man complies and is arrested for assault with a weapon.
From this fact pattern the investigator could make an immediate arrest for assault with a weapon. The investigator would seize the bloody knife and protect it as evidence of that offence. The facts within this scenario that allow the investigator to take action, enter the private property, and form their reasonable grounds for belief and make the arrest. When the case goes to court, the investigator of this case will articulate the chain of events along with their thinking to substantiate their reasonable grounds for belief. To achieve this, the investigator’s testimony would be that:
• they were dispatched to attend a complaint of assault with a weapon in progress,
• the suspect was still on scene and it was an active event,
• considering the potential danger to life or safety of a person, they entered the property under the provisions of exigent circumstances,
• an independent witness at the scene stated the home owner had stabbed a guest in the home,
• a man bleeding from an apparent wound ran from the home, and
• another man standing in the doorway was holding a bloody knife and was identified by the witness as the home owner.
The investigating officer arriving at the scene of this event would treat this as a Level One priority because there is an ongoing danger to the life and safety of persons. Under these circumstances, the Criminal Code authorities of exigent circumstances would apply. The investigator would be justified in detaining all parties present, including the witness and the victim, on the reasonable suspicion that they may all have been involved in combative behaviour and might each still pose a threat to the life and safety of others, including the investigator. The powers of exigent circumstances are significant in this kind of scenario, and provide authority to take immediate action that will neutralize threats to the safety of people. Even if the facts of this assault with a weapon had evolved to show that it was taking place inside the private home of the suspect with the bloody knife, the authority of exigent circumstances would permit the investigator to enter that home without a warrant to protect the life and safety of persons. A very significant point to be made here is that as soon as the event is under control the extended powers of exigent circumstances expire.
Once this event has been brought under control and the threat to the life or safety of persons had been eliminated by arresting or detaining all persons present, the investigator must reclassify this event as an inactive event. As soon as this occurs, some of the rules of engagement and legal authorities to take action change, and the investigation must switch to a Strategic Investigative Response.
With the expiry of exigent circumstances and the switch to a Strategic Investigative Response, several factors change. If this assault with a weapon had been taking place in the suspect’s private home, and the investigator had entered under the authority of exigent circumstance, the authority to remain in the private residence and search it would expire. If the investigator needed to collect additional physical evidence in that home, such as blood from the stabbing assault, a warrant or consent to search would now be required.
In this type of case, the residence of the suspect could be locked down externally and all persons removed until a search warrant was obtained to complete the investigation. Evidence obtained up to the point where the arrest was made and before exigent circumstances expired would be lawfully seized without a warrant. This would include the seizure of the bloody knife as plain-view search or a search incidental to arrest. Anything else searched for and seized after the arrest could be challenged as an unlawful seizure if it was taken without a search warrant.
In addition to the requirement for search warrants, in some cases after exigent circumstances expire, other priorities and investigative must also change. As you will recall, the protection of life and safety of people is the Level One priority. With that priority, the court allows significant leeway to investigators in regards to the protection of crime scenes and the collection of evidence. If an investigator is attending any criminal event, the protection and collection of evidence always takes a backseat to the protection of life or safety of people. That said, once the life and safety issues have been resolved, the securing of the crime scene and the subsequent protection and collection of evidence becomes the number one priority.
Once the life and safety issues are resolved, it is time to lock down the crime scene and start protecting evidence for court. If it is possible to protect the life and safety of people and collect, protect, and preserve evidence, this is the preferred outcome. If it is not possible, the court will accept the fact that damage to evidence occurred prior to life and safety issues being resolved. Once those issues are resolved, the expectation is that a high level of care will be taken. If proper care is not taken, and evidence becomes contaminated, or continuity of possession is lost, the evidence may be ruled inadmissible at a trial. It is important for the investigator to fully grasp the construct that dictates when to transition from Tactical Investigative Response to Strategic Investigative Response.
Topic 8: Response Transition Matrix (RTM)
The RTM is a matrix tool to illustrate the considerations for police response when considering the authorities and issues to escalate or de-escalate from a Tactical Investigative Response to Strategic Investigative Response. Considering the following questions will help an investigator to identify an event as either a Tactical Investigative Response or a Strategic Investigative Response:
1. Is the event active or inactive?
2. What offence(s) is possibly occurring?
3. Do I suspect an implicit or explicit danger to the life or safety of a person?
4. Do I have reasonable grounds to believe evidence of an indictable offence will be lost or destroyed?
5. What immediate actions can be taken to protect the life or safety of persons?
6. What immediate action can be taken to protect evidence, without compromising life or safety?
7. Have life and safety issues been resolved, and should the change be made from Tactical Investigative Response to Strategic Investigative Response?
The Canadian Charter of Rights and Freedoms, the Criminal Code, and common law authorities provide police with both powers to act and limitations to taking action. In the Canadian justice system, both statutory law and case law have evolved to establish a range of authorities and police powers that allow rapid response at the more dangerous end of the matrix, and more time-consuming restrictions to act at the less threatening end of the matrix. The chart below illustrates the duty to act, the authority to act, and the priorities for action to consider.
Summary
In this chapter, we have discussed the progression of the investigative process and the key elements within the progression that must be considered by an investigator. These elements within the investigative process are the signposts on the roadway of a mental map. These signposts of active event or inactive event tell us to either take action within the extended authorities of exigent circumstances or to modify our response for an inactive event and recognize the need to make the transition to a strategic response. An investigator’s understanding of the changes in circumstances that define these situations and the change from active to inactive events can make the difference between successful and unsuccessful investigative outcomes.
Study Questions
1. What is the difference between investigative tasks and investigative thinking?
2. What is the difference between Level One Priorities and Level Two Priorities?
3. What is the difference between a Tactical Investigative Response and a Strategic Investigative Response?
4. What is the difference between an active event and an inactive event?
5. When would an investigator consider the Threat vs. Action Analysis Dilemma?
6. When does an investigator have the authority to enter a dwelling house without a warrant?
7. Why is it important for an investigator to thinking about “offence recognition” at the same time they are thinking about whether a situation should be classified as an active event or an inactive event?
8. What is the Response Transition Matrix (RTM)?
Long Descriptions
Investigative response priority results long description: There are two levels of investigative response priority results. Level 1 includes “Protecting the life and safety of people including police officers attending the scenes of crime.”
Level 2 has four priority results:
1. Identifying, gathering, and preserving evidence
2. Establishing reasonable grounds to identify and arrest suspects
3. Accurately recording and documenting the event in notes and reports
4. Protecting property
[Return to Investigative response priority results]
The RTM: Response Transition Matrix long description: In the case of an active event with recognized offence, suspected issues of life safety or reasonable and probable grounds of evidence destruction, police need to take tactical investigative response action considering level-one priority results. Immediate action is required in such exigent circumstances, and as such, an officer has reasonable and probable grounds to detain and search without a warrant.
In the case of an inactive event with recognized offence but no life or safety issues or issues of evidence destruction, police need to take strategic investigative response action considering level-two priority results. This action should be specific to an identified offence. In such non-exigent circumstances, an officer has reasonable and probably grounds to perform an arrest and search only with a warrant. [Return to The RTM: Response Transition Matrix] | textbooks/workforce/Corrections/Introduction_to_Criminal_Investigation_-_Processes_Practices_and_Thinking_(Gehl_and_Plecas)/1.04%3A_The_Process_of_Investigation.txt |
“The STAIR model is a tool a new investigator can use to start structuring and developing their own investigative thinking processes.”
In this chapter, we will examine the operational processes of investigation. To this point, we have examined many definitions, concepts, and response protocols to set the stage for embarking on the strategic investigative response. If it can be said that there is a creative art anywhere in the processes of investigation, the strategic investigative response is where that creative art takes place. In this chapter, you will learn how each of the following concepts and processes relates to the strategic investigative response:
1. Avoiding the three big investigative errors
2. Recognizing the transition and implementing the strategic investigative response
3. Describing investigation as a process within the justice system
4. Utilizing the STAIR tool to work through the investigative process
Topic 1: Avoiding the Three Big Investigative Errors
In very fundamental terms, the three most common errors of the Strategic Investigative Response are:
1. Failing to identify and collect all the available evidence and information,
2. Failing to effectively analyze the evidence and information collected to identify suspects and form reasonable grounds to take action, and
3. Becoming too quickly focused on one suspect or one theory of events and ignoring evidence of other viable suspect or theories that should be considered.
From the moment a police investigator is dispatched to attend an incident, the opportunity to gather and evaluate information and evidence occurs. It is not uncommon for new investigators to operate under the misconception that all the available evidence and information is going to be readily available and apparent to them at the scene. This is the misconception behind Error #1: failing to identify and collect all the available information and evidence. New investigators often don’t understand that some information and evidence can be elusive and will exist in secondary source locations that must be sought out. There is no room for complacency in the processes of collecting information and evidence. The investigator must be engaged at an elevated level of awareness to access secondary source locations. Information and evidence about the event needs to be actively looked for, recorded, and preserved in a manner that can analyzed, interpreted, and eventually presented in court.
In the first instance of collecting information and evidence, an investigator may become engaged in the process through several different means. It may be receiving information as circumstances provided by the dispatcher in the details of a 911 call, it may be a report from a citizen on the street, or it may even be an on-view situation where the investigator discovers a crime in progress. From the moment the process begins, information will be incoming and available in the form of things that are seen and heard personally by the investigator, and this includes witnesses statements received. In most investigative responses, these are the first level facts that the investigator receives to guide the immediate event classification and offence recognition. But, this information of initial complaint and first observations are not all the information that might be available. There is usually much more information and evidence to be found. This is where the extended task of information gathering begins. Consideration of pre-crime and post-crime activities of the suspect can produce evidence not available at the crime scene. Database searches for records of the suspect, victim, and witnesses, can have great value. This is where the investigator must proactively search. There are many possible sources of additional information and evidence to consider, such as:
• CPIC (Canadian Police Information Center) for criminal records info, outstanding warrants and pointers to criminal association
• Police RMS (Record Management Systems) PRIME AND PROS databases to provide information on past records of complaints, investigations of criminal activities, and historical criminal associations
• ViCLAS (Violent Crime Linkage Analysis System) provides a database of searchable criminal conduct acquired from the past crimes of known offenders
• MVB (Motor Vehicle Branch) records for current vehicles registered, driving record, physical descriptors, and resident address
These information data sources can all add to the personal observations made by the investigator regarding the scene of the crime. These along with the appearance and demeanour of suspects, victims, and witness; and information provided by those suspects, victims, and witnesses about the event can speak volumes. Now, add to this the physical exhibits of evidence specific to the criminal event as each of these might have meaning in their immediate form or may provide future meaning through forensic analysis.
Having gathered all of the available information from each of the possible sources and locations we have avoided making Error #1.
To avoid making Error #2, we must now analyse the information we have collected. It is not just information about the event and the fact-pattern that are important, it is also information about the people involved in the event and how they are connected within the fact pattern. Criminal records and police records of each person associated to the incident can provide valuable perspectives, such as people’s reputation, credibility, association to past criminal conduct, or even event-related connections between the players.
Evidence and information gathered about the event only exists at face value until the investigator undertakes the proactive process of evaluation and analysis to determine the information’s relevance to the investigation at hand. It may seem that the implications and meanings of the available information and evidence should be clear and, sometimes in simple investigations, it is clear. Sometimes, what you see is what you get. If there are eyewitnesses describing a clear fact pattern and an identified suspect, the investigation will be a straight forward matter of collecting the evidence for presentation to the court.
That said, it is not often that simple in criminal investigations. Frequently, a suspect has not yet been identified and the fact pattern of the crime is unclear. Without a proactive process of evidence analysis, it is not possible to reconstruct the event and recognize the implications and connections within the multiple layers of evidence and information. The indicators of motive, opportunity, and means may not be immediately apparent. If an investigator goes to a criminal event and all they do is record the facts at face value and collect the evidence that is visible on-site, the job is only half complete. They are merely recording the crime.
The outcomes of analyzing information and physical evidence can be truly significant. A focused effort to analyze physical evidence and information can often yield results that contribute to establishing a fact pattern, identifying a suspect, and forming reasonable grounds for arrest and charges. Let us consider again the example of the British Bow Street Runners (Hitchcock, 2015) who located a piece of wadding paper from the fatal bullet wound in the head of their victim. At that time, wadding paper was typically used when loading any firearm as a plug to compact the powder and direct the explosive force that discharged the bullet. Investigators could have easily recorded this exhibit and dismissed it as just another piece of wadding paper. Instead, they considered the implications. Their analysis of the information and evidence was done by comparing the torn edges of that wadding paper and making a physical match to the originating piece of wadding paper that was found in the pocket of their suspect. This critical piece of circumstantial evidence made the connection between the suspect and the crime, and it led to a conviction in court.
Error # 3 is commonly known as “tunnel vision.” Over the years, commissions of inquiry into wrongful convictions have often determined that investigators in those cases had allowed themselves to fall prey to tunnel vision (MacCallum, 2008; Kaufman, 1998), This tendency to focus on a single suspect or a single theory of events can be pervasive, and even when other viable suspects are present and the physical evidence does not support their theory, investigators have been seen to continue with a single minded focus. Tunnel vision has happened frequently enough that investigators are now cautioned to be self-aware that anyone can fall prey to this error. As part of proper major case management, investigative team members are encouraged to challenge each other when they believe that evidence is being misinterpreted and a single suspect or theory is being exclusively pursued to the point where other viable suspects and theories are excluded or ignored.
Topic 2: Recognizing the Transition and Implementing the Strategic Investigative Response
As much as the tactical investigative response is driven by urgent circumstances that require immediate and decisive action to reach successful outcomes, strategic investigative response is driven by the complexity of circumstances. The investigator will need to take a slower and more deliberate approach. This means observing the rules of law that are more demanding of due process and the rules of evidence that are more demanding of adherence to protocols for crime scene management, evidence preservation, and evidence collection.
The situational elements that define a strategic investigative response are essentially the opposite of those for tactical investigative response. Specifically, the scene is now an inactive event because the suspect has left the scene or has been arrested, and there is no ongoing explicit or implied danger to the life or safety of persons including police. In the strategic investigative response, the Level Two priorities of protection of property, gathering and preserving of evidence, accurately documenting the event, and establishing reasonable grounds to identify and arrest suspects now become the paramount concerns. Switching from a tactical investigative response to a strategic investigative response is a transition point where mistakes can occur. These mistakes happen because the need to shift is not recognized and the transition to Level Two priorities is not engaged. The switch from an active event and tactical response to an inactive event and strategic response means locking down the crime scene to protect evidence and obtaining a warrant to continue the search for evidence.
This failure to transition may happen because the officers attending the scene of an active event are intensely focused on the issues of protecting life and safety. Once those very critical issues of life and safety are resolved, the adrenaline is still flowing and shift to Level Two priorities can seem less significant than it really needs to be. Investigators need to be aware and recognize the requirement to transition to strategic investigative response and make it happen.
Topic 3: Describing the Investigation Process Within the System
Strategic investigative response process is slow-paced and deliberate. In this response there is a priority to collect and record the maximum amount of information and evidence for court. These tasks of strategic response include witness management, crime scene management, evidence collection, and documenting the event.
Once the determination has been made that the investigation is in strategic investigative response mode, the priorities for results change, and the investigator must start organizing their investigation of the crime being encountered. In cases where the circumstances are simple and the suspect is immediately apparent, this can be a straightforward matter of evidence collection and witness interviews. In other cases, where the facts of the case are not clear or the suspect is not immediately apparent, the tasks of investigation can be daunting, and it requires a more systematic approach. A thorough investigation is one with systems to:
• Identify and collect all available evidence,
• Identify all the witnesses, victims, and possible suspects,
• Accurately document the criminal event,
• Accurately document the investigative actions,
• Develop theories of how the crime was committed and who may be a suspect, and
• Formulate an investigative plan to form reasonable grounds and make an arrest.
It may be helpful to think about the Strategic Investigative Response like a big funnel where many sources of information and evidence pour data into the top of the funnel. That data passes through the investigative filters of analysis to determine the possibilities, developing theories to identify the best probabilities, and investigating to test those theories against known evidence and facts. It narrows itself down to inculpatory evidence that will support reasonable grounds for belief, or exculpatory evidence that will show innocence and eliminate suspects. Sufficient inculpatory evidence can tip the scale to give police reasonable grounds for belief to take action of arrest and finding proof of guilt beyond a reasonable doubt provides the court with the ability to make a finding of guilt. Exculpatory evidence tips the balance to support the presumption of innocence for the accused.
Topic 4: Utilizing the STAIR Tool to Work Through the Investigative Process
At this point in our study of the investigative process, it is necessary to examine a structured process for strategic investigative response. To illustrate a system for strategic investigative response that can assist an investigator in thinking through the investigative process, we will use a model called the STAIR tool. Organized thinking and the ability to articulate a structured response cannot flow from a disorganized process. Through experience over time, most police investigators learn to structure their thinking, their investigative process, and their response priorities. Each investigator learns to build one’s own mental road map.
The methods and mental mapping of the STAIR tool illustrated here are not an attempt to change the current reality of investigative thinking, it is merely the model of a process to illustrate the thinking used by many investigators. A new investigator can use this tool to start structuring and developing an investigative thinking processes.
Every day, operational police officers are tasked to respond to incidents in a never ending variety of scenarios. Arriving at the scene of an incident, the police investigator is usually at the disadvantage of not knowing many of the facts. The investigator is challenged to gather the available information and analyze what is relevant with a goal of responding quickly, effectively, and appropriately. An effective and appropriate response is a response where the investigator has made decisions according to a predetermined set of priorities. For the investigator, these priorities and the desired results should always be protecting the life and safety of persons, protecting property, gathering and preserving evidence, accurately documenting the event, and establishing reasonable grounds to identify and arrest offenders. With these results in mind, we can start by remembering that in every reported incident, a police investigator is met with a situation Situation that must be resolved. With this situation understood immediate Tasks must then be undertaken to protect life and safety, gather relevant information, preserve evidence, and identify offenders. Lastly, in every situation, the information discovered must be Analyzed to inform and guide the Investigation that must happen to reach the desired Results.
To become more self-aware, an investigator might imagine oneself working through this process and creating a mental map of the road to be travelled for each investigation. This mental map can later be articulated, describing one’s thinking process and responses, observing the law as rules of the road, describing landmarks of evidence, navigating curves in the fact patterns, backing out of the dead ends of false leads, and validating the evidence discovered that led to a final destination. Ideally, that destination is the positive identification of a suspect and sufficient evidence to make an arrest and provide the court with proof beyond a reasonable doubt.
Later, when preparing notes, reports, court briefs, and testifying in court, the investigator will be able to recall their mental map and articulate their decision-making process to form the necessary reasonable grounds for belief to take action. If the crime remains unsolved and the investigation concludes as a cold case, the notes and reports describing the mental road map of the investigation remain on file for the next investigator who will be able to gain a clear picture of the investigation to date.
SITUATION: achieving a big picture view of the event to classify and prioritize a response
• Break out the known facts of the event
• Offence classification – active event or inactive event
• Identify all the players – victims, witnesses, and suspects
• Offence recognition – identify the possible offence or offences being encountered
TASKS: focus on the results and the priorities of those results based on event status
• Tactical investigative response on active event – Level 1: resolve life and safety issues
• Strategic investigative response on inactive event – Level 2: priorities engaged
• Crime scene management – evidence identification, evidence preservation, and evidence collection
• Canvassing for witnesses – witness interviewing
• Profiling the players – use all police data base information – CPIC, PRIME, PROS
• Document the event – notes, reports, photographs, diagrams, videos
ANALYSIS: examining the reported facts, the observed facts, and the physical evidence
• Make observations and connections between people and circumstances
• Enhance the meaning of physical evidence by forensic analysis
• Determine evidence of motive, opportunity, and means to commit the offence
• Create timelines of activities
• Develop assumptions and theories that will guide the investigative process
• Develop investigative plans based on theories
• Authentication of the event – did it occur at the time, at the place, and in the manner being reported, or is the report a fabrication?
INVESTIGATION: validating the facts through corroboration of witness accounts and evidence
• Prioritize the best investigative plans based on most likely theory
• Test theories against information and evidence discovered through investigation to identify suspects and form reasonable grounds
• Return to analysis to form new theories or modify theories as new facts are found
RESULTS: prioritizing and focusing on the results to guide the investigative process
• Protection of the lives and safety of people
• Protection of property
• Gathering and preserving evidence
• Accurately documenting the event
• Establish reasonable grounds to identify and arrest suspects
Please note: The STAIR investigation tool as developed and depicted in this book is based on the author’s conceptual modification of the STAR technique which is commonly used as a tool for behavioural interviewing.
Summary
In this chapter, we have focused on the strategic investigative process and described the STAIR tool as a means of illustrating and working through the investigative process. This is a process that can be likened to climbing a set of stairs, whereby getting to the top (Results) requires taking one step at a time from the bottom (the Situation). The second step (Tasks) then leads to a third step (Analysis) and the fourth step (Investigation). At this point, the investigator can expect to take a step back more than once to do further Analysis. In any case, the goal is always to get to the top of the stairs. Skipping any of these steps will likely lead an investigator to miss an important part of the process.
As with the preceding chapters, the intent here is simply to assist you in defining and visualizing the investigative process. This delineation should help you to conceptualize investigation as a structured process. This is a process consisting of practices of information and evidence collection, analysis, theory development, and investigative planning, pointing toward achieving consistent outcomes. In the chapters that follow, you will be challenged to apply this thinking in some scenario exercises.
Exercises
1. What are the three most common errors investigators make in applying the Strategic Investigative Response?
2. What five groups of tasks must an investigator follow through on to complete a thorough investigation?
3. What categories of tasks are involved in the Situation component of the STAIR tool?
4. What categories of tasks are involved in the Tasks component of the STAIR tool?
5. What categories of tasks are involved in the Analysis component of the STAIR tool?
6. What categories of tasks are involved in the Investigation component of the STAIR tool?
7. What categories of tasks are involved in the Results component of the STAIR tool?
Long Descriptions
The investigative process funnel long description: The Strategic Investigative Response can be imagined as a funnel into which many sources of information and evidence are poured, such as physical evidence and forensic analysis; information gathered from witnesses and victims; information gathered from police databases; investigators’ personal observations; and information gathered from suspect interrogation. That information is then filtered using analysis to determine possible chains of events, which are further scrutinized while determining the probabilities of these possibilities during the development of theories and investigative plans.
Once there is a theory, the investigation proceeds to discovery of provable facts, of which there are two kinds: exculpatory, which is evidence of innocence, and inculpatory, which is evidence of guilt. Both kinds of evidence must be weighed on the scale of proof. In our justice system, there is presumption of innocence until proven guilty beyond a reasonable doubt, but enough exculpatory evidence will tip the scale of proof firmly toward innocence. Enough inculpatory evidence can give the police reasonable grounds for belief to investigate and the courts proof of guilt beyond a reasonable doubt. [Return to The investigative process funnel]
The STAIR tool long description: STAIR stands for:
• Situation: Achieving a big picture view of the event to classify and prioritize a response. Focus on the results and priorities. This entails:
• Breaking out the known facts of the event
• Offence classification — Active event or Inactive event
• Identifying all the players — Victims, witnesses, suspects
• Offence recognition — Identifying the possible offence or offences being encountered
• Tasks: Gathering, protecting and preserving evidence and information. This entails:
• Tactical investigative response on active event — Level 1 Resolve life and safety issues
• Strategic investigative response on inactive event — Level 2 priorities engaged
• Crime scene management — Evidence identification, evidence preservation, evidence collection
• Profiling the players — Use all police database information — CPIC, PRIME, PROS
• Document the event — Notes, reports, photographs, diagrams, videos
• Analysis: Examining the reported facts, the observed facts, and the physical evidence to develop theories. This entails:
• Making observations and connections between people and circumstances
• Enhancing the meaning of physical evidence by forensic analysis
• Determining evidence of motive, opportunity and means to commit the offence
• Creating timelines of activities
• Developing assumptions and theories that will guide the investigative process
• Developing investigative plans based on theories
• Authentication of the event — Did it occur at the time, at the place, and in the manner being reported or is the report a fabrication
• Investigation: Validating the facts through corroboration of witness accounts and forensic analysis. This entails:
• Prioritizing the best investigative plans based on the most likely theory
• Testing theories against information and evidence discovered through investigation to identify suspects and form reasonable grounds
• Returning to analysis to form new theories, or modify theories as new facts are found
• Results: Prioritizing and focusing on the results to guide the investigative process. In order of priority, these results are:
• Protection of the lives and safety of people
• Protection of property
• Gathering and preserving evidence
• Accurately documenting the event
• Establishing reasonable grounds to identify and arrest suspects
[Return to The STAIR Tool] | textbooks/workforce/Corrections/Introduction_to_Criminal_Investigation_-_Processes_Practices_and_Thinking_(Gehl_and_Plecas)/1.05%3A_Strategic_Investigative_Response.txt |
“As you proceed through the STAIR tool, the process of Analysis and Investigation can become somewhat circular — as the investigation reveals new information, and new information is analyzed to confirm, disprove, or modify the theories of suspects and events that are being considered.”
In this chapter we will work through some investigative STAIR scenarios to demonstrate the required investigative awareness required to transition from the tactical investigative response to the strategic investigative response. Once in the strategic response mode we will practice applying theory development to conduct our analysis of the evidence and information found and we will create investigative plans.
This chapter presents two investigative scenarios each designed to illustrate steps of the STAIR tool allowing the student to recognize both the tactical and the strategic investigative responses and the implications of transitioning from the tactical to the strategic response.
In the strategic investigative response of the second scenario, the student is challenged to work through an exercise of identifying the available information and evidence and developing theories in order to guide their investigative plans.
Topic 1: Beginning With Your End in Mind and Focusing on Results
Any investigation an investigator embarks upon must focus on the desired Results to guide the thinking and investigative action. If we know where we are going and what our results need to be, we will know how to prioritize our actions to reach those results. Setting and monitoring priorities is a critical piece of the mental mapping process. A police investigator needs to know that whatever course of action taken to achieve a result, it will be incumbent upon the investigator later to provide a reasonable and justifiable explanation of how and why that chosen course of action was taken. Understanding and keeping these Results in mind while entering a Situation allows better clarity to define the priorities and develop the immediate investigation and action plan.
As mentioned above, in defining and assigning priorities to the Results, the top priority is very clear: protecting the life and safety of persons. Achieving the other priorities will sometimes be sacrificed to make certain this primary priority is achieved. Protecting property, gathering and preserving evidence, accurately documenting the event, and establishing reasonable grounds to identify and arrest offenders are all important, but are considered secondary results. These individual Results may also sometimes be sacrificed, one in favour of the other, depending on the way events unfold. The setting and defining of priorities for Results will be further illustrated and practiced in several scenarios presented below. For now, with our Results concept in mind, let us apply the STAIR tool in the following scenario.
Scenario #1
You are working as a uniform patrol officer in a one-person marked police cruiser. It is 9 PM on Saturday evening, and you receive a radio call from dispatch assigning you to attend a domestic dispute complaint in a residential neighbourhood. Dispatch advises you that the call has been received from a neighbour to the home where the domestic dispute is taking place.
The caller, Bill Murphy, reports to dispatch that he heard a woman screaming and, when he went outside, he saw his neighbour, Randy Smith and Randy’s wife, Jane, standing on their front lawn yelling at each other. He then saw Randy strike Jane in the face with his fist, and drag her by the hair back into the house. He can still hear them yelling, and he heard some crashing noises coming from their house. He does not know if there is alcohol involved, although he does know that Randy often drinks heavily. No weapons were seen, and the neighbour does not know if Smith owns any firearms. The Smiths have two young sons, eight years and four years of age. The neighbour did not see the two boys.
Situation
In this Situation phase of our STAIR tool, you have been provided with a limited amount of information. You start by breaking down the information into components:
• A witness, Bill Murphy, has identified his neighbour as having assaulted a woman, identified as the suspect’s wife, Jane
• Suspect identified is Randy Smith
• Victim identified as Jane Smith
• Randy Smith may be a heavy drinker, and alcohol may be a factor
• This is an active event and it may still be in progress as noise from the house continues
• The offence recognition would define this as an assault and possibly forcible confinement
• Persons who may have their safety in danger are Jane Smith and her two young sons
• The incident is reported as being currently confined to inside the house; however, the incident was, at one point, on the front lawn of their home
Keep in mind that to investigate this incident and to act in the execution of your duties, each piece of the foregoing information may be considered and acted upon as the truth, until it has been verified. Each piece of information here can contribute to the forming of reasonable grounds to enter onto private property or to make an arrest. Each piece of information you have can assist in forming beliefs regarding the safety of persons.
Remember that we begin with our end in mind considering our Results. At this stage of the investigation, there appears to be an immediate threat to the safety of Jane Smith. Domestic disputes are always emotionally charged situations, and it is reasonable for attending police officers to consider that their own personal safety will also be at risk. This is definitely a Level 1 Results priority.
Tasks
As you proceed to attend to the area of the call, you embark upon the Tasks portion of the STAIR tool.
Task 1: Responding in the Correct Mode
In this case, the report identifies an active event where the suspect is still at the scene and criminal activity may still be in progress. You will be responding in Tactical Investigative Response mode.
Task 2: Identifying the Players in the Event
• Randy Smith
• Jane Smith
• Two sons – ages 8 years and 4 years old
• Witness Bill Murphy
Task 3: Breaking out the Facts of the Event
In this case, possible criminal actions witnessed by the neighbour indicate that an assault has taken place. The wife was struck in the face and dragged into the house. There may be a forcible confinement taking place. Your offence recognition, in this case, is focused on two possible offences: assault and forcible confinement. You recognize that each of these offence types is an indictable offence for which an arrest can be made if you form reasonable grounds to believe the offence(s) have been committed by Randy Smith.
Task 4: Gathering All Additional Information That Might be Available
Faced with these circumstances, additional information would assist in making a risk/threat assessment. You proceed to the CPIC and PRIME – RMS databases to determine:
• Criminal record information on both Randy and Jane Smith
• History of previous calls to this residence
From CPIC, you determine that Randy Smith, of this address, has a record for Impaired Driving. There is no criminal record for Jane Smith. Police Records Information Management Environment (RMS) shows a previous complaint of a domestic dispute at this same residence 11 month ago. At that time, Randy Smith was arrested but not charged with assault. Jane Smith, the complainant in that case, would not proceed with charges, and there were no independent witnesses to the assault.
Analysis
For a police officer attending the scene of an in-progress event, it is important to consider the issues of safety and ongoing threats to safety to know how best to approach the scene and what immediate actions can be taken. As is the case with many in-progress events, there is a concern for the safety of all persons. In this case, the wife, Jane Smith, has reportedly been assaulted and dragged back into the premises. There are possibly two young sons also at the premises. Whenever there is a concern for the safety of persons, exigent circumstances exist and a police officer has extensive powers for the entry onto private property, if necessary, to detain any persons present to secure the scene and stop the continuation of an offence.
Investigation
Considering the explicit threat to the safety of Jane Smith, and a possible implied threat to the safety of the two sons, the issue of the safety of persons here is clear. Since this is a domestic violence complaint, there is also an implied danger to all police officers attending that must also be considered. In this case, you call for a backup patrol unit to attend. Your tactical investigative response plan is to approach the premises using concealment and cover as you and your backup unit assess what you can hear and see as you approach the scene.
You decide that if you do not hear or see any ongoing immediate threat, you will approach by knocking on the front door and making contact. If you do see or hear evidence to indicate there is an ongoing threat to the safety of a person (e.g. ongoing assault), you know you can enter the premises without a warrant under exigent circumstances to protect the safety of persons. You know you have an eyewitness to the offence of assault, and, with this piece of witness evidence alone, you have formed reasonable grounds to believe the offence of assault has taken place. The added information of possible alcohol involvement and past record of domestic assault complaints can be considered in the evaluation of the threat level to engage the extended authorities of exigent circumstances.
As you walk towards the house, the neighbour/witness, Bill Murphy, approaches you and states that Randy Smith just left the premises alone in his blue Dodge truck. You can see a woman and two young boys looking out the front window of the premises.
Your event classification now must change to an inactive event, and you transition to a strategic investigative response mode. The Results priorities now change as well. Your new priorities become:
Results
1. Gather and preserve evidence:
1. Interview witness Bill Murphy
2. Interview the victim Jane Smith
3. Take photographs of any injuries to the victim
4. Determine if there are other witnesses available
5. Determine if other physical evidence, weapons, and/or liquor bottles are present
2. Accurately document the event
1. Take the statement of witness Bill Murphy
2. Take statement of the victim, Jane Smith
3. Make personal notes
4. Complete an occurrence report
3. Establish reasonable grounds to identify and arrest an offender
1. Verify that an offence has occurred
2. Verify the type of offences (e.g. assault, or assault causing bodily harm, and/or forcible confinement, and possibly impaired driving)
3. Verify the identity of Randy Smith as the person responsible for identified offences
4. If an offence and an identity of the suspect are verified, broadcast a “Be On Lookout For (BOLF)” to arrest Randy Smith for assault
In this case, the offender was easily identifiable. This is true of many in progress occurrences that police attend. These types of cases are often handled in the progression described above, starting off as a tactical investigative response and transitioning to a strategic investigative response mode.
In cases where the offender is not immediately identifiable, or the fact pattern of the event is not clear, the investigation becomes more complex and protracted. These are the cases where the strategic investigative response will include analyzing the information and evidence to develop theories, to identify possible suspects, and to test possible fact patterns against the physical evidence and timelines.
To examine this process of strategic investigative response, we will look at a more complex scenario where additional skill sets and strategies need to be considered within the STAIR Tool.
Scenario #2
You are in a marked patrol vehicle, and you are dispatched to attend a local jewellery store where a robbery has just taken place. It is August 15, 2017, 4 PM on Saturday. The store is in a strip mall complex on the main street of your city. You arrive at the scene to take the complaint and investigate.
The store manager reports that at approximately 3:30 PM, three suspects entered through the front door of the store from the front parking lot. All three suspects were wearing ski masks, gloves, blue jeans, and dark jackets. All three were armed with handguns. One suspect stood guard at the front door and the other two entered the store yelling at everyone to lay face down on the floor. There were three customers in the store: two elderly women shopping together and one young woman approximately 25 years of age.
There were also two store employees working at the time. One is the store owner/manager and the other is a female sales clerk. After everyone was on the floor, the two men started smashing glass display cases and dumping the contents into white cloth bags that they had with them. One robber demanded that the manager open the cash register, which he did. There was only approximately \$350 in the cash register, which was typical because most customers use credit or debit cards. The manager estimates that approximately \$120,000 worth of inventory was stolen. The most valuable items taken were diamond rings and high-end designer wrist watches. Watches have serial numbers and are identifiable, and some of the diamonds are identifiable by laser micro-engraving.
The entire robbery happened in just under five minutes and, when the robbers left the store, they ran south around the corner of the building. No vehicle was seen.
Situation
Using the STAIR tool, as you approach the scene, you are aware that the suspects have left the crime scene and this is an inactive event. Although aware of the possibility that you may see suspects leaving the area of the crime scene, your arrival and approach to the crime scene do not require the tactical investigative response of an active event. The immediate danger to the life and safety of persons at the crime scene has passed. You are in the strategic investigative response mode. Beginning with your end in mind, you now consider what will be the Results for this case:
• Protecting the life and safety of persons at this crime scene is no longer an issue because the armed suspects have now left the scene
• Protecting property will be an issue because \$120,000 worth of merchandise and \$350 in cash have been taken and need to be recovered
• Gathering and preserving evidence will be an issue because there are witnesses to interview at the scene and possibly physical evidence left behind by the suspects
• Accurately documenting the event will be necessary
• Establishing reasonable grounds to identify and arrest offenders will certainly be the desired outcome
Tasks
With our Results priorities clearly in mind, you now undertake some specific Tasks of the STAIR tool:
• Secure the crime scene
• Examine the crime scene and call upon forensics for evidence collection
• Broadcast a description of the suspects and incident details as a BOLF
• Identify all witnesses and victims present
• Run each witness and victim through police databases to determine any criminal records, history of criminal conduct, or association to known criminals
• Take individual statements from each witness and victim
After completing your victim and witness interviews and your database searches, you have the first pieces of information from which the Analysis component can begin. Your forensic team is at the scene dusting for fingerprints and photographing the damage.
Analysis
As mentioned above, STAIR will assist in developing strategies to guide the Investigation efforts. Based on the Strategic Investigative Response Funnel, all incoming information is flowed into the top of the funnel to start the process of analysis. The analysis begins by considering each of the individual known facts about the incident. In this case, the facts to be considered include:
• Date of offence: Saturday August 15, 2012
• Time: 4 PM
• Location: jewellery store in down town strip mall
• Owner/manager and one employee present (witnesses)
• Two elderly women shopping together present (witnesses)
• One 25-year-old female shopper present (witness)
• Three apparently male suspects entered the store through front door
• All suspects were wearing ski masks, gloves, blue jeans, and dark jackets
• Each suspect had a handgun
• One suspect stood guard
• Two suspects entered the store
• Suspects told everyone to lay on the floor
• Suspects smashed display cases and loaded jewellery and watches into bags
• Each suspect carried away the stolen goods in white bags
• One suspect had the manager open the cash register and took \$350 cash
• Approx. \$120,000 worth of jewellery was taken
• Some of the watches and diamonds stolen are identifiable by serial numbers
• Suspect fled out the front door and south around the corner of the building
• No vehicle was seen
• Entire robbery took under five minutes
To continue this Analysis, we start by reflecting on some of the theories we might evolve considering the facts of this case. This will begin the process of developing theories and formulating investigative plans to identify suspects and search for new evidence that either confirms or disproves those theories.
1. What theories might you have about the time and location of this offence?
2. Can you develop any theories about the level of planning that went into the robbery?
3. Consider theories about how well these three suspects know each other.
4. Is it possible that the suspects had been at the store sometime prior to this robbery?
5. What relevant theories might be considered from the way the suspects were dressed?
6. What relevant theories might be considered from the fact that the robbers carried handguns?
7. What theories might be considered from the way the robbery was carried out?
8. What theories might be considered regarding the items taken?
9. Theorize and consider if these three suspects were working alone.
10. Theorize who else might be involved.
Think about the fact pattern of this incident and answer these questions. In this process, you will engage your imagination and your deductive reasoning skills to consider the possibilities and develop theories to guide your investigative plan going forward. In this step of the Analysis process in the STAIR, what logical theories can you develop to explain how this crime may have been committed, and who may have been involved? Try and develop at least two or three alternate theories. As you answer each question, consider different avenues of investigation you might follow to confirm or disprove some of your theories. Can aspects of your theories be confirmed or disconfirmed against an examination of the existing physical evidence?
Investigation
As you proceed through the STAIR tool, the process of Analysis and Investigation can become somewhat circular, as the investigation reveals new information, and new information is analyzed to confirm, disprove, or modify the theories of suspects and events that you are considering.
Do your theories present any avenues where you can investigate further to gain additional information?
Outline your own analysis, assumptions, deductions, and theories. Outline the further avenues for investigations that you can undertake in this case. After you have completed your own analysis, theory development, and investigative plans, move to the end of this chapter and check your assumptions, analysis, theories, and investigative plans against the answers provided there.
Topic 2: Getting Answers in the Robbery Scenario
1. What theories might you consider about the time and location of this offence?
• The fact that the jewellery store is in a strip mall may have been a factor in the robbers selecting this location as a target. This type of business premises allows for drive by viewing of the inside of the premises, as well as quick access and exit to the outside parking area. This location also allows for the suspects to maintain an ongoing look-out for approaching police response.
• The time of the offence could have been intentionally chosen closer to the end of the day on a Saturday in the hope that more cash would be in the store. Depending on the typical customer traffic volume in the mall area on a Saturday, the suspects may have hoped for more traffic volume to assist with their escape.
2. Can you develop any theories about the level of planning that went into the robbery?
• Since the suspects arrived in disguise, armed with handguns, and carrying bags to take away the proceeds of the robbery, it might be theorized that they took some time to put together this special equipment to carry out the crime.
• The precision with which the robbery was carried out (e.g. completed in five minutes, one suspect guarding the door, all persons ordered onto the floor) would indicate a high level of planning to orchestrate this robbery.
3. How well did these three suspects know each other?
• It is very likely that the three suspects knew each other well enough to establish the level of trust required to carry out the robbery.
• The type of goods taken in this robbery, except for the cash, would need to be converted to cash to be divided up later. This could indicate that a longer term relationship exists between these robbers.
• The planning that is apparent would indicate that the suspects spent some time together to plan, collect the necessary equipment, and divide up the proceeds of the robbery.
4. Is it possible the suspects had been at the store sometime prior to this robbery?
• To plan this robbery and execute it with this level of precision, it is very likely that the suspects spent at least some time looking over the premises and the surrounding area to plan their approach, execute the robbery, and plan their escape.
5. What relevant theories might be considered from the way the suspects were dressed?
• It appears that all three suspects were wearing similar outfits with dark jackets, blue jeans, and ski masks. This may indicate that the suspects deliberately purchased specific gear for committing a crime.
• This clothing might be considered somewhat non-descript, and not easily distinguishable or unique for a witness to accurately or specifically describe the fleeing suspects. The use of masks and non-descript outfits might indicate that the criminals were experienced.
• The fact that they are all wearing jackets on a summer day in August might indicate that they were covering up tattoos, scars, or other distinguishing features that might otherwise assist in identifying the suspects.
• The fact that all suspects were wearing gloves would indicate that they are aware that any fingerprints left behind could identify them.
6. What relevant theories might be made from handguns being carried by the robbers?
• Handguns are more easily concealed and may be the weapon of choice for more professional criminals.
• Handguns are more difficult to obtain, and legal handguns are generally registered, so it is likely that these were unregistered or stolen handguns.
7. What might be theorized from the way they carried out the robbery?
• From the overall planning and precision in the execution of the robbery, it might be theorized that this is not the first robbery that these three have done together. This method may have been used elsewhere.
8. What might be theorized considering the items taken?
• Considering that the items taken were specialty items and that some were marked with identifying serial numbers, it might be theorized that the robbers have a prearranged or preplanned means of disposing of the items or otherwise converting them to cash.
• Alternately, the fact that they have taken items that are identifiable by serial numbers may indicate a level of haste or even inexperience because these items, if discovered after being sold, may be traced back to the robbery suspects.
9. Were these three suspects working alone?
• Considering the speed of execution and the apparent level of planning that went into this robbery, it is possible that there was a fourth accomplice waiting outside in a get-away vehicle.
• There is a possibility that the suspects had some inside knowledge of the jewellery store and the inventory through association with a person connected to the store.
10. Who else might be involved?
• A fourth criminal associate as a get-away driver and lookout.
• A customer inside the store, at the time of the robbery, acting as a scout.
• A current or former employee of the store may have provided inside information.
• The owner/manager of the store could be involved as part of an insurance fraud scheme.
Topic 3: Answers to Possible Theories in the Robbery Scenario
Theory #1
This is a well-planned robbery executed by three or four experienced criminals. In addition to the three suspects in the store, there might have been an outside get-away driver acting as a lookout. They intentionally selected this store because of the strip mall location and the easy access to inventory by smashing the display cabinets. They were wearing disguises and jackets to avoid facial identification and possible tattoo or scar identification. They were wearing gloves probably because they already have criminal records and know that any fingerprints left behind may allow for the suspects to be identified. The suspects gained the information to execute their robbery by conducting surveillance on the store. They intentionally selected the date and time to conduct the robbery because of customer traffic patterns. They have some means of converting or disposing of the stolen items for cash. Considering the precision of the crime, this is likely not their first robbery of this type. The possession of handguns also indicates they are likely professional criminals.
Theory #2
As with Theory #1, this is a well-planned robbery executed by three or four experienced criminals; however, the store was selected because they had an inside person, employee, or former employee working with them, and were provided with information to assist in the plan.
Theory #3
As with Theory #1, this is a well-planned robbery executed by three or four experienced criminals; however, the store owner/manager is a conspirator in the robbery, and assisted with the offence to collect insurance with the possible additional intent to be the person who resells the stolen merchandise. If this is the case, the owner/manager may be providing an inflated inventory of items taken or perhaps incorrect serial numbers for the items taken to allow for the stolen items to be more easily disposable.
Topic 4: Answers — Investigative Plans From Theory Development
Do the theories above present any avenues where you can investigate further to gain additional information?
Theory #1
• Since it is likely not their first robbery of this kind, we should search police records for other robberies using this similar modus operandi (MO) in the recent past and in our area and its surrounding areas. We would be looking for similarities in:
1. Target selection
2. Number of suspects
3. Disguises used
4. Weapons of choice
5. Methodology (i.e. guard at door, making patrons lie down on the floor, bags to carry away goods)
• Considering the likelihood that these suspects conducted surveillance of this store to select it as a target, we should look at security cameras in the strip mall area and from the victim’s store for images of possible suspects watching the store on the previous Saturday at this same time.
• Since a few of the items stolen had serial numbers, these numbers can be entered into CPIC as identifiers to stolen property.
• Since the handguns used were likely stolen, we should look for incidents of stolen handguns recently reported.
Theory #2
• Considering the possibility that an inside person, employee, or former employee is involved and provided the robbers with information, we should look closely into the criminal record and police record of the employees present at the time of the crime, as well as any other employees or former employees who can be identified. We are looking for:
1. Evidence of criminal conduct by any employee or former employee
2. Information of any associations between the employees or former employees to criminals, particularly those with records for robbery
3. Information from the owner/manager about suspicious conduct on the part of an employee, a past employee, or a disgruntled past employee
4. Since customers inside the store at the time of the robbery may have also been in collusion with the robbers, all three customers should be examined for criminal histories or associations to known criminals.
Theory #3
• If the owner/manager is involved in the robbery for the proposes of insurance fraud and/or inventory resale, we should examine several areas for evidence and information:
1. Any past record of criminal conduct by the owner/manager, particularly insurance fraud
2. A record of association to known criminals
3. A record of insurance policy status on inventory, particularly recent increases
4. Cross-check and verification of product inventories against items alleged to be stolen
5. Verification of accuracy of serial numbers on items stolen against supplier inventory records.
Topic 5: Validation of the Report
Based on the theories considered in our robbery investigation, everyone present in the jewellery store at the time of the robbery is being considered a possible suspect. This is a part of analysis and theory development called validating the report. In criminal investigations, it occurs time and again that people reporting criminal events will lie, fabricate, or embellish, the facts. These failures to provide an accurate account of what happened occur for a variety of reasons, including, but not limited to:
• Personal gain or financial reward, such as insurance fraud
• Attempting to take revenge on someone by accusing them of a crime
• Covering up personal involvement in the criminal act to avoid prosecution
• Attempting to shift responsibility for a crime to someone else
• Covering up the involvement of an associate to divert prosecution
With these kinds of motives in mind, an investigator analyzing and validating the facts and developing a theory of the crime should always consider four key questions to authenticate the crime report:
1. Does the evidence support the report that an offence occurred?
2. If an offence did occur, did it happen at the time being reported?
3. If an offence did occur, did it happen at the place being reported?
4. If an offence did occur, did it happen the way the fact pattern being reported suggests (Arcaro, 2009)?
Thinking about these questions as part of the Analysis can help the investigator to formulate possible theories and develop effective investigative plans.
At this point in the investigative process, as theories are developed and tested, additional new facts are discovered. With the discovery of new facts, the Analysis and Investigation steps of the STAIR tool become, as noted earlier, a bit of a circular process, where a new fact can confirm, disprove, or modify a theory, and a new investigative plan may evolve in a new direction seeking the formation of reasonable grounds to believe a particular suspect is responsible for the offence.
Topic 6: Evidence Transfer Theory
In our robbery scenario, the reported fact pattern appears to be fairly clear. The investigative strategies being planned are aimed at suspect identification as a first goal. But, once a suspect or suspects have been identified, because of some circumstantial association or linkage to the crime scene, it does not mean they can immediately be arrested. Often, these kinds of linkages are sufficient to only provide grounds for suspicion and are not enough to form reasonable grounds for belief to make an arrest.
The ability to link a suspect back to a crime and to form reasonable grounds for belief to make an arrest can depend on the existing evidence transfer. Evidence transfer means that evidence will transfer from a suspect to the crime scene, a suspect to a victim, from the crime scene to the victim, or from the crime scene to the suspect. Modern forensic science has evolved into forensic specialties that look for evidence transfer. For example, with the advances being made in DNA science, evidence transfer is becoming more refined allowing the analysis of ever smaller samples for comparison (Savino, 2011).
Remarkably, it is not just DNA or fingerprints that can contribute to connecting a suspect to a criminal event. Hair and fibre, shoe prints, tool marks, bite marks, ballistics, and other forensic exhibits do contribute to the range of comparison tools. We will discuss these more in-depth later in our chapter on forensic evidence; however, the point is that forensic comparisons are only one form of evidence that is developed to create circumstantial connections between a suspect, the crime, and/or the victim.
Topic 7: Spatial Relationships and Timelines
Other circumstantial evidence can be illustrated that connect suspects to the crime through relationships, associations, and chronology. This type of circumstantial evidence can include exhibits and witness statements that demonstrate spatial relationships. Spatial relationships are circumstantial links that demonstrate connections between objects, events, or people. This can be any type of evidence that demonstrates a connection or relationship between the suspect and the criminal event or the suspect and the victim. It could also be evidence that demonstrates where a suspect was during the critical times when the crime was occurring.
Recall the example of the young man standing behind a tree one block away from the scene of the warehouse break in. This was an example of both timeline evidence, namely being present at the scene when the event took place, and spatial relationship evidence, namely being one block away from the crime scene. This kind of evidence can be considered by the investigator in forming reasonable suspicion and reasonable grounds to believe and take action at a later point in time.
Topic 8: Timeline Evidence
Timeline evidence is any item that demonstrates a time alignment of the suspect to the criminal event or the victim. Spatial relationship evidence comes from items that demonstrate other types of connections, relationships, or associations. Consider for example, the following scenario.
Scenario #3
The body of a young woman is found by a janitor in the utility storage area of a local airport at 12 noon. It appears that she was sexually assaulted and murdered shortly after arriving on a domestic flight AC204 from a neighbouring city. This is confirmed by the boarding pass still in her pocket for Seat 16A that shows her arrival time at 10 AM.
Another airport employee is identified as a possible suspect because security cameras show him in the area of the utility storage area at 10:45 AM. Upon questioning, it is determined that he had also been on flight AC204 and that his boarding pass was for seat 16B.
A search of the suspect’s pockets shows that he has a key that opens the utility storage closet where the victim’s body was found. In this case, there is both timeline evidence and evidence of spatial relationships.
Timeline evidence would include:
• 12 Noon: time the body was found by the janitor
• 10 AM: time the victim’s flight arrived
• 10 AM: time the suspect’s flight arrived
• 10:45 AM: time the suspect was recorded on security camera near the crime scene
This timeline evidence provides some significant information, as it establishes a time range when the crime occurred and it establishes that the suspect was at the airport during the possible time of the crime.
Topic 9: Spatial Relationship Evidence
• Victim and suspect’s boarding passes show that they were both on Fight AC201 and were seated next to each other
• Security video puts the suspect in the area of the crime scene during the timeframe when the crime occurred
• The suspect is an airport employee and was in possession of a key that would open the door of the crime scene
It is important to note here that the items of evid, in this case, ase are not forensic exhibits such as fingerprints or DNA that might draw a definite link between the suspect and the crime. They are instead linkages in times and common locations within those times. These connections within time and locations are spatial relationships, and although this circumstantial evidence from spatial relationships alone is not sufficient to prove guilt beyond a reasonable doubt, it is often sufficient to form reasonable grounds to believe that an individual is implicated in the offence. In this case, the suspect would be detained and cautioned. Additional forensic evidence collection and interrogation would follow to develop reasonable grounds for belief and possibly the grounds to lay a charge, if additional forensic evidence could be developed.
Summary
In this chapter, we have worked through some scenarios demonstrating the application of the STAIR tool in both tactical and strategic investigative processes. In working through the strategic process, we have practiced examining the fact patterns of events and making the assumptions to drive theory development directing the engagement of our investigative plans. This is truly the creative art of the investigative process and, as such, it is a process that can be enhanced through practice and experience. This can also be a great opportunity for collaboration and teamwork where brainstorming sessions take place to analyze the facts, develop theories, and develop investigative plans. Along with theory development and investigative plan making, we have examined the ways physical and circumstantial evidence of spatial relationships can be used to confirm, negate, and modify theories and investigative plans.
Study Questions
1. Why must the investigator have the Results in mind at the outset of an investigation?
2. What are five reasons some people reporting a criminal event lie, fabricate, embellish, or misrepresent the facts?
3. What are four key questions an investigator should consider in authenticating a crime report?
4. What is meant by evidence transfer?
5. What is spatial relationship evidence?
6. What is timeline evidence? | textbooks/workforce/Corrections/Introduction_to_Criminal_Investigation_-_Processes_Practices_and_Thinking_(Gehl_and_Plecas)/1.06%3A_Applying_the_Investigative_Tools.txt |
“Different types of witnesses will provide evidence from different perspectives, and these perspectives need to be assessed by the investigator to establish the reliability of the evidence provided.”
For any investigation, the details of events provided by witnesses are a critical element of the evidence gathered. Witness testimony is the verbal account of events or knowledge of the facts relevant to the crime. Witness statements will assist the investigator in forming reasonable grounds to lay a charge and will assist the court in reaching a decision that the charge against an accused person has been proved beyond a reasonable doubt.
As the law has evolved regarding witnesses, many rules of evidence, definitions, and protocols have developed to govern the way witnesses may testify in court. It is important for an investigator to understand these elements as this allows an investigator to evaluate witnesses and collect witness evidence that will be acceptable to the courts. The purpose of this chapter is to discuss the following concepts as they relate to the process of witness management.
1. Identifying witnesses
2. Defining witness types
3. Defining competence and compellability
4. Identifying the witness/suspect dilemma
5. Witness credibility assessment
6. The truthfully-incorrect witness
7. Recognizing dominant witness influences and conformity
8. Dealing with uncooperative witnesses
9. Conducting witness interviews
10. The field interview
Topic 1: Identifying Witnesses
It is sometimes the case that persons found as apparent witnesses to an event do not always provide accurate information about their identity. The reasons for this deception can vary from actual involvement in the crime to fear of reprisals from the suspect to simply not wanting to become involved with the criminal justice system. Regardless of the reason, it is imperative for an investigator to verify the identity of each witness. This can be best achieved by viewing a valid photo ID or, in the absence of photo ID, by establishing the witness’ identity through other means, such as police records, confirmation of identity, or verification of identity by a credible third party.
Topic 2: Witness Types
Once the identity of a witness has been determined, an investigator needs to establish an understanding of the witness classification. Different types of witnesses will provide evidence from different perspectives, and these perspectives need to be assessed by the investigator to establish the reliability of the evidence provided. This is important for several reasons, including that if charges ever go before the court, a judge will also consider these witness types and apply appropriate rules of evidence and levels of probative value to the evidence each type of witness provides.
Eye Witnesses and Corroborative Witnesses
As discussed in previous chapters, evidence can be classified as either direct evidence indirect circumstantial evidence. An eyewitness is a person who directly saw the criminal event take place, while a corroborative witness is a person who can only provide circumstantial or indirect evidence of the events surrounding the crime. For example, consider two scenarios where a young cashier is shot to death during the robbery of a convenience store. In the first scenario, one witness is found at the scene of the crime when the police arrive. This witness was a customer inside the convenience store. She saw the robber walk up to the counter, raise his handgun, and shoot the cashier. This witness can identify the suspect. In the second scenario, the witness is a customer who was walking up to the front of the store when he heard what sounded like a gunshot. He then saw a man running out the front of the store with a handgun in his hand. Upon entering the store, he saw the cashier had been shot. He can identify the suspect.
In both scenarios, a male suspect is apprehended in possession of a handgun only two blocks away from the scene of the crime. In the first scenario, the witness would be classified as an eyewitness; but in the second scenario, the witness would be a corroborative witness.
In the described scenarios, both witnesses can provide valuable testimony; however, the evidence of the eyewitness in scenario one would be given more weight at trial because there is a direct connection that the accused committed the offence through direct evidence, and the court would not need to make any interpretation on the veracity of any circumstantial evidence. The witness was present and saw the suspect shoot the victim. The corroborative witness in the second scenario provides strong circumstantial evidence to suggest that the man running from the store committed the shooting; however, additional investigation would be needed to support the circumstantial assumption that the person seen running from the store committed the shooting.
Clearly, eyewitnesses are the type of witness that investigators hope to find in their investigative efforts. Any police investigator will tell you, eyewitnesses are frequently not present at the scene of a crime, and therefore investigators need to be skilled at discovering additional physical and circumstantial evidence that can assist the court in reaching its conclusions in relation to the evidence of a corroborative witness.
In the second scenario, additional evidence that might assist the court to reach a conclusion that the suspect running from the store was the shooter might include the following: ballistics from the handgun seized from the suspect matching the fatal bullet found in the body of the accused, gunshot residue from the hand of the suspect showing that he had recently fired a weapon, and/or conclusive information indicating that the suspect and the shooting victim were the only two persons inside the store at the time of the shooting.
This is not to say that these same items of additional evidence would not also be useful to corroborate the witness in the first scenario. The difference is that, in the case of an eyewitness, the additional evidence is a value that is added, while in the case of the corroborative witness, more evidence is required to support the conclusion of guilt beyond a reasonable doubt.
Independent Witness
In addition to considering the evidence of a witness based on being an eyewitness or a corroborative witness, the court will also give additional weight to evidence that comes from a person who is an independent witness. An independent witness is sometimes referred to as a third-party witness. They are characterized as independent because;
• They are not associated with the victim
• They are not associated with the suspect
• They are not in any way associated to the criminal event
In other words, an independent witness is someone with nothing to lose and nothing to gain by the outcome of the case. With this inferred lack of vested interest to either side, the independent witness is seen by the court as providing unbiased testimony. Similar to the court, an investigator can attribute more confidence to statements made by persons who are established to be independent eyewitnesses or independent corroborative-witnesses to an event.
Topic 3: Competence and Compellability
For a person to be called as a witness to testify in court, that person must be accepted by the court as being both a competent witness and a compellable witness. There are some rules that apply to assessing both competence and compellability of witnesses, and it is important for an investigator to understand these rules and definitions since it can negatively affect a case if key evidence is expected from a witness who is found either not competent or not compellable to testify. The examination here is not intended to be a comprehensive review of the rules of competence and compellability, but an overview of the main statutory issues. Case law relating to the finer points of witness competence and compellability is constantly evolving and, where applicable, may be presented in a court to challenge a witness.
A Compellable Witness
Most of the people an investigator will encounter during their investigations will be considered compellable to testify. Any person can be compelled to attend court as a witness by way of issuing a subpoena. If they fail to attend court after being served with a subpoena, the court may issue a warrant for the arrest of that witness to bring them before the court to testify. That said, once a person is compelled to attend court by either a subpoena or a warrant, there are still certain circumstances under which that person may be considered exempt, or not compellable to provide certain types of testimony. These circumstances relate to when the witness is an accused person or when the witness is the spouse of the accused.
1. An accused person cannot be compelled. Under Sec 11 of the Canadian Charter of Rights and Freedoms (1982), an accused person cannot be compelled to testify at his or her own trial. However, if the accused person is charged jointly with another person, they may be compelled to testify against their co-accused. Under those circumstances, the witness can be afforded protection under the Canada Evidence Act (1985) and their testimony cannot subsequently be used against them at their own trial for that same offence.
2. When the witness is married to the accused. To preserve the privilege of communication between two partners in their marriage, legislation and case law provides a protection of privacy, and anything said between two married partners in relation to a criminal event cannot be compelled as testimony in court. This exemption to testify is stated under the Canada Evidence Act (1985). Specifically, Sec 4(3) states:
No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.
Many people incorrectly believe that this is a blanket protection where one spouse cannot testify against the other. However, the legislation only provides protection to the communication between spouses. It does not restrict a spouse being called to testify regarding observations of physical evidence or relationships. For example, a husband may arrive home covered in blood and carrying a bloody knife confessing to his wife that he just stabbed someone to death. Although the communication of the confession of the crime would not be compellable testimony, the observations of the blood, the knife, the time and location of the observation would be a compellable testimony. On this point, Sec 4(2) of the Canada Evidence Act (1985) also states:
No person is incompetent, or compellable, to testify for the prosecution by reason only that they are married to the accused.
In addition to the ability to call a spouse to testify regarding observations of evidence, the prosecution can compel a spouse to give evidence, including personal communications, for the prosecution in cases that involve an offence of violence against that spouse and certain sexual offence against children.
A Competent Witness
Like the rules of compellability, persons are presumed to be compellable to testify unless they meet the exceptions stated under the Canadian Charter of Rights and Freedoms or The Canada Evidence Act. All witnesses are also considered competent to testify unless it can be shown that they lack certain personal abilities or capacities. Historically, common law barred certain people from testifying. These people included convicted criminals, very young children, the mentally ill, and spouses of an accused person.
Many of these rules have been overturned by statute, for example, the rule against convicts was removed by section 12 of the Canada Evidence Act (1985). The record of a convicted person can still be used as character evidence.
There are three classes of exceptions; children, persons with low mental capacity, and spouses. For each of these classes of people, it is up to the opposing counsel in court to make a challenge and establish the incompetence of the witness.
There is a presumption that the witness possesses both capacity and responsibility to give evidence. To testify, a witness needs only the ability to recall what they have seen and heard, and be able to communicate what they recall. To communicate, the witness must be able to understand and respond to questions, and the witness must demonstrate the moral capacity to tell the truth. Moreover, the determination of competency is guided by the following rules established in case law:
The proof of competency or incompetency is on the balance of probabilities (R v Ferguson, 1996).
Where competency is challenged, it must be established by a voir dire before the witness can be sworn (R v Steinberg, 1931).
A witness who states that they may not tell the truth is still competent to testify. Such issues of truthfulness are factors of credibility for the trier-of-fact (R v Walsh, 1978).
When considering the issues of witness competence and compellability, an investigator must keep in mind that the evidence collected from certain witnesses, such as spouses, children, and persons of low mental capacity, may be subjected to these rules. Exemptions for witness testimony and exclusion of the evidence may occur at trial (R v Khan, 1990; Justice Canada, 2017).
That said, during the investigation, it remains within the purview of the investigator to assess the information and evidence collected, and to consider that evidence when forming reasonable grounds to believe and take action. When considering the nature of the information and evidence received, it is not up to the investigator to assess whether the court will accept the information or not. The investigator’s use of the information and evidence received from a spouse, a child, or a person of low mental capacity should not be discounted in forming reasonable grounds simply in anticipation of a possible exemption of the witness and exclusion of evidence by the court. If the person giving the information or evidence is assessed as being a credible witness, the investigator should consider that material and give it fair weight in forming reasonable grounds for belief.
Topic 4: The Witness/Suspect Dilemma
Although the circumstances vary, it is a common occurrence that crimes are reported by a perpetrator posing as a victim or a witness. Crimes, such as break-and-entry and motor vehicle thefts, are quite often insurance frauds. Other crimes, including murder, have also had the offender make the report as a witness to explain their presence at the crime scene and avoid being considered as a suspect. Being aware of this possibility requires investigators to undertake a process of validating the reported crime and assessing the information being reported by witnesses or victims as a routine part of their investigation. To do this, an investigator should be attentive to questioning the report and the evidence presented to assess:
1. Did the crime happen at the time being reported?It is often difficult for a person fabricating a report to provide the true timing of the events without implicating themselves as present at the time of the crime. Asking questions that demand timelines accounting for witness activities during the crime time can sometimes detect deception.
2. Did the crime happen at the place being reported?Persons fabricating a report will sometimes change the location of the reported crime to avoid detection of the true crime scene where incriminating physical evidence may still be present. Carefully assessing the report in comparison to evidence present or not present can sometimes indicate this deception.
3. Did the crime happen in the manner being reported?False accounts of crime will often exaggerate or over report details of the event. The report will contain some level of fabrication that explains their own connection to the events. Assessing each witness version of the event for consistency or inconsistency with physical evidence and other witness versions can reveal deception.
Even with careful attention to these questions, it may not be immediately possible to confirm the validity of the crime being reported, and the investigation must proceed to take the report as true until other evidence emerges to prove otherwise.
The advantage of investigating this kind of falsely reported crime is that the suspect is presenting themselves as a witness or victim. As such, all of their statements may be taken and will be admissible against them later, without voir dire, if deception in their statement becomes provable. Until some distinct piece of incriminating evidence emerges, the investigator is under no obligation to caution or warn the witness. Each new statement can afford opportunities to investigate further in search of evidence of the lie that will prove deception.
Topic 5: Witness Credibility Assessment
In addition to determining if a person is an eyewitness, a corroborative witness, an independent witness, a competent witness, or a compellable witness, every person who is a witness during an investigation needs to be subjected to a credibility assessment. As information and evidence are collected from each witness, it is part of the investigator’s job to determine the level of confidence that can be attributed to each witness. This is called witness credibility assessment.
One of the most significant issues to be considered in assessing a witness is determining if they are a witness, or if they are a suspect posing as a witness. More likely than interviewing false reporters of crime, investigators find themselves interviewing a variety of ordinary people who truly have been the victim of a crime, have witnessed a crime, or witnessed some aspect of a criminal event. The level of confidence an investigator can have in a witness will be contingent on several factors relating to who the witness is, the abilities of the witness, and the circumstances of the event.
1. Witness profile. Ideally, every witness would be an upstanding member of the community with a high level of integrity and an outstanding reputation. This is rarely the case. The nature of criminal activity and the natural proximity and association of criminals within a criminal community, often skew the witness list more towards those with more colourful and less upstanding personal profiles. Being part of the criminal community, or having a criminal record, does not necessarily mean that a witness will not be truthful. However, these are factors that an investigator must consider when assessing the value of the evidence being reported. For example, if a witness has a record for perjury, their evidence should be carefully scrutinized and additional corroboration may be required to strengthen the witness’ account of the events to achieve acceptable credibility for the court.
2. Witness bias — motivation to lie. As discussed earlier in this chapter, independent witnesses who are not connected to the victim, the accused, or the event itself make the most credible witnesses. People close enough to a criminal event to become witnesses are often, in some way, related to the victim, the suspect, or to the event itself. As such, the associated witness may have a bias in making their report of the event. As a friend or foe, the witness may have some motivation to withhold information or to lie to influence the outcome. Understanding how each witness fits into the event, and what their linkages are to other participants or the event itself, is an important dynamic to uncover. In the case of a bias witness, additional corroboration should also be looked for.
3. Witness involvement — emotional impact of the event. Criminal events can be very stressful and anxiety producing experiences. This is not only true for the victim but for anyone who has been exposed to danger, violence, or situations where threats to personal safety or incidents of injuries or death have occurred. As human beings, we are not conditioned to live through these kinds of events without experiencing some kind of emotional response. Post-Traumatic Stress Disorder speaks directly to the emotional damage traumatic events can inflict (Resnick, Kilpatrick, Dansky, Saunders, & Best, 1993). It is important for an investigator to consider the nature of the event and the exposure of the witness to these dynamics. Extreme post traumatic trauma, such as observing the violent death of a loved one, can sometimes render that witness unable to provide a reliable account of details (Streets, 2011). It may be necessary to give some witnesses time to regain their composure to provide information or evidence. In some cases, the traumatic effect is too significant and the information cannot be recovered. Knowing how a witness is connected to the event and being able to comprehend their potential exposure to emotional trauma provides the investigator with the insight that certain strategies, such as softer interview techniques, flexible timing, and professional support resources that take the emotional trauma of the witness into consideration, may be necessary and appropriate. Another kind of emotional trauma is a witness’ fear for their personal safety. This can be a fear of physical, psychological, or emotional reprisals for the witness providing evidence. In a situation that includes organized criminal groups, this fear is a genuine and understandable concern. In these types of cases, it may be difficult to protect the identity of a witness, and assurances of protection of the witness can be subject to jurisdictional or organizational limitations of witness protection resources.
4. Location when viewing the event. A witness’ physical location when observing an event can become an important point of evidence, and should be considered and included in the interview and statement of each witness. If a witness is providing details of the event that required them to be in direct proximity of the accused or the event to observe or hear, the physical location of the witness at the time of those observations is a critical element. Physical location can also be important in explaining gaps or differences in witness observations. The fact that one witness to a crime observed certain actions, but another witness did not, can sometimes be explained by the alternate angles of observation of each witness or because of some physical obstruction that affected one witness but not the other. Crime scene photos and diagrams can often help witnesses to demonstrate and describe their distinct perspectives. Returning to the scene of the crime to physically establish these locations and angles of observation can be a useful exercise for investigators to conduct.
5. Awareness of the crime — intent to observe and recall the occurrence. In most cases where a crime has occurred, a witness will know that the crime is happening, and this awareness will engage their attention to make observations that they can later recall and give an account of. In other cases, where a witness has not been alerted to the crime and is only observing the evolution of events as part of an unremarkable sequence, their memory is not as engaged and their processes of observation may not be as keen. To demonstrate this point, consider an example where a group of three people are standing in the teller’s line at a bank.
Scenario
At the front of the line, a young man hands the bank teller a note advising, “This is a robbery. I have a gun. Put all the cash from your till into an envelope and give it to me. Do not press the alarm or I will shoot you.” The bank teller is aware that a crime is taking place; however, the two customers standing in line behind the robber are simply waiting their turn. The customer standing immediately behind the robber suddenly notices that the teller looks frightened and sees she is placing the contents of her cash drawer into an envelope. The third customer in line remains unaware and is talking on the telephone to his wife about their grocery list. The robber grabs the cash-filled envelope from the teller and turns to run out of the bank. The customer immediately behind him steps out of his way, but he bumps into the third customer still talking to his wife. In this scenario, an investigator could expect to get a detailed account of the events from the bank teller who was engaged in the event and aware of the crime from the outset. The customer immediately behind the robber become aware of the crime and was making observations half way into the robbery. This customer could likely provide some significant details. The third customer in line was never aware that a crime was in progress and, other than perhaps providing a limited description of a man who bumped into him, his value as a witness may be negligible. Many witnesses who make observations of a criminal’s activities in the pre-crime stage or in the post crime stage, when they are leaving the scene of the crime, fall into the category of not being aware of the crime. This does not mean these witnesses will be of no value but that their casual observations need to be identified and recorded as soon as possible.
6. Length of observation time. Very simply, length of observation time is the amount of time a witness had to see the event taking place. This amount of time will vary with circumstances, as there would be a difference in opportunity for observation between one witness standing stationary at the crime scene observing the event, and another driving past the unfolding events at 100 kilometers per hour. This can also be an issue contingent upon the awareness of the event taking place. Some witnesses become aware of the event more quickly and have a longer opportunity to observe. As with our example of the bank robbery, the teller being robbed had the longest observation time, the customer immediately behind the robber became aware that something was happening and had a shorter observation time, but the third customer did not become aware of anything until the robber bumped into him. This scenario demonstrates the value and detail of evidence an investigator might expect from witness with differing levels of observation time.
7. Time elapsed between the event and the interview. A critical aspect of gaining the best account of events from any witness is making sure that the interview happens at the earliest opportunity. It is a practice in police investigation to make every effort to identify and interview witnesses as soon as possible. As a simple exercise to demonstrate the importance of finding and interviewing witness quickly, take a piece of paper and to the best of your ability, write down the details of your day starting at the beginning of the day three days ago. What did you do? Where did you go? Who did you see? If you are like most people, you have some level of daily structure to your life. From that structure, perhaps you will recall you got out of bed at a usual time. Maybe you went to work or stopped at the gym or at your favourite coffee shop on the way to work. These benchmarks of your daily routine may be easily remembered. But, on your way to work, did you happen to see a green van with extensive damage to the front end on the street near your home? Of course, this is a fictitious question, but this would be the kind of inconsequential daily observation information you might be asked to recall by police canvassing for witnesses to a crime.Understanding this time limited aspect of human memory, investigators need to consider how much weight they can place on the accuracy of information being recounted by a witness. If a witness is providing a remarkably accurate recollection of something being recounted from any distance in the past, it is a good idea to ask that person how they can recall what should be a mundane event with such a degree of accuracy or clarity. If they are correct, the witness will sometimes provide a memory trigger that made them notice and causes them to recall. For example, a witness may answer, “Yes, I remember that green van with all the damage to the front end because my brother has a green van just like that and I looked at the driver and saw that it wasn’t my brother. I looked at it even closer because I had never seen that van on my street before.”
8. Ability to record or repetitively recount details. If a witness was aware that they had witnessed a crime and they were making a conscious effort to record or otherwise memorize the facts, this is a point that the court will be interested in hearing as part of the witness’ evidence. If, for example, to remember the licence number of a suspect vehicle, the witness repeated the number over and over until they were able to write it down, this is an important detail that should be recorded in the witness statement, and the paper upon which the number was written should be seized and retained as an exhibit that can be shown to that witness on the stand as the note they made at the time of the event. This demonstrated that the witness had intent to recall and record the details of an event, which will contribute in a positive way to the credibility of the witness.
9. Physical abilities — hearing, sight, smell, touch, taste and cognitive perception. The physical faculties of the senses may be used by a witness in their recollection of the events they are describing. When a witness makes a statement referring to their senses, their credibility in giving that evidence will depend upon the extent to which their senses are working. In taking statements from witnesses, the investigator must be satisfied that a witness who claims to have seen an event has adequate vision to make that observation. Similarly, a person who states that they heard something must be able to demonstrate that they have adequate hearing to have heard it. Speaking very quietly to test the hearing limits of a witness or asking a witness to describe something within the visual ranges of the evidence they saw are both reasonable strategies to informally test a witness’s range or limitations of senses. Asking a witness questions about their use of eyeglasses, contact lens, or hearing aids during their observation of events are all reasonable strategies to establish the credibility of a witness to make the observations they are reporting. Flowing from the use of their senses, witnesses will often provide information and cognitive perceptions of the events they witnessed. The cognitive perceptions of a witness are their own personal interpretation of the information they took in through their senses. As such, they are a subjective analysis of the information being sensed. A witness may provide a statement regarding the age of a suspect, the size of an object, the speed of a vehicle, the smell of alcohol on a person’s breath, or even the distance they stood from the event they witnessed. To a certain degree, the court will allow such evidence and opinions of common knowledge from non-expert witnesses; however, a witness may be challenged on their observations, and it is best to understand any misperceptions in advance. Again, informal testing of a witness to become comfortable that their cognitive perceptions and subject interpretations are accurate and not significantly skewed is a reasonable way to test credibility. For estimating the age of a suspect, an investigator could ask the witness to point out other persons who are approximately the same age. Similar tests could be undertaken in testing perceptions of the size of objects, the speed of vehicles, and the distance to locations. For statements regarding observations, such as the smell of alcohol, the investigator should ask the witness to describe their personal experiences with alcohol to know that it was alcohol they smelt. If the witness had not experienced alcohol or been with people who were drinking alcohol, that opinion of smell would lose credibility.
10. Cognitive capacity and age of witness. To establish the competency of either a child or a person of limited mental capacity, conducting a careful witness credibility assessment will be helpful for the prosecution in meeting challenges to competency. Part of the initial interview should seek to determine if the child or person of limited mental capacity understands the need to tell the truth. The competency background of the witness should be conducted by interviewing persons, such as parents, caregivers, teachers, or doctors, who know the witness and can attest to their mental capacity and their ability to understand questions and communicate their answers.The actual interview of both children and persons of low mental capacity are a delicate and time-consuming process. They must be conducted in a manner that is both suited to the maturity level of the witness, and structured using non-leading questions to elicit answers. In cases where it is possible, investigators with specialized training in this type of interviewing should be utilized. That said, in the first instance, at the scene of an event, it is important for the responding investigator to understand the special considerations that apply to this type of witness in consideration of their evidence. The goal in these cases is to determine how much weight can be attributed to the evidence being provided by witnesses. An investigator may determine that the evidence of a witness is credible and can be used in the development of forming reasonable grounds or, alternately, they may find that the credibility of the witness cannot be established, and the evidence cannot be used in the development of reasonable grounds to take action.
Topic 6: The Truthfully Incorrect Witness
As much as witnesses are a critical component of the criminal investigation process, they can also become a critical threat to the accuracy and integrity of evidence gathering. This sometimes occurs in an anomaly where an apparently credible, independent witness tells their version of events and they are significantly wrong in what they say they observed. Unlike cases where a witness is motivated to intentionally fabricate or exaggerate their account of events, the truthfully incorrect witness has no malicious intent and will provide their version of the events with a genuine belief that what they are saying is true and accurate. This type of witness is an independent observer with no motivation to lie, and as such the weight of their testimony can carry significant influence for the investigator’s reasonable grounds to believe and eventually carry significant probative value for proof beyond a reasonable doubt in the court. For investigators, the truthfully incorrect witness can become a paradox capable of misleading the outcome of the investigation resulting in a guilty suspect going free or an innocent suspect being arrested and charged. This anomaly of truthfully incorrect witnesses is an issue that investigators must remain mindful of. Witnesses are human and humans are fallible. Even for a witness who appears to be independent and credible, there remains a need to scrutinize and fact check the witness’s version of events against the known physical evidence and the accounts of other witnesses.
The importance of the investigator being mindful of a truthfully incorrect witness cannot be emphasized too strongly. In 1996, for example, the National Institute of Justice in the United States released a report concerning the implications of eyewitness testimony and false memories, and in it, reported that 90% of all DNA exoneration cases defendants were wrongly convicted upon the false memories of eyewitnesses (Brainerd, 2005). More recently, Smarlarz and Wells (2015), citing The Innocence Project, noted that eye-witness testimony was used to convict innocent people in over 70% of DNA exoneration cases. More recently yet, Rose and Beck (2016) note that eyewitness testimony accounts for more wrongful convictions than anything else. Research has shown that false memories in eye witnesses can be created in a number of ways, including through leading questions, reports from others, contact with other people, suggestions, a witness’ own expectations, the expectations of others, other social pressures, and media (Bennett, 2015; Allen, 1991). It has also been established that witness recall can be affected by stress (Morgan et al, 2004) and by alcohol (Oorsouw et al, 2015) in complicated ways.
Topic 7: Dominant Witness Influence and Conformity
One of the negative dynamics that can occur in an investigation where there are multiple witnesses is the contamination or influence of witness statements by a dominant witness. This influence can occur when witnesses to an event have not been separated before any interactions or conversations have occurred between the witnesses. These dynamics are possible in almost all cases, and an investigator must always be mindful that this potential exists. It is also possible that a dominant witness will boldly and sometimes aggressively state their version of the events, which can cause other less confident or less sophisticated witnesses to question their own perspective. In such cases, a less dominant witness may change their version of the events or even omit observations to conform to what the dominant witness stated.
Most susceptible to this kind of influence are very young witnesses, elderly witnesses, or witnesses who have timid personalities. On some occasions, where there is an imbalance of power or status in a personal relationship, or even in a subordinate organizational relationship, witnesses may conform to the more powerful witness out of fear of repercussions or hope of favour. In some cases, the dominant witness has a vested interest in having their version of the events stated their way, and the dominant influence towards the other witnesses is intentional and implicitly threatening in its tone.
In cases where witnesses have interacted prior to being interviewed, each witness should be interviewed in seclusion from the others. Witnesses should be asked if they have discussed the event with anyone else or heard anyone else’s version of what happened. They should be cautioned and encouraged to disregard anyone else’s version of events and limit their version to their own account of what was seen and heard during the event.
Topic 8: Uncooperative Witnesses
One of the many unpleasant dynamics of criminal activity is when the police attend the scene of a crime and witnesses, or even victims, refuse to cooperate with investigators. Sometimes, these uncooperative persons are part of the criminal lifestyle and are not willing or interested in cooperating in the justice system. The only strategy for police in these cases is to gather as much forensic evidence as possible in relation to the event and to seek charges where sufficient evidence can be found.
Although these uncooperative witnesses may believe they are not required to participate in the criminal justice system, it is entirely possible to subpoena an apparent witness to attend court to be questioned regarding the criminal event they witnessed. If that witness refuses to answer questions in court, it is possible for the judge to find them in contempt of the court and to sentence them accordingly. That said, this rarely happens.
Topic 9: Conducting Witness Interviews
Arriving at a crime scene, investigators are often confronted with a cast of characters who may be victims, witnesses, or suspects in the matter to be investigated. In the case of an active event, where immediate in-depth interviews are not possible, it is important to:
1. Conduct immediate field interviews of each subject at the scene;
2. Do an immediate preliminary classification of persons found at the scene as victims, witnesses, or suspects; and
3. Take appropriate measures to separate the persons found at the scene for the purpose of physical security and protection of future testimony from cross-contamination of witness accounts and conformity.
Topic 10: The Field Interview
Attending the scene of an event, the first immediate field interview may be as simple as asking an apparent victim or a probable witness, “What happened here?” This simple question serves several purposes for the investigator. First, it shows that the investigator is not making any investigative assumptions based on what is visible to him or her at first glance. With this question, the person being asked is prompted to supply their own version of the event, as they saw it. This pure version will assist the investigator in developing a picture of the event, and it will provide a context allowing the investigator to classify the speaker as a victim, witness, suspect, or an uninvolved party.
If the person the investigator questioned turns out to be the perpetrator, and the investigator has no other evidence that suggests this person should be a suspect, any statement made by that person would likely be considered a spontaneous utterance and may be admitted in evidence without a voir dire. For example, consider a situation where an investigator arrives at the scene of a street fight where a man has been fatally stabbed. The investigator asks one of the men standing nearby, “What happened here?” and the man immediately says, “I killed him and he deserved it.” This statement would be considered a spontaneous utterance and would likely be admitted as evidence without the usual voir dire. Once this self-incriminating statement has been made, the suspect would need to be immediately arrested and provided with the Charter warning and caution before any further statements could be pursued through additional questioning. Clearly, once a suspect is identified, they can no longer be considered as a witness.
If no one is immediately identifiable as a suspect at the scene of an event, it is reasonable for the investigator to proceed with classifying the persons present as possible witnesses. As discussed earlier in this chapter, to classify the witnesses, the investigator must consider the nature of the evidence that the witness can provide:
• Direct evidence of the eyewitness, which is evidence of seeing the criminal event occurring and perhaps even identifying the suspect; or
• Circumstantial evidence of the corroborative witness, which is indirect evidence of events, physical evidence, timelines, and spatial relationships that can assist the court in reaching a logical presumption of how the crime occurred and who was responsible.
Interviewing a witness is not just a simple matter of hearing their version of the events. There are many factors that can come into play in determining how credible a witness is. Following the initial field interview, and once the event is under control, it is important to take the witness’ formal statement at the earliest available opportunity. Taking the witness statement should be conducted using the best technology available given the circumstances. If audio and or video recording devices are not available, or obtaining them would cause an unreasonable delay in getting the witness statement, a written statement should be taken. No matter how the witness statement is recorded, it should be the goal of the investigator to obtain the best, uninfluenced, and unbiased version of events from a witness.
Like the threat of conformity being induced by a dominant witness, a witness can also be influenced by leading questions asked by an investigator. Some witnesses are so eager to assist in solving the crime that they will attempt to guess the answer to a leading question instead of admitting that they do not know the answer. The caution here is to avoid asking leading questions. Leading questions are questions that a witness might be able to infer the answer by the nature of the wording. An example of a leading question would be:
“Did you see Larry pick up the revolver and shoot Bill in the head?”
This leading double question can be answered yes or no, and it also supplies the witness with a significant amount of information that the witness can infer about the details of the event. These may be details that they would not have previously known. From this question, the witness could infer that Bill was shot in the head, the weapon used was a revolver, the suspect in the shooting was Larry, and the revolver was picked up from somewhere. A better and more appropriate initiation of the statement would be: “Did you witness an event today? Tell me what you saw.”
Although this open-ended approach to statement taking is more time consuming, the investigator at least knows that they are not planting any ideas or words to influence the witness’ account of the event. Taking a statement in this manner is known as taking a pure version statement. A pure version statement needs to be the witness’s best, uninterrupted narration of the events, as they recall it. As the witness recounts their best memory of the event, the investigator must resist the temptation to intervene and ask clarifying questions on the points being revealed. Clarifying questions like the question used to start an interview can be leading and can influence the witness’ statement.
As the witness recounts their pure version of the events, the investigator should be taking notes on points to be clarified once the entire statement is completed. Those questions should remain as open-ended as possible. So, if the witness has stated in their pure version of events, “I walked into the room and that is when I saw the shooting happen,” the clarifying question should be an open-ended prompt, such as, “You said you saw a shooting happen, tell me more about that.”
There are many different techniques and strategies for witness interviewing that cannot be addressed in this short book as part of an introduction to investigations. The best advice for new investigators for the interviewing of a witness is learning to be patient and allow the witness to tell their story in their own time and in their own way. Avoid the human tendency of trying to assist and interact with the speaker by asking questions, filling in the blanks, and clarifying things while the story is being related. The more effective interview technique is one where the witness can exhaust their memory and relate the events to the best of their ability without interference and the contaminating influence of questions that might derail their train of thought.
As discussed earlier, it sometimes happens that a witness or a reporting victim will turn out to be the perpetrator of a crime. In these cases, allowing the person to provide their full uninterrupted statement can produce incriminating indicators or even evidence of involvement. There is a tendency for criminals who fabricate their report of a crime to make sure they are adding information in their statement that helps eliminates them as a suspect. This can include unsolicited alibis for their whereabouts and their activities at the time of the reported event. When a witness supplies this type of information without being prompted, it can be an indicator of personal involvement in the criminal event. Any such voluntary explanations of personal activities should be recorded carefully and closely scrutinized to confirm the validity of facts. Follow up questions to unsolicited explanations should include seeking the names of independent witnesses who might be able to corroborate the witnesses account.
In the case where an investigator suspicious that a reporting witness or victim may be the perpetrator of the crime, there is no obligation to reveal that suspicion until evidence exists that allows the investigator to form reasonable grounds for belief. If further investigation determines that the statement is a fabrication, this may be sufficient circumstantial evidence to require a warning for at least the offence of mischief for making the false report. In such circumstances, a Charter warning and caution are appropriate before additional questioning is undertaken.
Taking the Witness Statement
The written, audio, or video statement of a witness taken by a police investigator will become the permanent record of events as seen by that witness. The police investigator will use the content of that statement as a reference document in the construction of search warrants and in support of reasonable grounds for belief to lay an arrest. The crown prosecutor will use the statement to construct their case for presentation to the court and for pre-trial disclosure of the evidence to the defence counsel. The statement will serve as a document from which the witness may refresh their memory of events to provide accurate testimony to the court.
Considering the foregoing list of uses, the witness statement needs to be as accurate and complete as possible. The standard format used to begin a witness statement is as follows:
This is the statement of witness’s full name taken on date and time atlocation where taken by name of person taking or recording the statement.
At the conclusion of the statement, it must be signed by the witness. If the statement is audio and or video recorded, the foregoing preamble needs to be used to start the statement, and once the statement is transcribed, the witness should sign the hard copy transcription.
Witness Identification of a Suspect — Photo Lineups and Live Lineups
Beyond taking a statement, one of the most common forms of obtaining information from a witness is the practice of having witnesses identify a suspect through the viewing of photographs or photo lineups. This kind of after the fact identification of a suspect will be subjected to scrutiny when it is presented in court. Strict protocols must be followed to demonstrate that the process was conducted in a fair and unbiased fashion. Under no circumstances would an investigator ever present the witness with only a single photograph or a single lineup suspect and ask if this is the suspect. Additionally, under no circumstances should an investigator ever state that the suspect is one of the persons in the lineup.
In the practice of presenting photo lineups, the photos are arranged in a series of eight pictures or more that are permanently mounted into a series of numbered windows of a special photo lineup file folder.
The suspect’s photograph is one of the eight pictures and the remaining seven photos are called “distractor photos.” To be fair, these distractor photos need to be reasonably similar to the suspect photo in terms of gender, age, race, head hair, facial hair, and glasses. When the photo lineup is presented to the witness, there should be instruction by the investigator that the suspect of the investigation may or may not be in this photo lineup (i.e., “Please look at all the photos carefully and only select the number of a photo if you are certain it is the suspect you saw at the time of the event”).
Like photo lineups, live persons may be used to conduct a suspect identification or a suspect in custody. These live lineups are more difficult to create because they require the cooperation of the suspect and if the suspect does something during the viewing that could draw attention to him; it could prejudice the lineup process. As with the photo lineup, the distractor subjects need to be selected to be fairly similar to the suspect; however, unlike photo lineups, the live lineup requires the additional elements of ensuring that everyone is of similar height, weight, body shape, and dress. You cannot put the suspect dressed in a shirt and tie into a lineup with distractors wearing blue jeans and tee shirts.
Another means of suspect identification is permitting the witness to page through volumes of criminal file photos that are part of the local police photo collection. This technique is sometimes used when there are no identifiable suspects and the witness is reasonably certain that they will recognize the face of the suspect if they see it again. The negative aspects of this strategy are that it can take a great deal of time, and a witness can sometimes become confused by the process and overloaded with the viewing of too many faces, causing an eventual loss of confidence in making a proper identification.
Summary
This chapter examined the broad range of issues that must be considered by an investigator in relation to the collection of information and evidence from witnesses to a crime. These issues range from the way witness evidence is classified and validated to the way witnesses are assessed and evaluated to determine their ability to give evidence and the credibility of the evidence they give.
The chapter illustrated the processes required for proper witness management during investigations. These task processes of witness identification, classification, credibility assessment, and proper interviewing practices in statement taking are all components of witness management that demonstrate professional standards applied by a criminal investigator.
Study Questions
1. What is a collaborative witness?
2. What is an independent witness?
3. Can an accused person be compelled to testify regarding a crime they have been involved in?
4. Are all persons considered competent to testify?
5. What is witness credibility assessment?
6. What concerns should an investigator have about dominant witnesses?
7. What should an investigator do in the case of an active event where immediate in-depth interviews are not possible?
8. Is it possible to have a witness statement in something other than written form?
9. What are two negative aspects of having a witness attempting to identify a suspect by paging through volumes of criminal file photos?
Long Descriptions
Photo lineup long description: A sample document asking the public to identify a suspect in a criminal investigation. Head shots of eight young men of similar age are numbered. Below, the document says, “The person that the police are seeking to identify in their investigation may or may not be one of the persons in the photo lineup above. If you positively recognize one of the photographs above as the person you saw, please write the number of that photograph in the space below.” Below, it says, “I recognize the person shown in photo #[blank],” and below that is space for “any comment regarding your observation” and the signature of the witness.
A disclaimer at the bottom says “Photos illustrated in this mock photo lineup are student photographs and have been kindly provided with the cooperation and consent of Law Enforcement Studies students and Bachelor of Law Enforcement Studies students from the Justice Institute of British Columbia.” [Return to Photo lineup] | textbooks/workforce/Corrections/Introduction_to_Criminal_Investigation_-_Processes_Practices_and_Thinking_(Gehl_and_Plecas)/1.07%3A_Witness_Management.txt |
“Crime scene management, and evidence management as a critical part of that, must be learned and incorporated into the investigator’s toolkit.”
Crime scene management skills are an extremely significant task component of investigation because evidence that originates at the crime scene will provide a picture of events for the court to consider in its deliberations. That picture will be composed of witness testimony, crime scene photographs, physical exhibits, and the analysis of those exhibits, along with the analysis of the crime scene itself. From this chapter, you will learn the task processes and protocols for several important issues in crime scene management. These include:
1. Note taking
2. Securing a crime scene
3. Evidence management
4. Scaling the investigation to the event
Topic 1: Note Taking
Although other documents will be created by the investigator to manage the crime scene, no other document will be as important to the investigator as the notebook. The notebook is the investigator’s personal reference for recording the investigation.
Many variations of police notebooks have emerged over the years. The court will sometimes even accept police notes that have been made on a scrap of paper if that was the only paper available at the time. However, beyond extreme circumstances, in operational investigations, the accepted parameters of a police notes and notebooks are:
• A book with a cover page that shows the investigators name, the date the notebook was started, and the date the notebook was concluded
• Sequential page numbers
• A bound booklet from which pages cannot be torn without detection
• Lined pages that allow for neat scripting of notes
• Each entry into the notebook should start with a time, date, and case reference
• Blank spaces on pages should not be left between entries and, if a blank space is left, it should be filled with a single line drawn through the space or a diagonal line drawn across a page or partial page space
• Any errors made in the notebook should only be crossed out with a single line drawn through the error, and this should not be done in a manner that makes the error illegible
In court, the investigator’s notebook is their best reference document. When testifying, the court will allow an investigator to refer to notes made at the time to refresh their memory of events and actions taken. When an investigator’s notebook is examined by the court, notes consistent with the investigator’s testimony provide the court with a circumstantial assurance or truthfulness that the evidence is accurate and truthful (McRory, 2014). Alternately, if critical portions of the investigation are not properly recorded or are missing from the notebook, those portions of the evidence will be more closely scrutinized by the defence. The court may give those unrecorded facts less weight in its final deliberations to decide proof beyond a reasonable doubt.
For an investigator, good notes are an overview of the things seen/heard and the actions taken. A chronology of notes demonstrates the investigator’s mental map of the facts that led to forming reasonable grounds for an arrest and charges. Court cases are often extended by adjournments, appeals, or suspects evading immediate capture. This can extend the time between the investigation and the trial by several years. In these protracted cases, it becomes critical for the investigator to have detailed notes that accurately reflect their investigation to trigger their memory of the facts.
As important as the notebook is, note taking skills are often an underemphasized aspect of police training. Most police investigators develop their personal skills and note taking strategies through on the job experience and in the “trial by fire” of cross examination in court. This void in the training of note taking skills is likely due to the broad range of circumstances under which note taking needs to take place and because it is impossible to anticipate what facts will become important in every possible variation of circumstances. Thus, some combination of training, common sense, and experience will come into play for investigators to become proficient in recognizing what to record in their notebook.
The concept of “notes made at the time of an event is a rather misleading definition and requires some explanation. In an ideal world, an investigator would be able to proceed through an investigation with an open notebook and record each fact and each observation of events as they transpire. Of course, the way events unfold is dynamic and unpredictable. Circumstances often require an investigator to be fully engaged in efforts to bring a situation under control, while protecting the life and safety of persons. There is no place for an open notebook in such cases and the investigator is clearly not taking any notes at that time, but will do so after the event is under control, and as soon as it is practical to do so. Although the typical reference in court is to notes made at the time, in actuality, they are notes made as soon as practical under the unique circumstances of the event.
The courts do accept the operational dynamics that exists for investigators, and it sometimes becomes a question at trial to know when the notes were actually composed. As such, an investigator should always be prepared to answer this question. Having a note in the notebook regarding the time when the writing of notes was and finished acts as a reference to demonstrate awareness and attention to this issue.
Another issue related to notes made at the time is the dilemma of facts that were overlooked and then recalled after the initial notes have been completed. The human memory does have its limitations and flaws. On occasion, an investigator will complete the initial draft of their notes, and, at some later time may suddenly recall a point that was missed. On such occasions, returning to the pages of notes made at the time and attempting to insert the recalled facts is not an acceptable practice. The proper way to record these later recollections of fact is to immediately start a new note page, using the current time and date, make a reference to the previous case-notes, previous time, date, and page number, and record the newly recalled fact or facts. These kinds of recalled facts and late entries will be closely examined by defence counsel, and it can sometimes be helpful if the investigator can also make note of the fact or circumstances that led to the recollection of the additional information. Anyone who has ever participated in a critical incident, where life and safety have taken priority, can tell you that once the event is under control, investigators can be seen writing intently to document their recollection of the events.
The following strategies are recommended as a general guide to note taking:
1. Start notes by creating a big picture perspective and then move from the general to the more specific observations. In this big picture, you are creating a perspective of the facts that you have been made aware of to begin an investigation. These big picture facts become the starting point of your mental map of events, and these facts will be the framework to begin thinking about offence recognition and forming reasonable grounds to believe and take action.
2. In more specific terms, and to the extent it is possible, begin recording all dates, times, and descriptions of persons, places, and vehicles as they emerge. You may, in fact, have already started a page in your notebook where some exact times, addresses, licence plate numbers, names or persons, and perhaps even blurted statements from a suspect have been jotted down. It is acceptable to use these key pieces of jotted information already recorded to enlarge your detailed notes at the end of the event in a more complete fashion.
3. Record the identities of persons encountered and how the identity of each person was verified. For example: Witness Jane Doe (DOB: 8 May 64) 34345-8 St Anywhere BC Photo drivers licence ID
4. Record all statements made by witnesses and victims to reflect an accurate account of the information being conveyed. It is often not possible to record every statement made verbatim in notes, and, in most cases, it is not necessary. Today, technology makes it possible to digitally record the verbatim account being provided by a witness or a victim. But, merely digitally recording a statement is not sufficient, since statements will frequently form considerations in establishing reasonable grounds for belief to take action. Recording the critical details being conveyed will provide a written record of the facts considered to form reasonable grounds for belief.
5. If a person is a suspect or is a person who may become a suspect, make every effort to record any statements made by that person verbatim. Suspects will often be found at the scene of a crime posing as a witness or even as a victim. Accurately recording the initial statements made by such a person can produce evidence of guilt in the form of statements that are provably false or even incriminating.
It is the personal responsibility of each investigator to document their personal perception and recollection of the event they are witnessing, as it unfolds. In cases where investigators have collaborated on an agreed version of events and authored their notes to reflect those agreed upon facts, the notes are no longer the personal recollection of that investigator and, as such, may be scrutinized as being a collective version of events aimed at producing evidence that does not reflect a true account of the facts as they were witnessed by each individual investigator.
The practice of collaborating and making collective notes is sometimes called “boxing of notes” — this practice can be discovered by defence when the individual notebooks of investigators are identical or close to identical in format and content. The practice of boxing of notes has been identified as one of the flaws in investigative practice that can lead to miscarriages of justice (Salhany, 2008). As such, collaboration between investigators when making notes should be avoided. If, at any point, there is a collaboration to return to an issue together and re-examine physical evidence to clarify the point for each investigator, that collaborative effort should be noted as part of the note making of each investigator.
Despite this caution regarding the collective production of notes, there are occasions where a collective note making process is used and is accepted as reasonable. This occurs during large scale operations involving many participants, sometimes coordinated by an Emergency Operations Command Center. In these cases, there is a need for the command centre participants to be completely engaged in handling the event, which may extend over periods of hours or days. The practice of each participant waiting until the protracted event has been concluded to make their individual notes would be impractical and potentially inaccurate. In these cases, it is now accepted operational practice to assign one person in the command centre to act as the collective maker-of-notes to substitute for individual note-taking. The note maker in these situations is known as “The Scribe.” For the persons in the command centre to be aware of the notes being made, the Scribe does not make notes into a typical notebook. In such cases, the notes are made onto large pieces of flipchart paper and, as each sheet of notes is completed, it is posted onto the wall of the command centre where each participant can reference the content of the notes and verify the accuracy of the notes. At the end of the operation, the collective pages of notes are photographed and the note pages are saved by the scribe as an exhibit. Each page is often initialled by the participants. Under this process, each participant in the command centre may adopt these notes as a reference document for court purposes.
Topic 2: Integrity of the Crime Scene
As part of crime scene management, protecting the integrity of the crime scene involves several specific processes that fall under the Tasks category of the STAIR Tool. These are tasks that must be performed by the investigator to identify, collect, preserve, and protect evidence to ensure that it will be accepted by the court. These tasks include:
a) Locking down the crime scene
b) Setting up crime scene perimeters
c) Establishing a path of contamination
d) Establishing crime scene security
When an investigator arrives at a crime scene, the need to protect that crime scene becomes a requirement as soon as it has been determined that the criminal event has become an inactive event and the investigator has switched to a strategic investigative response. As you will recall from the Response Transition Matrix, it is sometimes the case that investigators arrive at an active event in tactical investigative response mode. In these cases their first priority is to protect the life and safety of people, the need to protect the crime scene and its related evidence is a secondary concern. This is not to say that investigators attending in tactical investigative response mode should totally ignore evidence, or should be careless with evidence if they can protect it; however, if evidence cannot be protected during the tactical investigative response mode, the court will accept this as a reality.
As soon as the event transitions to an inactive event with a strategic investigative response, the expectations of the court, regarding the protection of the crime scene and the evidence, will change. This change means that there is an immediate requirement for the investigator to take control of and lock down that crime scene.
a) Locking Down the Crime Scene
Very often, when the change to strategic investigative response is recognized, first responders and witnesses, victims, or the arrested suspect may still be inside the crime scene at the conclusion of the active event. All these people have been involved in activities at the crime scene up to this point in time, and those activities could have contaminated the crime scene in various ways. Locking down the crime scene means that all ongoing activities inside the crime scene must stop, and everyone must leave the crime scene to a location some distance from the crime scene area. Once everyone has been removed from the crime scene, a physical barrier, usually police tape, is placed around the outside edges of the crime scene. Defining of the edges of the crime scene with tape is known as establishing a crime scene perimeter. This process of isolating the crime scene inside a perimeter is known as locking down the crime scene.
b) Crime Scene Perimeter
The crime scene perimeter defines the size of the crime scene, and it is up to the investigator to decide how big the crime scene needs to be. The size of a crime scene is usually defined by the area where the criminal acts have taken place. This includes all areas where the suspect has had any interaction or activity within that scene, including points of entry and points of exit. The perimeter is also defined by areas where the interaction between the suspect and a victim took place. In some cases, where there is extended interaction between a suspect and a victim over time and that activity has happened over a distance or in several areas, the investigator may need to identify one large crime scene, or several smaller crime scene areas to set crime scene perimeters. Considering the three stages of originating evidence, an investigator may find that pre-crime or post-crime activity requires the crime scene perimeter to surround a larger area, or there maybe even be an additional separate crime scene that needs to be considered.
For some crime scenes where there are natural barriers, such as buildings with doorways, it is easy to create a crime scene perimeter defining access. This becomes more complicated in outdoor venues or large indoor public venues, where fencing and barricades may be needed along with tape markers to define the perimeters.
Once the crime scene perimeter has been established and lock down has taken place, it becomes necessary to ensure that no unauthorized persons cross that perimeter. Typically, and ideally, there will only be one controlled access point to the crime scene, and that point will be at the entry point for the path of contamination.
c) Path of Contamination
It is not possible to eliminate all potential contamination of a crime scene. We can only control and record ongoing contamination with a goal to avoid damaging the forensic integrity of the crime scene and the exhibits. Once a crime scene has been cleared of victims, witnesses, suspects, first responders, and investigators, it is necessary to record, in notes or a statement from each person, what contamination they have caused to the scene. The information being gathered will document what evidence has been moved, what evidence has been handled, and by whom. With this information, the investigator can establish a baseline or status of existing contamination in the crime scene. If something has been moved or handled in a manner that has contaminated that item before the lock down, it may still be possible to get an acceptable analysis of that item if the contamination can be explained and quantified.
As an example, sometimes in cases of serious assaults or even murders, paramedics have been present at the scene treating injured persons. When this treatment is happening, non-suspect-related DNA transfer between persons and exhibits can occur. Determining those possibilities is one of the first steps in establishing the level of existing contamination at the time of lock down.
With everyone now outside the crime scene and the perimeter locked down, the next step is to establish a designated pathway where authorized personnel can re-enter the crime scene to conduct their investigative duties. This pathway is known as a path of contamination and it is established by the first investigator to re-enter the crime scene after it has been locked down. Prior to re-entering, this first investigator will take a photograph showing the proposed area where the path of contamination will extend, and then, dressed in the sterile crime scene apparel, the investigator will enter and mark the floor with tape to designate the pathway that others must follow. In creating this pathway, the first investigator will avoid placing the pathway in a location where it will interfere with apparently existing evidence and will place it only where it is required to gain a physical view of the entire crime scene. As other investigators and forensic specialists enter the crime scene to perform their duties, they will stay within the path of contamination and, when they leave the path to perform a specific duty of investigation or examination, they will record their departure from the path and will be prepared to demonstrate their departure from the pathway and explain any new contamination caused by them, such as dusting for fingerprints or taking exhibits.
d) Crime Scene Security
At the same time the crime scene is being defined with perimeter tape, it is also necessary to establish a security system that will ensure that no unauthorized person(s) enters the crime scene and causes contamination. For this purpose, a crime scene security officer is assigned to regulate the coming and going of persons from that crime scene. For the assigned security officer, this becomes a dedicated duty of guarding the crime scene and only allowing access to persons who have authorized investigative duties inside the crime scene. These persons might include:
• Forensic specialists
• Search team members
• Assigned investigators, and/or
• The coroner in the case of a sudden death investigation
To maintain a record of everyone coming and going from the crime scene, a document, known as a “Crime Scene Security Log,” is established, and each authorized person is signed in as they enter and signed out as they depart the scene with a short note stating the reason for their entry. Any unauthorized person who enters or attempts to enter a crime scene should be challenged by the crime scene security officer, and, if that person refuses to leave, they can be arrested, removed from the scene, and charged for obstructing a police officer.
The assigned security officer is responsible for creating and maintaining the Crime Security Log, which can take various forms. In short term, small scale investigations, it may only require a single page in the security officer’s note book; however, in a large scale, long term investigation, the log could include volumes of pages under the care of several assigned security officers working in shifts. Whatever the scale or format, the security log records who attended the scene, when they attended, why they were there, and when they left the scene. An example of a crime scene security log is shown in the following example.
Topic 3: Evidence Management
As we have already learned in the STAIR tool, analysis is the process that must occur to establish connections between the victims, witnesses, and suspects in relation to the criminal event. The crime scene is often a nexus of those events and consequently, it requires a systematic approach to ensure that the evidence gathered will be acceptable in court.
Exhibits, such as blood, hair, fibre, fingerprints, and other objects requiring forensic analysis, may illustrate spatial relationships through evidence transfers. Other types of physical evidence may establish timelines and circumstantial indications of motive, opportunity, or means. All evidence within the physical environment of the crime scene is critically important to the investigative process. At any crime scene, the two greatest challenges to the physical evidence are contamination and loss of continuity.
Contamination of Evidence
Contamination is the unwanted alteration of evidence that could affect the integrity of the original exhibit or the crime scene. This unwanted alteration of evidence can wipe away original evidence transfer, dilute a sample, or deposit misleading new materials onto an exhibit. Just as evidence transfer between a suspect and the crime scene or the suspect and the victim can establish a circumstantial connection, contamination can compromise the analysis of the original evidence transfer to the extent that the court may not accept the analysis and the inference that the analysis might otherwise have shown.
Contamination can take place in any number of ways including:
• Police or other first responders interfering with evidence during a tactical investigative response
• Suspects interfering with the crime scene to cover up or remove evidence
• Victims or witnesses handling evidence
• Animals, including pets, causing unwanted transfer of evidence or even removal of evidence through contact or consumption
• Weather-related contamination due to rain, wind, or snow diluting or washing away evidence, or
• Crime scene investigators failing to follow proper crime scene management procedures and causing contamination of exhibits or cross-contamination between exhibits during their investigation
Contamination is a fact of life for investigators, and any crime scene will have some level of contamination before the scene becomes an inactive event and the police can lock down the location. While issues of life and safety are at risk, the court will accept that some contamination is outside the control of the investigator. That tolerance for controlling contamination changes significantly once the crime scene is locked down and is under control. Once the scene has been locked down, crime scene management procedures must be put in place. Crime scene contamination presents three challenges for investigators, namely:
1. Preventing contamination when possible,
2. Controlling ongoing contamination, and
3. Recording the known contamination that has taken place
In regards to the phrase “control ongoing contamination,” the word “control” is used because investigators cannot eliminate ongoing contamination, they can only seek to control it. This practice of identifying and recording the known contamination is necessary, and even if contamination has taken place, identifying and explaining that contamination may salvage the analysis of exhibits that have been contaminated.
During the critical period between the lockdown of the crime scene and obtaining a warrant to search the crime scene, investigators need to consider the possibilities for ongoing contamination. If reasonable grounds exist to believe that evidence of the crime will be damaged or destroyed by some threat of contamination, the investigator has the authority, under exigent circumstances, to re-enter that crime scene without a warrant to take the necessary steps to stop or prevent contamination and protect the evidence.
The very act of entering the crime scene to collect evidence, and the process of evidence collection, are forms of contamination. The goal in controlling ongoing contamination is to avoid damaging the forensic integrity of the crime scene and its associated exhibits. It is this goal that makes crime scene management procedures essential to the investigative process.
Loss of Continuity
Like controlling contamination, establishing and maintaining continuity of evidence are protocols that protect the integrity of that evidence. For any evidence to be accepted by the court, the judge must be satisfied that the exhibit presented is the same item that was taken from the crime scene. Evidence must be presented to demonstrate “the chain of continuity,” which tracks every exhibit from the crime scene to the courtroom.
The evidence to show continuity will come from the investigator testifying that the exhibit being presented is the same exhibit that was seized at the crime scene. This testimony is supported by the investigator showing the court their markings on the exhibit or its container. These markings will include the time, date, and investigator initials, as well as a notebook entry showing the time, date, and place when the item was transported and locked away in the main exhibit holding locker. This evidence is further supported by an Exhibit Log that shows the exhibit as part of the crime scene evidence detailing where at the crime scene it was found, by whom it was found, and the supporting initials of anyone else who handled that exhibit from the crime scene continuously to the main exhibit locker. Any process where that exhibit is removed from the main exhibit locker for examination or analysis must be similarly tracked and documented with the initials, time, and date of any other handlers of the item. Any person who has handled the exhibit must be able to take the stand providing testimony that maintains the chain of continuity of the exhibit. These are simple processes yet critical. If they are not followed rigorously, it can result in the exclusion of exhibits based on lost continuity.
Attention to Originating Stages of Evidence
One of the big dilemmas in crime scene management is determining where the criminal event happened or where the event extended to. Making these determinations provides the investigator with the locations where evidence of the crime may be found. This is often not a simple matter of just attending one location or thinking about the criminal event in just a single timeframe. In the investigative process, there are three possible stages of time where evidence can originate. These are the pre-crime stage, the criminal event stage, and the post-crime stage.
These three stages of crime can also mean there could be other locations outside the immediately crime scene area where criminal activities might have also taken place and evidence might be found. The point to remember about the originating stages of evidence is that each of these stages provides possibilities for collecting evidence that could connect the suspect to the crime. When considering theory development or making an investigative plan, each of these stages of the criminal event should be considered.
1. The Pre-Crime Stage occurs when evidence of preparation or planning can be found during the investigation. It can include notes, research, drawings, crime supplies or pre-crime contact with the victim or accomplices. Sometimes items of pre-crime origin, such as hair and fibre, will be later discovered at the crime scene creating an opportunity to link the suspect back to the crime
2. The Criminal Event Stage is when the most interaction takes place between the criminal and the victim, or the criminal and the crime scene. During these interactions, the best possibilities for evidence transfer occur. Even the most careful criminals have been known to leave behind some trace of their identity in the form of fingerprints, shoe prints, glove prints, tire marks, tool impressions, shell casings, hair or fibre, or DNA.
3. The Post-Crime Stage occurs when the suspect is departing the crime scene. When leaving the crime scene, suspects have been known to cast off items of evidence that can be recovered and examined to establish their identity. This post-crime period is also the stage where the suspect becomes concerned with cleaning up the scene. As much as a suspect may attempt to clean up, evidence transfers from the crime scene are often overlooked. These can range from hair and fibre on clothing to shards of glass on shoes. Frequently found post-crime are proceeds of the crime. These are often identifiable articles of stolen property with unique marks, victim DNA, serial numbers, or sometimes even trophies that the criminal takes as a keepsake.
Evidence does not always appear as a fully formed piece of information that offers an immediate connection or an inference to implicate a suspect. It often comes together as fragments of fact in timelines, spatial relationships, and evidence transfers between the originating stages of evidence constructing circumstantial pictures to demonstrate the suspect’s identity, the fact pattern of the crime, opportunity, means, or motive and intent.
Enhancing the Value of Evidence Recovered
Pieces of physical evidence often referred to as exhibits, have investigative values at two different levels for investigators. At the first level each physical exhibit has a face value represented by what it is and where it exists within the context of the crime scene. For example a bloody shoeprint found on the floor of a crime scene tells us that someone transferred evidence of blood onto their shoe from a source and walked in a particular direction within the crime scene. These are first level interpretations of evidence that we can reconstruct with our own observations. At the second level this same bloody shoeprint may be subjected to forensic examinations that could provide additional information. For example analysis of the shoeprint pattern, size, and accidental characteristics may allow a positive match to the shoe of a suspect, or the blood may be examined to match the DNA of a victim or other originating source. Both these first level and second level values can greatly assist in creating a reconstruction and interpretation of what happened at the crime scene.
Physical exhibits that need to be examined, seized, and documented at any crime scene are a major concern for investigators. As mentioned earlier, one of the big challenges for investigators is to identify and document all of the available evidence and information. This raises the important questions of what will become evidence and what is going to be important?
When the suspect and the fact-pattern are not immediately apparent, how does an investigator determine which items within the crime scene need to be considered and taken as possible evidence? There are some general practices that can be followed, but a guiding principle of evidence collection followed by most experienced investigators is to err on the side of caution. More is always better than less. To assist in deciding what could possibly become relevant, investigators need to consider:
• Items that the suspect may have touched or interacted with
• Items that a victim may have touched or interacted with
• Items that the suspect may have brought to the crime scene
• Items that may have passed between the suspect and the victim
• Items that the suspect may have taken from the crime scene
• Items that the suspect may have discarded while departing the crime scene
Once the crime scene examination has been completed, and the crime scene has been unsecured and abandoned as an open area, returning to collect forgotten evidence is often not possible. It is better to collect everything that could possibly be relevant or could become relevant.
In terms of searching for evidence, once the crime scene has been locked down and secured, the crime scene itself needs to be considered as the first big exhibit. As the first big exhibit, it needs to be subjected to documentation using photography, video recording, measurements, and diagrams. Within this first big exhibit, other smaller and possibly-related exhibit may be discovered. What items are found and where may show spatial relationships of interaction demonstrating proof to support a sequence of events. This physical evidence will become the benchmark of known facts that investigators can use to verify the stories of victims and witnesses, or even the alibi of a possible suspect. Physical evidence at both level-one and level-two becomes the known facts upon which theories of events may be developed and tested. Any item could be considered evidence if it demonstrates a spatial relationship relative to the place, the people, or the times, relative to the criminal event.
The very first step at this point is securing and documenting the crime scene. It is helpful for investigators to recognize that a crime scene is not just a location where exhibits are found, but the crime scene should be considered as a single big exhibit unto itself. Not only will individual exhibits within the crime scene have value as evidence, the spatial relationships between exhibits in the scene may speak as circumstantial evidence to the overall event.
To secure the crime scene as the first big exhibit, investigators will conduct a complete walk-through on the path of contamination completely photographing and videotaping the entire crime scene. This first process is very helpful in demonstrating the exact state of the crime scene prior to things being moved for forensic examination. This should happen immediately after lock down and it will become a snapshot demonstrating the existing spatial relationships at that point in time.
Creating a Field Sketch and Crime Scene Diagram
The next step is to document the crime scene as either a field sketch or a crime scene diagram. Either of these can be done to illustrate the physical dimensions and notable characteristics of the crime scene. The difference between the Field Sketch and the Crime Scene Diagram is that the sketch, as implied by the name, is a quick rough depiction of the event. The field sketch, like notes in an investigator’s notebook, serves as a memory aid. The crime scene diagram is a more formal representation of the same information, but is composed to scale using the assistance of the field sketch and measurements. In either of these drawings of the crime scene similar core information will be represented.
• If it is a building, it will show the address of the location, entries, exits, windows, the position of rooms, the position of furniture, and the location of all exhibits relative to the crime.
• In an outdoor crime scene, establishing and documenting the location of the scene becomes more complex. The geographic location of an outdoor scene needs to be established relative to some known geographic location, such as a roadway intersection, a mile-marker, or even by way of fixing of GPS coordinates of latitude and longitude to a permanent fixed object at the crime scene. In some cases, such as a large open field, where no permanent fixed objects are available, it may become necessary to place a fixed object like a steel survey pin to mark a fixed point at the crime scene.
• After the initial diagram features are completed and evidence is collected within the crime scene, each of those exhibits will be shown on the diagram with an exhibit number. That number will be cross referenced to the exhibit log that will be completed by an assigned exhibit custodian as part of the crime scene management team. This process of showing each exhibit as a number eliminates the need to clutter the diagram with written description of each exhibit found. In some cases, where there are many exhibits, writing the description of each exhibit onto the diagram would make it unreadable, cluttered, and confusing.
• In addition to existing features and evidence at the crime scene, the diagram will also show the location of the path of contamination that has been established and the external perimeter of the crime scene.
• As part of accepted protocols, these diagrams are always drawn with an orientation to North at the top of the diagram, and all writing on the diagram is oriented in one direction, namely east to west
The Exhibit Log
As part of the evidence management process, establishing the first link in the chain of continuity occurs when the crime scene is secured and the assigned exhibit custodian records of the exhibits that have been identified at the scene is created. These items are recorded in a document called an “Exhibit Log” or an “Exhibit Ledger.” This Exhibit Log or Ledger shows an assigned number for each exhibit that is identified and seized. It shows where at the scene the exhibit was located, and the number of that exhibit is place in the corresponding location in the crime scene diagram.
The Exhibit Log shows who seized the exhibit and when it was turned over to the exhibit custodian. The Exhibit Log also shows a time and date when the exhibit was placed into the main secure exhibit storage locker. When the exhibits are taken to court, the court will only accept the exhibits if the secured chain of continuity can be shown to be guarded and unbroken. If an exhibit custodian were to stop and leave the exhibits unguarded in a vehicle or left the exhibit in the office while attending to another matter – that would break the chain of continuity. The following document is an example of a common Exhibit Log Document.
Evidence at a crime scene is generally found in two forms. One is evidence of witnesses who can provide their observations of the criminal event. The other is physical items of evidence that can be examined, analyzed, and interpreted to illustrate facts about the criminal event. Each of these forms of evidence present some similar concerns for investigators, and each requires some specific considerations to best search for, collect, and preserve the information that exists.
Searching for Witness Evidence
Identifying and interviewing the witnesses to a criminal event can be as simple as speaking to persons who have remained at the scene of the crime to give statements. Alternately, it can be as difficult as identifying and tracking down a person who saw something or heard something that was part of the criminal event, but they are not even aware that what they saw or heard was important, or they do wish to cooperate with the police.
The process searching for witnesses starts at the crime scene itself. This search will include not only identifying and interviewing the persons who are immediately present, but also determining who else might have been present during the pre-crime and post-crime stages of the event.
• Often, witnesses remaining at the crime scene can assist in identifying other witnesses who were present and have since departed.
• CCTV security cameras can sometimes assist in identifying other witnesses who were present.
• Identifying the vehicles parked in proximity to the crimes scene or returning to the crime scene on subsequent days around the time of the crime can assist in identifying a witness whose normal course of activities may have previously put them in the area at the time of the crime.
In addition to these witness search strategies, another process known as canvassing for witnesses can also be employed. Canvassing is a strategy of conducting door-to-door inquiries in the immediate area of the crime to determine if anything was seen or heard by neighbours. Canvassing can also take the form of structured media releases to request persons with knowledge of the criminal event to come forward. Whatever witness identification strategies are used, time is of the essence. Memories fade and people under normal circumstances only retain day-to-day recollection of unremarkable events for a limited time. Identifying and speaking to the witness, and receiving their best recollection of the events, will be discussed in the chapter on witness management; however, witness evidence can make or break the investigation, and it must be collected quickly, accurately, and effectively.
Searching for and Identifying Physical Evidence
Earlier in this book, we described physical evidence as the buried treasure for investigators and critical when it comes to verifying or discounting various versions of an event in court. Physical evidence is something tangible that the court can examine and consider in making connections and determining proof beyond a reasonable doubt. In contrast, witness evidence does not have a physical quality that the court can observe. It requires the court to accept the perception and interpretation of events being provided by a person and, as such, the court cannot evaluate witness evidence with the same confidence of verification that it uses when considering physical evidence.
In our sub-section on Originating Stages of Evidence, we looked at the timeframes and alternate crime scene venues where evidence of a crime may be found. Now, we are going to consider the physical evidence that investigators should think about when evaluating what might constitute an item of physical evidence. We will consider how evidence can be searched for, how it should be collected, when it should be collected, and how it should be preserved. These processes present several challenges:
1. Physical evidence can be transient or time sensitive. As part of the big picture search in the first instance, the investigator must be conscious of physical evidence that needs to be immediately recorded and documented.
2. Physical evidence can be concealed and may not be easily visible. Walking onto a crime scene in the first instance, it would be unrealistic for an investigator to believe they will immediately see all the physical evidence that needs to be collected. Items of physical evidence can exist in many forms and discovering their existence is a matter of careful examination of the entire scene. The idea of conducting a big picture search first allows the investigator to not only discover the immediately apparent items, but also for a survey of the crime scene to determine areas where the small scale and more detailed search might be productive.
• Doors and windows: open, locked, or unlock can be relevant to time and means of entry or exit from the scene
• Condition of room lighting: turned on or off can suggest the lighting conditions at the time of the crime
• Status of appliances in use at the scene can indicate certain activities
• Last activation of electronic devices can narrow timelines of activity
• Ambient crime scene temperature and body temperature can be relevant in relation to time of death and the progress rigor mortis or decomposition
3. The immediate value of an item may not be visible at first glance. Moving from the big picture search to identify items in the smaller scale search, investigators can conduct a detailed grid search of the crime scene to locate items that may be very small or are concealed by other objects. These grid searches can be useful in breaking down the crime scene into smaller search areas to make sure that no area goes unexamined. Along with this detailed search for small or concealed items, the investigator needs to consider enlisting the assistance of forensic specialists to search for items that may require enhanced examination and analysis beyond the bounds of regular human senses and perception. For example, the use of black light can reveal body fluid or stains, and latent fingerprints can become visible after fuming or the application of special powder. In most major criminal cases, forensic specialists will be available to assist in conducting the detailed crime scene search. Every investigator must be proficient in recognizing when to utilize of these forensic tools.
4. The size or nature of an item of evidence may make it impossible to seize or preserve. Among the challenges of gathering evidence at a crime scene are:
• Some exhibits are too big to be physically seized and brought to court. As previously noted, the entire crime scene and the inherent spatial relationships of objects within that scene could be considered as one big exhibit that needs to be shown to the court. This big crime scene exhibit is captured and can be presented to the court by way of video recording, photographs, crime scene diagram, or using a sample of smaller exhibits within the scene itself.
• Some exhibits are perishable and impractical to seize and preserve for court. A good example would be the evidence of the dead body in a murder case. The body itself would be impractical to bring to court. It is considered adequate to have photographic evidence and certificates of analysis on pathology samples.
• Some exhibits are transient in nature and cannot be permanently seized and preserved for court. For example, ambient room temperature or lighting status at the crime scene needs to be preserved by photographs and measurements in that moment of time and subsequently presented to the court as photographs and readings by the attending investigator.
5. The collection of certain evidence can cause cross-contamination to other exhibits. A major consideration in the collection of any evidence at a crime scene is to ensure that evidence with any potential for cross-contamination is handled in a manner that takes precautions against this occurring. In most cases, at major crime scenes, physical evidence is collected by forensic experts. However, this does not preclude the need for investigators to understand the dangers of cross-contamination and the precautions required to prevent it. This is particularly true when it comes to the collection of bodily substances where DNA might be collected. DNA analysis is now so advanced that even a small trace of DNA material can be transferred by the careless or inadvertent handling of one exhibit to the next. This cross-contamination can be avoided or prevented by the practice of handling only one exhibit at a time, marking that exhibit, placing into a secure container, and decontaminating the investigator by changing gloves and discarding any item could have come into contact with the previous exhibit. Despite the assurance that forensic specialists will normally attend a crime scene for evidence collection, it is possible that an investigator at the scene will be forced to handle a number of exhibits to protect that evidence from some type of environmental damage or other security threat.
Topic 4: Scaling the Investigation to the Event
Not every crime scene is a major event that requires an investigator to call out a team and undertake the crime scene and evidence management processes that have been described in this book. Often, for minor crimes, a single investigator will be alone at the crime scene and will engage in all the roles described, albeit on a far smaller scale. When this process is being undertaken by a single investigator on a smaller scale, the issues of diagram, security log, and exhibit log may be limited to data and illustrations in the notebook of the investigator.
It is important to stress that each of the tasks below needs to be considered and addressed for every crime scene investigation, no matter how big or how small. Specifically:
• The crime scene must be secured, preserved, and recorded until evidence is collected
• Existing contamination must be considered and recorded
• Cross-contamination must be prevented
• Exhibits must be identified, preserved, collected, and secured to preserve the chain of continuity.
Large scale or small scale, all these issues must be considered, addressed, and recorded to satisfy the court that the crime scene and the evidence were handled correctly.
Summary
In this chapter, we have discussed the critical issues of crime scene management, evidence identification, evidence location, evidence collection, evidence protection, and proper documentation. These are the most important skills that an investigator can learn and incorporate into their investigative toolkit. As much as these tasks may seem simplistic, ritualistic, and mundane, they are the very foundation of a criminal investigation, and without this foundation of proper evidence practices in place, the case will collapse when it comes to court.
There is a great opportunity on a day-to-day basis for new investigators to begin practicing the protocols of crime scene management on a smaller scale investigating crimes such as break and entry and lower level assaults. Once these skills of crime scene management and evidence management are learned and incorporated into daily practice, they will become the procedural norm and will form the essential operational habits for proper and professional investigative practice.
Long Descriptions
Crime scene security log long description: A blank crime scene security log. It has spaces to write down the name of the assigned scene security officer, the date, the police department investigating the scene, the file number, and the crime scene location. It also has a table with several rows to record everyone who has attended the crime scene. The table has spaces for name and rank, initials, date/time in, date/time out, duties on crime scene, and contamination caused. [Return to Crime scene security log]
The originating stages of evidence long description: A chart showing what happens at the different originating stages of evidence. The three stages are:
• Pre-crime stage
• Planning
• Notes
• Research
• Crime supplies
• Criminal event stage
• Most transfer of physical evidence
• Suspect to Victim
• Victim to Suspect
• Suspect to Scene
• Post-crime stage
• Avoiding apprehension
• Casts-off evidence
• Evidence of clean-up
• Transfer takeaway
• Proceeds of the crime
[Return to The originating stages of evidence]
Exhibit log long description: A sample exhibit log. There is room to write the name of the assigned exhibit custodian, the date, the file number, and the location. There is a table with several rows for writing about the exhibits from a crime scene. There are spaces for the exhibit number, description, who the exhibit was seized by, the date/time, the location, when the exhibit was turned over to the exhibit custodian, and the date/time secured. [Return to Exhibit log] | textbooks/workforce/Corrections/Introduction_to_Criminal_Investigation_-_Processes_Practices_and_Thinking_(Gehl_and_Plecas)/1.08%3A_Crime_Scene_Management.txt |
“Understanding the correct processes and legal parameters for interviewing, questioning, and interrogation, can make the difference between having a suspect’s confession accepted as evidence by the court or not.”
In this chapter, we will examine the interviewing, questioning, and interrogation of suspects as information gathering techniques police use to aid them in investigations. In modern day policing, interviewing, questioning, and interrogation techniques are measured, objective, and ethical. They are aimed at the goal of discovering the truth; not just getting a confession to a crime. This is a contrast to earlier times of policing, when techniques called the “third degree” sometimes involved threats, intimidation, coercion, and even physical violence. Fortunately, these “third degree” techniques were identified in the United States by the Wickersham Commission in 1931, as being unlawful police practices that caused false confessions and miscarriages of justice, where suspects were sometimes wrongfully convicted and imprisoned (Head, 2010).
Emerging from this, police forces across North America, who were using the “third degree” techniques to varying extents, started moving towards less oppressive and less aggressive methods of interrogating suspects (Gubrium, 2002).
While there has been a significant evolution to more objective and ethical practices, the courts still remain vigilant in assessing the way police interview, question, and interrogate suspects during criminal investigations. The courts expect police to exercise high standards using practices that focus on the rights of the accused person, and minimize any physical or mental anguish that might cause a false confession. In meeting these expectations, the challenges of suspect questioning and interrogation can be complex, and many police agencies have trained interrogators and polygraph operators who undertake the interrogation of suspects for major criminal cases. But not every investigation qualifies as a major case, and frontline police investigators are challenged to undertake the tasks of interviewing, questioning, and interrogating possible suspects daily. The challenge for police is that the questioning of a suspect and the subsequent confession can be compromised by flawed interviewing, questioning, or interrogation practices. Understanding the correct processes and the legal parameters can make the difference between having a suspect’s confession accepted as evidence by the court or not. With the above in mind, this chapter will focus on several salient issues, including:
1. The progression from interviewing to questioning to interrogating, and how this progression relates to investigative practices
2. The junctures that demonstrate the need to change from interviewing a witness to questioning a detained suspect to interrogating an arrested suspect
3. The issues of physical and mental distress, and how to avoid the perception of officer-induced distress during an interrogation
4. The seven elements to review to prepare an interrogation plan
5. The five common reasons arrested suspects waive their right to silence and provide statements and confessions
6. The interrogation strategies to initiate statements using the motivations within the five common reasons
7. The three types of false confessor and strategies to deal with false confessions
8. The additional rights of young offenders and practices required to meet the investigative obligations under Canada’s Youth Criminal Justice Act
9. Ancillary offence recognition
Topic 1: Interviewing – Questioning – Interrogating
Police investigations can be dynamic, and the way events unfold and evidence is revealed can be unpredictable. This premise also holds true for interviewing, questioning, interrogating suspects. Players in a criminal event may be revealed as suspects at different stages of the investigation. To properly secure and manage the statement evidence that is gained during interactions with suspects or possible suspects, it is important for investigators to understand the actions that should be taken at each stage, while remembering that interviewing, questioning, and interrogating are terms that refer to separate stages in the process of gathering verbal responses from a suspect or a possible suspect. But each stage is different in relation to when and how the information gathering process can and should occur. The differences between these three stages needs to be defined in the mind of the investigator since they will move through a process of first interviewing, then questioning, and finally interrogating a suspect. When this progression occurs, the investigator needs to recognize the changing conditions and take the appropriate actions at the correct junctures to ensure that, if a confession is obtained, it will be admissible at trial. Given this, let us examine the operational progression of these three stages and identify the circumstances that make it necessary to switch from one stage to the next.
Interviewing a possible suspect is the first stage and the lowest level of interaction. In fact, the person is not even definable as a suspect at this point. As pointed out in our chapter on witness management, suspects often report criminal events while posing as witnesses or even victims of the crime. The investigator receiving a statement report from such a person may become suspicious that they are not being truthful; however, until those suspicions are confirmed by evidence that meets the test of forming reasonable grounds for belief, the investigator may continue to talk to this possible suspect without providing any Section 10 Charter or cautions. There is a unique opportunity at that point to gather the poser’s version of events, including any untrue statements that may afford an opportunity to later investigate and demonstrate a possible fabrication, which is by itself a criminal offence. The transition point for an investigator to move from interviewing a witness or victim to detaining and questioning the person as a possible suspect should occur when real evidence is discovered giving the investigator reasonable grounds to suspect that the person is involved in the event. Discovering real evidence and gaining “reasonable grounds to suspect” creates an obligation for the investigator to stop interviewing the person who then becomes a suspect. At this point, the person is a suspect a should be detained for the suspected offence and provided the appropriate Section 10 Charter and Statement Caution before proceeding with the questioning of the suspect.
Questioning a suspect is the next level of interaction. For a suspect to be questioned, there will be some type of circumstantial evidence that allows the investigator to detain that suspect. In our previous scenario of the young man found at 3AM standing under the tree in a residential area at the boarder of an industrial complex one block away from the building where a break-in was confirmed to have taken place, that young man was properly detained, chartered, and warned for the investigation of the break-in. However, there was no immediate evidence that could link him to that actual crime at that point. He was only suspected by the circumstantial evidence of time, conduct, and proximity to the event. He was obligated to provide his name and identification. If he had tried to leave, he could have been arrested for obstructing a police officer in the execution of duty. The investigator at the scene of that incident would have questioned this suspect, and by his rights under the Canadian Charter of Rights and Freedoms, the suspect would not be obliged to answer questions.
This right to not talk does not preclude the investigator from asking questions, and the investigator should continue to offer the suspect an opportunity to disclose information that may be exculpatory and enable the investigator to eliminate that person as a suspect in the crime being investigated. As an example of this, again, consider our young man who was detained when found standing under the tree near a break-in. If that man had answered the question what are you doing here by stating that he lived in the house just across the street, and when he heard the break-in alarm, he came outside to see what was happening, this would greatly reduce suspicion against the young man once this statement was confirmed. Subsequent confirmation by a parent in the home that they had heard him leave when the alarm sounded could eliminate him as a suspect and result in his release.
Interrogation is the most serious level of questioning a suspect, and interrogation is the process that occurs once reasonable grounds for belief have been established, and after the suspect has been placed under arrest for the offence being investigated. Reasonable grounds for belief to make such an arrest require some form of direct evidence or strong circumstantial evidence that links the suspect to the crime. Of course, where an arrest is made, the suspect will be provided with their charter rights and the police caution, as per the following:
Charter Warnings
Section 10(a)
“I am arresting/detaining you for: (State reason for arrest/detention, including the offence and provide known information about the offence, including date and place.)”
Section 10(b)
“It is my duty to inform you that you have the right to retain and instruct Counsel in private, without delay. You may call any lawyer you want. There is a 24-hour telephone service available which provides a legal aid duty lawyer who can give you legal advice in private. This advice is given without charge and the lawyer can explain the Legal Aid Plan to you. If you wish to contact a legal aid duty lawyer, I can provide you with the telephone number.
Do you understand?
Do you want to call a lawyer?” (Canadian Charter, 1982, s 10(a,b))
Police Warning
“You are not obliged to say anything, but anything you do say may be given in evidence.” (Transit Police, 2015)
If the suspect has already had communication with the police in relation to the offence being investigated, they should be provided with the secondary caution. This secondary caution serves to advise the accused person that, even if they have previously made a statement, they should not be influenced by that to make further statements.
Secondary Police Warning
“(Name), you are detained with respect to: (reason for detainment). If you have spoken to any police officer (including myself) with respect to this matter, who has offered you any hope of advantage or suggested any fear of prejudice should you speak or refuse to speak with me (us) at this time, it is my duty to warn you that no such offer or suggestion can be of any effect and must not influence you or make you feel compelled to say anything to me (us) for any reason, but anything you do say may be used in evidence” (Transit Police, 2015).
Once the accused has been afforded the opportunity to speak with a lawyer, the caution obligations of the police to the accused have been met, and the suspect may be questioned with respect to their involvement in the offence. These cautions and warnings may sound like a great deal of effort aimed at discouraging a suspect from saying anything at all to the police, and, in many cases that is the result. However, if the cautions are properly administered, and the opportunities to speak with counsel are properly provided, a major obstacle to the admission of any future statements has been satisfied.
Interrogation generally takes place in the formal environment of an interview room and is often tape-recorded or video-recorded to preserve the details of what was said. A video recording is the preferred means because it accurately represents the environment of the interview room in which the interrogation was conducted. In challenging the processes of an interrogation where a statement has been made by an accused, defence counsel will look for anything that can be pointed to as an oppressive environment or threatening conduct by the investigator. Within the appropriate bounds of maintaining an environment of safety and security, the investigator should make every effort to demonstrate sensitivity to these issues.
Seating in the room should be comfortable and balanced for face to face contact. The investigator should not stand over the suspect or walk around the room behind the suspect while conducting the interview. More than one investigator in the room with the suspect can be construed as being oppressive and should be avoided. The suspect should be offered a beverage or food if appropriate and should be told that a bathroom is available for their needs upon request. The demeanour of the investigator should be non-aggressive and calm, demonstrating an objective professional tone as a seeker of the truth. Setting a non-aggressive tone and establishing an open rapport with the suspect is not only beneficial to demonstrate a positive environment to the court, it also helps to create a positive relationship of openness and even trust with the suspect. This type of relationship can be far more conducive to gaining cooperation towards a statement or even a confession.
Prior to beginning the actual interrogation, the investigator should prepare an interrogation plan by:
1. Reviewing the suspect’s profile, criminal record, and past investigations
2. Reviewing the full details of the existing investigation to date
3. Determining the elements of the offence that will need to be proved
4. Determining if sufficient evidence has already been obtained to submit a prima facia case to Crown
5. Examining evidence that demonstrates motive, opportunity, and means
6. Determining what evidence was located and considered in forming reasonable grounds to arrest the suspect
7. What physical evidence has been found that may yet be analyzed to prove the suspect’s involvement
Preparing the interrogation plan can assist the investigator in developing a strategy to convince the suspect to answer questions or confess to the crime. Those uninitiated to the process of interrogation might wonder why anyone would possibly choose to answer questions or confess when they have been provided with their Charter of Rights and Freedoms and the standard caution that they are not obliged to say anything, and anything they do say may be used as evidence. There are several reasons that can motivate or persuade a suspect to answer questions or confess. Statements or confessions are often made despite the warnings that would seemingly deter anyone from saying anything. These reasons include:
• Wishing to exonerate oneself,
• Attempting deception to outsmart the system,
• Conscience,
• Providing an explanation to minimize one’s involvement in the crime, or
• Surrender in the face of overwhelming evidence.
Investigators who are familiar with these reasons and motivations can utilize them in assessing their suspect and developing a strategy for their interrogation plan.
Exoneration
After making an arrest, an objective investigator must always be prepared to hear an explanation that will challenge the direct evidence or the assumptions of the circumstantial evidence that led to the reasonable grounds for belief to make that arrest. The best reason an arrested suspect can be offered to answer questions is to be exonerated from the crime. It is possible, and it does occur, that persons are arrested for a crime they have not committed. Sometimes, they are wrongly identified and accused by a victim. Other times, they are incriminated by a pattern of circumstantial evidence that they can ultimately explain. The interrogation following the arrest is an opportunity for the suspect to put their version of events on the record, and to offer an alternate explanation of the evidence for investigators to consider. Exoneration is not just an interrogation strategy; it is the duty of an objective investigator to offer a suspected person the opportunity of make an explanation of the evidence that led to their arrest. This can be initiated by offering the suspect the proposition, “This is the evidence that led to your arrest. If there is an alternate explanation for this evidence, please tell me what that is.” In some cases, the statements made by the suspect will require additional investigation and confirmation of facts to verify the exoneration. Conducting these investigations is also the duty of an objective investigator.
Deception to Outsmart the System
Some experienced criminals or persons who have committed well-planned crimes believe that they can offer an alternate explanation for their involvement in the criminal event that will exonerate them as a suspect. An investigator may draw answers from this type of suspect by offering the same proposition that is offered for exoneration. This is the opportunity for a suspect to offer an alibi or a denial of the crime and an alternate explanation or exonerating evidence. It can be very difficult for a suspect to properly explain away all the evidence. Looking at the progression of the event, an interrogator can sometimes ask for additional details that the suspect cannot explain. The truth is easier to tell because it happened, and the facts will line up. In contrast, a lie frequently requires additional lies to support the untrue statement. Examining a statement that is believed to be untrue, an interrogator can sometimes ask questions that expose the lies behind the original lie.
Conscience
As much as the good guys versus the bad guys’ concept of criminal activity is commonly depicted in books and movies, experienced investigators can tell you that people who have committed a criminal offence often feel guilt and true regret for their crime. This is particularly true of persons who are first-time offenders and particularly young offenders who have committed a crime against a person.
Suspects fitting this category may be identified by their personal profile, which typically includes no criminal record, no police record or limited police record of prior investigations, evidence of poor planning, or evidence of emotional/spontaneous actions in the criminal event.
Suspects who fit this profile may be encouraged to talk by investigators who have reviewed the effect that the criminal act has had on the victim or the victim’s family. Following this review of victim impact, the investigator can accentuate the suspect’s lack of past criminal conduct, while making the observation that the suspect probably feels really bad about this. Observing the suspect during this progression, a suspect affected by guilt will sometimes exhibit body language or facial expressions of concern or remorse. Responses, such as shoulders slumping, head hung down, eyes tearing up, or avoiding eye contact, can indicate the suspect is ashamed and regretful of the crime. Observing this type of response, an investigator may move to a theme of conversation that offers the suspect the opportunity to clear their conscience by taking responsibility for their actions and apologizing or by taking some other action to right the wrong that has been done.
Explanation to Minimize Involvement
Suspects who have been arrested will sometimes be willing to provide an additional explanation of their involvement or the events to reduce their level of culpability or blame for the crime. In cases where multiple suspects have been arrested for a crime, one of those suspects may wish to characterize their own involvement as peripheral, sometimes as being before the fact or after the fact involvement. Examples of this would be a person who left the door unlocked for a break-in to take place or merely driving the getaway car. These less involved suspects hope to gain a reduced charge or even be reclassification as a witness against their co-accused. In such cases, where multiple suspects are arrested, the investigator can initiate this strategy by offering the proposition, “If you have only a limited or minimal level of involvement in this crime, you should tell me about that now.”
Surrender to Overwhelming Evidence
The arrested suspect in a criminal investigation waiting in custody for interrogation has plenty to think about. Even the most experienced criminals will be concerned about how much evidence the police have for proving their connection to the crime. In the process of presenting a suspect with the opportunity to address the evidence that has been collected, an additional strategy can sometimes be engaged where there is a large volume of incriminating evidence or undeniable direct evidence, such as eyewitnesses or strong forensic evidence for circumstantial connections of the suspect to the crime. In such cases, if the interrogator can reveal the evidence in detail to the suspect, this disclosure may result in the suspect losing hope and making a confession to the crime. Although this tendency to surrender to overwhelming evidence may seem illogical, it does happen. Sometimes, this surrender has more to do with conscience and shame of the crime, but other times, the offender has just lost the energy to resist what they perceive to be a hopeless fight. As counter intuitive as this may seem, research has found that the suspect’s perception of the strength of police evidence is one of the most important factors influencing their decision to confess to police (Gudjonsson & Petursson, 1991). More recent research has shown that the stronger the evidence, the more likely a suspect was to confess (Gudjonsson, 2015 ).
Topic 2: Dealing with False Confessions
As noted at the beginning of this chapter, the goal of ethical interviewing, questioning, and interrogation is to elicit the truth, and the truth can include statements that are either inculpatory confessions of guilt or exculpatory denial of involvement in a crime. Whenever an investigator has interrogated a suspect, and a confession of guilt has been obtained, that investigator needs to take some additional steps to ensure that the confession can be verified as truthful before it goes to court. These additional steps are required because, although the investigator has not used any illegal or unethical techniques, the court will still consider whether the accused, for some reason, has confessed to a crime they did not commit. A skilled defence lawyer will often present arguments alleging that psychological stresses of guilt or hopelessness from exposure to overwhelming evidence have been used to persuade a suspect to confess to a crime they did not commit. In such cases, it is helpful for the court to hear any additional statements made by the accused, such as those that reveal that the suspect had direct knowledge of the criminal event that could only be known to the criminal responsible.
In police investigations, there are many details of the criminal event that will be known to the police through their examination of the crime scene or through the interview with witnesses or victims. These details can include the actual way the crime was committed, such as the sequence of events, the tools used in the crime; or the means of entry, path of entry/exit, along with other obscure facts that could only be known by the actual perpetrator. There are opportunities in a crime scene examination for the investigator to observe one or more unique facts that can be withheld as “hold back evidence.” This hold back evidence is not made part of reports or media release, and is kept exclusively to test for false confessions. Confessing to the crime is one thing, but confessing to the crime and revealing intimate details is much more compelling to the court. Regardless of the effort and care that investigators take to not end up with a false confession, they still occur, and there are some more common scenarios where false confessions happen. It is important for an investigator to consider these possibilities when a confession is obtained. These situations are:
1. The confessor was enlisted to take the blame — On occasions where persons are part of organized crime, a person of lower status within the group is assigned or sacrificed to take the blame for a crime in place of a person of higher status. These organizational pawns are usually persons with a more minor criminal history or are a young offender, as they are likely to receive a lesser sentence for the offence.
2. The Sacrificial Confessor — Like the confessor enlisted in an organized criminal organization, there is another type of sacrificial confessor; the type who steps forward to take the blame to protect a friend or loved one. These are voluntary confessors, but their false confession can be exposed by questioning the confessor about the hold back details of the event.
3. The Mentally Ill False Confessor — This type of false confessor are encountered when there is significant media attention surrounding a crime. As Pickersgill (2015) noted, an innocent person may voluntarily provide a false confession because of a pathological need for notoriety or the need to self-punish due to guilt over an unrelated past offences. Additionally, those suffering from psychosis, endogenous depression, and Munchausen Syndrome may falsely confess to a crime they did not commit (Abed, 2105). As with other false confessors, these people can be discovered using hold back detail questioning.
Topic 3: Interviewing, Questioning, and Interrogating Young Offenders
Over the past century, with the Juvenile Delinquents Act (1908), the Young Offenders Act (1984), and the Youth Criminal Justice Act (2003), there has been an increased recognition in Canada of the need to treat young offenders differently than their adult counterparts. Recognizing the special needs of youth, each of these acts moved to treat young offenders less punitively and with a greater attention to rehabilitation. Further, under the Youth Criminal Justice Act (YCJA), young offenders are regarded as a special category of suspect, and some very strict rules apply to the process of arresting, questioning, or interrogating a young offender. For instance, the YCJA requires the notification and inclusion of parents or guardians in situations where a youth is being subjected to action for an investigation or a charge for an offence. As well, any young persons must have their Charter Rights explained by the investigator with language appropriate to their age and level of understanding. This means that the officer must talk with and assess an accused youth to determine their ability to understand their rights before taking their statement.
The officer’s process of assessment will be questioned and examined by the court before any statement made by a youth is admitted as evidence. During this examination, the court will determine from the evidence whether the youth fully understood the rights being explained to them. An officer presenting evidence of having conducted a proper assessment of an accused youth should have notes reflecting the conversations and specific observations of the youth’s responses to satisfy the court that adequate efforts were made to ensure that the youth did understand their rights. Good evidence of understanding can be achieved by asking the youth to repeat, summarize, or paraphrase their understanding of the rights that were explained to them.
In addition to the right to instruct counsel, as afforded to any adult under the Canadian Charter of Rights and Freedoms, a youth must also be afforded the additional right of being given a reasonable opportunity to consult with a parent or, in the absence of a parent, an adult relative or any other appropriate adult chosen by the young person, as long as that person is not a co-accused or under investigation for the same offence.
Further, in addition to this right, there is also an obligation on the police investigator to provide independent notice to the parent of a detained young person as soon as possible. The requirement for notice to the parent is a separate obligation for police, and it requires specific notification of (a) the name of the young person, (b) the charge against the young person, and (c) a statement that the young person has the right to be represented by counsel. If a parent is not available to receive this notice, it may be given to a person whom the investigator deems appropriate. In the case of some young people, this could be an older sibling, an adult caregiver, or, for those in the care of Social Services, a social worker in charge of the young person care. In any case, these requirements and others specific to young offenders are spelled out under Sec 146 of the Youth Criminal Justice Act:
Youth Criminal Justice Act (Section 146)
(1) Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons.
(2) No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless
(a) the statement was voluntary;
(b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that
(i) the young person is under no obligation to make a statement,
(ii) any statement made by the young person may be used as evidence in proceedings against him or her,
(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph (c), and
(iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph (c), if any, unless the young person desires otherwise;
(c) the young person has, before the statement was made, been given a reasonable opportunity to consult
(i) with counsel, and
(ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and(d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.
(3) The requirements set out in paragraphs (2)(b) to (d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.
(4) A young person may waive the rights under paragraph (2)(c) or (d) but any such waiver
(a) must be recorded on video tape or audio tape; or
(b) must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.
(5) When a waiver of rights under paragraph (2)(c) or (d) is not made in accordance with subsection (4) owing to a technical irregularity, the youth justice court may determine that the waiver is valid if it is satisfied that the young person was informed of his or her rights, and voluntarily waived them.
(6) When there has been a technical irregularity in complying with paragraphs (2)(b) to (d), the youth justice court may admit into evidence a statement referred to in subsection (2), if satisfied that the admission of the statement would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected.
(7) A youth justice court judge may rule inadmissible in any proceedings under this Act a statement made by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was made under duress imposed by any person who is not, in law, a person in authority.
(8) A youth justice court judge may in any proceedings under this Act rule admissible any statement or waiver by a young person if, at the time of the making of the statement or waiver,
(a) the young person held himself or herself to be eighteen years old or older;
(b) the person to whom the statement or waiver was made conducted reasonable inquiries as to the age of the young person and had reasonable grounds for believing that the young person was eighteen years old or older; and
(c) in all other circumstances the statement or waiver would otherwise be admissible.
(9) For the purpose of this section, a person consulted under paragraph (2) (c) is, in the absence of evidence to the contrary, deemed not to be a person in authority. (Government of Canada, 2015)
Topic 4: Ancillary Offence Recognition
Criminal acts can be complex and persons committing crimes can be devious. For every law prohibiting a criminal act, there are those who seek to avoid prosecution or to subvert the law completely. Criminal law has evolved into the current model to reflect the different types of crimes that are possible, and this evolution now includes laws known as ancillary offences. For an investigator, part of the investigative skill set is learning to recognize the evidence and fact patterns that constitute these ancillary criminal acts. These offences include:
• Conspiracy to commit an offence
• Attempting to commit an offence
• Being an accessory after the fact to an offence
• Aiding and abetting an offence
• Counselling a person to commit an offence
• Compounding an indictable offence
For any of these offences, an investigator needs to be aware of the types of information and evidence that will support these charges. Sometimes an investigation will identify a suspect participant where there appears to be a nexus of involvement to the crime, but that nexus is not sufficient evidence of a criminal act to support an arrest or a charge. In these cases, an ancillary offence may be appropriate.
Conspiracy to Commit an Offence
A conspiracy to commit any offence requires an agreement between two or more persons to commit a criminal act.
Conspiracy Offence Criminal Code of Canada
(1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:
(a) every one who conspires with any one to commit murder or to cause another person to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to a maximum term of imprisonment for life;
(b) every one who conspires with any one to prosecute a person for an alleged offence, knowing that he did not commit that offence, is guilty of an indictable offence and liable
(i) to imprisonment for a term not exceeding ten years, if the alleged offence is one for which, on conviction, that person would be liable to be sentenced to imprisonment for life or for a term not exceeding fourteen years, or
(ii) to imprisonment for a term not exceeding five years, if the alleged offence is one for which, on conviction, that person would be liable to imprisonment for less than fourteen years;
(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; and
(d) every one who conspires with any one to commit an offence punishable on summary conviction is guilty of an offence punishable on summary conviction. (Dostal, 2012)
The offence that is being conspired upon is called the “target offence,” and that offence does not need to be carried out to constitute the offence of conspiracy. All that is required to establish the offence of conspiracy is evidence that two or more persons conspired together and formed a common intent to commit the targeted offence.
As an interesting side note to the conspiracy charge: if two persons conspire together to commit any offence outside of Canada and that offence would be an offence if committed in Canada, they may be charged with conspiracy (Government of Canada, 2017). In other words, two persons may conspire in Canada to commit a murder in the United States, and, even if that murder is not committed, they could be charged with conspiracy to commit murder.
Conspiracy opens the door to many possibilities where persons not otherwise chargeable may be held accountable for their part in a criminal act or in a proposed criminal act.
Consider the situation where an armed robbery of a bank occurs and three suspects flee the scene as police respond. The last suspect to exit the bank, William Tooslow, is stopped and arrested by police responding to the alarm, but the other two suspects escape. As the investigation proceeds, no additional evidence is found to identify the two robbers who escaped, but searches of Mr. Tooslow’s cell phone reveal book messages and emails with another male, Iben Faster, where plans to rob this bank were clearly being made over the past week.
Although there is not enough evidence to place Mr. Faster in the bank at the time of the robbery, he could still be charged with conspiracy to commit armed robbery, while Mr. Tooslow is charged with the actual offence of armed robbery. During an interrogation, a suspect may attempt to minimize their involvement in the crime and admit only to participating in making the plan. An investigator needs to recognize that this is still a chargeable offence.
Attempting to Commit an Offence
Like conspiracy, attempting to commit an offence does not require that the offence is committed.
Attempts – Criminal Code of Canada
24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. (Dostal, 2012)
Unlike conspiracy, attempting to commit an offence only requires one person planning the crime to commit the target offence. For the offence of attempting to commit an offence to be completed, there must be evidence to show that the accused went past the point of mere planning and did something or omitted to do something in the furtherance of their plan. This attempting to commit provision can be a useful strategic tool for investigators because it provides the option to intervene before an offence in the planning stage takes place.
Consider the scenario where a suspect, Franky Yapsalot, tells a friend that he is planning to do a home invasion at the residence of a wealthy local businessman on Saturday night. The friend informs to the police and investigators conduct surveillance on Mr. Yapsalot. On Saturday night, Mr. Yapsalot is observed wearing dark clothing and gloves and gets into his car with a sawed off shotgun. As he drives into the residential area of the businessman’s home, police stop his car and make the arrest. In this case, sufficient evidence would exist to make a charge of attempted break and enter with intent to commit an indictable offence.
The offence of attempting to commit an offence can sometimes allow police to take effective enforcement action and intervene before the target offence occurs, without endangering the proposed victim of the planned offence. At the interrogation stage of an investigation, a suspect wanting to minimize his culpability may admit to sufficient planning and action to make out the offence of attempting to commit.
Being an Accessory After the Fact to an Offence
Accessory after the fact is another offence where a person can be charged with participating in a crime, even if they were not directly involved in planning or carrying out the primary offence.
Accessory after the fact – Criminal Code of Canada
23. (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape. (Dostal, 2012)
A person can be charged as an “accessory after-the-fact” to an offence, if evidence is discovered to show that they knew that another person had committed the primary offence and they received, comforted, or assisted that person to enable them to escape justice. An example of this offence could be where a person receives a phone call from a friend asking to be transported and hidden away after escaping from prison. If the friend complies with this request, they would become an accessory after the fact to the offence of escaping lawful custody.
Counselling a Person to Commit an Offence
In this type of ancillary crime, the person providing the counselling becomes a party to the offence if it is committed.
Person counselling offence – Criminal Code of Canada
22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.
Idem
(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.
Definition of “counsel”
(3) For the purposes of this Act, “counsel” includes procure, solicit or incite.
R.S., 1985, c. C-46, s. 22; R.S., 1985, c. 27 (1st Supp.), s. 7. (Dostal, 2012)
Like conspiracy and aiding/abetting, it is not necessary for the person providing the counselling to participate in the offence, and the offence does not even need to be committed following the exact instruction of the counsellor. A condition to this offence is that the counsellor will only be a party if they knew or should have known that the other person was likely to commit that crime in consequence of the counselling. An interrogator recognizing this offence would seek to draw out admissions of what the counselling suspect knew or should have known about the likelihood of the perpetrator committing the offence.
Parties to an Offence
The ancillary offence of being a party to an offence, under section 21(1) of the Criminal Code is also often referred to as aiding and abetting.
Parties to offence – Criminal Code of Canada
21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
Common intention
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. R.S., c. C-34, s. 21. (Dostal, 2012)
Aiding and abetting is different from other ancillary offences in that it does not become a separate charge from the primary offence. In the cases of conspiracy, counselling, and accessory after the fact, persons are charged with those ancillary offences; however, in the case of aiding and abetting an offence, the person is charged with the primary offence. So, where evidence shows that a person purchased the weapons to enable an armed robbery to take place, that person would be charged under the section for armed robbery proper.
Summary
In this chapter, we have defined the stages and discussed the issues surrounding the investigative tasks of interviewing, questioning, and interrogating suspects in criminal investigations. We have also called attention to the specific change obligations that must be recognized and responded to by an investigator as the investigation progresses. In terms of the interrogation of suspects, this chapter examined the process of developing an interrogation plan by considering the variety of motivations that might cause a suspect to make a confession to a crime, and the additional protections afforded to youth was also discussed. In this chapter’s final section, definitions and examples of hybrid ancillary offences was presented, as was the need to interrogate suspects and investigate for additional evidence in support of proving the unique elements of ancillary offences, if they have occurred.
Study Questions
1. At what point would an investigator move from interviewing a person to questioning them?
2. At what point would an investigator move from questioning a suspect to interrogating them?
3. What are three common scenarios where an investigator is likely to come across a false confession?
4. What are two ways in which young offenders must be treated differently than adults by an investigator in the process of questioning them about involvement in a crime?
5. What are six examples of ancillary offences that investigators need to be aware of?
6. What evidence must be provided to show that a person can be charged with being an “accessory after the fact”?
7. How is “aiding and abetting” different from other ancillary offences? | textbooks/workforce/Corrections/Introduction_to_Criminal_Investigation_-_Processes_Practices_and_Thinking_(Gehl_and_Plecas)/1.09%3A_Interviewing_Questioning_and_Interrogation.txt |
“Knowledge of forensic tools and services provides the investigator with the ability to recognize and seize on evidence opportunities that would not otherwise be possible.”
In this chapter, we examine various forensic sciences and the application of forensic sciences as practical tools to assist police in conducting investigations. The chapter is not intended to be a comprehensive dissertation of the forensic sciences available. Rather, it is intended to be an overview to demonstrate the broad range of forensic tools available. As we noted in Chapter 1, it is not necessary for an investigator to be an expert in any of the forensic sciences; however, it is important to have a sound understanding of forensic tools to call upon appropriate experts to deploy the correct tools when required. The forensic analysis topics covered in this chapter include:
1. Physical Matching
2. Fingerprint Matching
3. Hair and fibre analysis
4. Ballistic Analysis
5. Blood Spatter Analysis
6. DNA Analysis
7. Forensic Pathology
8. Chemical Analysis
9. Forensic Anthropology
10. Forensic Entomology
11. Forensic Odontology
12. Forensic Engineering
13. Criminal Profiling
14. Geographic Profiling
15. Forensic Data Analysis
16. Forensic Document Analysis
17. Forensic Identification Sections
18. Crime Detection Laboratories
Various types of physical evidence can be found at almost any crime scene. The types of evidence and where it is found can assist investigators to develop a sense of how the crime was committed. Tool marks where a door was forced open can indicate a point of entry, shoe prints can show a path of travel, and blood stains can indicate an area where conflict occurred. Each of these pieces of physical evidence is a valuable exhibit capable of providing general information about spatial relationships between objects, people, and events. In addition, the application of forensic examination and analysis could turn any of these exhibits into a potential means of solving the crime.
Topic 1: Physical Matching
If we think back to the example in Chapter 1 where the Bow Street Runners (McCrery, 2013) made a physical match from the torn edges of one piece of wadding paper to the original sheet from which it was torn, we can appreciate that physical matching is a forensic technique that can be applied, to some extent, by the investigator personally viewing and studying details of the evidence. At this level, physical matching can be used by investigators to do on site analysis of evidence. That said, the more sophisticated aspects of physical matching do require the expertise of a person trained in the techniques to form and articulate an opinion that the court will accept as expert evidence.
During a crime investigation, physical matching is typically conducted on items, such as fingerprints, shoe prints, tire prints, glove prints, tool impressions, broken glass, plastic fragments, and torn edges of items, such as paper, tape, or cloth. In these physical matchings, there are two levels of examination that are typically considered; an examination for class characteristics and an examination for accidental characteristics.
Level One — The Examination of the Item for Class Characteristics
Determining class characteristics takes place in relation to items, such as shoe prints, tire prints, glove prints, and tool impressions. At the first level of examination, these items can be classified and sorted based on type, make, model, size, and pattern. For example, if a shoe print is found at the scene of a crime and is determined to be a left shoe of a size 9, Nike brand, Air Jordan model, running type shoe with a wavy horizontal sole pattern, these class characteristics collectively provide a description of the suspect’s shoe based on five defined descriptors.
In turn, these class characteristics may allow the investigators to narrow their focus to suspects having that class description of shoe. It is not a positive identification of the shoe to any particular suspect, but it does allow the potential elimination of suspects who wear different sizes, brands, and sole patterns of running shoe. Using this Level One examination, an investigator at the crime scene may find a suspect shoe print showing a distinct size and sole pattern. If a suspect with a matching size and sole pattern is found near the crime scene, this Level One observation would provide strong circumstantial evidence to assist in forming reasonable grounds to suspect that this person was involved in this crime.
A Level Two examination may be able to produce a conclusive match. Positive identification requires this next level of examination, namely the examination for accidental characteristics.
Level Two — Accidental Characteristics
Accidental characteristics are the unique marks and features that develop on any item resulting from wear and tear. Looking back at the Nike Air Jordan Running Shoe, to make a positive match of a suspect’s shoe to the impression found at the crime scene, the crime scene impression would be examined for nicks, gouges, and wear patterns typically present on a worn shoe. These features would then be compared to a rolled impression of a suspect’s shoe, and if the same nicks, gouges, and wear patterns could be shown in all the same locations on the suspect’s shoe, a positive match could be made.
This Level Two method of comparison for things, such as shoes prints, tire prints, glove prints, and tool impressions, is the practice for physical matching. Investigators can often use these physical matchings to link the suspect back to the crime scene or the victim. Finding a suspect in possession of a shoe, a tire, or a tool that is a positive match to an impression at the criminal event is a powerful piece of circumstantial evidence.
With items, such as broken glass and plastic fragments, the process of physical matching requires significantly greater levels of expertise. At Level One, these items are first matched for general characteristics, such as material colour and thickness; however, the process for making the comparison of broken edges requires microscopic examination and photographic overlay comparison of broken edge features to demonstrate a positive match. For investigators, these kind of comparisons can be called upon where there is broken glass at a crime scene and fragments of glass have been found on a suspect’s clothing, or in cases where glass or plastic fragments are left at the scene of a hit-and-run car crash and a suspect vehicle is found with damage that includes similarly broken items. Glass fracture analysis can also be used to demonstrate which side of a piece of glass received the impact that caused the fracture. This can be a helpful tool in confirming or challenging a version of events, such as insurance fraud, break-in reports, and motor vehicle crashes where the damage has been exaggerated or staged. Glass fracture analysis can also be used to demonstrate the sequence and order in which a series of bullets have passed through the glass of a window. This can be helpful for an investigator to establish the origin location of the shooter, and, in cases of a drive-by shooting, the direction of travel.
Topic 2: Fingerprint Matching
The forensic science of fingerprints has a longstanding history in policing. Fingerprints have been accepted as being individually unique to each person. The courts frequently accept positive fingerprint matches conducted by an expert witness, as proof of identity beyond a reasonable doubt (Jain, 2010).
Prior to the modern advent of DNA analysis and biometric scanning technologies for positive identification, fingerprints and dental record x-rays were the only truly positive means of making a conclusive identification.
Fingerprints are unique patterns of lines and ridges that exist on the areas of our hands and fingertips, known as the plantar surfaces. These unique patterns have been classified in categories and features since the late 1800’s (Dass, 2016). The various categories and features allow each digit of a person’s fingers to be catalogued in a searchable system or database. These unique categories and features do not change throughout a person’s life, unless they are subjected to damage through physical injury or intentional abrasion. The impressions of our fingerprints are often left on items we touch because the oils our bodies produce act like an invisible ink adhering to smooth surfaces we touch, thus transferring these fingerprint impressions to those surfaces. These virtually invisible image transfers are commonly called latent fingerprints, and they are easily made visible on most surfaces through the application of coloured fingerprinting powder that adheres to the oils left by our fingers. The powder sticking to the oil reveals the image of lines and ridges that make up the fingerprint. It is also possible for a fingerprint impression to be exposed on surfaces, such as plastic, dry paper, or paint though a process of chemical fuming that reacts with the oils of the fingerprint changing their colour, thereby exposing the image. Fingerprints are sometimes also visible when they are transferred to an object because the finger has some foreign material on it, such as ink or blood. Other forms of visible fingerprints can be found as an actual moulded impression of the fingerprint when a person touches a malleable surface, such as clay or cheese.
The unique lines and ridges of an unknown fingerprint can be searched in a database of known criminal fingerprints for identification. Today, this type of search is done electronically using a biometric scanning process known as Automated Fingerprint Identification System (AFIS). For smaller partial prints, identification of a suspect requires sorting through possible suspects and conducting specific searches of print characteristics to make a match. If the person who left the print does not have a criminal record or their fingerprints are not on file, the only way a comparison can be made is to obtain a set of fingerprint impressions from that person. When this is done, the print examination will be conducted by a trained fingerprint expert who will search the print to establish as many points of comparison between the suspect print and the known-print as possible. The general accepted standard for accepting a match is to find ten points of comparison.
The location and identification of a suspect’s fingerprint at the scene of a crime, or on some crime-related object, is strong circumstantial evidence from which the court can draw the inference that the suspect is, in some way, connected to the crime. The investigative challenge of finding a suspect’s print is to eliminate other possible ways that the print may have been left at the scene, other than through involvement in the crime.
Topic 3: Hair and Fibre Analysis
In considering once again “Locard’s Theory of Evidence Transfer,” (Petherick, 2010) it was suggested that a person cannot be at the scene of a crime without leaving something behind, and cannot leave the scene of a crime without taking something with them. Exhibits of hair and fibre fit support this theory well. As humans, we are constantly shedding materials from our bodies and our clothing. We enter a room and we leave behind strands of hair that fall from our heads, oily impressing of our fingerprints as we touch objects, and fibres of our clothing materials. As we leave a room, we take away hairs from other occupants of the room or fibres from the carpet and furniture adhering to our clothing. The analysis of hair and fibre, although not an exact science, can provide corroborative evidence. Hair samples can be compared taking a shed sample at the crime scene to the hair from a suspect to establish a similarity within a limited degree of certainty. If the hair happens to have been pulled out and still has root tissue, there is a possibility for more positive identification using DNA analysis. Somewhat more identifiable than hair samples, fibre samples can often be narrowed down to make a higher probability comparison using microscopic examination for size, colour, and type between an unknown sample and control sample.
Topic 4: Ballistic Analysis
Given the number of gun-related crimes, the understanding of ballistic analysis is important for investigators. Ballistics is the study of all things that are launched into flight, how they are launched, and how they fly. In most cases, investigators find themselves dealing with several common types of firearms.
1. Handguns as either semi-automatic pistols or revolvers
2. Long rifles that are single shot bolt action, automatic, or semi-automatic
3. Shotguns that are breach loading or chambered pump action
There are techniques in ballistic science that address the unique aspects of firearms and bullets. Because ballistic comparisons seek to determine if a particular gun was the originating source of an unknown bullet or cartridge casing, this examination process is sometimes referred to as ballistic fingerprinting. The analogy being that if a particular gun touched a particular bullet or cartridge-casing, it will leave behind some unique identifiable marks or a ballistic fingerprint.
Ballistic Fingerprints
When a modern day firearm is being loaded to fire, the cartridge loaded into the gun is composed of several components. The bullet portion of the cartridge is tightly pressed into a brass tube, called the casing. At the bottom of this brass casing is a round, flat base slightly larger than the casing, and this base prevents the casing from sliding completely into the cartridge chamber of the gun when being loaded. On the bottom of this flat base of the cartridge is the primer. When the trigger is pulled, the primer is the portion of the cartridge that will be struck by the firing pin of the gun. When struck, the primer ignites the gun powder contained inside the brass casing with an explosion that causes the bullet to leave the casing, travel down the gun barrel, and exit the gun.
Each of the components of the cartridge casing can be examined forensically and comparisons can be made to suspect guns. In some instances, it is possible to determine if a cartridge has been fired from the chamber of a specific gun. This can be done by examining the unique and identifiable marks left by four aforementioned components of the gun. Like the process of physical matching, this is also a two-level process.
At Level One, cartridges are classified by the calibre, which is the size of the bullet, the maker of the cartridge, and the primer location; either a centre-fire or a rim-fire cartridge on the cartridge base.
For ballistic purposes, guns are classified by their calibre, chambering and ejector mechanisms, and firing pin, namely either centre-fire or rim-fire. Eliminations of suspect weapons can often be made at Level One. For instance, a .38 calibre bullet removed from a crime scene cannot have been fired from a .22 calibre weapon. Or, that same .38 calibre bullet showing marks from an ejector mechanism could not have been fired from a .38 calibre revolver that does not have an ejector mechanism.
At Level Two, the more decisive ballistic fingerprint comparisons are often made using the following methods:
1. Striations Matching;
2. Chamber Markings;
3. Firing-Pin Comparison; and
4. Ejector markings.
1. Striations Matching. Bullets fired from either a handgun or long rifle, other than a shotgun, fire a single projectile each time. This fired projectile is a lead or lead-composite bullet. When fired, this bullet travels down the barrel of the gun and begins to spin because the inside of the gun barrel has been intentionally machined with long gently turning grooves, called rifling. These grooves catch the soft-lead sides of the bullet spinning it like a football, and this spinning makes the bullet travel more straight and true to the target. As a result of these grooves designed into gun barrels, every bullet fired will arrive at its target with markings etched into the bullet material from contact with the grooves in the barrel. These etched markings are call striations, and they are uniquely identifiable back to the gun they were fired from. For an investigator, these striations create an opportunity to match the bullet to the gun that fired it. Recovered bullets can be recovered and compared to test bullets fired from a suspected gun. When striations of a recovered bullet are compared to known samples fired from a suspected gun, a side-by-side microscopic technique is used to match striation markings. An expert ballistic examiner can sometimes identify and illustrate matches in the striations to make a positive match.
2. Cartridge Chamber Markings. When a cartridge is loaded into the chamber of a gun, the shiny brass casing comes into contact with the hard steel sides of the chamber. This chambering of the cartridge can leave unique and identifiable scratch marks on the side of the casing. A cartridge casing ejected or unloaded from a weapon and left at the crime scene can sometimes be matched to the suspect gun by comparing these markings.
3. Firing Pin Comparison. When the firing pin of any gun strikes the primer on the bottom of a cartridge, it leaves an indentation mark. This firing pin indentation can sometimes be matched to the firing pin of a suspect weapon. This requires microscopic examination that looks for the unique characteristics of the firing pin that become impressed into the soft metal of the primer when the firing contact happens.
4. Ejector Mechanism Markings. Methods for loading and unloading weapons have evolved considerably due to different gun designs. The simplest guns allow the user to open the breach of the gun exposing the cartridge chamber to manually insert the cartridge and close the breach to make ready for firing. There is no ejector mechanism for these guns, so there will be no ejector marks left on the base of a cartridge when it is unloaded from the weapon. Other guns have a variety of different ejector methods, including ejectors that catch the base of the cartridge casing to physically pull it from the breach and eject them away from the gun. In cases where a gun does have an ejector mechanism, these mechanisms leave very distinct and unique marks on the soft brass cartridge base. These markings can sometimes be compared and matched back to the ejector of a suspect weapon. With this broad variety of ballistic comparison techniques, an investigator has a significant number of tools that can be deployed and strategies that can be engaged to assist in matching a bullet to the gun that fired it. Considering these tools, the cartridge casing left at the scene of a shooting can be as important as a bullet removed from the body of a shooting victim. An investigator needs to keep this in mind when seizing cartridge casings as evidence. Great care needs to be exercised to document the location where each individual casing was found, and to preserve each casing in a manner that does not degrade the possible markings that could enable a match to be made. Damage can be done by placing casings into a common bag where they can rub against each other causing more characteristics and obliterating existing marks.
Trajectory Analysis
In addition to the ballistic fingerprinting examinations, another area of ballistic science is known as trajectory analysis. The trajectory of a bullet is the path it travels from the time it leaves the barrel of the gun to the point where it finally loses the propulsion energy of the gunpowder and comes to rest. The flight of a bullet can be very short, as in the case of a point blank shooting, where a victim is shot at very close range, or it can be very distant where the target is one mile away or more, as in the case in some sniper shootings.
When the bullet is travelling a longer distance, it travels that distance in an arched path or trajectory of travel as it is pulled towards the ground by gravity. When the bullet arrives at its destination, it will have a distinct angle of entry into the target. This angle of entry can sometimes be calculated as trajectory to estimate the geographic location of the originating shot. In cases where a bullet passes through several objects, such as two walls of a house, the trajectory of the bullet can be used to determine where the shooter was located. In cases of drive-by shootings, for example, where several shots are fired, the pattern of trajectories can show if the shooter was moving and, if so, demonstrate the direction of travel.
Topic 5: Blood Spatter Analysis
Blood spatter analysis, also known as blood stain pattern analysis, is a relatively new forensic specialty. The purpose of this analysis is to determine the events of a crime where blood has been shed. This is accomplished through the careful examination of how blood is distributed inside the crime scene. Studies have shown that when blood is released during an attack, certain patterns of distribution can be expected (National Science Forensic Technology Center, 2012). For instance, a person being struck with a baseball bat will begin to bleed, and blood will be distributed in a droplet spatter pattern in the direction of the strike behind the victim. These droplets of blood will have a direction of travel that will be indicated by the directional slide of each droplet as the bat hits objects in its path. Blood from the victim adhering to the bat can also be distributed when the bat is on the upstroke for the next strike. This blood will be distributed in an upward directional slide pattern, for example, up a wall, onto a ceiling, or behind the attacker. Calculations of how many strikes were made may become evident from the tracking of multiple streams of droplets behind the victim and behind the attacker. Given this developing science, blood spatter analysis can be useful in criminal event reconstruction.
Topic 6: DNA Analysis
DNA, or deoxyribonucleic acid, is a molecule that holds the genetic blueprint used in the development, functioning, and reproduction of all living organisms. As such, it carries the unique genetic information and hereditary characteristics of the cells from which living organism are formed. Except for identical twins, the DNA profile of each living organism is unique and distinct from other organisms of the same species. There are some rare cases where one person may carry two distinct types of DNA, known as Chimera (Rogers, 2016) where paternal twin embryo merge during gestation, or in cases where a bone marrow transplant enables the production of the marrow donor DNA in the recipient’s blood. In these rare cases, a person may test for two distinct DNA profiles for different parts of their body.
In human beings, DNA comparison can enable high probability matches to be made between discarded bodily substances and the person from whom those substances originated. Bodily substances containing cellular material, such as blood, semen, seminal fluid, saliva, skin, and even hair root tissue can often be compared and matched back to its original owner with high statistical probabilities of comparison (Lindsey, 2003). Sometimes, even very old bodily substances, such as dried blood, dried saliva, or seminal stains, can be analyzed for a DNA profile. The introduction of DNA analysis has allowed investigators for advocates to re-examine historical evidence and exonerate persons wrongfully convicted and imprisoned for criminal offences (Macrae, 2015).
DNA is a very powerful tool for investigators and can be considered anytime discarded bodily material is found at a crime scene. Even very small amounts of material can yield enough material for DNA comparison. Importantly, DNA data-banks of known criminals and unsolved crimes are now becoming well established in North America (Royal Canadian Mounted Police, 2006). When a person is convicted of certain criminal offences, DNA is collected and submitted to these databases.
Topic 7: Forensic Pathology
Forensic Pathology is the process of determining the cause of death by examining the dead body during an autopsy. An autopsy generally takes place in the pathology department of a hospital. In the case of a suspicious death or a confirmed homicide, police investigators will be present at an autopsy to gather information, take photographs, and seize exhibits of a non-medical nature, such as clothing, bullet fragments, and items that might identify the body. These items would include personal documents, fingerprints, and DNA samples.
During an autopsy, a forensic pathologist dissects the body carefully examining, documenting, and analyzing the body parts to determine the cause of death. In the first stage of an autopsy, the pathologist examines the body for external injuries and indicators of trauma that may provide a cause of death. In this first stage of examination, the pathologist will make an estimate of the time-of-death by observing evidence of four common post-mortem (after-death) indicators. These are body temperature, the degree of rigor mortis, post-mortem lividity, and progress of decomposition.
Body Temperature
Algor Mortis is the scientific name given to the loss of body temperature after death which can sometimes be used to estimate the time of death (Guharaj, 2003). This is a viable technique in cases where the body is being examined within 24 hours following death. This method of estimating time of death can vary significantly dependent upon many possible variables, such as:
• Ambient room temperature being within a normal range of approximately 22° Celsius
• Pre-death body temperature of the victim not being elevated by illness or exertion
• Thickness of clothing that might insulate the body temperature escape
• The temperature and conductivity of the surface the body was located on that could artificially increase or decrease temperature loss
Considering a normal body temperature of 37° Celsius at the time of death, it can be estimated that the body will cool at a rate of 1° – 1.5° Celsius per hour. This calculation is known as the Glaister Equation (De Saram, Webster, & Kathirgamatamby, 1956). So, taking an internal rectal temperature and subtracting that from 37° Celsius will provide an estimate of the number of hours that have passed since the time of death. For example, a dead body with a measured temperature of 34° Celsius would provide a time range of 3 to 4.5 hours since the time of death.
Rigor Mortis
Rigor mortis is a term used to describe the stiffening of the body muscles after death. A dead body will go from a flaccid or limp muscle condition to one where all the muscles become contracted and stiff causing the entire body to become constricted into a fixed position. After being in a constricted and fixed position, the muscles eventually become flaccid again (Advameg, Inc., 2017). In normal room temperatures, this stiffening of muscles and the relaxing again has a predictable time progression of approximately 36 hours. In this progression, the stiffening of muscles will take approximately 12 hours, the body will remain stiff for 12 hours and will progressively become flaccid again over the next 12 hours.
Stiffening of muscles begins with the small muscles of the hands and face during the first 2 to 6 hours, and then progresses into the larger muscle groups of the torso, arms, and legs over the next 6 to 12 hours. These are general rules; however, the rate of rigor mortis can be different for infants, persons with extreme muscle development, or where extensive muscle activity precedes death, such as a violent struggle (Cox, 2015).
In determining the time of death in average environmental temperatures, Cox (2015) recommended that:
1. If the body feels warm and is flaccid, it has been dead for less than 3 hours
2. If the body feels warm and is stiff, it has been dead for 3 to 8 hours
3. If the body feels cold and stiff, it has been dead for 8 to 36 hours
4. If the body feels cold and is flaccid, it has been dead more than 36 hours
Post-Mortem Lividity
Post-mortem lividity refers to a discoloration or staining of the skin of a dead body as the blood cells settle to the lowest part of the body due to gravity. This discoloration will occur across the entire lower side of a body; however, in places where parts of the body are in contact with the floor or another solid object, the flesh compresses and staining will not occur in that area. The staining is a reddish-purple colouring, and it starts to become visible within 1 hour of death, and become more pronounced within 4 hours. Within the first 4 hours, lividity stains are not fixed and, if the body is moved, the blood products will shift and stain the part of the body that has become lower. In most cases, these stains become fixed between 12 and 24 hours. As such, they can be viewed as an indicator of how the body was left at the time of death. Importantly, if a body is found with post-mortem lividity stains not at the lowest point in the body, it can be concluded that the body has been moved or repositioned after the 12 to 24 hour stain setting period (Cox, 2015).
Decomposition
This is the final indicator a pathologist can look at to estimate the time of death. Sometimes, dead bodies are not discovered in time to use body temperature, rigor mortis, or early lividity indicators to estimate a more exact time of death. In these cases, assessing the progress of decomposition becomes important. Decomposition starts as soon as the body ceases to be alive. Subject to environmental conditions of extreme heat or cold, the readable signs of decomposition will become apparent 36 to 48 hours after death (EnkiVillage, 2017). These signs include bloating of the body and a marbling discoloration of the skin in a spider web pattern along surface blood vessels. As the body continues to decay, the skin surface will open and body fluids will begin to seep out. In advanced stages of decomposition, the body is often no longer identifiable by facial recognition, and DNA testing or dental records become the tools to determine identity. At very advanced stages of decomposition, flies and maggots begin to emerge, and the number of life cycles of the maggot-to-fly can be estimated by a forensic entomologist to provide the amount of time that has passed since these insect life cycles began.
Once these preliminary examinations have been made, the pathologist will cut the corpse open to conduct a detailed internal examination of each organ to look for signs of trauma, disease, or external indicators that might explain the cause of death, such as water in lungs or toxins in blood.
Causes of Death
There are a wide range of possible causes of death and pathologists are trained to look for these indicators, gather the evidence, and develop an expert opinion regarding the cause of death. Causes of death can include:
• Laceration or Stabbing
• Shooting
• Blunt force trauma
• Asphyxiation
• Toxic substances
• Electrocution
• Depriving necessities of life
In cases of laceration or stabbing, wounds are inflicted by a sharp weapon or pointed object. The pathologist will attempt to determine if the death was caused by damaging a vital organ or by blood loss. The distinction here is that a person may be cut or stabbed in a way that causes them to bleed to death, which will be indicated to the pathologist by only a small amount of blood remaining in the body. Alternately, a laceration or stab wound may penetrate the heart, lungs, or the brain in a way that causes the organ to stop functioning and causes death. In these cases, the pathologist will make a determination and render an opinion of fatal organ damage.
In cases of stabbing, the pathologist can sometimes illustrate the entry point of the wound and trace the wound path to determine an angle of entry indicating how the stab wound was inflicted. The size, depth, and width of the wound may indicate the size and type of weapon used to create the injury. Similarly, examining the characteristics of the wound can provide information to allow the pathologist to offer an expert opinion on the direction of a laceration or cut wound by illustrating the start point and the termination point. This information can be helpful for investigators in reconstructing or confirming the actual actions and weapons used in a criminal event.
In cases of shooting, the pathologist will make a determination of whether death was caused by the fatal destruction of a vital organ or by blood loss. Recovery of a bullet or fragments of a bullet from inside the body can be helpful in ballistic analysis. Examining the entry wound can sometimes indicate the distance from which the wound was inflicted. In cases of point blank or direct contact shootings, gunshot (burned gun powder) residue will be present at the entry point of the wound. As with stab wounds, the pathway that the bullet travelled from the entry point into the body to where it came to rest can sometimes be identified by a pathologist to determine the angle of entry. For investigators, this information can be helpful in reconstructing the criminal event and determining the location of the shooter. In cases of self-inflicted gunshot wounds, a point blank entry point and a bullet path indicating a logical weapon position in the hand of the victim can provide some confirmation or contradiction of the self-inflicted wound theory.
In cases of blunt force trauma, the pathologist will look for indications of organ destruction or massive internal bleeding causing death. Blunt force trauma can be inflicted in many ways, such as massive sudden trauma from a fall from a great height, or a high-speed car crash that can immediately damage the brain, the heart, or the lungs to the point where they cease to function resulting in death. Other blunt force traumas, such as a strike to the head with a weapon, may not immediately cause death, but result in massive bleeding and internal accumulation of blood that can cause death. In cases of head injuries pathologists will sometimes be able to determine the contact point where the injuries were inflicted, and they will be able to point to the contre coupe injury effect, which happens when the head is struck on one side and the brain is so traumatically moved inside the skull that it also become damaged on the opposite side and bleeding occurs at the top of the brain. This bleeding inside the skull can sometimes cause death.
In a similar effect, Shaken Baby Syndrome (SBS), (Elsevier, 2016) occurs when an infant child is violently shaken by a person and the baby’s brain moves back and forth traumatically inside the skull causing bruising and sometimes fatal bleeding at the front and back of the brain. An examination by the pathologist for the contact points and internal bleeding can provide valuable clues to the manner in which the blunt force trauma was inflicted. According to An Investigator’s Manual for Shaken Baby Syndrome, studies indicate that SBS is the leading cause of death in children under two years of age and research studies the United Kingdom and the United States indicate that SBS may occur each year in as many as 24 to 30 per 100,000 children under two years of age (Smith, 2010).
In cases of asphyxiation, a pathologist will look for indicators of how the body was deprived of oxygen. Several common means include strangulation, suffocation, smoke inhalation, or drowning. For strangulation, the pathologist will look for bruising around the neck inflicted by choking hands or by a ligature. A ligature is any item, such as a rope or a belt, which could be used to restrict breathing and stop oxygenated blood going to the brain, thus causing death. If a ligature has been used and removed, it will leave a distinct abrasion line. If a dead body is found with a ligature in place, investigators should take great care to not untie the ligature, but cut it off of the victim, as this allows the ligature size to be measured and compared to the size of the neck to determine the amount of breathing that was restricted. Once the ligature is removed from a dead body, a distinct ligature mark or a groove in the flesh will sometimes be visible.
To determine strangulation, the pathologist will examine the eyes of the victim for the presence of small ruptured blood vessel that appear as red spots on the white of the eyeball. These spots are known as petechial hemorrhage, and will often be visible in victims of strangulation (Jaffe, 1994).
Suffocation as a cause of asphyxiation occurs when a victim’s breathing is stopped by an object, such as a pillow or a plastic bag, which restricts the ability of a victim to breath, thus causing death. Unlike strangulation, suffocation has fewer indicators of violent trauma. Suffocation deaths are sometimes accidental and are harder for pathologist to conclusively determine. The presence of a suffocation device at the scene of the death is sometimes a first clue to this cause. Other contributing causes can be the limited ability of a victim to remove the device that accidentally obstructs their breathing, as may be found with a very young child, a handicapped person, or a frail elderly victim.
Another unique type of asphyxiation death is Auto Erotic Asphyxia (AEA). This occurs when a person is attempting to enhance their sexual arousal or pleasure while masturbating and apply self-strangulation with a ligature device. Their goal in AEA is not suicide but rather to reach a state of extreme oxygen deprivation and euphoria at the time of orgasm. This strategy can go wrong when the individual passes out and their ligature does not release causing continued strangulation and death. These cases can resemble suicide; however, they are really death by misadventure because the victim had no intent to kill themselves. AEA can sometimes be distinguished from suicide by the existence of apparent masturbation, pornography at the scene, and ligature devices that have releasable controls.
In cases where asphyxiation is caused by smoke inhalation, a pathologist can find signs of soot blackening in the lungs and, if the air containing the smoke was sufficiently hot, the lungs will also show signs of burn trauma. Because arson is sometimes used as a means of disguising a homicide, finding a dead body in a burning building, and not finding signs of smoke in the lungs, is a red flag for possible death by homicide.
In cases where asphyxiation is caused by drowning, a pathologist will find signs of water present in the lungs. If there is a question as to the location of the drowning, it is possible to have a diatom test conducted on the victim’s tissue. If the victim was drowned in fresh water, the diatom material, which is microscopic algae, will have migrated from the water in the lungs to the blood and tissue of the victim. These microscopic algae are species unique to a particular body of water. Diatom material found in a victim’s lungs should match the diatom sample from the water where the body was found. If it does not match, this suggests that the victim drowned elsewhere.
In cases of toxic substances, a pathologist will test the stomach contents, the blood, eye fluid known as vitreous humor, and tissue samples from various organs in the body for poisons, drug overdose, the ingestion of toxic chemicals, or toxic gas inhalation. Any of these substances can cause death if ingested or inhaled in sufficient quantities.
In cases of electrocution, a person dies because of an electrical current passing through their body that stops the heart. A pathologist will look for signs to confirm that a current passed through the body, including contact burns where a person has touched a source of power that entered their body and existed to a grounding point. This grounding point is often at the ground through the feet, but can be through a shorter contact pathway, if another hand or part of the body was in contact with a grounded object. Burns will also be visible where the electrical current exited the body.
Cases where the necessities of life have been deprived generally occur where there is a dependent relationship between a caregiver and a victim. The victims in these cases are typically very young or very elderly persons who are unable to take care of their own needs. These cases often take place over and extended periods of time and may include other types of physical neglect or abuse. Failing to provide necessities of life is such a significant issue that the Criminal law in Canada makes provision for this as an offence.
Duty of persons to provide necessaries
215 (1) Everyone is under a legal duty
(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
(b) to provide necessaries of life to their spouse or common-law partner; and
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
(ii) is unable to provide himself with necessaries of life.
Marginal note: Offence
(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if
(a) with respect to a duty imposed by paragraph (1)(a) or (b),
(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or
(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or
(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently. (Justice Laws Canada, 2017)
Marginal note: Punishment
(3) Every one who commits an offence under subsection (2)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months. (Justice Laws Canada, 2017)
If the death of a person is found to be the result of failing to provide the necessities of life, the responsible caregiver can ultimately be charged with criminal negligence causing death.
Topic 8: Chemical Analysis
There are a wide range of chemicals and usages that can be used in the commission of a crime or found at the scene of a crime. In addition to general chemical analysis, there are several sub-areas for analysis in cases of:
• Accelerants used in the crime of arson;
• Explosive analysis in cases of conventional crimes and terrorism;
• Toxic chemicals and biological agents used in cases of murder, industrial negligence, and terrorism;
• Drug analysis in the cases of trafficking and drug overdoses;
• Gunshot residue analysis; and
• Analysis and chemical matching of paint transfer in cases of hit and run motor vehicle crashes.
Topic 9: Forensic Archaeology
Relatively new in the forensic world, forensic archaeology is the use of archaeological methods by experts to exhume crimes scenes, including bodies. These forensic experts are trained to methodically excavate and record their dig. They document the recovery of artifacts (evidence), such as human remains, weapons, and other buried items, that may be relevant to the criminal event. Forensic archaeologists will often work in concert with other forensic experts in DNA, physical matching, forensic entomology, and forensic odontology in the examination of evidence.
Topic 10: Forensic Entomology
Forensic entomology is a very narrow field of forensic science that focuses on the life cycle of bugs. When a dead body has been left out in the elements and allowed to decompose, the investigative challenge is not only to identify the body, but to establish the time of death. Once a body has decomposed, the process of determining time of death can be aided by a forensic entomologist. As discussed in a previous chapter, these experts look at the bugs that live on a decomposing body through the various stages of their life cycle. From these life-cycle calculations, scientists are sometimes able to offer and estimate relative time of death.
Topic 11: Forensic Odontology
To paraphrase the description provided by Dr. Leung (2008), forensic odontology is essentially forensic dentistry and includes the expert analysis of various aspects of teeth for the purposes of investigation. Since the advent of dental x-rays, dental records have been used as a reliable source of comparison data to confirm the identity of bodies that were otherwise too damaged or too decomposed to identify through other means. The development of DNA and the ability to use DNA in the identification of badly decomposed human remains has made identity through dental records less critical. That said, even in a badly decomposed or damaged corpse, teeth can retain DNA material inside the tooth, allowing it to remain a viable source of post-mortem DNA evidence (Gaytmenn, 2003).
Beyond the identification of dead bodies, forensic odontology can sometimes also provide investigators with assistance in confirming the possible identity of a suspect responsible for a bite mark. This comparison is done by the examination and photographic preservation of the bite mark on a victim or an object, and the subsequent matching of the details in that bite mark configuration to a dental mould showing the bite configuration of a known suspect’s teeth. Although bite mark comparison has been in practice for over fifty years there remain questions to the reliability for exact matching of an unknown bite mark to a suspect (Giannelli, 2007).
Topic 12: Forensic Engineering
Forensic engineering is a type of investigative engineering that examines materials, structures, and mechanical devices to answer a wide range of questions. Often used in cases of car crashes, forensic engineers can often estimate the speed of a vehicle by examining the extent of damage to a vehicle. They can also match damage between vehicles and road surface to determine the point of impact and speed at the time of impact. Many police agencies now have specialized traffic personnel trained in accident analysis and accident reconstruction. These officers utilize a variety of forensic engineering techniques to examine and document the dynamics of car crashes to establish how and why a crash occurred.
In cases of building collapses, forensic engineers can conduct analyzes to determine the cause of a structural failure and, in the case of an intention explosion, such as in acts of terrorism, this can point to the location of the planted explosive device. The investigative possibilities for forensic engineering are too extensive to elaborate here, but if damage to a building, an object, or a piece of equipment poses an investigative question, the tools of forensic engineering should be used to seek answers.
Topic 13: Criminal Profiling
Criminal profiling, also referred to as psychological profiling, is the study of criminal conduct to develop the most likely social and psychological profile of the person who may have committed the crime based on the actions of known criminals who have committed that same type of crime in the past (Royal Canadian Mounted Police, 2015). Criminal profiling draws on information from many sources, including historical criminal statistics of known criminals. Additionally, other information is collected about violent criminals and their modus operandi. This kind of information can shed light on details, such as preferences for luring victims, taking trophies, abduction methods, bondage preference, torture methods, means of killing, and displaying a dead body after death. With information and specific data collected from a wide assortment of offenders, psychological profilers work with investigators to examine the details of a criminal investigation, and, based upon the known historical criminal conduct data, they determine probable descriptors and characteristics that might be expected in a current suspect’s profile.
For investigators, this kind of profiling can be helpful in focusing the investigation on the most likely persons. As an extension of these profiling techniques, a database known as Violent Crime Linkage Analysis System (ViCLAS) has been in place in Canada since the 1990s. This system documents the criminal conduct of convicted violent offenders and sex offenders, as well as certain unsolved cases, with a goal of documenting crime types and criminal conduct into a searchable database where unsolved crimes can be linked to offenders with matching profiles. According to the ViCLAS system web page, “Since the implementation of ViCLAS across the country, the database continues to swell with cases. As of April 2007, there were approximately 300,000 cases on the system and over 3,200 linkages have been made thus far” (Royal Canadian Mounted Police, 2015). Criminal profiling provides a valuable tool for sorting and prioritizing suspects identified for further investigation. In some cases, a new suspect may even be identified through the existing data within the ViCLAS database.
Topic 14: Geographic Profiling
Geographic profiling is similar to psychological profiling in that it seeks to focus on the possible conduct of an unknown criminal based on the data collected from the known past criminal conduct of others. Unlike psychological profiling, geographic profiling is focused specifically on where a suspect might reside relative to the location where his or her crimes are currently being committed.
In the late 1980’s, police Detective Inspector Kim Rossmo developed a mathematical formula that began the evolution in the new forensic science of geographic profiling. Dr. Rossmo validated his mathematical formula from his observation that criminals generally seemed to live within an identifiable proximity to the chosen locations where they committed their crimes (Rossmo, 1987). Applying this method, when a criminal is suspected of committing a series of offences, it is possible to have the locations of those offences examined by a geographic profiler to estimate where that suspect most likely resides. This assessment can be helpful in searching for and identifying new suspects by prioritizing suspects based on the location of their residence relative to the identified area with the highest probability for a suspect to be found.
Topic 15: Forensic Data Analysis
In today’s digital world, criminal conduct frequently includes evidence in the form of digital data. The collection of data from cellular phones as proof of a criminal conspiracy, or the message tracking of images passed in the distribution of child pornography, all require significant levels of specialized technological knowledge to collect, preserve, and analyze the exhibits. Some crimes, such as identity theft and the subsequent fraudulent misappropriation of funds, are almost entirely digital data crimes, and they cross over several fields of technological expertise. It is now incumbent upon ordinary investigators to understand the basics of how to preserve digital evidence, and to know when and if digital evidence may be present. An ordinary investigator without forensic data skills and qualifications should never attempt to recover digital data evidence without help. The destruction of evidence would be like an untrained investigator trying to lift fingerprints at a crime scene.
Topic 16: Forensic Document Analysis
Forensic document analysis is typically done by certified forensic document examiners working as independent contractors or as employees within the service of government funded crime detection laboratories. Most often tasked within the scope of fraud investigations, these specialists examine items, such as wills, land titles, contracts, deeds, seals, stamps, bank checks, identification cards, handwritten documents and documents from photocopiers, fax machines, and printers. These documents are often examined to authenticate them as genuine or unaltered original documents where an allegation of misrepresentation or fraud has been made. Original signatures are also sometimes called into question, and these examiners can make a determination of authenticity by comparing the signature sample to samples known to be genuine. Forensic experts are also called upon to analyze threatening letters, ransom letters, or hold-up notes to make a connection to an identified suspect.
Topic 17: Forensic Identification Sections
Forensic identification sections are the frontline forensic specialists typically working within their own police agency. Usually, these specialists are experienced police officers who have taken forensic training in photography, fingerprint examination, physical matching, evidence collection, and crime scene management to work within this type of section. The daily work of forensic identification sections involves attending crime scenes, and conducting a variety of examinations using special fingerprint dusts, chemical fuming agents, and ultraviolet light sources to uncover impressions of fingerprint, shoeprints, tool marks or even body fluid stains not visible to the naked eye. Once the stain or the image of a forensic impression is found, these specialists can record, preserve, and recover the exhibit using photography and specialized tools for lifting the exhibit from a surface or removing the entire imprinted surface as an exhibit.
Topic 18: Crime Detection Laboratories
Crime Detection Laboratories, such as the RCMP labs across Canada, provide a range of specialties, including;
• Biology — Comparison of the suspect’s and victim’s body fluids and hair; most often DNA analysis
• Chemistry — Identifying non-biological substances found at a crime scene, such as paint, glass, liquids, fuels, and explosive substances
• Toxicology — The examination of body fluids to determine the level of alcohol present in the body, and providing expert opinions in relation to the extent of intoxication
• Documents Examination — The analysis of documents to determine authenticity for fraud allegations. Can also provide handwriting comparison
• Firearms Ballistics — Matching shells, casing, and fired bullets to a weapon and making a determination of bullet trajectory
• Tool mark examination — Matching tool impressions to an originating suspect tool
Scientists hired to work in these crime detection laboratories require a four year specialized degree in the field of their choice. Once hired, they undergo an understudy period of 12 to 18 months in a laboratory with an expectation that they will become proficient enough in their chosen field to achieve expert qualification from the court. This expert status will allow them, on a case-by-case basis, to render expert opinion evidence on their examination of forensic exhibits.
For an investigator wishing to engage the services of the Crime Detection Laboratory, it is necessary to complete a request for analysis of the exhibit they wish to have examined and deliver that exhibit, either in person or by double registered mail, directly to the Crime Detection Laboratory to ensure continuity of the exhibit. Once examined, the analyst will return the exhibit again either by calling for a personal pick up or by double registered mail along with a certificate of analysis detailing the result of the examination. The certificate of analysis can become an exhibit for disclosure to the defence in a criminal case, and, if uncontested, will be accepted by the court as evidence. If contested, the Crime Detection Laboratory Scientist will be called to attend court and provide testimony of the examination and the results as an expert witness. They are generally cross examined by the defence to validate their expert qualifications and analyzes.
Summary
This chapter outlined a wide variety of forensic tools and services available for criminal investigators. For any investigator, knowledge of forensic tools and services provides him/her with the ability to recognize and seize on evidence opportunities that would not otherwise be possible. The picture of physical evidence found at any crime scene only has face value as a collection of objects to be viewed and considered in their existing connection to the event. Analysis of those same objects using forensic tools can add significant information, making a circumstantial connection between the players and the event, and adding new insights. Forensic analysis can make the difference between solving a crime and it becoming a cold case.
Study Questions
1. In terms of a physical matching, what is the difference between a Level One and a Level-Two examination?
2. How are latent fingerprints made visible?
3. What is the difference between a Level One and Level Two ballistics examination?
4. What is blood spatter analysis?
5. What are four common post-mortem indicators considered in an autopsy?
6. How else can a pathologist be helpful to police besides being able to speak to cause of death?
7. What is forensic archaeology?
8. What is forensic entomology?
9. What is criminal profiling?
10. What is ViCLASS? | textbooks/workforce/Corrections/Introduction_to_Criminal_Investigation_-_Processes_Practices_and_Thinking_(Gehl_and_Plecas)/1.10%3A_Forensic_Sciences.txt |
The goal of this book has been to provide a new student of investigation with an overview of the skills required by a criminal investigator. As an introduction to criminal investigation, this overview has intentionally avoided delving into many areas of specialized criminal investigation. Some of these areas of investigation, such as financial crime, criminal profiling, and computer crime, are so unique and focused, that they cannot be adequately summarized here. That said, persons seeking to move into these specialized areas of investigation are well served to properly learn the core skill that are presented here.
This book has outlined the task skills and thinking skills required to guide the process of investigation. Presented here as a structured investigative model, the STAIR tool brings together the task skills relating to gathering, preserving, and documenting evidence with the thinking skills of analysis, theory development, investigation and fact validation. This structured system is intended to help new investigators achieve a personal awareness of their own investigative thinking, and create their own mental map for an investigative process that can be followed, documented, repeated, and enhanced through professional experience.
In the past, learning the necessary investigative skills and thinking were expected to evolve and develop in a model where the learner received basic police training, and was then exposed to progressively more complex investigations. This allowed the investigator to evolve their-own mental map for a functional investigative process. In this traditional learning model, investigators were expected to make mistakes and learn from their mistakes to evolve their personal learning of the investigative process. Often under the guidance of mentors and field trainers, good criminal investigators developed their skills and reach high levels of professionalism and competency. This book is not intended to take issue with the traditional learning model, but to suggest a means where new investigators are provided a thinking perspective and tools that enable them to enhance their learning process in ways other than exclusively through personal experience.
The intent of this book has been to provide readers with a head start in their investigative learning process by discussing the need to be aware of their own thinking process and to create a mental map. The STAIR tool has been developed to provide a guide to this mental mapping process. In doing so, this book discussed criminal law, witness management, interviewing and interrogation, crimes scene management, and forensic sciences. Many of these topics are sufficiently complex that entire books have been written about them. In this book, the treatment of these topics has been intentionally introductory to provide the reader with a basic awareness of each topic in its specific relationship to the criminal investigative process. As a very broad overview of these key issues, the new investigator will only have a generalist understanding of these topics and can use this book to assist them in evolving their ongoing learning in a self-directed mode relative to their perceived needs as the complexities of their new investigations might demand.
Investigative Learning Going Forward
Many topics relative to investigative practices have not been covered as part of the core knowledge requirements for a new investigator. These topics include:
1. Major Case Management
2. Informant and confidential source management
3. Undercover investigations
4. Specialized team investigations
While we cannot consider these topics in any depth, it will important for the new investigator to at least know about them with respect to more advanced practices of criminal investigation.
Topic 1: Major Case Management
A contemporary practice for the handling of major criminal investigations involving multiple jurisdictions, multiple investigative agencies, and often serial criminal events, Major Case Management is a system designed to achieve order, cooperation, and information sharing between police agencies. In Canada, creating and adopting the practices of Major Case Management was driven by the 1995/1996 report and Commission of Inquiry recommendations of Justice Archie Campbell examining the various police agency investigations into the activities of Paul Bernardo, who was a serial rapist and murderer whose activities between 1987 and 1992 included the rape or sexual assault of at least eight women in the areas of Scarborough, Peel, and St Catharines, Ontario, and the murder of three women in St. Catharines and Burlington, Ontario (Campbell, 1996). To quote directly from the Campbell’s report:
The Bernardo case, like every similar investigation, had its share of human error. But this is not a story of human error or lack of dedication or investigative skill. It is a story of systemic failure.
It is easy, knowing now that Bernardo was the rapist and the killer, to ask why he was not identified earlier for what he was. But the same questions and the same problems have arisen in so many other similar tragedies in other countries.
Virtually every interjurisdictional serial killer case including Sutcliffe (the Yorkshire Rapist) and Black (the cross-border child killer) in England, Ted Bundy and the Green River Killer in the United States and Clifford Olsen in Canada, demonstrate the same problems arise and the same questions. And always the answer turns out to be the same – systemic failure. Always the problems turn out to be the same, the mistakes the same, and the systemic failures the same.
What is needed is a system of case management for major interjurisdictional serial predator investigations. As system that corrects the defects demonstrated by this and so many similar cases.
A case management system is based on co-operation, rather than rivalry, among law enforcement agencies. A case management system is needed that depends on specialized training, early recognition of linked offences, co-ordination of interdisciplinary and forensic resources, and some simple mechanisms to ensure unified management, accountability and co-ordination when serial predators cross police borders. (Campbell, 1996)
From the recommendations of the Campbell Report, the Canadian Police College in Ottawa, Ontario took a leadership role in working with police agencies and investigators from across Canada to develop a major case management system and training that would address the concerns raised by the Campbell report. The major case management system allows for the creation of case specific major case management teams when it is determined that a serious criminal investigation crosses jurisdictional boundaries. In this system, the major case management team operates as an autonomous case specific unit, led by a command group comprised of a team commander, a primary investigator, and a file coordinator. In this structure, the team is staffed with experienced investigative personnel from each of the partner agencies, and no single partner agency has control over the conduct of the investigation.
Partner agencies receive reports on the investigative progress and provide their collective input to the team through contact with only the team commander. The major case management team handles the specific case, receiving all evidence and incoming information through the file coordinator as TIPS and each TIP is assigned by the primary investigator for follow up by the investigators on the team. The team follows a strict regime of daily information sharing through a process of daily briefings, and all team members are encouraged to share their investigative progress and to assist in the creation and development of investigative strategies. New or inexperienced investigators are not assigned to duties as part of a Major Case Management team. Being selected to participate as an investigator on one of these team means that your investigative skills have reached the point where you can be counted on to perform at a very high level.
Topic 2: Informant and Confidential Source Management
Informants and confidential sources often provide police investigators with information to solve a single crime or to investigate a criminal organization. In court cases, such as R vs Basi (2009), the courts have recognized that confidential informants are a critical tool for effective police work. Given this, the court provides privilege for the police and Crown to not reveal the identity of a source in court, particularly in cases where that privilege has been asked for by the source and agreed to by the police as a condition of providing information (Dostal, 2012).
Even with the condition of anonymity, experienced source handlers know that if their informant participates in the criminal event as an agent of the police, the source can be classified by the courts as an “agent provocateur,” and may not claim the privilege of anonymity. These complexities of confidentiality make source and informant management a very sensitive matter. Failure to manage the informant or their information properly can result in the identity of the person being revealed with the risk of deadly consequences or having to put the informant into a witness protection program.
The field of informant management and protection requires trust building and communication skills that will be effective with persons who are part of the criminal community. This is sometimes achieved by using discretion, not pursuing the more minor criminal activities of an informant, or even trading away certain criminal charges against the informant in exchange for specific information on a more serious crime. These strategies can be very delicate, and often require the collaboration with Crown Prosecutors in cases where the administration of justice may be compromised by an investigator acting independently.
A new investigator would not become involved in these higher level informant management cases, but could start building the framework and network of street-level contacts to learn the skills of informant management. The first stages of building the skill set to manage informants and confidential sources starts with learning to have non-judgemental conversations with members of the criminal community. When persons in the criminal community see a police investigator as fair, friendly, and approachable, this opens the door for the investigator to approach those contacts for specific inquiries when an occasion presents itself.
Topic 3: Undercover Investigations
An undercover investigation is the practice of a police officer posing as someone other than a police officer for the purpose of collecting evidence of criminal activity that would otherwise be difficult to acquire. The possible personas of the undercover investigator are almost limitless and can range from posing as a person seeking to purchase drugs from local traffickers to impersonating a vulnerable elderly citizen in a park to capture a purse snatcher preying on the elderly. There are also deep undercover strategies that may include establishing a longer term identity with the purpose of infiltrating a criminal organization or a dissident political group to gain internal intelligence of organizational activities, culture, and membership.
Police investigators often find undercover strategies successful because criminal activity can be witnessed firsthand, and admissions of guilt made to undercover operators by criminals can be admitted to court without the need of the usual voir dire to test for admissibility. When conducting undercover operations, investigators must be careful to ensure that their presence and communication with the suspect is not the catalyst that causes that person to initiate a crime or carry through with a crime they would not otherwise have done. If these dynamics of initiating the crime occur, a defence of entrapment can sometimes be made on behalf of the accused person. New investigators may be given the opportunity to participate in minor undercover roles fairly early in their careers, and these can be valuable learning experiences.
Topic 4: Specialized Team Investigations
The urbanization of communities and the evolution of fields of specialized policing have created new opportunities for officers. Where it was once the case that a police officer was expected to be a generalist capable of working across a wide range of policing fields, the level of expertise now expected in many fields is such that specialized investigative teams have become the norm. Specialized investigative duties now include:
• Forensic Identification Section
• Traffic Analyst and Accident Reconstruction Units
• Criminal intelligence and Crime Analysis
• Criminal and Geographic Crime Profiling
• Polygraph section and specialized interview teams
• Computer Crime Analysts and Data Recovery
• Organized Crime Sections
• Gang Crime Unit
• Integrated Homicide Investigation Teams
• Dedicated Surveillance Units
• Community Policing Teams
For a new investigator, each of these specialities offers an area and a direction where they may decide to direct their career, and it is not uncommon for a police officer to move through several specialized sections over the course of their policing career. What each of these specialized teams does have in common is that investigators on these teams have all achieved the level of basic investigative task skills and thinking skills required to make them a valuable asset to their team and their organization.
As new investigators continue to develop their investigative knowledge applying the task skills and thinking skills presented in this book, it is important to remember that practice and experience are critical components of the ongoing investigative learning. Many police organizations have carefully developed field training programs where new recruits are challenged to engage and demonstrate investigative skills within a set schedule of tasks to complete the compulsory training.
Once this set schedule is completed, it is then incumbent upon the new investigator to become a more self-directed learner. In most policing organizations the path to ongoing investigative duties and the associated experience and skills development that come with those duties, is only available to those who actively seek that experience.
The secret to continued development as an investigator is a simple one; become a self-directed learner and seek out investigative experience and learning at any and all levels available. These work experiences may seem mundane and tedious at times, but every witness interviewed, every search completed, each piece of evidence properly collected and marked, every report written, and every experience testifying in court, is part of the ongoing experience and learning. | textbooks/workforce/Corrections/Introduction_to_Criminal_Investigation_-_Processes_Practices_and_Thinking_(Gehl_and_Plecas)/1.11%3A_Summary.txt |
Nude Ultimate Frisbee
“Facial Tattoos and Piercings”
Deviance is behavior that departs from the social norm. Goode argues that four things must happen in order for something deviant to take place or exist:
[2]
Applying Knowledge
Assignment: Apply Goode’s definition of what needs to happen in order for something to be considered deviant in no less than 500 words and following the example below.
Example: The awkward outfit to the gym: knee socks, athletic shorts, and an oversized Broncos t-shirt mentioned above could be deviant. Based on Goode’s definition of deviance, this attire departed from the social norm at the gym in 2018. Whether we realize it or not some specific rules or norms established in the gym (1); sometimes we have a dress code, but other times, you have to keep up with current ‘hip trends’ such as yoga pants for women in 2018. Next, I violated that norm by my attire (2); since it was a busy Monday night lots of people saw my attire, my audience, that was able to witness my act and then judge it (3). Lastly, they cannot kick me out for not dressing cool, but the awkward smirks, stares, and giggles were all I needed to know that my clothes were deviant and not cool (4). This could certainly have not been true in 1950, 1980, or even early 2000s. If I think back to when I started lifting over a decade ago, yoga pants were unheard of and no one wore anything ‘tight’ to the gym. Today yoga pants are regular and in some parts of the country for women and men.
1. By Tuerto - [1], CC by-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=26526042
2. Goode, E. (2015). Deviant Behavior, (10th ed.). New York: Pearson, Education.
1.05: Consensus View and Decriminalizing Laws
consensus view, which as it states, implies consensus (agreement) among citizens on what should and should not be illegal. This idea implies that all groups come together, regardless of social class, race, age, gender, and more, to determine what should be illegal. This view also suggests that criminal law is a function of beliefs, morality, and rules that apply equally to all members of society. [1]
[2] An act can be decriminalized at the State level, but not necessarily the Federal level.
Marijuana Legalization
University of Texas/Texas Tribune Poll, June 2018 — Summary
Adam Ruins Everything YouTube Link: The Sinister Reason Weed is Illegal www.trutv.com/shows/adam-ruins-everything/videos/the-sinister-reason-weed-is-illegal.html
1. Dawe, A. (1970). The two sociologies. The British Journal of Sociology, 21(2), 207-218.
2. Lutnick, A. & Cohan, D. (2009). Criminalization, legalization or decriminalization of sex work: what female sex workers say in San Francisco, USA. Reproductive Health Matters, 17(34), 38-46.
1.06: Conflict View
Conflict view sees society as a collection of diverse groups that can include owners, workers, wealthy, poor, students, professionals, younger older, and more. This view recognizes that the creation of laws is unequal and may not have consensus like in the example discussed previously. [1]
[2] There are many examples we use in the criminal justice field that demonstrates the conflict view in action.
Edwin Sutherland: White Collar Crime
[3] Specifically, he was concerned with the criminological community’s preoccupation with the low-status offender and “street crimes” and the lack of attention given to crimes that were perpetrated by people in higher status occupations.
White Collar Crime, that sparked lots of debate. [4] However, there is a limited focus on white-collar crime and even less enforcement of it in the United States. From the conflict view, this would be because white-collar and corporate crime is committed by the ‘haves’ and they write their laws and define what is or is not a crime. Going back to how we define crime in society, white-collar crime is still a contested one.
[5] However, there is a limited focus on white-collar crime and even less enforcement of it in the United States. From the conflict view, white-collar and corporate crime gets committed by the ‘haves,’ and they write the laws and define what is or is not a crime. Going back to how we define crime in society, white-collar crime is still a contested one.
ucr.fbi.gov/nibrs/nibrs_wcc.pdf
[6]
1. Hawkins, D. (1987). Beyond anomalies: Rethinking the conflict perspective on race and criminal punishment. Social Forces, 65(3), 719–745, doi.org/10.1093/sf/65.3.719
2. Boundless. (2016). The conflict perspective. Sociology – Cochise College Boundless, 26.
3. Sutherland, E. (1940). White collar criminality. American Sociological Review, 5(1), 1-12.
4. Sutherland, E. (1949). White collar crime. Dryden Press.
5. Sutherland, E. (1949). White collar crime. Dryden Press.
6. Barnett, C. (N.D.). The measurement of white-collar crime using: Uniform crime reporting (UCR) data. U.S. Department of Justice. Federal Bureau of Investigation | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/01%3A_Crime_Criminal_Justice_and_Criminology/1.02%3A_Deviance_Rule_Violations_and_Criminality.txt |
How Cases Move Through the System
Exercise on Discretion
Ethics refers to the understanding of what constitutes good or bad behavior and helps to guide our behaviors. Ethics are important in the criminal justice system because people working in the system get authority, power, and discretion by the government. [3] Imagine in the above case where the speeding and swerving occurred because the person drove drunk due to the break-up. It would be unethical for police to allow them to drive home because they were drinking and driving, which is a crime. Most people would see it an abuse of discretion if the officer said, “I know you are drunk, but break-ups suck. Please stop crying, drive home, and forget this happened.” Ethics and discretion often go hand-in-hand.
In the News: How Would an Ethical Officer React? The New York Times wrote an article about ethical policing. Tobkin often asked his recruits, in any given situation, “How would an ethical officer react?” All recruits were required to take an ethics class called Police Legitimacy, which deals with how officers are viewed by the public and what they can do to improve or erode those perceptions. “There is about one patrol officer for every thousand citizens, so if the public does not see us as legitimate and they do not acknowledge our authority, then we are in big trouble,” Tobkin said. Recruits also closely study the department’s “use-of-force continuum,” which dictates what level of force is appropriate in response to a suspect’s behavior: tasers and batons on when a suspect is kicking or punching an officer, but generally not when a suspect is simply trying to get away. [4]
[5] The criminal justice system is often referred to as a funnel because most cases do not go through all steps in the system, some because of discretion, and a large portion because they are unknown to police. The question remains: is the criminal justice system effective at catching, prosecuting, convicting, and punishing offenders? Does the system properly do its job at all levels? Walker was critical of this report and said the report did not account for the crimes unknown to police, often referred to as the dark figure of crime. He also recognized that the most serious crimes are often reported the most, which may confuse the public about the reality of other crimes. [6] Others also criticized the report for only looking at reported crimes and adult crimes, but those issues will be highlighted in our next chapter on data in the criminal justice system. It is important to recognize that the disparity between crimes that were reported and not reported. This discrepancy was a shock in the 1970s, especially after the United States started asking people about their victimization. The number of crimes people say they experienced far exceeded the crimes they reported to the police. [7]
[8]
In the News: The Crime Funnel The New York Times wrote an example of the crime funnel. Federal agencies publish numbers of crime that constitute a big funnel. For example, the “35 million crimes committed each year pour in at the top that can include everything from shoplifting, auto theft and drunken fights to rapes and murders. Of these, about 25 million are serious, since they involve violence or sizable property loss. But millions of these crimes go unpunished because the victims never report them. Only 15 million serious crimes come to the attention of the police.” [9]
[10] The criminal justice system is often referred to as a funnel because most cases do not go through all steps in the system, some because of discretion, and a large portion because they are unknown to police. The question remains: is the criminal justice system effective at catching, prosecuting, convicting, and punishing offenders? Does the system properly do its job at all levels? Walker was critical of this report and said the report did not account for the crimes unknown to police, often referred to as the dark figure of crime. He also recognized that the most serious crimes get reported the most, which may confuse the public about the reality of other crimes. [11]
[12]
[13]
Funnel Effect Example
1. Kessler, D. & Piehl, A. (1998). The role of discretion in the criminal justice system. The Journal of Law, Economics, and Organization, 14(2), 256-276
2. Gottfredson, M., & Gottfredson, D. (1988). Decision making in criminal justice: Toward the rational exercise of discretion. New York: Plenum
3. Sellers, B. (2015). Ethics in policing. Wiley online library.
4. Sessini, J. (2016). How would an ethical officer act? The New York Times.
5. The challenge of crime in a free society. 1967. NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf
6. Walker, S. (2006). Sense and nonsense about crime and drugs. Cengage: Wadsworth.
7. Anderson, D. (1994). The crime funnel. The New York Times.
8. The challenge of crime in a free society. (1967). NCJRS.https://www.ncjrs.gov/pdffiles1/nij/42.pdf
9. Anderson, D. (1994). The crime funnel. The New York Times.
10. The challenge of crime in a free society. 1967. NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf
11. Walker, S. (2006). Sense and nonsense about crime and drugs. Cengage: Wadsworth.
12. Anderson, D. (1994). The crime funnel. The New York Times.
13. The Challenge of crime in a free society. (1967). NCJRS.https://www.ncjrs.gov/pdffiles1/nij/42.pdf
1.11: Wedding Cake Model of Justice
Wedding Cake Model
[1] It is referred to as a wedding cake because of the different tiers or layers on a cake. Take a moment to glance at the wedding cake image below and notice that wedding cakes often have different layers and the bottom tends to be the largest with the top being the smallest. This section will explain what each layer would resemble in the criminal justice system.
[2] Misdemeanors are the least dangerous types of crimes which can include, depending on where location, public intoxication, prostitution, graffiti, among others. Imagine getting caught tagging a park wall and never being caught for a crime before, which is where this crime would fall. These are often the crimes most of us have committed, but also most of us may not have been caught or punished. A misdemeanor may result in a monetary fine, rather than jail time.
Bottom-Layer Example (The Largest Portion) Dr. Sanchez
https://www.forbes.com/sites/tomange.../#43134be64c4b
[3] However, they consume a significant amount of the courts’ time. For example, Oregon has three different levels or classes of felonies. Class A is the most serious and can result in up to 20-years imprisonment, Class B can result in up to 10 years imprisonment, and Class C is the least serious with up to five years. [4] The second tier would be comprised mostly of Class C felonies.
Wedding Cake Model Exercise
1. Walker, S. (2006). Sense and nonsense about crime and drugs: A policy guide (6th ed.). Belmont, CA: Thomson
2. Walker, S. (2006). Sense and nonsense about crime and drugs: A policy guide (6th ed.). Belmont, CA: Thomson
3. Walker, S. (2006). Sense and nonsense about crime and drugs: A policy guide (6th ed.). Belmont, CA: Thomson
4. https://www.criminaldefenselawyer.com/resources/criminal-defense/felony-offense/oregon-felony-class.htm | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/01%3A_Crime_Criminal_Justice_and_Criminology/1.09%3A_How_Cases_Move_Through_the_System.txt |
Street Crime
[1]
[2]
https://news.gallup.com/poll/178856/...ans-worry.aspx. For most people in society, people can go about their daily lives without the fear of being a victim of street crime. Street crime is important to take seriously, but it is reassuring to note that it is unlikely to happen to most people. The conversation should happen around why fears are high, especially amongst those less likely to be a victim. For example, elderly citizens have the greatest fear of street crime, yet they are the group least likely to experience it. Whereas younger people, especially young men, are less likely to fear crime and are the most likely to experience it. [3]
Gallup polls
[4] The Uniform Crime Reports (UCR) estimated in 2015 that financial loses from property crime at \$14.3 billion in 2014 (FBI, 2015a), but keep that number in mind for a minute. [5] Although it is crucial to recognize that street crime does occur, and it impacts certain groups disproportionately more than others, it is also important to recognize other types of crime less commonly talked discussed. In fact, the BJS does not have a link that directs people to the next two types of crime discussed when on their main page of crime type.
Corporate Crime
[6] Corporate crime is an offense committed by a corporation’s officers who pursue illegal activity (various kinds) in the name of the corporation. The goal is to make money for the business and run a profitable business, and the representatives of the business. Corporate crime may also include environmental crime if a corporation damages the environment to earn a profit. [7] As C. Wright Mills (1952) once stated, “corporate crime creates higher immorality” in U.S. society. [8] Corporate crime inflicts far more damage on society than all street crime combined, by death, injury, or dollars lost.
[9]
[10]
[11] Compare 54,000 Americans who die every year on the job or from occupational diseases such as black lung and asbestosis and the additional tens of thousands of other Americans who fall victim every year to the silent violence of pollution, contaminated foods, hazardous consumer products, and hospital malpractice. [12] A vast majority of these deaths are often the result of criminal recklessness. Americans are rarely made aware of them, and they rarely make their way through the criminal justice system.
[14]
White-Collar Crime
[15]
Dr. Sanchez’s Professor in Graduate School
[16]
1. https://www.bjs.gov/index.cfm?ty=tp&tid=316
2. Morgan, R., & Truman, J., (December, 2018). NCJ 252472
3. Doerner, W. G., & Lab, S.P. (2008). Victimology (5th ed.). Cincinnati, Ohio: Lexis-Nexis.
4. Kyckelhahn, T. (2012). Justice expenditure and employment extracts. Bureau of Justice Statistics
5. FBI. (2015b), September 28). Latest crime stats released. Washington, DC: US Department of Justice.
6. Fuller, J.R. (2019). Introduction to criminal justice. New York, Oxford: Oxford University Press.
7. Fuller, J.R. (2019). Introduction to criminal justice. New York, Oxford: Oxford University Press.
8. Horowitz, I. (Ed.) (2008), Power, politics, and people. Wright Mills, C. (1952). A diagnosis of moral uneasiness (pp.330-339). New York: Ballantine.
9. (2000). License To Steal: How Fraud Bleeds America's Health Care System. Westview Press.
10. Folger, J. (November, 2011). The Enron collapse: A look back. Investopedia. Retrieved from https://www.investopedia.com/updates/enron-scandal-summary/
11. FBI: UCR. 2016. FBI Murder. ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/murder
12. Mokhiber, R. Corporate crime & violence: Big business power and the abuse of the public trust. Random House, Inc.
13. Steinzor, R. (Dec. 2014). It’s called 'Why Not Jail?': Industrial catastrophes, corporate malfeasance, and government inaction. Cambridge University Press.
14. Kleck, G. (1982). On the use of self-report data to determine the class distribution of criminal and delinquent behavior." American Sociological Review, 427-433.
15. Zarroli, J. (2018). For Madoff victims, scars remain 10 years later, National Public Radio, https://www.npr.org/2018/12/23/678238031/for-madoff-victims-scars-remain-10-years-later
16. Fuller, J.R. (2019). Introduction to Criminal Justice. New York: Oxford, Oxford University Press.
1.13: Different Types of Crimes and Offenses
Crimes Against the Person
Crimes against the person are often considered the most serious and may include homicide, rape, assault, kidnapping, and intimate partner violence. Each of these crimes can carry a different penalty based upon the seriousness of the crime. For example, because Ted Bundy murdered women, rather than ‘just’ assaulted, Ted was eligible for capital punishment in the U.S. The state defines the crime and the punishment.
Crimes Against Property
Property crimes are widespread and seen as less severe than crimes against the person. Property crimes may include larceny, burglary, arson, and trespassing. There are varying degrees of liability depending on the circumstances of the case.
Crimes Against Public Order
Public order crimes may not harm other people or property but impact social order. Think back to the example of feeding homeless in community’s where that is illegal. Other typical examples would be disorderly conduct, loitering, and driving under the influence. The victim is society, and the goal is to maintain social order. Many debates whether certain crimes against public order are more or less severe, but get inappropriately punished. For example, driving while intoxicated can take lives and may be more severe. However, the law will charge for vehicular manslaughter or murder if life gets taken because someone drove drunk.
Drug Offenses
Most often drug offenses can be seen as a crime against public order, but the United States reaction to illegal drug use has altered the resources of the CJ system because of the “war on drugs.” Some examples of drug offenses can be possession of illegal drugs, being high, and selling. Punishment will vary based on the drug, how much of the drug is in possession or sold, and where it gets sold.
Misdemeanor
A misdemeanor is considered a minor criminal offense that is punishable by a fine and jail time for up to one year.
Felony
A felony is an offense that is punishable by a sentence of more than one year in state or federal prison and sometimes by death. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/01%3A_Crime_Criminal_Justice_and_Criminology/1.12%3A_Street_Crime_Corporate_Crime_and_White-Collar_Crime.txt |
[1] A victim is an integral part of the system, in fact, some say without a victim there would be no need for the CJ system. Victims are the people or communities that suffer physical, emotional, or financial harm as a result of a crime. Over the years different typologies of victims have been created to demonstrate the unique role or position of victims in relation to crime. Typically, when people hear someone has been a victim of a crime we often think of them as completely innocent. In fact, a lot of new legislation and policy changes created to provide the victim with a greater role in the CJ offers the stereotypical view of the victim as completely innocent. [2]
Typologies of Crime Victims
[3]
Mendelsohn’s Typology of Crime Victims
Innocent victim Someone who did not contribute to the victimization and is in the wrong place at the wrong time. This is the victim we most often envision when thinking about enhancing victim rights.
The victim with minor guilt Does not actively participate in their victimization but contributes to it in some minor degree, such as frequenting high-crime areas. This would be a person that continues to go to a bar that is known for nightly assault.
The guilty victim, guilty offender Victim, an offender may have engaged in criminal activity together. This would be two people attempting to steal a car, rob a store, sell drugs, etc.
The guilty offender, guiltier victim The victim may have been the primary attacker, but the offender won the fight.
Guilty victim The victim instigated a conflict but is killed in self-defense. An example would be an abused woman killing her partner while he is abusing her.
Imaginary victim Some people pretend to be victims and are not. This would be someone falsifying reports.
Von Hentig’s Typology
Young people Immature, under adult supervision, lack physical strength and lack the mental and emotional maturity to recognize victimization
Females/elderly Lack of physical strength
Mentally ill/intellectually disabled Can be taken advantage of easily
Immigrants Cannot understand language or threat of deportation makes them vulnerable
Minorities Marginalized in society, so vulnerable to victimization.
Dull normals Reasonably intelligent people who are naive or vulnerable in some way. These people are easily deceived.
The depressed Gullable, easily swayed, and not vigilant.
The lonesome and broken-hearted Often prone to victimization by intimate partners. They desire to be with someone at any cost. They are susceptible to manipulation.
Tormentors Primary abusers in relationships and become victims when the one being abused turns on them.
Blocked, exempted, and fighting victims Enter situations in which they are taken advantage such as blackmail.
victim precipitation. Victim precipitation suggests many victims play a role in their victimization. First, the victim acted first during the course of the offense, and second that the victim instigated the commission of the offense. [6] It is important to note that criminologists were attempting to demonstrate that victims may have some role in the victimization and are not truly innocent. Today we often recognize the role in victimization without blaming the individual because ultimately the person who offended is the person who offended.
1. Hagemann, O., Schäfer, P., & Schmidt, S. (Eds.) (2010). Victimology, Victim Assistance, and Criminal Justice: Perspectives Shared by International Experts Wemmers, J. A short history of victimology. at the Inter-University Centre of Dubrovnik. 2010. Available at SSRN: https://ssrn.com/abstract=2482627
2. Fuller, J.R. (2019). Introduction to Criminal Justice: New York: Oxford University Press.
3. Mendelsohn, B. (1976). Victimology and contemporary society's trends. Victimology, 1(1), 8-28.
4. Burgess, A. W. (2013). Victimology: Theories and applications. (3rd ed.). Burlington: Jones and Bartlett.
5. Von Hentig, H. (1948). The criminal and his victim: Studies in the sociobiology of crime. New Haven: Yale University Press.
6. Smith, M., & Bouffard, L. A. (2014). "Victim precipitation." The Encyclopedia of Criminology and Criminal Justice, Wiley Online Library. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/01%3A_Crime_Criminal_Justice_and_Criminology/1.14%3A_Victims_and_Victim_Typologies.txt |
Definition of a Victim
[1]
[2]
victim-impact statements. Victim-impact statements given an account by the victim, the victim’s family, or others affected by the offense that expressed the effects of the offense. [3]
Victim Impact Statements Video: Listen and Learn
• First, watch the youtube video https://www.youtube.com/watch?v=_ghpl4vDZ3s
• Second, write a 500-word response about the benefits of victim-impact statements, the impact the film had on you, and any other general thoughts you had while watching.
Victim Rights
[4]
Overview of Victim’s Rights
National Center for Victims of Crime that are provided by law in most jurisdictions. Again, it is important to remember these rights vary, depending on federal, state, or tribal law.
1. Right to be Treated with Dignity, Respect, and Sensitivity
1. Victims generally have the right to be treated with courtesy, fairness, and care by law enforcement and other officials throughout the entire criminal justice process. This right is included in the constitutions of most states that have victims’ rights amendments and in the statutes of more than half the states.2 Victim impact statements allow crime victims, during the decision-making process on sentencing or parole, to describe to the court or parole board the impact of the crime on their lives. The victim impact statement may include a description of psychological, financial, physical, or emotional harm the victim experienced as a result of the crime. A judge may use information from these statements to help determine an offender’s sentence; a parole board may use such information to help decide whether to grant parole and what conditions to impose in releasing an offender. Many victims have reported that making victim impact statements improved their satisfaction with the criminal justice process and helped them recover from the crime. In some states, the prosecutor is required to confer with the victim before making important decisions. In all states, however, the prosecutor (and not the victim) makes decisions about the case.
2. Right to Be Informed
1. The purpose of this right is to make sure that victims have the information they need to exercise their rights and to seek services and resources that are available to them. Victims generally have the right to receive information about victims’ rights, victim compensation (see “Right to Apply for Compensation,” below), available services and resources, how to contact criminal justice officials, and what to expect in the criminal justice system. Victims also usually have the right to receive notification of important events in their cases. Although state laws vary, most states require that victims receive notice of the following events:
• the arrest and arraignment of the offender
• bail proceedings
• pretrial proceedings
• dismissal of charges
• plea negotiations
• trial
• sentencing
• appeals
• probation or parole hearings
• release or escape of the offender
3. Right to Protection
1. In many states, victims have the right to protection from threats, intimidation, or retaliation during criminal proceedings. Depending on the jurisdiction, victims may receive the following types of protection:
• police escorts
• witness protection programs
• relocation
• restraining orders
4. Right to Apply for Compensation
1. All states provide crime victim compensation to reimburse victims of violent crime for some of the out-of-pocket expenses that resulted from the crime. The purpose of compensation is to recognize victims’ financial losses and to help them recover some of these costs. All states have a cap on the total compensation award for each crime, and not all crime-related expenses are covered. To be eligible for compensation, victims must submit an application, usually within a certain period of time, and show that the losses they are claiming occurred through no fault of their own. Some types of losses that are usually covered include:
• medical and counseling expenses
• lost wages
• funeral expenses
5. Right to Restitution from the Offender
1. In many states, victims of crime have the right to restitution, which means the offender must pay to repair some of the damage that resulted from the crime. The purpose of this right is to hold offenders directly responsible to victims for the financial harm they caused. The court orders the offender to pay a specific amount of restitution either in a lump sum or a series of payments. Some types of losses covered by restitution include:
2. lost wages
3. property loss
4. insurance deductibles
6. Right to Prompt Return of Personal Property
1. Crime investigators must often seize some of the victim’s property as evidence for a criminal case. In most states, authorities must return such property to the victim when it is no longer needed. To speed up the return of property, some states allow law enforcement to use photographs of the item, rather than the item itself, as evidence. The prompt return of personal property reduces inconvenience to victims and helps restore their sense of security.
7. Right to a Speedy Trial
8. Right to Enforcement of Victim’s Rights
1. To be meaningful, legal rights must be enforced. States are beginning to pass laws to enforce victims’ rights, and several states have created offices to receive and investigate reports of violations of victims’ rights. Other states have laws that permit victims to assert their rights in court.
1. The National Center for Victims of Crime. (2012). Victim's rights.victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/victims%27-rights
2. https://www.congress.gov/bill/101st-congress/house-bill/5368 H.R.5368 - Victims' Rights and Restitution Act of 1990 101st Congress (1989-1990)
3. victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/victims%27-rights
4. The National Center for Victims of Crime. (2012). Victim's rights. victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/victims%27-rights
5. National Center for Victims of Crime. (2012). victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/victims%27-rights | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/01%3A_Crime_Criminal_Justice_and_Criminology/1.15%3A_Victim_Rights_and_Assistance.txt |
Official statistics are gathered from various criminal justice agencies, such as the police and courts, and represent the total number of crimes reported to the police or the number of arrests made by that agency. Remember, if an officer uses discretion and does not arrest a person, even if a crime was committed, this does not get reported.
www.fbi.gov/services/cjis/ucr.
[1] The UCR began in 1929 by the International Association of Chiefs of Police to meet the need for reliable uniform crime statistics for the nation. In 1930, the FBI was tasked with collecting, publishing, and archiving those statistics. Every year there are four annual publications produced from data received from more than 18,000 city, university and college, county, state, tribal, and federal law enforcement agencies voluntarily participating in the program. [2]
National Incident-Based Reporting System, or NIBRS
[3] NIBRS also collects information on victims, known offenders, relationships between victims and offenders, arrestees, and property involved in the crimes. See the link to go directly to NIBRS www.fbi.gov/services/cjis/ucr/nibrs
Hate Crime Statistics
www.fbi.gov/services/cjis/ucr/hate-crime.
Race/Ethnicity/Ancestry
• Anti-American Indian or Alaska Native
• Anti-Arab
• Anti-Asian
• Anti-Black or African American
• Anti-Hispanic or Latino
• Anti-Multiple Races, Group
• Anti-Native Hawaiian or Other Pacific Islander
• Anti-Other Race/Ethnicity/Ancestry
• Anti-White
Religion
• Anti-Buddhist
• Anti-Catholic
• Anti-Eastern Orthodox (Russian, Greek, Other)
• Anti-Hindu
• Anti-Islamic
• Anti-Jehovah’s Witness
• Anti-Jewish
• Anti-Mormon
• Anti-Multiple Religions, Group
• Anti-Other Christian
• Anti-Other Religion
• Anti-Protestant
• Anti-Atheism/Agnosticism/etc.
Sexual Orientation
• Anti-Bisexual
• Anti-Gay (Male)
• Anti-Heterosexual
• Anti-Lesbian
• Anti-Lesbian, Gay, Bisexual, or Transgender (Mixed Group)
Disability
• Anti-Mental Disability
• Anti-Physical Disability
Gender
• Anti-Male
• Anti-Female
Gender Identity
• Anti-Transgender
• Anti-Gender Non-Conforming
• Incidents and offenses by bias motivation: Includes crimes committed by and crimes directed against juveniles. Incidents may include one or more offense types.
• Victims: The types of victims collected for hate crime incidents include individuals (adults and juveniles), businesses, institutions, and society as a whole.
• Offenders: The number of offenders (adults and juveniles), and when possible, the race and ethnicity of the offender or offenders as a group.
• Location type: One of 46 location types can be designated.
• Hate crime by jurisdiction: Includes data about hate crimes by state and agency.
Law Enforcement Officers Killed and Assaulted Program LEOKA
[4]
LEOKA Data
Exclusions from the LEOKA Program’s Data Collection
• Natural causes such as heart attack, stroke, aneurysm, etc.
• On duty, but death is attributed to their own personal situation such as domestic violence, neighbor conflict, etc.
• Suicide
• Corrections/correctional officers
• Bailiffs
• Parole/probation officers
• Federal judges
• The U.S. and assistant U.S. attorneys
• Bureau of Prison officers
• Private security officers
Bureau of Justice Statistics Exercise
https://www.bjs.gov/index.cfm?ty=datool&surl=/arrests/index.cfm
Examine current state AND city crime trends in the past five years.
Second, pick a state AND city interested in living in and examine the crime trends for the past five years.
1. U.S. Department of Justice. (2017). UCR Reports
2. U.S. Department of Justice. (2017). UCR Reports
3. Rantala, R. R. (2000). Effects of NIBRS on crime statistics. Bureau of Justice Statistics Special Report. U.S. Department of Justice, Office of Justice Programs. Washington, DC.
4. FBI (2017). www.fbi.gov/services/cjis/ucr/leoka
2.05: Misusing Statistics
Genocide: Misuse of Statistics Exercise
[1]
Genocide of Rohingya families
https://www.cnn.com/2017/11/25/asia/...tha/index.html
1. Kappler, V., & Potter, G. 2018. The Mythology of Crime and Criminal Justice (5th ed.). Waveland Press, Inc: Long Grove. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/02%3A_Defining_and_Measuring_Crime_and_Criminal_Justice/2.02%3A_Official_Statistics.txt |
laws (rules designed to control citizen’s behaviors) so that these behaviors will conform to societal norms, cultures, mores, traditions, and expectations. Because courts must interpret and enforce these rules, laws differ from many other forms of social control. Both formal and informal social control have the capacity to change behavior. Informal social control, such as social media (including Facebook, Instagram, and Twitter) has a tremendous impact on what people wear, how they think, how they speak, what people value, and perhaps how they vote. Social media’s impact on human behavior cannot be overstated, but because these informal controls are largely unenforceable through the courts as they are not considered the law.
[1] (Consider, for example, the United States Supreme Court (Court) case of Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954), which declared racially segregated schools unconstitutional. The decision was largely unpopular in the southern states, and many had decided to not follow the Court’s holding. Ultimately, the Court had to call in the National Guard to enforce its decision requiring schools to be integrated.) Second, even with community support, the law cannot compel certain types of conduct contrary to human nature. Third, the law’s resolution of disputes is dependent upon a complicated and expensive fact-finding process. Finally, the law changes slowly. [2]
“Law does not always protect individuals and result in beneficial social progress. Law can be used to repress individuals and limit their rights. The respect that is accorded to the legal system can mask the dysfunctional role of the law. Dysfunctional means that the law is promoting inequality or serving the interests of a small number of individuals rather than promoting the welfare of society or is impeding the enjoyment of human rights.” [3]
Similarly, Lawrence Friedman has identified several dysfunctions of law: legal actions may be brought to harass individuals or to gain revenge rather than redress a legal wrong; the law may reflect biases and prejudices or reflect the interest of powerful economic interests; the law may be used by totalitarian regimes as an instrument of repression; the law can be too rigid because it is based on a clear set of rules that don’t always fit neatly (for example, Friedman notes that the rules of self-defense do not apply in situations in which battered women use force to repel consistent abuse because of the law’s requirement that the threat be immediate); the law may be slow to change because of its reliance on precedent (he also notes that judges are also concerned about maintaining respect for the law and hesitate to introduce change that society is not ready to accept); that the law denies equal access to justice because of inability to pay for legal services; that courts are reluctant to second-guess the decisions of political decision-makers, particularly in times of war and crisis; that reliance on law and courts can discourage democratic political activism because Individuals and groups, when they look to courts to decide issues, divert energy from lobbying the legislature and from building political coalitions for elections; and finally, that law may impede social change because it may limit the ability of individuals to use the law to vindicate their rights and liberties. [4]
1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company.
2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 11). West Publishing Company.
3. Lippman, M. R. (2015). Law and society (pp. 11). Thousand Oaks, CA : SAGE Publications.
4. Lippman, M. R. (2015). Law and society (pp. 25). Thousand Oaks, CA : SAGE Publications. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/03%3A_Criminal_Law/3.01%3A_Functions_and_Limitations_of_Law.txt |
Civil Wrongs
general damages (money). The plaintiff (the injured party) sues or brings a civil suit (files an action in court) against the defendant (the party that caused the harm). Plaintiffs can be individuals, businesses, classes of individuals (in a class action suit), or government entities. Defendants in civil actions can also be individuals, businesses, multinational corporations, governments, or state agencies.
torts (personal injury claims), contracts, property or real estate disputes, family law (including divorces, adoptions, and child custody matters), intellectual property claims (including copyright, trademark, and patent claims), and trusts and estate laws (which covers wills and probate).
punitive damages in addition to general damages. Plaintiffs may also bring civil suits called injunctive relief to stop or “enjoin” the defendant from continuing to act in a certain manner. Codes of the civil procedure set forth the rules to follow when suing the party who allegedly caused some type of private harm. These codes govern all the various types of civil actions.
preponderance of the evidence. Another feature in a civil suit is that the defendant can cross-sue the plaintiff, claiming that the plaintiff is actually responsible for the harm.
Criminal Wrongs
Criminal Defendant Victim Examples
Individual Self or with no particular victim Gambling or drug use,
Individual Other individual(s) Assault, battery, theft
Individual Business or government Trespass, welfare fraud
Group of individuals Individual(s) Conspiracy to commit murder
Group of individuals Government or no particular victim Riot, rout, disorderly conduct
Business entity Individuals Fraud
Business entity Government or no particular victim Fraud, pollution, tax evasion
Criminal laws reflect a society’s moral and ethical beliefs. They govern how society, through its government agents, holds criminal wrongdoers accountable for their actions. Sanctions or remedies such as incarceration, fines, restitution, community service, and restorative justice program are used to express societal condemnation of the criminal’s behavior. Government attorneys prosecute, or file charges against, criminal defendants on behalf of society, not necessarily to remedy the harm suffered by any particular victim. The title of a criminal prosecution reflects this: “State of California v. Jones,” “The Commonwealth v. Jones,” or “People v. Jones.”
In a criminal jury trial (a trial in which a group of people selected from the community decides whether the defendant is guilty of the crime charged) or a bench trial (a trial in which the judge decides whether the defendant is guilty or not) the prosecutor carries the burden of producing evidence that will convince the jury or judge beyond any reasonable doubt that the criminal defendant committed a violation of law that harmed society. To meet this burden, the prosecutor will call upon witnesses to testify and may also present physical evidence suggesting the defendant committed the crime. Just as a private individual may decide that it is not worth the time or effort to file a legal action, the state may decide not to use its resources to file criminal charges against a wrongdoer. A victim (a named injured party) cannot force the state to prosecute the wrongdoing. Rather, if there is an appropriate civil cause of action–for example, wrongful death–the injured party will need to file a civil suit as a plaintiff and seek monetary damages against the defendant.
Moral Wrongs
Moral wrongs differ from criminal wrongs. “Moral law attempts to perfect personal character, whereas criminal law, in general, is aimed at misbehavior that falls substantially below the norms of the community.” [1] There are no codes or statutes governing violations of moral laws in the United States.
“The Witness” Exercise
Overlap of Civil, Criminal, and Moral Wrongs
Sometimes criminal law and civil law overlap and an individual’s action constitute both a violation of criminal law and civil law. For example, if Joe punches Sam in the face, Sam may sue Joe civilly for civil assault and battery, and the state may also prosecute Joe for punching Sam, a criminal assault and battery. Consider the case involving O.J. Simpson. Simpson was first prosecuted in 1994 for killing his ex-wife and her friend (the criminal charges of murder). After the criminal trial in which the jury acquitted Simpson, the Brown and Goldman families filed a wrongful death action against Simpson for killing Nicole Brown and Ronald Goldman. The civil jury found Simpson responsible and awarded compensatory and punitive damages in the amount of \$33.5 million dollars. Wrongful death is a type of tort. Torts involve injuries inflicted upon a person and are the types of civil claims or civil suits that most resemble criminal wrongs.
Sometimes criminal behavior has no civil law counterpart. For example, the crime of possessing burglary tools does not have a civil law equivalent. Conversely, many civil actions do not violate criminal law. For example, civil suits for divorce, wills, or contracts do not have a corresponding criminal wrong. Even though there is certainly an overlap between criminal law and civil law, it is not a perfect overlap. Because there is no legal action that can be filed for committing a moral wrong, there really is not any overlap between criminal wrongs, civil wrongs, and moral wrongs.
1. Gardner, T.J. (1985) Criminal Law: Principles and Cases (3rd ed., pp.7). West Publishing Company. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/03%3A_Criminal_Law/3.02%3A_Civil_Criminal_and_Moral_Wrongs.txt |
Where do you look to see if something you want to do violates some criminal law? The answer is “in many places.” Criminal law originates from many sources. Some criminal law is the result of constitutional conventions, so you would need to review federal and state constitutions. Other criminal laws result from the legislative or initiative process, so you will need to review state statutes or congressional acts. Other criminal law results from the work of administrative agencies, so you need to review state and federal administrative rules. Other criminal law, called case law, originates from appellate court opinions written by judges. These court opinions, called “decisions”, are published in both official and unofficial reporters, but thanks to the Internet, they are now easy to find if you know the parties’ names. Much of our criminal law descended from the English common law. This law developed over time, through custom and tradition, and it is a bit more difficult to locate, but it is mentioned in treatises and legal “hornbooks” (like legal encyclopedias) and is often referred to in case decisions.
The federal constitution—The Constitution of the United States
Although the United States Constitution recognizes only three crimes (counterfeiting, piracy, and treason), it nevertheless plays a significant role in the American criminal justice system. Most importantly, the Constitution establishes limits on certain types of legislation or substantive law, and it provides significant procedural constraints on the government when it seeks to prosecute individuals for crimes. The Constitution also establishes federalism (the relationship between the federal government and state governments), requires the separation of powers between the three branches of government (the judicial branch, the legislative branch, and the executive branch), and limits Congress’s authority to pass laws not directly related to either its enumerated powers (listed in the Constitution) or implied powers (inferred because they intertwined with the enumerated powers).
Constitutional Limitations on Criminal Law and Procedure
The drafters of the federal Constitution were so concerned about two historic cases of abuse by English Parliament (ex post facto laws and bills of attainder) that they prohibited Congress from passing these types of laws in the original body of the Constitution. (See, Article I Section 9 of the Constitution.) Ex post facto laws are laws that are retroactively applied, or punishments retroactively increased, or changes in the amount and types of evidence that is required of the government in order to successfully prosecute an individual. Bills of attainders are laws that are directed at named individual or group of individuals and has the effect of declaring them guilty without a trial.
Most of the other limitations are found within the Bill of Rights, the first ten amendments to the U.S. Constitution. The states adopted the Bill of Rights in 1791. The statesmen had opposing viewpoints concerning how strong the national government should be and how strong state governments should be. Even as the original federal constitution was being circulated and ratified, the framers were thinking about the provisions that became known as the Bill of Rights.
Music & Law Exercise
The Incorporation Debate
[1] For example, in 1925 the Court recognized that the First Amendment protections of free speech and free press apply to states as well as to the federal government. [2] In the 1960s, the Court selectively incorporated many of the procedural guarantees of the Bill of Rights. The Court also used the Fourteenth Amendment to extend substantive guarantees of the Bill of Rights to the states. Most recently, on February 20th, 2019 the Court incorporated the right to be free from excessive fines guarantee found in the Eighth Amendment to the states in Timbs v. Indiana, ___ U.S. ___ (2019).
First Amendment Limitations
Under the First Amendment, Congress cannot create laws that limit individuals’ speech. The Court has recognized symbolic speech (for example, wearing black armbands) and expressive conduct (for example, picketing) as protected under the First Amendment’s guarantee that Congress shall not abridge freedom of speech. The Court struck down a law banning flag burning. Texas v. Johnson, 491 U.S. 397 (1989). The Court upheld a local ordinance prohibiting public indecency when applied to business establishment wishing to provide totally nude dancing. Barnes v. Glen Theater, 501 U.S. 560 (1991). The Court has recognized political speech and commercial speech as protected by the First Amendment as well. See, e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). The Court has, however, deemed some speech not worthy of protection, and consequently may be limited. According to the Court, non-protected speech includes libel and slander, fighting words, words that present a clear and present danger when spoken, obscenity and profanity. See, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) “There are certain well-defined and narrowly limited classes of speech, the prevention, and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words—those which by their very utterance inflict injury or tend to incite an immediate breach of peace.” Similarly, the Court has said anti-hate crime statutes permissibly limit individuals’ speech to the extent they are directed at conduct rather than the content of the speech. See, e.g., Rav v. City of St. Paul, 505 U.S. 377 (1992) and Wisconsin v. Mitchell, 508 U.S. 476 (1993).
The First Amendment limits Congress’s authority to legislate in the realm of religion as well. Congress cannot make laws that either create a religion (these violate the Establishment Clause) or target and interfere with a person’s exercise of their own religion (these violate the Free Exercise Clause). Finally, the First Amendment guarantees that people have the right to freely associate and assemble with others. Thus, Congress cannot make laws that completely limit people’s ability to gather together peaceably. However, the Court has indicated that the government can place reasonable time and manner limitations based on the location in which the gathering is to take place. See, e.g., Cox v. Louisiana, 379 U.S. 536 (1965).
Second Amendment Limitations
Legislatures can place restrictions on weapons and ammunition purchase and possession, but they cannot completely restrict people’s ability to possess guns for the purpose of self-defense. See, District of Columbia v. Heller, 554 U.S. 570 (2008) (an individual’s right to possess a weapon is unconnected with service in the military). According to the Court, the Second Amendments’ protections apply equally to the states. See, McDonald v. Chicago, 561 U.S. 742 (2010).
Fourth Amendment Limitations
The Fourth Amendment limits the government’s ability to engage in searches and seizures. Under the least restrictive interpretation, the Amendment requires that, at a minimum, searches and seizures be reasonable. Under the most restrictive interpretation, the Amendment requires that government officers need a warrant any time they do a search or a seizure. The Court has interpreted the Fourth Amendment in many cases and, the doctrine of stare decisis notwithstanding, search and seizure law is subject to the Court’s constant refinement and revision. One thing is clear, the Court has never embraced the most restrictive interpretation of the Fourth requiring a warrant for every search and seizure conducted.
Fifth Amendment Limitations
The Fifth Amendment protects against self-incrimination (having to disclose information that could ultimately harm you) in that it states that no person “shall be compelled in a criminal case to be a witness against himself.” Defendants have the right to not testify at trial and the right to remain silent during a custodial interrogation. See, Miranda v. Arizona, 384 U.S. 436 (1966). The Fifth Amendment also provides for a grand jury in federal criminal prosecutions, prohibits double jeopardy, demands due process of law, and prohibits taking private property for public use (a civil action). The Court has incorporated the double jeopardy provision through the Fourteenth Amendment, making states also prohibited from subjecting a person to double jeopardy. However, it has not held that states must provide a grand jury review. The Fifth Amendment’s grand jury provision is one of two clauses of the Bill of Rights that has not been incorporated to the states, but most states do use the grand jury at least for some types of cases. The Fifth Amendment also entitled citizens prosecuted by the federal government to the due process of law. This is discussed more fully below as a Fourteenth Amendment right.
Sixth Amendment Limitations
The Sixth Amendment guarantees a criminal defendant: the right to a speedy trial, the right to a public trial, the right to a jury trial, the right to have his or her trial in the district where the crime took place, the right to be told what charges have been filed, the right to confront witnesses at trial, the right to compel witnesses to testify at trial, and the right to assistance of counsel. This Amendment governs the federal court process, but because of the Fourteenth Amendment’s Due Process Clause, these rights also apply to defendants in state criminal cases.
Eighth Amendment Limitations
Legislatures cannot make laws that make the punishment for a crime “cruel or unusual.” This means that punishments cannot be either barbaric (causing needless pain) or disproportionate (i.e., too severe to fit the crime). In addition to the prohibition against cruel and unusual punishment, the Eighth Amendment also prohibits the imposition of excessive bail and excessive fines. The Court has dealt with excessive fines in terms of whether the fine is disproportionate to the crime. See, e.g., Timbs v. Indiana (above) (forfeiting defendant’s \$42,000 land rover was excessive compared to the maximum fine he could get for his crime (\$10,000.) The prohibition against excessive bail does not mean that courts must set bail in every case, but rather, when courts do set bail, it must not be excessive. Bail is excessive when it is an amount more than necessary to assure the defendant’s reappearance. Stack v. Boyle, 342 U.S. 1 (1951). *
Fourteenth Amendment limitations
Limitations Found in the “Penumbra” of the Constitution
Griswold v. Connecticut, 381 U.S. 479 (1965), stated
Mapp v. Ohio, 367 U. S. 643, 656, to the Fourth Amendment as creating a ‘right to privacy, no less important than any other right carefully and particularly reserved to the people.’ (Footnote omitted).” 381 U.S. at 484-485.
Roe v. Wade, 410 U.S. 113 (1972) (right to abortion), Eisenstadt v. Baird, 405 U.S. 438 (1972) (the right of married persons to possess contraceptives), Griswold v. Connecticut, 381 U.S. 479 (1965) (declaring invalid the ban on contraceptives), Stanley v. Georgia, 394 U.S. 557 (1969) (the right to view and possess adult pornography), and the right of adults to engage in consensual sexual contact), and Lawrence v. Texas, 539 U.S. 558 (2003) (the right of adults to engage in consensual sexual contact).
State Constitutions
States’ constitutions, similar to the federal constitution, set forth the general organization of state government and basic standards governing the use of governmental authority. Although the federal constitution is preeminent because of the Supremacy Clause, state constitutions are still significant. State constitutional rules are supreme as compared to any other rules coming from all other state legal sources (statutes, ordinances, administrative rules) and prevail over such laws in cases of conflict. The federal constitution sets the floor of individual rights, but states are free to provide more individual freedoms and protections that are granted by the federal constitution. State constitutions are defined and interpreted by state courts, and even identical provisions in both the state and federal constitution may be interpreted differently. For example, the state constitution’s guarantee to be free from unreasonable searches and seizures may mean that, under state law, roadblocks established to identify impaired, intoxicated drivers are impermissible, but under the federal constitution, these roadblocks are permitted and are not deemed to be unreasonable seizures.
Comparing Cases Exercise
Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) to the Michigan Supreme Court holding interpreting the same case under Michigan Constitution, 506 N.W.2d 209 (Mich. 1993).
Rule of Law, Constitutions and Judicial Review
One of the key features of the American legal system has been its commitment to the rule of law. Rule of law has been defined as a “belief that an orderly society must be governed by established principles and known standards that are uniformly and fairly applied.” [3] Reichel identified a three-step process by which countries can achieve rule of law. [4] The first step is that a country must identify core, fundamental values. The second step is for the values to be reduced to writing and written somewhere that people can point to them. The final step is to establish a process or mechanism whereby laws or governmental actions are tested to see if they are consistent with the fundamental values. When laws or actions embrace the fundamental values, they are considered valid, and when the laws or actions conflict with the fundamental values, they are invalid.
Applying this three-step process to America’s approach to law one can see that Americans have recognized fundamental values, such as the right to freedom of speech, the right to privacy, and the right to assemble. Second, we have reduced these fundamental values to writing and, for the most part, have compiled them in our constitutions (both federal and state). Third, we have a mechanism, that of judicial review, by which we judge whether our laws and our government actions comply with or violate our fundamental values found within our constitutions. Judicial review is the authority of the courts to determine whether a law (a legislative action) or action (an executive or judicial action) conflicts with the Constitution. Judicial review can be traced to the case of Marbury v. Madison, 5 U.S. 137 (1803), in which Chief Justice John Marshall wrote, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”
1. Palko v. Connecticut, 302 U.S. 319 (1937).
2. Gitlow v. New York, 268 U.S. 652 (1925)
3. Feldmeier, J. P., & Schmalleger, F. (2012). Criminal Law and Procedure for Legal Professionals. Prenice Hall.
4. Reichel, P. (2018) Comparative Criminal Justice Systems: A Topical Approach. New York, NY: Pearson. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/03%3A_Criminal_Law/3.03%3A_Sources_of_Criminal_Law-_Federal_and_State_Constitutions.txt |
Statutes, Ordinances, and other Legislative Enactments
interstate compacts, or multi-state legal agreements. An example of this includes the Uniform Extradition Act, or the Uniform Fresh Pursuit Act. Congress makes federal law by passing acts and approving treaties between the United States and other nation states. Local legislators, city and town councilors, and county commissioners also make laws through the enactment of local ordinances.
Controversial Issue: Ballot Measures, Initiatives, and Referendums–Direct Democracy and Law Making
States’ Authority to Pass Criminal Laws
States are sovereign and autonomous, and unless the Constitution takes away state power, the states have broad authority to regulate activity within the state. Most criminal laws at the state level are derived from the states’ general police powers, or authority, to make and enforce criminal law within their geographic boundaries. Police power is the power to control any harmful act that may affect the general well being of citizens within the geographical jurisdiction of the state. A state code, or state statutes, may regulate any harmful activity done in the state or whose harm occurs within the state.
Congress’s Authority to Pass Laws
Federal lawmakers do not possess police power. Instead, Congress must draw its authority to enact criminal statutes from particular legislative powers and responsibilities assigned to it in the Constitution. Congress’s legislative authority may be either enumerated in the Constitution or implied from its provisions, but if Congress cannot tie its exercise of authority to one of those powers, the legislation may be declared invalid.
Enumerated powers, for example, the power to regulate interstate commerce, are those that are specifically mentioned in Article I Section 8 of the Constitution. Over the years, however, courts have broadly interpreted the term “interstate commerce” to mean more than just goods and services traveling between and among the states. Instead, interstate commerce includes any activity—including purely local or intrastate activity—that affects interstate commerce. The affectation doctrine maintains that congressional authority includes the right to regulate all matters having a close and substantial relation to interstate commerce. Although the Court has found limits on what affects interstate commerce, Congress has used its broad power to regulate interstate commerce to criminalize a wide range of offenses including carjacking, kidnapping, wire fraud, and a variety of environmental crimes.
The implied powers of Congress are those that are deemed to be necessary and proper for carrying out all the enumerated powers. Article I Section 8 of the Constitution states, “Congress shall have Power . . . to make laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution.” The implied powers doctrine expands legislative power of Congress, and for that reason, the Necessary and Proper Clause has often been called the “expansion clause.” Due to the implied powers found in the Necessary and Proper Clause, Congress has authority to pass legislation and regulate a wide variety of activity to the extent that it is able to show that the law furthers one of the enumerated powers. Nevertheless, the Court will overturn acts of Congress when it believes Congress has overstepped its constitutional authority. So, despite the broad expanse of implied powers, Congress’s authority is still limited and by no means is as vast as the states’ police powers.
Conflicting State and Federal Statutes
Gonzales v. Oregon, 646 U.S. 243 (2006)(upholding Oregon’s law by deciding that the United States Attorney General could not enforce the national controlled substance act against Oregon physicians). Another debate surrounds the conflicting federal and state laws governing marijuana use. Between 1996 and 2018, thirty states and the District of Columbia passed laws legalizing the possession of small quantities of marijuana for medicinal purposes for state residents. Since 2012, Colorado, Washington, Oregon, Alaska, California, Nevada, Massachusetts, and Maine have passed laws through the initiative process legalizing recreational use and possession of small amounts of marijuana by adults. In the 2018 elections, even more, states passed laws allowing for medical use, recreational use. See, https://www.forbes.com/sites/tomangell/2018/12/06/marijuanas-ten-biggest-victories-of-2018/#7ca0dd5232df. These popular initiatives conflict directly with the federal Controlled Substance Act, 21 U.S.C. 13, § 841, (CSA) which holds that any use or possession of marijuana is a federal crime. In January 2018, the Trump administration through the U.S. Department of Justice, under Attorney General Sessions rescinded the Obama-era restraint policies on marijuana prosecutions and indicated the desire to fully enforce the CSA. However, in April 2018, President Trump announced he was backing down on the crackdown on recreational use of marijuana that had been announced in January 2018.
Movement Towards Codification: The American Institute and the Model Penal Code
By the 1960s and 1970s, all states had begun codifying their criminal laws. These codifications would likely not have taken place if not for the American Law Institute (ALI) and the publication of its Model Penal Code (MPC). Established in 1923, the ALI is an organization of judges, lawyers, and academics that draft model codes and laws. Its most important work in the criminal justice realm is the Model Penal Code. The ALI began working on the MPC in 1951, and it proposed several tentative drafts over the next decade. In 1962 the Model Penal Code was finally published. It consists of general provisions concerning: criminal liability, definitions of specific crimes, defenses, and sentences. The MPC has had a significant impact on legislative drafting of criminal statutes. Every state has adopted at least some provisions, or at least the approach, of the MPC, and some code states have adopted many or most of the provisions in the MPC. No state has adopted the MPC in its entirety. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/03%3A_Criminal_Law/3.04%3A_Sources_of_Criminal_Law-_Statutes_Ordinances_and_Other_Legislative_Enactments.txt |
Administrative Law—Agency-Made Law
State and federal legislatures cannot keep up with the task of enacting legislation on all the myriad subjects that must be regulated by law. In each branch of government, various administrative agencies exist with authority to create administrative law. At the federal level, for example, the Environmental Protection Agency enacts regulations against environmental crimes. At the state level, the Department of Motor Vehicles enacts laws concerning drivers’ license suspension. Administrative regulations are enforceable by the courts provided that the agency has acted within the scope of its delegated authority from the legislature.
Common Law
[1] LaFave describes the process by which common law was derived in England.
. . . Although there were some early criminal statutes [in England], in the main the criminal law was originally common law. Thus by the 1600s the judges, not the legislature, had created and defined the felonies of murder, suicide, manslaughter, burglary, arson, robbery, larceny rape, sodomy and mayhem; and such misdemeanors as assault, battery, false imprisonment, libel, perjury, and intimidation of jurors. During the period from 1660 . . . to 1860 the process continued with the judges creating new crimes when the need arose and punishing those who committed them: blasphemy (1676), conspiracy (1664), sedition (18th century), forgery (1727), attempt (1784), solicitation (1801). From time to time the judges, when creating new misdemeanors, spoke of the court’s power to declare criminal any conduct tending to “outrage decency” or “corrupt public morals.” or to punish conduct contra bonos mores: thus they found running naked in the streets, publishing an obscene book, and grave-snatching to be common law crimes.
[2]
[3]
Stare decisis, discussed below, plays no persuasive or binding role in the civil law tradition. Under the common law tradition though, new substantive law generally adds to, rather than replaces, old substantive law.
“Though the description of the Anglo-American system as a “common law legal system” notes an important distinction between it and the civil law system, that description should not lead one to ignore the fact that legislation also constitutes an important source of law in the Anglo-American system. That system is actually a mixed system of common law rules and statutory rules. The common law rules established by American and English courts have always been subject to displacement by legislative enactments. Indeed, the courts have the authority to develop common law standards only where the legislatures have not sought to provide legislative solutions. … In our country, the common law also is subject to the legal limitations imposed by federal and state constitutions. The supremacy of the constitutions extends over all forms of law, including the common law. Just as legislation cannot violate a constitutional limitation, neither can a common law rule.” [4]
Judge-Made Law: Case Law
case law refers to legal rules announced in opinions written by appellate judges when deciding appellate cases before them. Judicial decisions reflect the court’s interpretation of constitutions, statutes, common law, or administrative regulations. When the court interprets a statute, the statute, as well as its interpretation, control how the law will be enforced and applied in the future. The same is true when a court interprets federal and state constitutions. When deciding cases and interpreting the law, judges are bound by precedent.
Court Rules of Procedure
The U.S. Supreme Court and state supreme courts make a law that regulates the procedures followed in the lower courts- both appellate and trial courts- in that jurisdiction. These court rules, adopted by the courts to facilitate the administration and processing of cases, are generally limited in scope, but they may nevertheless provide significant rights for the defendant. For example, the rules governing speedy trials may be governed generally by the Constitution, but very specifically by court rules in a particular jurisdiction.
Local courts may also pass local court rules that govern the day-to-day practice of law in these lower courts. For example, a local court rule may dictate when and how cases are to be filed in that jurisdiction. Generally, the local bar (all the attorneys in the jurisdiction) are consulted, and a workforce consisting of judges, trial court administrators, and representatives from district attorney’s office, the public defender’s office, assigned counsel consortiums, and private attorneys will meet every few years to decide on the local rules.
Okay, so where do I look to see if my behavior is prohibited?
stare decisis, one red flag that your behavior may be unlawful is that, in the past, the courts have found behavior similar to yours to be unlawful.
1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 27). West Publishing Company.
2. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 70). St. Paul, Minn: West Group.
3. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 27). West Publishing Company.
4. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 28-29). West Publishing Company.
5. Vasquez v. Hillery, 474 U.S. 254 (1986)
6. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 47-49). West Publishing Company.
7. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 49). West Publishing Company.
8. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 49). West Publishing Company.
9. Cardozo, B. N. (1924). The Growth of the Law. New Haven, CT: Yale University Press.
10. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 51-52). West Publishing Company.
11. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 86-89). St. Paul, Minn: West Group.
12. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 89). St. Paul, Minn: West Group.
13. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 96-97). St. Paul, Minn: West Group. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/03%3A_Criminal_Law/3.05%3A_Sources_of_Law-_Administrative_Law_Common_Law_Case_Law_and_Court_Rules.txt |
Classifications Based on the Seriousness of the Offense
felonies or misdemeanors. Certain, less serious, behavior may be classified as criminal violations or infractions. The term offense is a generic term that is sometimes used to mean any type of violation of the law, or it is sometimes used to mean just misdemeanors or felonies. Although these classification schemes may seem pretty straight forward, sometimes states allow felonies to be treated as misdemeanors and misdemeanors to be treated as either felonies or violations. For example, California has certain crimes, known as wobblers, that can be charged as either felonies or misdemeanors at the discretion of the prosecutor upon consideration of the offender’s criminal history or the specific facts of the case.
Classifications Based on the Type of Harm Inflicted
• Offenses against persons (homicide, assault, kidnapping, and rape, for example)
• Offenses against property (arson, burglary, and theft, for example)
• Offenses against family (bigamy and adultery, for example)
• Offenses against public administration (e.g., bribery, perjury, escape)
• Offenses against public order and decency (e.g., fighting, breach of peace, disorderly conduct, public intoxication, riots, loitering, prostitution)
Classifications based on the type of harm inflicted may be helpful for the purpose of an organization, but some crimes such as robbery may involve both harms to a person and property. Although generally, whether a crime is a person or property crime may not have any legal implications when a person is convicted, it may matter if and when the person commits a new crime. Most sentencing guidelines treat individuals with prior person-crime convictions more harshly than those individuals with prior property-crime convictions. That said, it is likely that the defense will argue that it is the facts of the prior case that matter not how the crime was officially classified.
Mala in se Mala Prohibita Crimes
Crimes have also been classified as either mala in se (inherently evil) or mala prohibita (wrong simply because some law forbids them). Mala in se crimes, like murder or theft, are generally recognized by every culture as evil and morally wrong. Most offenses that involve injury to persons or property are mala in se. All of the common law felonies (murder, rape, manslaughter, robbery, sodomy, larceny, arson, mayhem and burglary) were considered mala in se crimes. Mala prohibita crimes, like traffic violations or drug possession, are acts that are crimes not because they are evil, but rather because some law prohibits them. Most of the newer crimes that are prohibited as part of a regulatory scheme are mala prohibita crimes.
Substantive and Procedural Law
Another classification scheme views the law as either substantive law or procedural law. Both criminal law and civil law can be either substantive or procedural. Substantive criminal law is generally created by statute or through the initiative process and defines what conduct is criminal. For example, substantive criminal law tells us that Sam commits theft when he takes Joe’s backpack if he did so without Joe’s permission if he intended to keep it. Substantive criminal law also specifies the punishment Sam could receive for stealing the backpack (for example, a fine up to \$500.00 and incarceration of up to 30 days). The substantive law may also provide Sam a defense and a way to avoid conviction. For example, Sam may claim he reasonably mistook Joe’s backpack as his own and therefore can assert a mistake of fact defense. Procedural law gives us the mechanisms to enforce substantive law. Procedural law governs the process for determining the rights of the parties. It sets forth the rules governing searches and seizures, investigations, interrogations, pretrial procedures, and trial procedures. It may establish rules limiting certain types of evidence, establishing timelines, as well as require the sharing of certain types of evidence and giving a certain type of notice. The primary source of procedural law is judicial interpretations of the federal constitution and state constitutions, but state and federal statutes, particularly those adopting rules of evidence, also provide much of our procedural law. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/03%3A_Criminal_Law/3.06%3A_Classifications_of_Law.txt |
Substantive Law
Substantive law includes laws that define crime, meaning laws that tell us what elements the government needs to prove in order to establish that this crime has been committed. Substantive law also includes the definitions of inchoate crimes (incomplete crimes) of conspiracies, solicitations, and attempts. Substantive law also sets forth accomplice liability (when a person will be held responsible when they work in concert with others to complete a crime). Substantive law also identifies the defenses that a person may raise when they are charged with a crime. Finally, substantive law indicates the appropriate penalties and sentences for crimes. Today, the great majority of substantive law has been codified and is found in the state’s particular criminal code or in the federal code. Generally, criminal codes are separated into two parts: a general part and a special part. The general part typically defines words and phrases that will be used throughout the code (for example, the word intentionally), indicates all possible defenses and provides the general scheme of punishments. The special part of the code typically defines each specific crime setting forth the elements of the crime (components of the crime) the government must prove beyond a reasonable doubt in order to convict a defendant of a crime.
Elements of the crime
With the exception of strict liability crimes and vicarious liability crime (discussed below), the government will always have to prove that the defendant committed some criminal act, the actus reus element and that he or she acted with criminal intent, the mens rea element. When proving a crime of conduct, the state must prove that the defendant’s conduct met the specific actus reus requirement. The government must prove that the defendant’s behavior was either a voluntary act (meaning not the product of a reflex or done while asleep, or under hypnosis), a voluntary omission to act (meaning that he or she failed to act) when there was a legal duty to do so, or that he or she possessed some item that should not have been possessed. To meet the mens rea element, the state must prove that the defendant’s act was triggered by criminal intent. The elements of a specific crimes may also include what is referred to as attendant circumstances. Attendant circumstances are additional facts set out in the substantive law’s definition that the state must prove to establish a crime, for example, that the place burglarized be a dwelling, or that the property value is a at least a certain amount.
When proving a crime of causation, the state must also prove that the defendant caused specific, listed harm. Although generally not included in the listed elements, to prove a crime of causation, the government must also prove that the defendant is the actual cause of the harm (actual or but/for cause) and that it is fair to hold him or her responsible (that the defendant is the legal or proximate cause of the harm).
Statutes are generally silent on the other elements of crimes of conduct or crimes of causation: legality and concurrence. The legality element is met when a law is validly enacted and puts people on notice that certain behavior is illegal. Laws are presumed to be valid, and the state generally does not have to begin each case by proving that proper procedure was followed when the law was enacted. The concurrence element requires the state must also prove that the criminal intent triggered the criminal act–that the mens rea and actus reus occurred at the same time.
Occasionally, a statute will be silent as to the mens rea element. When this occurs, courts need to decide whether the legislature has intended to create a strict liability crime or has just been sloppy in drafting the law. Strict liability crimes are ones where the government does not have to prove criminal intent. Courts are disinclined to find in favor of strict liability statutes unless there is a clear indication that the legislature intended to create strict liability. The courts will examine legislative history, the seriousness of harm caused by the crime, whether the crime is male in se or mala prohibitum, and the seriousness of the punishment in deciding whether the state should be relieved of its obligation to prove criminal intent of the defendant. As a general rule, the courts are more likely to find that a crime is a strict liability one when there is a small punishment and when the crime is more of a recent, regulatory offense (mala prohibitum crime).
Inchoate Offenses: Attempt, Conspiracy, and Solicitation
inchoate offenses or incomplete offenses. With each of the inchoate crimes, the state must prove that the defendant intended to commit some other crime, the highest level of criminal intent. For example, there is no crime of attempt, but there is a crime of attempted theft. State laws vary in the approaches and tests of whether the defendant has taken enough steps to be charged with attempt, but all agree that mere preparation does not constitute an attempt. Conspiracies involve an agreement between at least two parties to commit some target crime. Some jurisdictions also require that there be an overt act in furtherance of the crime (some outward movement towards the commission of the target crime) which reaffirms there is a meeting of the minds between the co-conspirators. Solicitations involve a person asking another to commit a crime on his or her behalf, and they do not even require an agreement by the person requested to do so.
Accomplice Liability: Aiders and Abetters
People who commit crimes frequently do so with assistance. Substantive criminal law describes when a person can be found guilty for the acts of another. For example, the common law recognized four parties to a crime: principal in the first degree, principal in the second degree, accessory before the fact, and accessory after the fact. Many complicated legal rules developed to offset the harsh common law treatment of most crimes as capital offenses (death penalty eligible). The modern statutory trend has been to recognize accomplices, people who render assistance before and during the crime, on one hand, and accessories after the fact, people who help the offender escape responsibility after the crime has been committed, on the other. Accomplices, as treated as equally liable as the main perpetrator as “the hand of one, is the hand of them all.” Accessories after the fact, under the modern trend, are charged with hindering prosecution or obstructing justice after the crime are punished to a lesser extent than the main perpetrators.
Vicarious Liability
A few states have enacted vicarious liability statutes seeking to hold one person responsible for the acts of another, even when they did not provide any assistance and may have not even known about the other’s behavior. These statutes, generally violate our belief in individual responsibility that only people who do something wrong should be blamed for the crime. Vicarious liability imputes (transfers) both the criminal intent and the criminal act of one person to another. Courts generally invalidate these purported vicarious liability statutes but have at times upheld liability based upon an employer/employee relationship or a parent/child relationship.
Defenses
Assuming the government has proven all the elements of a crime, defendants may nevertheless raise defenses that may result in their acquittal. Defense is a general term that includes perfect and imperfect defenses, justifications and excuses, and procedural defenses.
Perfect and Imperfect Defenses
A perfect defense is one that completely exonerates the defendant. If the defendant is successful in raising this defense, meaning the jury believes him or her, the jury should find the defendant not guilty. An imperfect defense is one that reduces the defendant’s liability to that of a lesser crime. If the jury believes the defendant, it should find the defendant guilty of a lesser charge.
Negative Defenses and Affirmative Defenses
Sometimes the government is unable to prove all the elements of the crime charged. When this happens, the defendant may raise a negative defense claim. The defendant doesn’t have to prove anything, instead, he or she just argues that something is missing in the state’s case, that the state did not prove everything the statute said it had to prove, and therefore the jury should find him or her not guilty. For example, when charging a defendant with theft, the state must prove that the defendant intentionally took the property of another. If the jury finds that the defendant did not intend to take the property, or took property that that was rightfully his or hers, then it should find the defendant not guilty. Negative defenses at their essence are claims that there are “proof problems” with the state’s case. The defendant’s claim that the state failed to prove its case does not depend on whether the defendant has put on any evidence or not.
An affirmative defense requires the defendant to put on evidence that will persuade the jury that he or she should either be completely exonerated (for a perfect defense) or be convicted only of a lesser crime (for an imperfect defense). The defendant can meet this requirement by calling witnesses to testify or by introducing physical evidence. Because of the presumption of innocence, the burden of proof (the requirement that the party put on evidence and persuade the fact-finder) cannot switch completely to the defendant. The state must ultimately bear the burden of proving defendant’s guilt by putting on enough evidence that defendant has committed the crime by proving each and every material element of the crime, and it must convince the jury of this guilt beyond a reasonable doubt. However, when the defendant raises an affirmative defense, the burden of production or persuasion switches, at least in part and temporarily, to the defendant. The defendant’s burden is limited, however, to prove the elements of the defense he or she asserts.
Note the interplay of negative defenses and affirmative defenses. Even if a defendant is unsuccessful in raising an affirmative defense, the jury could nevertheless find him or her not guilty based upon the state’s failure to prove some other material element of the crime.
Justifications
Sometimes doing the right thing results in harm. Society recognizes the utility of doing some acts in certain circumstances that unfortunately result in harm. In those situations, the defendant can raise a justification defense. Justification defenses allow criminal acts to go unpunished because they preserve an important social value or because the resulting harm is outweighed by the benefit to society. For example, if a surgeon cuts someone with a knife to remove a cancerous growth, the act is a beneficial one even though it results in pain and a scar. In raising a justification defense, the defendant admits he did a wrongful act, such as taking someone’s life, but argues that the act was the right thing to do under the circumstances. At times, the state’s view differs from the defendant’s view of whether the act was, in fact, the right thing to do. In those cases, the state files charges to which the defendant raises a justification defense.
Justification defenses include self-defense, defense of others, defense of property, defense of habitation, consent, and necessity, also called, choice of evils. Justifications are affirmative defenses. The defendant must produce some evidence in support of these defenses. In most cases, the defendant must also convince the jury that it was more likely than not (a preponderance of the evidence) that his or her conduct was justified. For example, the defendant may claim that he or she acted in self-defense and at trial would need to call witnesses or introduce physical evidence that supports the claim of self-defense, that it was more likely than not that his or her actions were ones done in self-defense. State law may vary about how convinced the jury must be (called the standard of proof) or when the burden switches to the defendant to put on evidence, but all states generally require the defendant to carry at least some of the burden of proof in raising justification defenses.
Excuses
Excuses are defenses to criminal behavior that focus on some characteristic of the defendant. With excuses, the defendant is essentially saying, “I did the crime, but I am not responsible because I was . . . insane (or too young, intoxicated, mistaken, or under duress).” Excuses include insanity, diminished capacity, automatism, age, involuntary intoxication, duress, mistake of fact, and then a variety of non-traditional syndrome excuses. Like justifications, excuses are affirmative defenses in which the defendant bears the burden of putting on some evidence to convince the jury that he or she should not be held responsible for his or her conduct.
Procedural Defenses
double jeopardy (a defense in which the defendant claims that the government is repeatedly and impermissibly prosecuting him or her for the same crime), speedy trial (a defense in which the defendant claims the government took too long to get his or her case to trial), entrapment (a defense in which the defendant claims the government in some way enticed him or her into committing the crime), the statute of limitations (a defense in which the defendant claims the government did not charge him or her within the required statutory period), and several types of immunity (a defense in which the defendant claims he or she is immune from being prosecuted). Although procedural defenses are considered procedural criminal law, many states include the availability of these defenses in their substantive criminal codes. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/03%3A_Criminal_Law/3.07%3A_Substantive_Law-_Defining_Crimes_Inchoate_Liability_Accomplice_Liability_and_Defenses.txt |
Physical Punishment
Corporal Punishment
Until 1978, the Supreme Court upheld the use of corporal punishment (physical punishment). Ingraham v. Wright 430 U.S. 651 (1978). However, it is no longer an approved sanction for a criminal offense in the United States. Nonlethal corporal punishment, such as flogging, was used extensively in English and American common law for non-felony offenses. The misdemeanant was taken to the public square, bound to the whipping post, and administered as many lashes as the law specified.
“An American judge during the early American Republic was able to select from a wide array of punishments, most of which were intended to inflect intense pain and public shame. A Virginia statute of 1748 punished the stealing of a hog with twenty-five lashes and a fine. The second offense resulted in two hours of pillory (public ridicule) or public branding. A third theft resulted in a penalty of death. False testimony during a trial might result in mutilation of the ears or banishment from the colony. These penalties were often combined with imprisonment in a jail or workhouse and hard labor. . .
[1]
Controversial Issue: Capital Punishment: Death Penalty
Capital punishment (lethal physical punishment) is a popular topic, and much has been written about the death penalty. One excellent resource for learning about the death penalty is the death penalty information center (DPIC), a nonprofit organization that publishes studies and analyzes trends in death penalty law and application.
• Is the death penalty a deterrent?
• Is the death penalty justified by principles of retribution?
• Is the death penalty morally or ethically justified?
• Does it cost more to impose a death sentence or to impose a true-life sentence?
• Are factually innocent individuals erroneously executed (and if so, how often)?
• Is any particular manner of execution cruel and unusual?
• Is the death penalty, in itself, cruel and unusual punishment?
Coker v. Georgia, 433 U.S. 584 (1977) The Court prohibited capital punishment for the crime of rape of an adult victim. Coker suggests that the death penalty is an inappropriate punishment for any crime that does not involve the taking of human life. In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Court invalidated a Louisiana statute that allowed for the death penalty for rape of a child less than twelve years of age. Justice Kennedy (not the defendant, Kennedy) wrote, “the Eighth Amendment bars imposing the death penalty for the rape of a child where the crime did not result and was not intended to result, in the death of the victim.”
Mental Illness, Mental Deterioration and the Death Penalty
Ford v. Wainwright, 477 US 399 (1986). In 2007, the Court ruled that a prisoner is entitled to a hearing to determine his mental condition upon making a preliminary showing that his current mental state would bar his execution. Panetti. v. Quarterman, 551 US 930 (2007). In one case, the Texas Court of Criminal Appeals in 2013 held that a trial court illegally ordered the forcible medication of a mentally ill death row inmate, Steven Stanley, for the purpose of rendering him competent to be executed. See, http://www.deathpenaltyinfo.org. Staley’s mental health began to deteriorate when he entered death row in 1991. He received an execution date in 2006 but was deemed too ill to be executed. A court ordered that his paranoid schizophrenia is treated by forcible medication, which continued for six years. In its ruling, the Texas Court of Criminal Appeals held that “the evidence conclusively shows that appellant’s competency to be executed was achieved solely through the involuntary medication, which the trial court had no authority to order under the competency-to-be-executed statute. The finding that appellant is competent must be reversed for lack of any evidentiary support”. The ruling did not address whether the state constitution forbids the execution of someone forcibly drugged or whether the defendant, in this case, is too ill to be executed at all. Another mentally ill individual, John Ferguson, was executed in August 2013 in Florida through four mental health organizations maintained that he had suffered from mental illness for at least 40 years. Similarly, Marshall Gore, another Florida inmate with mental illness, was executed in October 2013.
https://deathpenaltyinfo.org/mental-illness-and-death-penalty
A different but related issue is the constitutionality of executing mentally retarded individuals who have committed capital offenses. In 1989, the Court held that executions of mentally retarded prisoners do not necessarily violate the Cruel and Unusual Punishment Clause if juries are allowed to consider evidence of mental retardation as a mitigating factor in the sentencing phase of a capital trial. Penry v. Lynaugh, 492 U.S. 302 (1989). Later, in Atkins v. Virginia, 536 U.S. 304 (2002), the Court reconsidered, holding that there was a sufficient national consensus for the Court to prohibit the execution of mentally retarded persons via the Eighth Amendment. Justice Stevens concluded,
[2].
Madison v. Alabama, ___ U.S. ___ (2019), the 70-year-old defendant had spent 33 years in solitary confinement after having been sentenced to death for killing a police officer in 1985. Madison had suffered a series of strokes causing severe cognitive impairment due to vascular dementia and the inability to remember his crime. Justice Kagan’s majority opinion held that an inmate’s failure to remember his crime does not by itself render him immune from execution, but “such memory loss still may factor into the ‘rational understanding’ analysis that Panetti demands.” If memory loss “combines and interacts with other mental shortfalls to deprive a person of the capacity to comprehend” his death sentence, “then the Panetti standard will be satisfied.” ____ U.S. ____, at ____ (2019)
According to the Court, it doesn’t matter if these “mental shortfalls” stem from delusions, dementia, or some other disorder. Courts must “look beyond any given diagnosis to a downstream consequence”—whether a disorder can “so impair the prisoner’s concept of reality” that he cannot “come to grips with” the meaning of his punishment.”
Juvenile Offenders and the Death Penalty
Historically, juveniles were treated no differently than adults in the criminal justice system, and thus, there is a long history of executing juveniles convicted of capital crimes. In the late 1980s, the Court considered whether national sentiment had changed to the point where it would now be considered cruel and unusual punishment to apply the death penalty to juveniles. The Court first held that the Constitution prohibits executing a juvenile who was fifteen years of age or younger at the time he or she committed the capital crime. Thompson v. Oklahoma, 487 U.S. 825 (1988). One year later, the Court, in a 5-4 decision, held that a juvenile sixteen years or older at the time of the crime could be sentenced to death. Stanford v. Kentucky, 492 U.S. 361 (1989). Then, in Roper v. Simmons, 543 U.S. 551 (2005), the Court said that the Constitution forbade the execution of anyone who was under eighteen at the time of their offense. The Simmons decision pointed to the decreasing frequency with which juvenile offenders were being sentenced to death as evidence of an emerging national consensus against capital punishment for juveniles. The Court noted that only 20 of the 37 death penalty states allowed juveniles to be executed, and since 1995, only three states had actually executed inmates for crimes they had committed as juveniles.
1. Lippman, M.R. (2016) Contemporary Criminal Law: Concepts, Cases, and Controversies (4th ed., pp. 57). SAGE Publishing.
2. Atkins v. Virginia, 536 U.S. 304 (2002). | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/03%3A_Criminal_Law/3.09%3A_Substantive_Law-_Physical_Punishment_Sentences.txt |
Monetary Punishments
Fines
The Model Penal Code proposed legislative guidelines on the use of fines, but states have generally rejected this provision. Instead, judges are given extremely broad discretion in setting the fine amounts, and there are few limits on the judge’s ability to impose a fine. Frequently, the criminal statute will specify the highest permissible fine. The Eighth Amendment’s Cruel and Unusual Punishment Clause prohibits excessive fines, but courts rarely have found a fine to violate this provision. In Tate v. Short, 401 U.S. 395 (1971), the Court found that fines that punish poor people more harshly than rich people, and thus, violate the Equal Protection Clause. Historically, magistrates had given offenders the option of paying a fine or serving a jail sentence. Sentences were frequently “thirty dollars or thirty days”. If defendants were too poor to pay the fine, they went to jail. The Tate Court reasoned that the state could imprison Tate for committing the crime, but by requiring either time or a fine, the state was really incarcerating Tate because he was too poor to pay the fine. After Tate, courts began using installment plans that permit poor defendants to pay fines over a period of several months. This practice may nonetheless subject the poor to an increased punishment if the court administration requires interest or some fee associated with a payment plan.
Civil Forfeiture
civil forfeiture, the process by which the government confiscates the proceeds (property or money) of criminal activities. See,18 USCA §§981-982. Laws that allow the state to forfeit the property used in illicit drug activity are particularly controversial. In deciding whether forfeiture is legal, state courts generally look to constitutional provisions dealing with excessive fines. In Austin v. United States, 509 US 602, at 622 (1993), the Supreme Court said that civil forfeiture “constitutes payment to a sovereign as punishment for some offense’ . . . and, as such, is subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.” However, the court left it to state and lower federal courts to determine the test of “excessiveness” in the context of forfeiture. The Illinois Supreme Court said that three factors should be considered in this regard: (1) the gravity of the offense relative to the value of the forfeiture, (2) whether the property was an integral part of the illicit activity, and (3) whether the illicit activity involving the property was extensive. [1] Federally, a \$357,144 forfeiture for failing to report to U.S. Customs that more than \$10,000 was being taken out of the country was found to be “grossly disproportionate” to the offense. [2] In one Pennsylvania case, the court found that forfeiture of a house used as a base of operations in an ongoing drug business was not excessive. [3]
United States v. Ursery 518 U.S. 267 (1996). On February 20th, 2019, the Court perhaps provided a different form of attack on civil forfeitures. In a unanimous opinion in Timbs v. Indiana, ___ U.S. ___ (2019), Justice Ginsberg wrote that the Eighth Amendment’s excessive fines clause applies to the states as well as the federal government, and that when Indiana civilly forfeited Timbs’ \$42,000 land rover after he sold a couple of hundred dollars worth of heroin, it was imposing an excessive fine.
United States v. James Daniel Good Real Property, 510 U.S. 43 (1993). Courts have found that civil forfeiture is constitutional even when the owner was not aware of the property’s criminal use. For example, in Bennis v. Michigan, 516 U.S. 442 (1996), the Court upheld the government’s seizure and forfeiture of Mrs. Bennis’s car, even though she claimed she did not know that her husband was using their car to engage in prostitution.
Link to http://www.osbar.org/publications/bulletin/06nov/forfeiture.html, for a discussion of the recent history of asset forfeiture in Oregon and the debate about Ballot Measure 3 and subsequent forfeiture cases and statutes.
Restitution and Compensatory Fines
Restitution refers to the “return of a sum of money, an object, or the value of an object that the defendant wrongfully obtained in the course of committing the crime.” [4] When the judge’s sentence includes restitution, the amount should be enough money to place the victim in the same position they would have been had the crime not been committed. Restitution orders can include the actual cost of destroyed property, medical bills, counseling fees, and lost wages. Several state laws require offenders to pay restitution as a condition of probation. Judges may order defendants to pay restitution for all damages incurred during a criminal episode, even if the charge is dismissed through negotiations. Judges may also order the defendant to pay restitution to some party other than the victim.
victims’ compensations commissions. Statewide, defendants make their restitution payments to these commissions that pay out restitution claims to victims across the state. Because of the statewide pot of money, victims can then get some, if not all, of what is needed to “make them whole.” Also, these commissions make it possible for the victim to get compensated without having to maintain contact with the offender.
1. Waller v. 1989 Ford F350 Truck, 642 N.E. 2d 460 (Ill. 1994).
2. United States v. Bajakajian, 524 U.S. 321 (1998).
3. In re King Properties, 6235 A.2d 128 (Pa 1983).
4. Scheb, J.M. & Scheb, J.M. II (2012). Criminal Procedure (6th ed., pp. 268). Belmont, CA: Wadsworth, Cengage Learning.
3.12: Procedural Law
Phases of the Criminal Justice Process
Investigative Phase
affidavit (sworn statement). When an individual is arrested without a warrant, judges will need to promptly review whether there is probable cause exists to hold them in custody before trial.
Pretrial Phase
Trial Phase
petit jurors (trial jurors); the rules of evidence (statutory and common law rules governing the admissibility of certain types of evidence such as hearsay or character evidence, the competency and impeachment of witnesses, the existence of any privilege, and the exclusion of witnesses during the testimony of other witnesses); the right of the defendant compulsory process (to secure favorable testimony and evidence); the right of the defendant to cross-examine any witnesses or evidence presented by the government against him; fair trials free of prejudicial adverse pre-trial or trial publicity; fair trials which are open to the public; and the continued right of the defendant to have the assistance of counsel and be present during his or her trial.
Sentencing Phase
right of allocution (right to make a statement to the court before the judge imposes sentence); any victims’ rights to appear and make statements at sentencing; the defendant’s rights to present mitigation evidence and witnesses; and the defendant’s continued rights to the assistance of counsel at sentencing. In capital cases in which the state is seeking the death penalty, the trial will be bifurcated (a trial split into the “guilt/innocence phase” and the “penalty phase”) and the sentencing hearing will be more like a mini-trial.
Post-Conviction Phase (Appeals Phase)
appeal of right (the initial appeal which must be reviewed by an appellate court) and right to file a discretionary appeal; the defendant’s right to have the assistance of counsel in helping to file either the appeal of right or a discretionary appeal. The post-conviction phase is also governed by rules and laws concerning the defendant’s ability to file a writ of habeas corpus (a civil suit against the entity who is currently holding the defendant in custody) or a post-conviction relief suit (a civil suit similar to a habeas corpus suit but one which can be filed by the defendant regardless if he or she is in custody). The post-conviction phase would also include any probation and parole revocation hearings. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/03%3A_Criminal_Law/3.10%3A_Substantive_Law-_Monetary_Punishment_Sentences.txt |
Why is Policy so Important in Criminal Justice?
Theory-Policy-Research
crime prevention “entails any action designed to reduce the actual level of crime and/or the perceived fear of crime.” [1] On the other hand, crime control alludes to the maintenance of the crime level. Policies, such as the three strikes law or Measure 11, seek to prevent future crime by incapacitating offenders through incarceration. Other policies like sex offender registration acknowledge that sex offenders exist and registering them will control the level of deviation, sometimes preventing-or perceiving to prevent future offenses.
[2]
Fake News Exercise
1. Vet the Publisher’s Credibility.
• What is the domain name? A domain name that ends with “.com.co” is not to be trusted. Something like abcnews.com looks legit, but if it is listed as abcnews.com.co, be wary.
• What is the publication’s point of view? Check out the “About Us” section to learn more about the publishers. It will also tell you if the publication is meant to be satirical, like the Onion.
1. Pay Attention to Writing Quality.
• Does the publication have all caps or way too many emphatic punctuation marks?!?!?!? Proper reporting does not adhere to such informal grammar. The article you are reading is probably not vetted.
1. Check out the Sources and Citations.
• Does the publisher meet academic citation standards? Your teachers and professors constantly tell you to cite and reference appropriately. This is how we can check your sources. The same is true for online news. Check the sources.
• Check out fact-checking websites like factcheck.org
https://www.summer.harvard.edu/inside-summer/4-tips-spotting-fake-news-story
1. Lab, S. (2016). Crime Prevention: Approaches, Practices, and Evaluations. (9th ed.). New York, NY: Routledge.
2. Lab, S P., Williams, M.R. Holcomb, J.E., Burek, M.W., King, W.R., & Buerger, M.E. (2013). Criminal Justice: The Essentials (3rd ed.). New York, NY. Oxford University Press.
4.02: The Myth of Moral Panics
Moral panic has been defined as a situation in which public fears and state interventions greatly exceed the objective threat posed to society by a particular individual or group who is/are claimed to be responsible for creating the threat in the first place. [1]
[2]
Moral Panics, Sex Offender Registration, and Youth
https://reason.com/archives/2018/04/09/there-are-too-many-kids-on-the
Ted Talk: How Fake News Does Real Harm
folk devils are the people who are blamed for being allegedly responsible for the threat to society. Folk devils are completely negative and have no redeeming qualities. This is how juvenile offenders, or “super-predators” as they were referred to in the 1990s. The narrative went like this:
[3] Folk devils are the embodiment of evil and center stage of the moral panic drama. They have no redeeming qualities so it is easy for the population to fear and hate them.
Agenda setting is the way the media draw the public’s eye to a specific topic. Framing refers to a type of agenda setting in a prepackaged way and narratives are about the story that is told. Said another way, framing focuses on the broad categories, segments, or angles through which a story can be told. Frames include factual and interpretive claims that allow people to organize events and experiences into groups. Narrative construction involves decisions by storytellers that determine the specific characters, plot, causal implications, and policy solutions presented. Narratives are pictures that the public already accepts and embraces (See Table 1 for examples of criminal justice frames and narratives). Journalists and reporters are taught to tell stories through first-hand accounts and experiences people have because audiences care about these human experiences and their stories more than they care about abstract societal issues. In theory, then, journalists and reporters are the gatekeepers to the information and they choose how they organize and present ideas to the public. This helps us create social meaning from events or actions (See Table 2 for framing techniques). [4]
Table 1: Criminal Justice Frames and Examples of Narratives
Frame Cause Policy
Faulty system Crime stems from criminal justice leniency and inefficiency. The criminal justice system needs to get tough on crime
Blocked opportunities Crime stems from poverty and inequality The government must address the “root causes” of crime by creating jobs and reducing poverty.
Social breakdown Crime stems from family and community breakdown Citizens should band together to recreate traditional communities.
Racist system The criminal justice system operates in a racist fashion African Americans should band together to demand justice
Violent media Crime stems from violence in the mass media The government should regulate violent imagery in the media
Narrative Costume Characteristic
The PI Cheap suit and car Loner, cynical, shrewd, shady but dogged
The rogue cop Plainclothes, disguise, often has special high tech equipment Maverick, smart, irreverent, violent but effective
The sadistic guard Unkempt uniform Low intelligence, violent, racist, sexist, perverted, enjoys cruelty and inflicting pain and humiliation
The corrupt lawyer Expensive suite and office Smart, greedy, manipulative, dishonest, smooth talker and liar, able to twist words, logic, and morality
The greedy businessman Very expensive office and home, trophy wife Very smart, decisive, and a polished, unquenchable sometimes psychotic need for power and wealth
Media, crime, and criminal justice: Images, realities, and policies (4th ed.). Belmont, CA: Wadsworth Publishing. [/footnote]
Table 2: Framing Techniques
Framing techniques per Fairhurst and Sarr (1996):
• Metaphor: To frame a conceptual idea through comparison to something else.
• Stories (myths, legends): To frame a topic via narrative in a vivid and memorable way.
• Tradition (rituals, ceremonies): Cultural mores that imbue significance in the mundane, closely tied to artifacts.
• Slogan, jargon, catchphrase: To frame an object with a catchy phrase to make it more memorable and relate-able.
• Artifact: Objects with intrinsic symbolic value – a visual/cultural phenomenon that holds more meaning than the object itself.
• Contrast: To describe an object in terms of what it is not.
• Spin: to present a concept in such a way as to convey a value judgment (positive or negative) that might not be immediately apparent; to create an inherent bias by definition. (Fairhurst, G. & Sarr, R. 1996. The art of Framing. San Francisco: Jossey-Bass.)
1. Bon, S.A (2015, July 20). Moral Panic: Who benefits from fear? Psychology Today, https://www.psychologytoday.com/us/b...ts-public-fear
2. Cohen, S. (1972). Folk devils and moral panics: The creation of the mods and rockers. London: MacGibbon and Key Ltd.
3. Dilulio. (1995). https://www.weeklystandard.com/john-j-dilulio-jr/the-coming-of-the-super-predators
4. Crow, D.A., & Lawlor, A. (2016). Media in the policy process: Using framing and narratives to understand policy influences. Review of Policy Research. 33(5): 472-495 | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/04%3A_Criminal_Justice_Policy/4.01%3A_Importance_of_Policy_in_Criminal_Justice.txt |
Dangerous Myths about Juvenile Sex Offenders
Identifying the Problem and Agenda Setting
Formulation and Adoption
Implementation of the Policy
Evaluation
Impact (outcome) evaluations focus on what changes after the introduction of the crime policy. [1] Changes in police patrol practices aimed at reducing the level of residential burglaries in an area are evaluated in terms of subsequent burglaries. The difficulty with impact evaluations is that changes in the crime rate are rarely, if ever, due to a single intervening variable. For example, after the implementation of curfew laws for juvenile offenders, juvenile crime decreased. Can we say that was because of curfew laws? The entire crime rate for America decreased at the same time. Attributing a single outcome based on a solitary intervention is problematic.
Process evaluations consider the implementation of a policy or program and involve determining the procedure used to implement the policy. These are detailed, descriptive accounts of the implementation of the policy including the goals of the program, who is involved, the level of training, the number of clients served, and changes to the program over time. [2] Unfortunately, process evaluations do not address the actual impact policy has on the crime problem, just what was done about a specific issue or who was involved. While this is indeed a limitation, it is essential to know the inner workings of a program or policy if it is to be replicated.
Cost-benefit evaluations, or analysis, seeks to determine if the costs of a policy are justified by the benefits accrued. A ubiquitous example of this would be an evaluation of the popular anti-drug D.A.R.E. program of the 1980s and 1990s. The D.A.R.E. program was a school-based prevention program aimed at preventing drug use among elementary school-aged children. Rigorous evaluations of the program show that it was ineffective and sometimes actually increased drug use in some youth. The cost of this program was roughly \$1.3 billion dollars a year (about \$173 to \$268 per student per year) to implement nationwide (once all related expenses, such as police officer training and services, materials and supplies, school resources, etc., were factored in). [3] Using a cost-benefit analysis, is that a good use of money to support an ineffective program?
1. How can this be instituted? Fine the parent? Sentence the parents to jail time? The policy needs to be a concrete solution to a problem. Many states use fines instead of jailing the parents. (Who’s to watch over the children if the parents are locked up?) Fines sound great. This will make sure parents take an active interest in their children because they do not want to have to pay money if their kid gets into trouble.
2. Who needs to be involved in lobbying for this law? Legislators? Senators? Local police? Maybe even city officials, local school boards, and religious organizations. So it’s put on the agenda and gets moved onto a ballot for an official vote. The citizens who think their city needs to be tough on crime vote to approve this policy.
3. Bam, it’s law. It is implemented and now parents of juveniles delinquents are charged fines. This actually is a law in nearly every state. In the 1990s, Silverton, Oregon, was a model for communities interested in imposing ordinances that hold parents accountable for their children’s behavior. In Silverton, parents can be fined up to \$1,000 if their child is found carrying a gun, smoking cigarettes, or using illegal drugs. Parents who agree to attend parenting classes can avoid fines. Within the first two months after the law was passed in early 1995, seven parents were fined and many others registered for parenting classes.
Oregon has ORS 30.761 (2017), which states:
increases recidivism! It’s true! A study of 1,167 youth in Pennsylvania found that the total amount of fines, fees and/or restitution significantly increased the likelihood of recidivism [4]. Justice system–imposed financial penalties increase the likelihood of recidivism in a sample of adolescent offenders [5] In particular, males, non-whites, and youth with prior dispositions and adjudicated with a drug or property offense were at an increased likelihood of recidivism associated with owing fines and fees (Piquero and Jennings, 2016). This is problematic as fees not only increase recidivism but also increase the likelihood of a “revolving door” juvenile justice system for minority youth.
1. Lab, S. (2016). Crime Prevention: Approaches, Practices, and Evaluations (9th ed.). New York, NY: Routledge.
2. Lab, S. (2016). Crime Prevention: Approaches, Practices, and Evaluations (9th ed.). New York, NY: Routledge.
3. Shepard, E. (Winter 2001-2002) A new study finds. We wasted billions on D.A.R.E. Reconsider Quarterly,
4. Piquero and Jennings, 2016, Piquero, A. and Jennings, W.G. (2015)
5. Youth Violence and Juvenile Justice, 15 (3) p. 325-340).
4.04: Importance of Evidence Based Practices
[1] In the 1980s, numerous research studies were published that contradicted this claim and proposed alternative approaches to combating crime and effective interventions. Since then, countless researchers, agencies, and even Congress have adopted the need to create comprehensive evaluations of effective programs.
[2] National research clearinghouses are great resources for systematic literature reviews of effective public programs across a plethora of areas, such as:
• the U.S. Department of Education’s What Works Clearinghouse,
• the U.S. Department of Justice’s CrimeSolutions.gov,
• Blueprints for Healthy Youth Development,
• the Substance Abuse and Mental Health Services Administration’s National Registry of Evidence-Based Programs and Practices,
• the California Evidence-Based Clearinghouse for Child Welfare,
• What Works in Reentry, and the Coalition for Evidence-Based Policy.
[3] The goal is to create a policy that can be enforced consistently and can withstand political change.
Steps in Evidence-Based Policy Making
1. Martinson, R. (1974). What works? - questions and answers about prison reform. The Public Interest, 35: 22-54.
2. Crimesolutions.gov glossary (www.crimesolutions.gov/glossary).
3. Pew-McArthur Report. (2014).
4.05: Re-Evaluating Policy
mala prohibita rather than mala in se, so creating laws and policies around them is as short-lived and fleeting as the new most popular meme. For example, the Eighteenth Amendment states (1917):
“After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.”
[1] As you know, the experiment was an absolute failure. Crime actually increased and became organized, alcohol became more dangerous to drink because of the lack of regulations on bootlegged and black market production, corruption of public officials was rampant, and courts and prisons were stretched to capacity.
Bizarre, Weird, and Funny Laws
Conclusion
1. Thornton, M. (1991). Alcohol prohibition was a failure. Policy Analysis, 157:1-12. Retrieved object.cato.org/sites/cato.org/files/pubs/pdf/pa157.pdf%5D
2. Isaac. J. (2009). The Wacky World of Laws. San Diego, CA: Lawyer In Blue Jeans Group Publishing. Reader’s Digest Editors (n.d.). Here are 50 of the dumbest laws in every state. Reader’s Digest. Retrieved: https://www.rd.com/funny-stuff/dumbest-laws-america/ Triangle Realty. (2018). Unusual Laws in Texas. Retrieved https://www.trianglerealtyllc.com/unusual-laws-in-texas/ | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/04%3A_Criminal_Justice_Policy/4.03%3A_The_Stages_of_Policy_Development.txt |
theory is an explanation to make sense of our observations about the world. We test hypotheses and create theories that help us understand and explain the phenomena. According to Paternoster and Bachman (2001), theories should attempt to portray the world accurately and must “fit the facts.”[1] Criminological theories focus on explaining the causes of crime. They explain why some people commit a crime, identify risk factors for committing a crime, and can focus on how and why certain laws are created and enforced. Sutherland (1934) has referred to criminology as the scientific study of breaking the law, making the law, and society’s reaction to those who break the law. [2] Besides making sense of our observations, theories also strive to make predictions. If we understand why crime is happening, we can formulate policies or programs to minimize it.
The Marshmallow Test). Once we test the relationship between two variables, we also need to make sure another variable is not affecting the results. Spuriousness is when a third variable is causing the other two. We know that ice cream sales and murder rates are positively correlated; when one goes up the other goes up. At first glance, someone may claim that ice cream is causing people to kill. However, what do you think might be a better explanation? Can you think of a third variable that might cause ice cream sales and murder rates to increase?
It’s “Just” a Theory Exercise
1. Paternoster, R., & Bachman, R. (Eds.) (2001). Explaining criminals and crime: Essays in contemporary criminological theory. Oxford: Oxford University Press.
2. Sutherland, E.H. (1934). Principles of criminology (2nd ed.). Philadelphia, PA: Lippincott.
5.02: What Makes a Good Theory
[1]
[2] Logical consistency is the basic building block of any theory. It refers to a theory’s ability to “make sense”. Is it logical? Is it internally consistent? A theory’s scope refers to its range, or ranges, of explanations. Does it explain crimes committed by males AND females? Does it explain ALL crimes or just property crime? Does it explain the crime committed by ALL ages or just juveniles? Better theories will have a wider scope or a larger range of explanation.
test of a theory is an attempt to falsify it or to refute it. Testability is falsifiability; but there are degrees of testability: some theories are more testable, more exposed to refutation than others; they take, as it were, greater risks…One can sum up all this by saying that the criterion of the scientific status of a theory is its falsifiability, or refutability, or testability” (Popper, 1965, pp. 36-37). [3]
[4]
1. Cooper, J., Walsh, A., & Ellis, L. (2010). Is criminology ripe for a paradigm shift? Evidence from a survey of American criminologists. Journal of Criminal Justice Education, 2, 332-347.
2. Akers, R.L., & Sellers, C.S. (2013). Criminological theories: Introduction, evaluation, and application. New York: Oxford.
3. Popper, K.R. (1965). Conjectures and refutations: The growth of scientific knowledge. New York: Harper Torchbooks.
4. Gibbs, J.P. (1990). The notion of theory in sociology. National Journal of Sociology, 4, 129-159.
5.03: Pre-Classical Theory
[1] The theological stage used supernatural or otherworldly powers to explain behaviors, the metaphysical used rational and logical arguments, and the scientific used positivism and scientific inquiry. During the middle ages, spiritual explanations assumed human beings broke laws or did not conform to conventional norms of society because he or she possessed by demons, the devil, or he or she was a wizard or witch. These explanations assumed God-given “natural law”; thus, crime was equivalent to sin. Governments had the moral authority to punish criminals/sinners and the state was acting on behalf of God. As a result, the accused person could “prove” their innocence by a trial by battle (only the victor is innocent) or trial by ordeal (innocent party would be unharmed while the guilty party would feel pain). As you can imagine, punishments and justice were arbitrary and severe, especially when feudal lords, with God’s permission, determined guilt. A person’s rank, status, and or wealth determined their punishment, rather than the merits of the case at hand.
1. Comte, A. (1877). System of positive polity (4th vol.). New York: Burt Franklin.
5.04: Classical School
Leviathan (1651), Hobbes made a few assumptions about human beings.[1] He assumed humans were at conflict with one another, pursued their self-interests, and were rational. Moreover, people would create authority figures out of fear of others, and people should democratically create rules that all citizens must follow. Hobbes wanted a new type of government, one that was ruled by the people and not by monarchs. He believed people had natural rights such as life, liberty, and the pursuit of happiness. If we grant the assumption that people are rational, we would assume people have the ability to consider the possible consequences of their actions. Hobbes was one of the first social contract thinkers. Social contract thinkers believed people would invest in the laws of their society if, and only if, they know government protected them from those who break the law. People will give up a little of their self-interests as long as everyone reciprocates.
Hedonism is the assumption that people will see maximum pleasure and avoid pain (punishment). Consequently, if we grant the assumptions of classical theory, we can hold people 100% responsible for their actions because it was a choice. These assumptions have been the basis for the American criminal justice system since its inception. Although theories may have changed the landscape of understanding criminal behavior and may have changed the philosophies of punishments over time, the criminal justice system has maintained the assumption that crime is a choice. Hence, we can hold offenders 100% responsible for their actions.
An Essay on Crimes and Punishment (1764), which attacked Europe’s use of harsh treatment.[2] Ideally, he wanted to change the excessive and cruel punishment by applying rationalistic, social contract ideas. At the time, judges had tremendous power to determine guilt and create laws based on their decisions. Intellectuals well received his essay at the time, but the Catholic Church banned it. His ideas were exceptionally radical at the time, mainly because his writing questioned the power structures at the time.
Cesare Bonesana di Beccaria (1738-1794)
Essay was highly influential during the Enlightenment, and it may have served as a model during the creation of the American Criminal Justice system. For example, Beccaria advocated that punishments should fit the crime and be proportional to the harm done, laws should only be determined by the legislature, judges should only determine guilt, and every person should be treated equally under the law. He claimed the sole purpose of the law was to deter people from committing the crime. Deterrence can be accomplished if the punishment is certain, swift, and severe. These may seem like common sense today, but they were considered radical ideas at the time.
[3]
Jeremy Bentham (1748-1832)
1. Hobbes, T. (1651/1968). Leviathan. Baltimore, MD: Penguin Books.
2. Beccaria, C. (1963). On crimes and punishments (H. Paolucci, Trans.). Indianapolis, IN: Bobbs-Merril. (Original work published in 1764)
3. Bentham, J. (1823). Introduction to the principles of morals and legislation. Oxford, UK: Oxford University Press. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/05%3A_Criminological_Theory/5.01%3A_What_is_Theory.txt |
News Box. In 1994, Oregon voters passed Measure 11, whcih established mandatory minimum sentencing for several serious crimes. Besides removing the judge’s ability to give a lesser sentence, Measure 11 prohibited prisoners from reducing their sentence through good behavior. Additionally, any defendant 15 years old or older who was accused of a Measure 11 offense was automatically tried as an adult. Recently, the Oregon Justice Resource Center reported the effects of Measure 11 on juveniles, esepcially minorities. Below are links to the news article and the report itself.
“New Report Calls Measure 11 Sentences for Juveniles ‘Harsh and Costly'”
Measure 11 Exercise
[1] They claimed offenders rationally calculate costs and benefits before committing crime and assumed people want to maximize pleasure and minimize pain. The theory does not explain motivation, but instead, it expects some people will always commit a crime when given the opportunity. They do not assume offenders are entirely rational, but they do have bounded rationality. Bounded rationality is the constraint of both time and relevant information; offenders must make a decision in a timely fashion with the information at hand. Offenders cannot wait forever nor can they wait for more information before committing a crime. For example, if you were walking down a street and noticed an open window in a parked car, you may contemplate looking in. If you saw something inside, you may then consider stealing it. An entirely rational person may look around to see if there are any witnesses, try to determine if the owner is coming back soon, and so on. Ideally, you may wait until nightfall. However, you may miss your opportunity. Thus, you need to make a quick decision with the relevant facts at that time.
[2] Since the conclusion of World War II, more people have entered the workforce, and more people spend time away from home. Cohen and Felson stated that three things must converge in time in space for a crime to be committed – a motivated offender, a suitable target, and the absence of a capable guardian.
1. Cornish, D.B., & Clarke, R.V. (1986). Crime as a rational choice. In R.V. Clarke and D.B. Cornish, The reasoning criminal. New York, NY: Springer-Verlag.
2. Cohen, L.E., & Felson, M. (1979). Social change and crime rate trends: A routine activiity approach. American Sociological Review, 44, 588-608.
5.06: Positivist Criminology
Positivism is the use of empirical evidence through scientific inquiry to improve society. Ultimately, positivist criminology sought to identify other causes of criminal behavior beyond choice. The basic premises of positivism are measurement, objectivity, and causality.[1] Early positivist theories speculated that there were criminals and non-criminals. Thus, we have to identify what causes criminals.
On the Origin of Species (1859), which outlined his observations of natural selection.[2] A few years later, he applied his observations to humans in Descent of Man (1871), whereby he claimed that some people might be evolutionary reversions to an early stage of man.[3] Although he never wrote about criminal behavior, others borrowed Darwin’s ideas and applied them to crime.
Charles Darwin
1. Hagan, F.E. (2018). Introduction to criminology: Theories, methods, and criminal behavior (9th ed.). Los Angeles, CA: Sage.
2. Darwin, C. (1859). On the origin of species by means of natural selection, or preservation of favoured races in the struggle for life. London: John Murray.
3. Darwin, C. (1871). The descent of man, and selection in relation to sex. London: John Murray.
5.07: Biological and Psychological Positivism
The Criminal Man.[1] Lombroso claimed 1/3 of all offenders were born criminals who were atavistic (evolutionary throwbacks).
Atavistic features
The English Convict, Goring claimed there were statistical differences in physical attributes and mental defects. The focus on mental qualities led to a new kind of biological positivism – the Intelligence Era. Alfred Binet, who created the Intelligence Quotient Test, believed intelligence was dynamic and could change. He wanted to identify youths who were not performing well in school. Unfortunately, H.H. Goddard, like many Americans at the time, believed intelligence was innate and static. That is, intelligence was fixed and could not change. Goddard gave IQ tests to sort people and those who scored too low were institutionalized, deported, or sterilized. He was an early advocate to sterilize those who were mentally deficient, especially “morons,” who were just smart enough to blend in with the normal population. In 1927, the United States Supreme Court in Buck v. Bell allowed the use of sterilization.
[2] However, how we measure intelligence and how we define intelligence are based on our preconceived assumptions of intelligence. For example, is intelligence inherited? Is it related to the dominant culture? Or is it based more on the person’s environment? Each has a least some element of truth.
[3] Even after giving personality tests to criminals and non-criminals, there does not seem to be any logical relevance to understanding the causes of crime. However, there have been correlations between certain personality traits and criminal behavior. For example, impulsivity, lack of self-control, inability to learn from punishment, and low empathy have all been linked to criminal behaviors.
[4]
1. Lombroso, C. (1876). The criminal man.
2. Hirschi, T., & Hindelang, M.J. (1977). Intellegence and delinquency: A revisionist review. American Sociological Review, 42, 572-587.
3. Glueck, S., & Glueck, E. (1950). Unraveling juvenile delinquency. Cambridge, MA: Harvard University Press.
4. Capsi, A., Moffitt, T.E., Silva, P.A., Stouthamer-Loeber, M., Krueger, R.F., & Schmutte, P.S. (1994). Personality and crime: Are some people crime prone? Replications of the personality-crime relationship acrass countries, genders, races, and methods. Criminology, 32(2). | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/05%3A_Criminological_Theory/5.05%3A_Neoclassical.txt |
[1]
Concentric Zones
[2] Upon further investigation, Shaw and McKay noticed three qualitative differences in the transitional zone compared to other zones. First, the physical status included the invasion of industry and the largest number of condemned buildings. When many buildings are in disrepair, population levels decrease. Second, the population composition was also different. The zone in transition had higher concentrations of foreign-born and African-American heads of families. It also had a transient population. Third, the transitional zone had socioeconomic differences with the highest rates of welfare, lowest median rent, the lowest percentage of family-owned houses. Interrelated, the zone also had the highest rates of infant deaths, tuberculosis, and mental illness.
Social disorganization is the inability of social institutions to control an individual’s behavior. Since the zone in transition had people moving in and moving out at such high rates, social institutions (like family, school, religion, government, economy) and members could no longer agree on essential norms and values. As earlier stated, many residents were foreign. Thus, speaking different languages and having different religious beliefs may have prevented neighbors from talking to one another and solidifying community bonds. Overall, Shaw and McKay were two of the first theorists to put forth the premise that community characteristics matter when discussing criminal behavior.
1. Burgess, E.W. (1925). The growth of the city. In R.E.Park, E.W. Burgess, and R.D.McKenzie, Jr., The city. Chicago, IL: University of Chicago Press.
2. Shaw, C.R., & McKay, H.D. (1942). Juvenile delinquency and urban areas. Chicago, IL: University of Chicago Press.
5.09: Strain Theories
Strain theories assume people will commit crime because of strain, stress, or pressure. Depending on the version of strain theory, strain can come from a variety of origins. Strain theories also assume that human beings are naturally good; bad things happen, which “push” people into criminal activity.
[1] Moreover, the “social structure” of American society restricts some citizens from attaining it. Most, if not all, Americans know of the “American Dream.” No matter how you conceptualize the dream, most people would define the American dream as achieving economic success in some form. The culturally approved method of obtaining the American dream is through hard work, innovation, and education. However, some people and groups are not given the same opportunities to achieve the cultural goal. When there is a disjunction between the goals of a society and the appropriate means to achieve that goal, a person may feel pressure or strain. Everyone is aware of the definition and promotion of the American dream. When someone does not achieve this goal, he or she may feel strain or pressure. A person could be rejected or blocked from achieving a cultural goal. Merton claimed there were five personality adaptations between the goals of a society and the means to achieve them.
Personality Adaptation Cultural Goals Institutionalized Means
I. Conformity + +
II. Innovation +
III. Ritualism +
IV. Retreatism
V. Rebellion + / – + / –
[2] Cohen wanted to know why most juvenile crimes occurred in groups. He explained that many youths, especially those in lower class families, rejected education and other middle-class values. Instead, many teenagers would seek status and self-worth as a new value system. When teens have no status, reputation, or self-worth, it led to severe strain. To achieve status, youths commit a crime to gain status among their peer group. Cloward and Ohlin (1960) claimed more serious delinquents sought “fast cars, fancy clothes, and well dames” (p. 97).[3] Assuming youths had no legitimate opportunities to improve their economic position, youths would join gangs to pursue illegitimate opportunities to achieve financial success. Criminal gangs provided youths illicit opportunities to gain money, conflict gangs permitted youths to vent their frustrations, and retreatist gangs were double failures; they had no legitimate or illegitimate means to increase income.
[4]
Coping Mechanism Example
1. Merton, R.K. (1938). Social structure and anomie.American Sociological Review, 3.
2. Cohen, A.K. (1955). Delinquent boys: The culture of the gang. New York, NY: Free Press.
3. Cloward, R.A., & Ohlin, L. (1960). Delinquency and opportunity: A theory of delinquent gangs. Glencoe, IL: Free Press.
4. Agnew, R. (2006). Pressured into crime: An overview of general strain. New York, NY: Oxford University Press. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/05%3A_Criminological_Theory/5.08%3A_The_Chicago_School.txt |
before food was in sight. The dogs began to salivate when they heard the assistants’ footsteps. The dogs were associating the oncoming footsteps with the upcoming food. This type of learning was called classical conditioning.
Classical Conditioning
Punishment Exercise
How does the Criminal Justice System positively punish offenders? How does the Criminal Justice System negatively punish? Give examples of both.
[1] His attempt tried to explain how age, sex, income, and social locations related to the acquisition of criminal behaviors. Sutherland (1947) presented his theory as nine separate, but related propositions, which were:
1. Criminal behavior is learned.
2. Criminal behavior is learned in interaction with other persons in a process of communication.
3. The principal part of the learning of criminal behavior occurs within intimate personal groups.
4. When criminal behavior is learned, the learning includes: a) techniques of committing the crime, which are sometimes very complicated, sometimes very simple; b) the specific direction of the motives, drives, rationalizations, and attitudes.
5. The specific directions of motives and drives are learned from definitions of the legal codes as favorable or unfavorable. In some societies, an individual is surrounded by persons who invariably define the legal codes as rules to be observed, while in others he is surrounded by a person whose definitions are favorable to the violation of the legal codes.
6. A person becomes delinquent because of an excess of definitions favorable to violation of law over definitions unfavorable to violation of the law. This is the principle of differential association.
7. Differential associations may vary in frequency, duration, priority, and intensity. This means that associations with criminal behavior and also associations with anticriminal behavior vary in those respects.
8. The process of learning criminal behavior by association with criminal and anti-criminal patterns involves all of the mechanisms that are involved in any other learning.
9. While criminal behavior is an expression of general needs and values, it is not explained by those general needs and values, since noncriminal behavior is an expression of the same needs and values.[2]
[3]
[4] In other words, where we grow up may influence what we learn about crime, police, government, religion, etc.
1. Sutherland, E.H. (1947). Criminology (4th ed.). Philadelphia, PA: Lippincott.
2. Sutherland, E.H. (1947). Criminology (4th ed.). Philadelphia, PA: Lippincott.
3. Akers, R.L. (1994). Criminological theories. Los Angeles, CA: Roxbury.
4. Anderson, E. (1999). Code of the street: Decency, violence, and the moral life of the inner city. New York, NY: W.W. Norton.
5.12: Other Criminological Theories
Social Reaction Theories
[1] Hence, it is the quality of social responses that is significant. We shame individuals to show disapproval. According to Braithwaite, shaming can be reintegrative or stigmatizing. Reintegrative shaming centers on forgiveness, love, and respect. Ideally, we want to reintegrate the person back into the community by removing the label. However, in some societies, like the United States, stigmatizing shaming reigns supreme. Stigmatizing shaming uses formal punishment, which degrades a person’s bond to his or her community. It is counter-productive and tends to shun the offender. For example, in some states, convicted offenders are required to self-identify as a felon on job applications. Do you think this helps their cause to reintegrate successfully into society? Perhaps not. Even though they may have “served their time,” they are still labeled as a criminal and punished further. Stigmatizing shaming propels people towards crime whereas reintegrative shaming seeks to correct the behavior through respect and empathy. Critical Theories
Critical Theories
[2] Second, crime is a political concept. Not all those who commit crime are caught, nor are those who are caught punished. The poor are injured the most by the enforcement of laws, while the affluent (i.e., powerful) are treated leniently. Third, the criminal justice system and its agents serve the ruling class, the capitalists. As Jeffrey Reiman’s (2004) book titled it, The Rich Get Richer and the Poor Get Prison.[3] Fourth, the root cause of crime is capitalism because capitalism ignores the poor and their atrocious living conditions. Capitalism demands profits and growth over values and ethically considerations. Perhaps this is why crimes of the streets are punished more severely than crimes of the suites. Finally, critical theories believe the solution to crime is a more equitable society, both politically and economically.
Gender and Crime Exercise
Write about how you were raised and how sex/gender roles were reinforced through school, family, culture, etc. Do you think men/boys/males are more criminal because of their biology or because of cultural expectations of men/boys/males versus women/girls/females? You should support your claims with personal, vicarious, or well-known examples.
1. Braithwaite, J. (1989). Crime, shame and reintegration. New York, NY: Cambridge University Press.
2. Cullen, F.T., Agnew, R., & Wilcox, P. (Eds). (2018). Criminological theory: Past to present (6th ed.). New York, NY: Oxford University Press.
3. Reiman, J. (2004). The rich get richer and the poor get prision: Ideology, class, and criminal justice. New York, NY: Pearson.
5.13: Spare the Rod Spoil the Child Myth
NPR’s – “The American Academy of Pediatrics On Spanking Children: Don’t Do It, Ever.”) | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/05%3A_Criminological_Theory/5.10%3A_Learning_Theories.txt |
kin policing. Kin policing is when a tribe or clan policed their own tribe, and it often turned bloody quickly. The blood feuds would go on for a long period of time. [1]
[2]
[3]
urban cohorts. The urban cohorts were men from the Praetorian Guard (Augustus’ army), charged with ensuring peace in the city. As crime rose and became more violent, Augustus formed the vigils, which were not affiliated with the Praetorian Guard, but were charged with fighting crime and fires. The vigils were given the power to protect and arrest. [4]
posse comitatus to go after wanted felons. Constables, a police officer with limited authority, assisted the sheriffs with serving summons and warrants. Because young volunteers did the policing work, there were several problems, such as corruption and drunkenness. Victims who had the means to hire private police or bodyguards to so for protection, but unfortunately, that meant those who were poor, had neither help nor protection. [5]
1. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier.
2. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier.
3. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier.
4. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier.
5. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier.
6.02: Sir Robert Peel
th century in England heavily influenced the history of policing in the United States. Not only did policing radically change for the first time in over six centuries, but the father of modern policing, Sir Robert Peel, set up the stage for what is known today as modern policing. Sir Robert Peel, the British Home Secretary, coined the term ‘bobbies’ as a nickname for cops and he believed policing needed to be restructured. In 1829 he passed the Metropolitan Police Act, which created the first British police force and what the 21st century knows for today’s modern-day police. [1]
Sir Robert Peel
1. Cordner, G., Novak, K., Roberg, R., & Smith, B., (2017). Police & Society. New York: Oxford University Press.
2. Cordner, G., Novak, K., Roberg, R., & Smith, B., (2017). Police & Society. New York: Oxford University Press.
6.03: Policing Eras
Political Era, the Reform Era, and the Community Era. Through the microscope of seven topical areas, listed below, an understanding of how policing evolved begins.
1. Authorization
2. Function
3. Organization
4. Demand
5. Environment
6. Tactics
7. Outcomes
[1]
Political Era: The political era is often referred to as the first era of policing in the United States and it began around the 1840s with the creation of the first bona fide police agencies in America [2]
• New York Police Founded 1845
• Chicago Police Founded 1855
• Philadelphia Police Founded 1751
• Jacksonville Police Founded 1822
• Indianapolis Police Founded 1850’s
• Detroit Police Founded 1865
• Portland Police Founded 1870
• Eugene Police Founded 1863
• Jackson County, Oregon Police Founded 1852
London Strike: Truck Under Protection
NOTE: the word policeman/men is utilized in this era/context, because during this time period, women were not allowed in the profession, and if they were accepted it was under a microscopic view of certain stereotypical matronly duties to be performed). In fact, Black policemen were rarely hired. Black policemen made their way into policing in the late 1800s, but when the Civil Rights Act of 1875 was ruled unconstitutional, Black officers all but disappeared from policing until the 1950s.
News Box: A look at the salaries:
1957 annual wage for a police patrolman – Milwaukee Police Department: \$5,405.40
1957 Annual Report Milwaukee Police Department https://city.milwaukee.gov/ImageLibrary/Groups/…/Archive…/1957AnnualReport.pdf
News Box: 61 years later
2018 annual wage for police patrolman- Milwaukee Police Department:
\$57,291.00
Milwaukee, Wisconsin- State website city.milwaukee.gov/fpc/Jobs/Police-Officer.html
News Box: 2018 Annual wage for first step trooper- Oregon State Police: \$56,184.00
Oregon State Police- Oregon.gov website www.oregon.gov/osp/RECRUIT/Pages/salary_benefits.aspx
Reform Era: Because the Political Era of policing ended up being laced with corruption and brutality, the panacea for the negativity became the Reform Era. One police chief was largely at the forefront of this new era, Chief August Vollmer. He is considered the pioneer for police professionalism. August Vollmer was the Chief of Police in Berkeley, California (1905-1932). He had many new beliefs about policing that would forever change the world of policing:
1. Candidates who were testing to be in policing had to undergo psychological and intelligence tests
2. Detectives would utilize scientific methods in their investigations, through forensic laboratories
3. Recruits, for the first time, would attend a training academy (police did not receive any formal training prior to August Vollmer’s arrival)
4. Assisted with the development of the School of Criminology at the University of California at Berkeley
[3] He knew in order to rehabilitate offenders, police officers needed to look behind the handcuffs and start looking into the person and reason behind the behavior. [4]
“Father of modern law enforcement”
The Community Era- 1980s to 2000: In the 1960s and 1970s the crime rate double and it was a time of unrest and eye-opening policing issues. Civil rights movements spread across America and the police were on the front lines. Media coverage showed controversial contacts between white male officers and African American citizens, which further irritated race relations in policing. The U.S. Supreme Court handed down the landmark Miranda v. Arizona and Mapp v. Ohio decisions. The writing was on the wall that the policing environment had to change. The days of answering everything with bullying or police professionalism were no more. The Community Era of policing began and those in police administration hoped this new era held the answers to fixing decades-old issues. The police needed help and they would turn towards the community and its citizens for assistance.
Community Era Example
The Homeland Security Era- 2001 to Present: On September 11th, 2001, when terrorists hijacked airplanes and flew them into the World Trade Center buildings and Pentagon in the United States, a fourth era of policing, the era of Homeland Security, was said to emerge. [5] The long-lasting repercussions of this terrorist act would forever change life for Americans, but the daily activities of all policing departments. There is some debate in the field as to the order of policing eras and what they should be called. Some scholars list the policing eras as:
1. Pre-Policing Era
2. Political Era
3. Reform Era
4. Community Era
1. Political Era
2. Reform Era
3. Community Era
4. Homeland Security Era
Remembering 9/11: A Decade Later
[6]
10:28:24 a.m. on September 11th, 2001 was the precise second that photojournalist Bill Biggart took the final shot of his life. He took his last breath moments later when the North Tower of the World Trade Center collapsed upon him. Four days later, searchers found his body, his burnt-edged press cards, his three demolished cameras, six rolls of film, and one small undisturbed compact flash card carrying almost 150 digital images. It was the remains of one horrifying day and one extraordinary life. “I am certain if Bill had come home at the end of that day, he would have had many stories to tell us, as he always did. And had we asked how it really was, he would have said, ‘Take my advice, don’t stand under any tall buildings that have just been hit by airplanes.”-Wendy Doremus, wife of Bill Biggart.
Homeland Security Era Examples
1. Greene, J. R., & Mastrofsky, S. D. (Eds.) (1991). Kelling, G.L., & Moore, M. H. (1991). From political to reform to community: The evolving strategy of the police. In Community Policing: Rhetoric or Reality. New York: Paeger.
2. Oliver, W. M. (2006). The fourth era of policing: Homeland security. International Review of Law, Computers & Technology
3. Reppetto, T.A. (1978). The Blue Parade. New York: Free Press.
4. Reppetto, T.A. (1978). The Blue Parade. New York: Free Press.
5. Oliver, W. M. (2006). The fourth era of policing: Homeland security. International Review of Law, Computers & Technology.
6. Oliver, W. M. (2006). The fourth era of policing: Homeland security. International Review of Law, Computers & Technology. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/06%3A_Policing/6.01%3A_Policing_in_Ancient_Times.txt |
Learning Objectives
• Understand the various options for careers in the policing and law enforcement arena
• Discuss educational requirements are required for law enforcement positions with the federal government, state, county, municipal or city officer candidates
• Explain what a state police officer’s main objectives are
• Describe the difference between commissioned and civilian
• List several divisions that a commissioned officer can promote to
• List several departments that a civilian can work within a law enforcement type agency
• Discuss why different police departments work with each other
Critical Thinking Questions
1. What education does a candidate need for jobs in federal law enforcement?
2. What education does a candidate generally need for city or county jobs as a police officer?
3. Is there a difference between a person who is considered commissioned and a person who is considered a civilian?
4. Does every law enforcement agency have the same opportunities for advancement?
5. Why do different police departments work together?
6. Can a person be a homicide detective without being a police officer?
Southern Oregon University Criminology and Criminal Justice student Christina Richardson volunteered to try on the Oregon State Police explosive unit bomb suit at the annual Lock-In Event.
Policing Types
ODOT partnered with the Ashland Police Department to raise awareness about unlicensed movers.
Federal Level: The federal arena of law enforcement careers is broad and vast. The options are almost endless, and the rewards outweigh most of the other local agencies. However, there is a catch, which centers on education and experience. Most law enforcement-related careers in the federal arena require a bachelor’s degree, at a minimum plus three years of related full-time work experience before applying.
• A bachelor’s degree in either accounting, computer science/information technology, foreign language (only a criminal justice major if the candidate is planning on working full-time for a law enforcement agency for at least three years before applying),
• OR a JD degree from an accredited law school,
• OR a diversified bachelor’s degree AND three years of professional experience, OR a master’s degree, or Ph.D. along with two years of professional experience.
Federal job possibilities (the list is not comprehensive)
• Federal Bureau of Investigation (FBI)
• Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
• Drug Enforcement Administration (DEA)
• Secret Service
• Central Intelligence Agency (CIA)
• National Security Agency (NSA)
• United States Marshals Service (USMS)
• U.S. Park Police
• U.S. Fish and Wildlife Service (USFWS)
• Department of Justice
• Federal Bureau of Prisons
• U.S. Army Criminal Investigation Command (CID)
• U.S. Army Counter Intelligence
• Dept. of Ariculture-Office of Inspector General (USDA-OIG)
• U.S. Forest Service Law Enforcement & Investigations (USFS LEI)
• Department of Commerce-Office of Inspector General (DOC-OIG)
• Office of Security (DOC-OS)
• US Commerce Department Police
• Office of Export Enforcement (OEE)
• National Institute of Standards and Technology Police
• United States Pentagon Police
• Department of Defense-Defense Criminal Investigative Service (DCIS)
• United States Pentagon Police (USPPD)
• Department of Defense Police
• Defense Security Police
• Defense Logistic Agency Police
• United States Coast Guard (USCG)
• Plus Many More ++
State Level: State police work for a state. For example, in Oregon, the state police work for the state of Oregon and the department is Oregon State Police (OSP). In Nevada, the state police are Nevada Highway Patrol (NHP) and work for the Nevada Department of Public Safety. The commissioned (certified by the state with powers of arrest) employees are generally called troopers (a.k.a. police officers), their uniform is blue (except for California Highway Patrol who wear tan and dark brown uniforms), they wear round tipped hats, and their primary duty is to patrol the highways and interstates; however, many state police also investigate many different criminal crimes, run criminal forensic labs, along with divisions of fish and wildlife. The duties of each state agency are different and unique to each state. For example, OSP has an explosives unit (see photo below).
Oregon State Police (OSP) Trooper Greg Costanzo showing Southern Oregon University Criminology and Criminal Justice students the OSP explosive unit robot during the annual Lock-In Event.
County Level: There are 3,142 counties in the United States. [1] Each county has an elected Sheriff and deputies (a.k.a. police officers) work directly under the Sheriff. Deputies are no different from any other city police officer other than the Sheriff can be responsible for the courts and jails (a.k.a. correctional facility) in their respective county. But there are also many city police departments that are responsible for jails, so it just depends on the department.
• Jackson County Sheriff’s Office
• Josephine County Sheriff’s Office
• Douglas County Sheriff’s Office
• Deschutes County Sheriff’s Office
Jackson County Sheriff’s Office, Sgt. DiCostanzo assisting during the Southern Oregon University Criminology and Criminal Justice annual Lock-In Event (for the K-9 patrol dog demonstration). Every year the CCJ Department along with the CCJ Crim Club puts on the Lock-In Event (February or March). During this event law enforcement agencies across the state participate and assist with spreading the word about law enforcement. For one afternoon students learn about such programs as: K-9 patrol dogs, eplosives unit, defensive tactics, MILO (police officer simulator training), CSI, SWAT, DUI, and parole/probation. Students at SOU can enroll for 1 credit for this one day class and other students in the community can attend as well. Don’t miss the Lock-In event if you are interested in law enforcement or in understanding the various facets of law enforcement.
A Deputy monitors Pleasant Creek Road in the early morning adjacent to the Garner Complex. Credit: Facebook – Jackson County Sheriff’s Office – Oregon
Municipal/City Level: Municipal/City police work under a municipality or city. If a city has a government, i.e., mayor and city council members and a municipal code (misdemeanor laws for the city), then the city can have city police. If a person works for a city, the designator is a police officer. Some cities have a connected jail (a.k.a. correction or detention facility), while others are operated through the Sheriff and the county.
• Ashland Police Department
• Talent Police Department
• Phoenix Police Department
• Medford Police Department
• Central Point Police Department
• Eagle Point Police Department
CCJ students in the CCJ 387 Law Enforcement Test Prep Class take a field trip to Medford Police Department, where Sgt. Budreau gives instructions to Officer Josephson on how to properly pull the dummy during the ORPAT test.
Learn More about every law enforcement agency in the U.S.
Miscellaneous Policing Jobs: There are many police jobs that may fall under the jurisdiction of the federal government, state, county, or city or they are civilian positions (see below):
• Bailiff for a Court
• Animal Control or Animal Cruelty Investigator
• Computer Forensics
• Correctional Counselor
• Court Clerk or Court Reporter
• Criminologist
• Private Investigator
• Criminal Justice Administration
• Crime Prevention Specialist
• Protection Officer
• Forensic Accountant, Anthropoligist, Artist, Hypnotists, Nurse, Pathologist, Psychologist, Scientist, Serologist, Toxicologist
• Judge
• Juvenile Probation Officer
• Latent Print Examiner
• Legal Secretary/Paralegal
• Loss Prevention Officer
• Mediator/Negotiator
• Pre-trial Officer
• Security Analyst
• Security Officer
• Social Worker
• Victims Advocate
• Plus Many More ++
Becoming an Officer Example
Divisions within Each Agency: Law enforcement agencies, whether they are federal, county, state, or municipal/city, generally have jobs available within two major areas: 1- Commissioned 2- Civilian. Commissioned is a term that describes an employee that has been through police training is certified as a police officer and has arresting powers in the state. Civilian is a term that describes an employee who has not been through police training and does not have arresting powers.
Jackson County Sheriff’s Office demonstrates K-9 patrol procedures during the annual Lock-In Event at Southern Oregon University. During this K-9 class students get to learn how patrol dogs operate and they actually get to see a bite demonstration and learn how the K-9’s are trained.
COMMISSIONED- Divisions within a Law Enforcement Agency:
• Detective/Investigations (Persons Crimes- Property Crimes-Homicide, Rape, Robbery, Burglary, Auto Theft, DUII, Domestic Violence)
• Motors
• Narcotics
• Human/Sex Trafficking
• VICE
• NCrime Scene Investigation (CSI)
• SWAT
• K-9 (patrol, drug, and search & rescue dogs)
• Crisis Negotiator
• Mounted Unit (horses)
• Air Unit
• Training/Range Master
• Academy/Tac Officer
• Bike Patrol
• Recruiting
• Internal Affairs
• Public Information Officer
• Gangs
• Search & Rescue
• Forest and Fish & Wildlife
• Marine
• Various Area Task Force (usually made up of various law enforcement agencies in the area- to sometimes include federal agencies too)
• Plus Many More ++
CIVILIAN- Divisions within a Law Enforcement Agency:
• Dispatch/911 Operator
• Records
• Crime Analysis
• Forensic Unit/CSI
• Training
• Fleet Management
• Support/Facilities
• Human Resources
• Operations Support Unit
• Recruitment Coordinator
• Volunteer Coordinator
• Administrative Support
• Plus Many More ++
Students at Southern Oregon University with a major in Criminology and Criminal Justice take the CCJ 321 CSI and CCJ 462 Forensic Criminal Investigation classes and practice crime scene investigation skills for a future career as a Crime Scene Investigator
Contact with Outside Agencies: It takes a team to accomplish policing. One federal, state, county, or city police agency cannot do it all alone. In order to succeed the agencies must work together. Whether a narcotics division works with the ATF or an entire SWAT team comprised of officers from various city and county departments, the team concept in policing is unwavering.
Medford Police, Ashland Police, Central Point Police, Jackson County Sheriff’s Office, Oregon State Police, Jackson County Community Corrections, Federal Bureau of Investigation, Homeland Security Investigations Division, and the Oregon Army National Guard. Not only does the job get done more efficiently and more effectively but also the communication that occurs when nine different agencies converge is awe-inspiring.
In the News: MADGE is proactive in gang intelligence and gang prevention. In 2015, MADGE and Medford Police Department investigated 247 gang-related crimes; a strong majority of these crimes were graffiti cases. With the continued help of CSO Todd Sales, this graffiti is removed or painted over with the assistance of youth offenders completing their community service hours, for their part in graffiti. In 2015 there was a 140% increase in gang-related aggravated assault cases, from 5 in 2014 to 12 in 2015. Current numbers of documented gang members have leveled off from past years. In 2015, MADGE and Medford Police have identified 315 documented gang members and associates that participate in organized crime activities. This information is compiled for the furtherance of an investigation involving organized criminal gang activities http://Madge Task Force Retrieved from http://www.ci.medford.or.us/Page.asp?NavID=2400 i City of Medford (2018, September 23). Madge Task Force Retrieved from http://www.ci.medford.or.us/Page.asp?NavID=2400
Finally, once one enters the policing field, the contacts made daily are numerous.
• Jails/Correction/Detention Facilities and Employees
• Prisons
• Prosecutors Office
• Defense Attorneys
• Judges and Lawyers
• Various Social Services
• Educational Entities
1. U.S. Department of the Interior (2018, September 23). How many countries are there in the United States. Retrieved from https://www.usgs.gov/faqs/how-many-counties-are-there-united-states. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/06%3A_Policing/6.04%3A_Levels_of_Policing_and_Role_of_Police.txt |
Learning Objectives
• Describe the parts of the written test
• Discuss why a candidate must study, study, study, for the oral board interview
• Explain the type of questions on an oral board interview
• List the different types of a physical agility test
• Explain why departments are starting to utilize the assessment center test
• Recognize why a candidate’s background is the most important part of the testing process
• Describe why candidates fear the psychological evaluation
• Understand the B-Pad Video Test
Critical Thinking Questions
1. What is on the written test?
2. How should a candidate study for the oral board interview?
3. What is the best way to prepare for the physical agility test?
4. How can a candidate prepare for an assessment center?
5. What is the best way to start preparing for the background investigation and interview?
6. Does the psychological evaluation only check if a candidate is psycho or crazy?
History of Recruitment and Hiring
Recruitment and Hiring Example
The Law Enforcement Testing Preparation (LET Prep)
Written Test -LET Prep
• Reading Comprehension
• Vocabulary
• Spelling and Grammar
• Observation/Memory
• Deductive Reasoning/Inductive Reasoning
• Spatial Orientation
• Math
• Essay/Incident Report Writing/Written Communication
• Analytical Ability
Hiring Our Heroes
Senior Airman Alfonzsa Jackson of the 127th Maintenance Squadron speaks with Trooper Walter Crider of the Michigan State Police during the Hiring Our Heroes job fair at Selfridge Air National Guard Base, Mich., May. 18, 2013. Jackson, a six-year member of the Air National Guard and recently a member of the 127th MXS Aerospace Ground Equipment crew, attended the job fair to explore possible career opportunities in law enforcement. More than 300 were in attendance visiting with representatives of more than 50 employers. (U.S. Air National Guard photo by TSgt. David Kujawa.)
Physical Agility Test- LET Prep
• Part One- Mobility Run: 1235 Foot Obstacle Run Where the Candidate Demonstrates Mobility, Agility, Flexibility, Power, and General Physical Endurance
• Part Two- Push Activity, Controlled Falls, Pull Activity
• Part Three- ‘Dummy’ Drag, 165-pound ‘Dummy’ is Drug 25 Feet
During the CCJ 387 Law Enforcement Test Prep Class, students took a field trip to Medford Police Department, where Sgt. Budreau assisted the students with the various portions of the ORPAT.
• A description of a ‘dummy’ suspect is given (this ‘dummy’ just committed a crime)
• The candidate runs through various obstacles; four-foot cyclone fence jump, window crawl through, one-hundred to three-hundred yard dash, and six-foot fence jump
• The candidate picks the suspect ‘dummy’ out of a lineup and drags the one-hundred+ pound suspect ‘dummy’ twenty+ feet
• Push-ups: a certain number, in a specified amount of time
• Sit-ups: a certain number, in a specified amount of time
• Pull-ups: a certain number, in a specified amount of time
• Two-mile run: in a specified amount of time (times are dependent on sex and age of candidate)
Oral Board Interview- LET Prep
• Tell us about yourself?
• Why do you want to be a police officer?
• What have you done to prepare for the job?
Paul Donaldson, right, Tallahassee Police Department policeman, speaks to Pamela Cherry and Toccora Ferguson, contract custodians, during the Veterans career fair Oct. 19, 2017, at Moody Air Force Base, Ga. Over 55 potential employers were present to network with attendees, compete for hiring opportunities and schedule interviews
Oral Board Story
Assessment Center/B-Pad- LET Prep
Hiring Example
Background Investigation-LET Prep
Psychological Evaluation- LET Prep
Medical Examination- LET Prep
• Blood/urine/hair drug tests
• Hearing test
• Eye examination
• Lung capacity
• EKG
• Treadmill stress test
• Chest X-Ray
• Cholesterol test
• Various other blood tests
Chief or Sheriff Interview- LET Prep
Photos above, from left to right: Medford Police Department patrol vehicle, Jackson County Sheriff’s Office K-9 patrol vehicle, and Medford Police Department BearCat SWAT vehicle. Law Enforcement agencies across Oregon participate in the Annual Lock-In Event. The above vehicles parked these vehicles for viewing at Lock-In.
Mentoring and Retaining
6.06: Recruitment and Hiring Websites for Future Careers
FBI Past Use Drug Policy
CIA
Secret Service
DEA
trooper with the oregon state police:
State Departments Recruitment and Hiring Websites
Oregon State Police
the jackson county sherrif’s office:
County Departments Recruitment and Hiring Websites
Jackson County Sheriff’s Office
the deschutes county sheriff’s office:
Deschutes County Sheriff’s Office
the medford police department:
City Departments Recruitment and Hiring Websites
Medford Police Department
portland police bureau:
Portland Police Bureau | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/06%3A_Policing/6.05%3A_Recruitment_and_Hiring_in_Policing.txt |
Learning Objectives
• Discuss the different corruption types in policing
• Explain the difference between a meat eater and a grass eater
• List the different ways an officer engages in noble-cause corruption
• Describe how a police officer uses stereotyping on the job
• Discuss the importance of having a reliable internal affairs division/bureau
• Explain why excessive use of force is difficult to quantify
Critical Thinking Questions
1. How are grass eaters and meat eaters different?
2. What is noble cause corruption?
3. Why are there misunderstandings of police accountability?
4. What are the functions of an internal affairs division/bureau?
5. What happens if a police department shows a pattern of excessive use of force?
Corruption Types
Grass Eaters
meat eaters’and ‘grass eaters’ after an exhaustive investigation into New York Police Department corruption. Police officers that were grass eaters accepted benefits. Whether it was a free coffee at the local coffee shop, fifty percent off lunch, or free bottled water from the local convenience store, these cops would take the freebie and not attempt to do the right thing by explaining why they cannot accept the benefit and then pay for the benefit. By accepting benefits, the officer was, in turn, agreeing that whoever gave the benefit, i.e., coffee, or lunch, etc., was to receive something in return. What if the coffee shop wanted the officer to patrol their shop every morning between the busy hours of six and seven a.m.? Would that be fair to other coffee shop owners that did not give free coffee to the officer? [1]
Meat Eaters
Noble Cause Corruption
noble-cause is the goal that most officers have to make the world a better and safer place to live. “I know it sounds corny as hell, but I really thought I could help people. I wanted to do some good in the world, you know? That’s what every cop answered when asked why he became a police officer. [2]
1. “Forget everything you learned in training (school), I’ll show you how we really do it out here.”This what an officer often first hears from a TO (training officer). The statement is only superficially about the lack of utility of higher education. What it is actually about is loyalty and the importance of protecting the local group of officers with whom the officer works.
2. Mama Rosa. It looks like a free meal. This is not to test willingness to graft, but whether an officer is going to be loyal to other officers in the squad. It also serves to put officers together out of the station house.
3. Loyalty Back-up. Here, an officer is tested to see if he or she will back up other officers. This is more involved because officers may have to ‘testify’ (give false testimony), dropsy (remove drugs from a suspect during a pat-down and then discover them in plain sight on the ground), the shake (similar to dropsy, only conducted during vehicle stops), or stiffing-in a call. These are like NC (noble-cause) actions, and may indeed by NC actions, but their purpose is to establish loyalty.
4. Routine NC (Noble-Cause) Actions Against Citizens. Magic pencil skills increase penalties by shifting the crime upwards. Protect fellow officers with fictitious chargers. Construct probable cause. Illegal searches of vulnerable citizens.
I am the Law. This is the belief that emerges over time, in which officers view what they do as the right thing to do. This is the practical outcome of the old adage ‘power corrupts, and absolute power corrupts absolutely.’ A police officer does not have absolute power, but he or she has the backing of the legal system in almost all circumstances. Behavior can become violent, as with the Rampart CRASH unit.” [3]
1. Caldero, M. A., Dailey, J. D., & Withrow, B. L. (2018). Police Ethics: The Corruption of Noble Cause (4th ed.). New York, NY, USA: Routledge/Taylor and Francis.
2. Baker, M. (1985). Cops: Their lives in their own words. New York: Pocket Books.
3. Withrow, B.L., Dailey, J.D., & Caldero, M.A. (2018). Police ethics: The corruption of noble cause. New York: Routledge.
6.08: Current Issues- Police Shootings
[1]
In the News: Michael Brown- Ferguson Missouri – Officer Involved Shooting
Ferguson Police Department Michael Brown Crime Scene
In the News: Officers that utilize deadly force (such as a police shooting) once the investigaiton is completed are required to go through a grand jury or coroner’s inquest (depending on the state). This process is similar to any criminal trial. If the jury finds that the officer was NOT justified (in their decision to use deadly force) that officer is generally fired by their police department and then can face murder or manslaughter charges. For example: Chicago police officer found guilty of murder https://www.cnn.com/videos/us/2018/09/05/jason-van-dyke-trial-orig-bk.cnn
1. Department of Justice. (2015). Department of Justice report regarding the criminal investigation into the shooting death of Michael Brown by Ferguson, Missouri police Officer Darren Wilson. Washington, DC: Department of Justice.
6.12: Current Issues- Internal Affairs and Discipline
[1]
Discipline
When an Officer Does Something Illegal Example
1. Goldstein, H. (1977). Policing a free society. Cambridge, MA: Ballinger.
6.13: Current Issues- Body Cameras
Police Body Cameras: What Do You See Exercise
• First, go to the above link and complete the activity. Be as honest with yourself as possible.
• Second, after the videos and this experiment, has your view of policing and the role of video changed? Do you think body cameras are worth the expense or could we do without? What are the pros and cons?
6.14: Myth- Police Only Write Speeding Tickets to Harass Citizens and it is Entrapment.
[1]
1. Road Safety Facts. (2018). Retrieved from https://www.asirt.org/safe-travel/road-safety-facts/ | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/06%3A_Policing/6.07%3A_Police_Misconduct_Accountability_and_Corruption.txt |
jurisdiction. As you read this chapter, pay attention to the context when you see the word “court” because it is used in a variety of ways. “Court” can mean a building—it is short for “courthouse” (for example, “he went to the court”); one judge (for example, “the trial court decided in his favor”); a group of judges (for example, “the Supreme Court unanimously upheld the conviction”), or an institution/process generally (for example, “courts hopefully resolve disputes in an even-handed manner”). Courts (the institution and processes) determine both the facts of a crime (did the defendant do the crime?) and also the legal sufficiency of the criminal charge (can the government prove it?). Courts ensure that criminal defendants are provided due process of law, or the procedures used to convict the defendant are fair. Courts are possibly more important in criminal cases than in civil cases because, in civil matters, the parties have the option of settling their disputes outside of the court system, but all criminal prosecutions must be funneled through the criminal courts.
dual court system, the structure of typical state court systems and the federal court system. This chapter explores the differences between a trial court and an appellate court, and you will learn how trial judges and juries decide (determine the outcome of) a case by applying the legal standards to the facts presented during trial and how appellate judges decide if the case was rightly decided after examining the trial record for legal error. Appellate courts make known their decisions known through their written opinions, and this chapter introduces the types of opinions and rulings of appellate courts.
courtroom workgroup. You will become familiar with who the players are during each of these steps of the process.
7.02: Jurisdiction
jurisdiction. Jurisdiction refers to the legal authority to hear and decide a case (legal suit).
Jurisdiction Based on the Function of the Court
Trial Courts versus Appellate Courts
Jurisdiction Based on Subject Matter
“The [subject matter] jurisdictional distinction . . . tends to be utilized primarily in distinguishing between different trial courts. Appellate courts ordinarily can hear all types of cases, although there are several states that have separate appellate courts for criminal and civil appeals. At the trial level, most states have established one or more specialized courts to deal with particular legal fields. The most common areas delegated to specialized courts are wills and estates (assigned to courts commonly known as probate . . . courts), divorce, adoption or other aspects of family law (family or domestic relations courts), and actions based on the English law of equity (chancery courts). The federal system also includes specialized courts for such areas as customs and patents. While significant, the specialized courts represent only a small portion of all trial courts. Most trial courts are not limited to a particular subject but may deal with all fields. Such trial courts are commonly described as having general jurisdiction since they cover the general (i.e., non-specialized) areas of law. Criminal cases traditionally are assigned to courts with general jurisdiction.” [1]
Jurisdiction Based on the Seriousness of the Case
courts of limited jurisdiction only have authority to try infractions, violations, and petty crimes (misdemeanors) whereas other trial courts, called courts of general jurisdiction, have authority to try serious crimes (felonies) as well as minor crimes and offenses.
Jurisdiction Based on the Court’s Authority over the Parties to the Case
Jurisdiction based on State and Federal Autonomy (Geography)
1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/07%3A_Courts/7.01%3A_Introduction_to_the_U.S._Court_System.txt |
Separate Federal and State Court Systems
dual court system. State crimes, created by state legislatures, are prosecuted in state courts which are concerned primarily with the applying state law. Federal crimes, created by Congress, are prosecuted in the federal courts which are concerned primarily with applying federal law. As discussed below, it is possible for a case to move from the state system to the federal system when a defendant challenges the conviction on direct appeal through a writ of certiorari, or when the defendant challenges the conditions of confinement through a writ of habeas corpus.
Dual Court System Structure
Highest Appellate Court U.S. Supreme Court (Justices) (NoteCourt also has original/trial court jurisdiction in rare cases) (Note: Court will also review petitions for writ of certiorari from State Supreme Court cases). State Supreme Court (Justices)
Intermediate Appellate Court U.S. Circuit Court of Appeals (Judges) State Appellate Court (e.g., Oregon Court of Appeals) (Judges)
Trial Court of General Jurisdiction U.S. District Court (Judges) (Note: this court will review petitions for writs of habeas corpus from federal and state court prisoners) Circuit Court, Commonwealth Court, District Court, Superior Court (Judges)
Trial Court of Limited Jurisdiction U.S. Magistrate Courts (Magistrate Judges) District Court, Justice of the Peace, Municipal Courts (Judges, Magistrates, Justices of the Peace)
The Federal Court System
[1] The lower federal court system has been expanded over the years, such as when Congress created the separate appellate courts in 1891.
View the authorized federal judgeships at http://www.uscourts.gov/sites/default/files/allauth.pdf
Trace the history of the federal courts at www.fjc.gov/history/timeline/8276
Trace the history of the subject matter jurisdiction of the federal courts here www.fjc.gov/history/timeline/8271
View cases that shaped the roles of the federal courts at www.fjc.gov/history/timeline/8271
Trace the administration of the federal courts at www.fjc.gov/history/timeline/8286
United States Supreme Court
en banc, as one panel, together with their clerks and administrative staff, make up the Supreme Court. [View the biographies of the current U.S. Supreme Court Justices here: www.supremecourt.gov/about/biographies.aspx]. The Court’s decisions have the broadest impact because they govern both the state and federal judicial system. Additionally, this Court influences federal criminal law because it supervises the activities of the lower federal courts. The nine justices have the final word in determining what the U.S. Constitution permits and prohibits, and it is most influential when interpreting the U.S. Constitution. Associate Justice of the Supreme Court, Robert H. Jackson stated in Brown v. Allen, 344 U.S. 433, 450 (1953), “We are not final because we are infallible, but we are infallible only because we are final.” Although it is commonly thought that the U.S. Supreme Court has the final say, this is not one hundred percent accurate. After the Court has read written appellate briefs and listened to oral arguments, it will “decide” the case. However, it frequently refers or sends, the case back to the state’s supreme court for them to determine what their own state constitution holds. Similarly, as long as the Court has interpreted a statute and not the constitution, Congress can always enact a new statute which modifies or nullifies the Court’s holding.
Writs of Certiorari and the Rule of Four
petition for the writ of certiorari. Four justices must agree to accept and review a case, and this only happens in roughly 10% of the cases filed. (This is known as the rule of four.) Once accepted, the Court schedules and hears oral arguments on the case, then delivers written opinions. Over the past ten years, approximately 8,000 petitions for writ of certiorari are filed annually. It is difficult to guess which cases the court will accept for review. However, a common reason the court accepts to review a case is that the federal circuits courts have reached conflicting results on important issues presented in the case.
Take a virtual tour of the U.S. Supreme Court building: https://www.oyez.org/tour
The United States Supreme Court Building
[2]
Take a tour of the U.S. Supreme Court with CNN: https://www.youtube.com/watch?v=Unyswl36q8w
Original (Trial Court) Jurisdiction of the Supreme Court: A Rarity
original jurisdiction, and it does so in a few important situations, such as when one state sues another state. The U.S. Constitution, Art. III, §2, sets forth the jurisdiction of the Court. It states,
United States Courts of Appeal
U.S. Court of International Trade and the U.S. Court of Federal Claims. The smallest circuit is the First Circuit with six judgeships, and the largest court is the Ninth Circuit, with 29 judgeships. Appeals court panels consist of three judges. The court will occasionally convene en banc and only after a party who has lost in front of the three-judge panel requests review. Because the Circuit Courts are appellate courts which review trial court records, they do not conduct trials and, thus, they do not use a jury.
Click on this link to see the geographical jurisdiction of the U.S. Courts of Appeals: http://www.uscourts.gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf
United States District Courts
Article III courts, are the main trial courts in the federal court system. Congress first created these U.S. District Courts in the Judiciary Act of 1789. Now, ninety-four U.S. District Courts, located in the states and four territories, handle prosecutions for violations of federal statutes. Each state has at least one district, and larger states have up to four districts. Each district court is described by reference to the state or geographical segment of the state in which it is located (for example, the U.S. District Court for the Northern District of California). The district courts have jurisdiction over all prosecutions brought under federal criminal law and all civil suits brought under federal statutes. A criminal trial in the district court is presided over by a judge who is appointed for life by the president with the consent of the Senate. Trials in these courts may be jury trials.
Link to a number of cases filed in U.S. District Courts http://www.uscourts.gov/federal-judicial-caseload-statistics-2018-tables
United States Magistrate Courts
courts of limited jurisdiction in the federal court system, meaning that these legislatively-created courts do not have full judicial power. Congress first created the U.S. Magistrate Courts with the Federal Magistrate Act of 1968. Under the Act, federal magistrate judges assist district court judges by conducting pretrial proceedings, such as setting bail, issuing warrants, and conducting trials of federal misdemeanor crimes. There are more than five hundred Magistrate Judges who disposed of over one million matters.
In the News: www.uscourts.gov/sites/default/files/data_tables/jb_s17_0930.2017.pdf)
Article I Courts” as they owe their existence to an act of Congress, not the Constitution. Unlike Article III judges who hold lifetime appointments, Magistrate Judges, formerly referred to as “Magistrates” before the Judicial Improvement Act which took effect December 1, 1990, are appointed for eight-year terms.
For a comprehensive review of the U.S. Magistrate Courts and U.S. Magistrate Judges see: www.fedbar.org/PDFs/A-Guide-to-the-Federal-Magistrate-Judge-System
Court Assignment
en banc after a 2-1 panel decision finding Brendan Dassey’s confession was inadmissible.
http://involuntary.http://www.abajournal.com/news/article/en_banc_7th_circuit_reinstates_brendan_dasseys_conviction_in_making_a_murde?icn=most_read
1. (The Judiciary Act of 1789 (Ch. 20, 1 Stat 73)
2. Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 45). Belmont, CA: Cengage. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/07%3A_Courts/7.03%3A_Structure_of_the_Courts-_The_Dual_Court_and_Federal_Court_System.txt |
State Court Systems
court of last resort, generally referred to as the Supreme Court. Some states court systems are streamlined, and some are complex, with most states fall between the two extremes.
Hierarchy of State Courts
“When the specialized courts are put to one side, we find that a judicial system typically has three or possibly four levels of courts. This will be the hierarchy commonly applicable to criminal cases.
At the bottom level in the typical hierarchy will be the magistrate court. Judges on that level will try minor civil and criminal cases. They will also have some preliminary functions in the more serious felony cases that will eventually be tried in the general trial court. Thus a person arrested on a felony charge initially will be brought before a magistrate who will inform the arrestee of the charge against him, set bail, and screen the prosecution’s case to ensure that it is sufficient to send on to the general trial court.
At the next court level is the general trial court, which will try all major civil and criminal cases. While this court is predominantly a trial court, it also serves as an appellate court for the minor cases tired in the magistrate court. Thus, if a defendant is convicted on a misdemeanor charge in a magistrate court, his natural route of appeal is to the general trial court as the next highest court. The appellate review in the general trial court will take a special form where the magistrate court is one described as a court “not of record.” In most instances, however, the general trial court will review the record in the magistrate court for possible error in the same way that the appellate court at the next tier will review the trial decisions of the general trial court in major cases.
The court at the next level may be either the first of two or the only general appellate court in the judicial hierarchy. In almost half of the states and the federal system, there are two appellate tiers. The first appellate court, which would be at the third level in the hierarchy, is commonly described as the intermediate appellate court. The next level of appellate court is the appellate court of last resort; it is the highest court to which a case can ordinarily be taken. These highest appellate courts frequently are titled, “supreme courts.” . . . Where a judicial system has two tiers of appellate courts, the supreme court will be at the fourth level of the hierarchy. In those states that have only one tier, there is no intermediate appellate court. The supreme court is the court at the third level of the hierarchy.
In most jurisdictions, the losing party at trial is given an absolute right to one level of appellate review, but any subsequent reviews by a higher appellate court are at the discretion of that higher court. Thus, in a system that has no intermediate appellate court, a defendant convicted of a felony in a general trial court has an absolute right to have his conviction reviewed by the next highest court, the supreme court. In a system that has an intermediate appellate court, the felony defendant’s absolute right to review extends only to that intermediate court. If that court should decide the case against him, the defendant can ask the supreme court to review his case, but it need do so only at its discretion. The application requesting such discretionary review is called a petition for certiorari. If the court decides to review the case, it issues a writ of certiorari directing that the record in the case be sent to it by the intermediate appellate court. Those supreme courts having discretionary appellate jurisdiction commonly refuse to grant most petitions for certiorari, limiting their review to the most important cases. Consequently, even where a state judicial hierarchy has four rather than three levels, most civil or criminal cases will not get beyond the third level.
Our description of the hierarchy of the courts has assumed so far that all trial courts are “courts of record,” and appellate review accordingly will be on the record. There is one major exception to that assumption which we should note—the court “not of record.” The division between courts of record and courts not of the record originally was drawn when many trial courts lacked the mechanical capacity to maintain a complete record of their proceedings. If a court could provide such a record, the losing party could readily gain an appellate review of the trial decision before the next highest court. If the record was not available, however, the higher court had no way of examining the proceedings below to determine if an error was committed. Without a court of record, a second look at the case could only be provided by the higher court giving the case de novo consideration (i.e., fresh consideration). This was done by conducting a new trial called a trial de novo. The trial de novo was not in fact appellate review, since it did not review the decision below, but proceeded as if the case had begun in the higher court. The trial de novo simply was a substitute for appellate review, necessitated by the absence of a record.” [2]
1. Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 43). Belmont, CA: Cengage.
2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 38-39). West Publishing Company. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/07%3A_Courts/7.04%3A_Structure_of_the_Courts-_State_Courts.txt |
principle of orality requires that the trier of fact (generally the jury, but the judge when the defendant waives a jury trial) consider only the evidence that was developed, presented, and received into the record during the trial. As such, jurors should only make their decision based upon the testimony they heard at trial in addition to the documents and physical evidence introduced and admitted by the court. The principle of orality would be violated if, for example, during deliberations, the jury searched the Internet to find information on the defendant or witnesses. Similarly, if the police question the defendant and write a report, the jury cannot consider the contents of the report unless it has been offered in a way that complies with the rules of evidence and the court has received it during the trial. The principle of orality distinguishes the functions of a trial court, developing the evidence, and the function of the appellate courts, reviewing the record for legal error.
adversarial system generally followed by the United States and the inquisitorial system generally followed in most other countries. Frequently in civil law countries (for example, most European nations), the police, prosecutors, or investigating magistrates question witnesses prior to trial and write summaries of their statements called a dossier. In determining guilt, the trier of fact is presented with just the summaries of the witness statements. The trial in civil law countries is less about the presentation of evidence establishing the defendant’s guilt and more about the defendant’s presentation of mitigation evidence which assists the court in giving an appropriate sentence, or sanction.
7.07: Federal Appellate Review of State Cases
Michigan v. Long, 463 U.S. 1032, at 1040-1041 (1983), explained when the Court will “weigh in” on a state court matter. [1] It held,
“When . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. In this way, both justice and judicial administration will be greatly improved. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.
This approach obviates [does away with] in most instances the need to examine state law in order to decide the nature of the state court decision, and will at the same time avoid the danger of our rendering advisory opinions. It also avoids the unsatisfactory and intrusive practice of requiring state courts to clarify their decisions to the satisfaction of this Court. We believe that such an approach will provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law. ‘It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action’ (Citations omitted).”
1. Michigan v. Long, 463 U.S. 1032, at 1040-1041 (1983) | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/07%3A_Courts/7.05%3A_American_Trial_Courts_and_the_Principle_of_Orality.txt |
Felony Justice: An organizational analysis of criminal courts, James Eisenstein and Herbert Jacob, coined the term “courtroom workgroup.” [1] They specifically referred to the cooperative working relationship between prosecutors, defense attorneys, and judges in working together (as opposed to an adversarial relationship that the public might expect) to efficiently resolve most of the cases in the criminal courts. This chapter more generally uses the term to include all the individuals working in the criminal courts—judges, attorneys, and the variety of court staff.
accusatory phase (the pre-trial phase) and adjudicatory phase (the trial phase) of the criminal justice process include individuals who regularly work together in the trial courts. The prosecutor files the accusatory instrument called either an information or an indictment, and represents the state in plea bargaining, on pretrial motions, during the trial, and in the sentencing phase. The defense attorney represents the defendant after charges have been filed, through the pre-trial process, in a trial, and during sentencing, and maybe on the appeal as well. Judges, aided by several court personnel, conduct the pretrial, trial, and sentencing hearings. Prosecutors, defense counsel, and judges perform different roles, but all are concerned with the judicial process and the interpretation of the law. These law professionals are graduates of law schools and have passed the bar examination establishing their knowledge of the law and their ability to do legal analysis. As persons admitted by the state or federal bar associations to the practice of law, they are subject to the same legal codes of professional responsibility, disciplinary rules, and ethical rules and opinions for lawyers. Although the American criminal justice system is said to represent the adversarial model, the reality is that prosecutors, defense attorneys, judges and court staff work with cooperation and consensus rather than conflict. This is understandable when considering the common goal of efficient and expedition case processing and prescribed and agreed upon rules for achieving those goals.
Judicial Clerk, Law Clerk, and Judicial Assistants
swear in the witnesses, or administer the oath to the witness, take notes cataloging the recordings, etc. In some jurisdictions, the law clerks are lawyers who have just completed law school and may have already passed the bar exam. In other jurisdictions, the law clerks are not legally trained but may have specialized paralegal training or legal assistant training.
Local and State Trial Court Administrators
Indigency Verification Officers
Bailiffs
Jury Clerk
Court Clerks and Staff
Release Assistance Officers
Scheduling Clerk
taken under advisement. (Note that trial judges can either decide “from the bench”, meaning they will rule immediately on the issues before them during the hearing, or after taking the case under advisement, meaning they will rule through a written decision/opinion letter after spending time researching the law, reviewing the parties written pleadings, and considering the oral arguments).
1. Eisentstein, J., & Jacob, H. (1977). Felony Justice: An organizational analysis of criminal courts. Boston, MA: Little Brown and Co.
2. Spohn, C. & Hemmens, C. (2012) Courts: A Text/Reader (2nd ed.). Los Angeles, CA: SAGE Publications, Inc.
3. Berkson, L.C. (2005). Judicial selection in the United States: A special report. In E.E. Slotnick (Ed.) Judicial Politics: Readings from Judicature (3d ed., pp. 50). Washington, DC: CQ Press
4. Atkins B.M. & Glick, H.R. (1974). Formal judicial recruitment and state supreme court decisions. American Politics Quarterly, 2, 427-449
5. Dubois, P.L. (1986), Accountability, independence, and the selection of state judges: The role of popular judicial elections. Southwestern Law Journal, 40, 31-52
6. Nagel, S. (1975). Improving the legal process. Lexington, MA: Lexington Books. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/07%3A_Courts/7.08%3A_Courtroom_Players-_Judges_and_Court_Staff.txt |
“The qualities of a good prosecutor are . . . [elusive and . . . impossible to define]. …
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. …
Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done. . . .
There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases because no prosecutor can even investigate all of the cases in which he receives complaints. If the department of justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.
… A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility” [1]
State Prosecuting Attorneys
Federal Prosecuting Attorneys
Selection and Qualifications of Prosecutors
Prosecutor’s Function
[2].
diversions (pre-trial contracts between the government and the defendant which divert cases out of the system), work with law enforcement officers from other states who seek to extradite offenders, prepare the accusation to present to grand jury, call witnesses and present a prima facia case (present enough evidence which, when unrebutted by the defendant, shows that the defendant committed the crime) at a preliminary hearing, represent that state at arraignments and status conferences, conduct the trial, and, upon conviction, make sentencing recommendations while representing the state at the sentencing hearing.
www.americanbar.org/groups/c...bleofContents/
1. Associate Justice Robert Jackson while he was the U.S. Attorney General addressed the Conference of United States Attorneys (federal prosecutors) in Washington, D.C. on April 1, 1940
2. Spohn, C. & Hemmens, C. (2012) Courts: A Text/Reader (2nd ed.). Los Angeles, CA: SAGE Publications, Inc. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/07%3A_Courts/7.09%3A_Courtroom_Players-_Prosecutors.txt |
A Brief History of Punishment
In the News: One of the more frequently used statistics in the news about crime is homicides in the United States. Often, you will hear something about a homicide rate or the number of homicides in a state, or a city for a particular year. An interesting clarifier about this number is that it typically does not include a number of deaths in prison. Deaths in prison occur every year, yet these are not normally counted in any statistic. In 2014, there were approximately 3,927 deaths that occurred in prisons in the United States. There are a variety of reasons for these deaths, to include homicide. For more information on this, look up – Mortality in Correctional Institutions (MCI). This is also formerly known as Deaths in Custody Reporting Program (DCRP). The Bureau of Justice Statistics houses and publishes data on this phenomenon. Additionally, this is a voluntary reporting structure, which may actually not capture all deaths that occur in prison. https://www.bjs.gov/index.cfm?ty=dcdetail&iid=243
Philosophies of Punishment Example
8.02: Retribution
Retribution
Retribution, arguably the oldest of the ideologies/philosophies of punishment, is the only backward-looking philosophy of punishment. That is, the primary goal of retribution (in its original form) is to ensure that punishments are proportionate to the seriousness of the crimes committed, regardless of the individual differences between offenders, other than mens rea and an understanding of moral culpability. Thus, retribution focuses on the past offense, rather than the offender. This can be phrased as “a balance of justice for past harm.” People committing the same crime should receive a punishment of the same type and duration that balances out the crime that was committed. The term-backward-looking means that the punishment does not address anything in the future, only for the past harm done.
Hammurabi Code
8.03: Deterrence
Deterrence
recidivism) through some type of change, while the backward-looking approach is solely for the punishment of the offender’s past actions. This change in how we view punishment is a large shift that has ripples in culture, the politic of the times, and even religion. Moving many eras forward from Hammurabi, deterrence is the next major punishment ideology. Rooted in the concepts of classical criminology, deterrence is designed to punish current behavior(s), but also ward off future behaviors through sanctions or threats of sanctions. Moreover, it can be focused on a group or on one individual. Thus, the basic concept of deterrence is “the reduction of offending (and future offending) through the sanction or threat of sanction.”
Specific deterrence is geared towards trying to teach the individual offender a lesson. It is meant to better that individual so they will not recidivate. By punishing the offender (or threatening a sanction), it is assumed they will not commit a crime again. It is this point that makes deterrence a forward-looking theory of punishment. General deterrence runs along the same track as specific deterrence. However, general deterrence differs by when one person offends, the punishment received is going to be the same for all. In this way, the group doing the punishing attempts to relay the message of future events to the masses. If someone commits this act, they will be punished. This is part of the core design for deterrence.
certainty, celerity, and severity, in incremental steps. First, by making certain, or at least making the public think that their offenses are not going to go unpunished, then there will be a deterrent factor. As Beccaria relates, this is the most important of these three elements within deterrence theory. The celerity, or swiftness of punishment, is a secondary factor in rationalizing for the offender. If they know how swift the punishment will be, they will not offend. These concepts were cornerstones to the works of Cesare Beccaria (1738-1794), an Italian philosopher in the latter half of the 18th century. Beccaria’s works were profound, and many of his concepts helped to shape the U.S. Bill of Rights. He is also considered the Father of the Classical School of Criminology, and a prominent figure in penology. According to Beccaria, “For punishment to attain its end, the evil which it inflicts has only to exceed the advantage derivable from the crime… All beyond this is superfluous and for that reason tyrannical.” [1]
Cesare_Beccaria_1738-1794.jpg
https://www.ncjrs.gov/pdffiles1/nij/247350.pdf
1. Beccaria, 1764/1963, 43. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/08%3A_Corrections/8.01%3A_A_Brief_History_of_The_Philosophies_of_Punishment.txt |
Rehabilitation
rehabilitation is not brand new. Additionally, it is the only one of the four main ideologies that most accurately attempts to address all three goals of corrections, which are:
Elmira Reformatory
[1] This was the spark that many needed to turn toward the more punitive ideologies that we have so far discussed. However, it did help some to ask more detailed questions about why rehabilitation was not working. Additionally, it helped researchers to ask more critical questions about measurement, how to more properly evaluate rehabilitation and to understand the difference of what does not work versus what does work for offenders. These principles of effective intervention become the cornerstone of modern rehabilitation.
Understanding Risk and Needs in Rehabilitation
[2] Additionally, thousands of offenders have been assessed on these items, which has helped to develop evidence-based rehabilitation practices. These are efforts that are based on empirical data about offenders. When these criminogenic needs are addressed, higher-risk offenders demonstrate positive reductions in their risk to offend.
https://www.crimesolutions.gov/. This resource provides invaluable information for individuals making decisions on what works for offenders and is based on empirical studies of hundreds of different approaches.
1. Martinson, R. (1974). What works? Questions and answers about prison reform. Public Interest 35, 22-54.
2. Gendreau, P. (1996). Principles of effective intervention with offenders. Choosing correctional options that work: Defining the demand and evaluating the supply, 117-130, Alan T Harland, ed. -- See NCJ-158983) https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=158988
8.06: Prisons and Jails
Learning Objectives
• Understand the emergence of prisons and jails in the United States
• Recognize the different types of jails
• Recognize the different types of prisons
Critical Thinking Questions
1. Explain the operational process of most jails in the United States today. Where does this come from historically?
2. How does the difference in the type of jail influence how the jail is managed?
3. Explain the similarities and differences in the two early types of prisons in the United States.
4. Explain the current operational process of most State prisons in the United States today. Where does this come from historically?
8.07: A Brief History of Prisons and Jails
The Growth of Jails in the United States
jail (GOAL – old English spelling) is yet another concept that we have carried with us from Western Europe (England, etc…) when the United States was first forming. Spawning from the County-level establishment and management of jails in England, these have largely been run by County Sheriffs in the United States, ever since we began to have them. They have had various names, depending on their function and use, such as Bridewells, and Workhouses. Pictured below is what is commonly accepted as the first “built” structure to house individuals that have been processed through the courts, the Walnut Street Jail. Opening around 1790, this facility housed both jail inmates, and at some points in time convicted offenders.
Goal_in_Walnut_Street_Philadelphia_Birch’s_views_plate_24_(cropped).jpg
Walnut Street Prison Historical Marker
Table 2-1 Jails in the United States
This is due to a variety of reasons, to include: inclusion or exclusion of Youth Facilities, Native American Facilities, Privately Owned Facilities, and reporting structures (who reports a jail in a given year). Based on these fluctuations, it is difficult to get an exact count of jails each year. However, it appears that there are roughly 3,300 jails in the United States today.
1. Cahalan, M. W., & Parsons, L. A. (1986). Historical corrections statistics in the United States, 1850-1984. U.S. Department of Justice.https://www.bjs.gov/content/pub/pdf/hcsus5084.pdf
2. Harrison, P. M., & Beck, A. J. (2005). Prisons and jail inmates at midyear, 2005.BJS Bulletin. https://www.bjs.gov/content/pub/pdf/pjim05.pdf | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/08%3A_Corrections/8.05%3A_Rehabilitation.txt |
Older generation jails are jails that are typically linear in design, with cell doors separating rooms or sections down long corridors. Many jails operate with this design. Newer generation jails are more podular in design, where multiple cells face a central area. Additionally, when these podular designs are used, a direct supervision approach is also often used. Direct supervision is where there are no particular barriers between the deputies and the detainees within a facility. For example, the image below depicts what a direct supervision jail may look like.
New Generation Jail Design
Older Generation Jail Design
1. Minton, T. D. (2012). Jail inmates at midyear, statistical tables. U.S. Department of Justice.https://www.bjs.gov/content/pub/pdf/jim11st.pdf
8.09: Who Goes to Jail
• Felons and Misdemeanants
• First time and repeat offenders
• Those awaiting arraignment or trial
• Accused and convicted
• Parolees stepping down from prison
• Juveniles pending transfer
• Those with mental illness awaiting transfer
• Chronic alcoholics and Drug abusers
• Those held for the military
• Those held for federal agencies
• Protective custody
• Witnesses
• Those in contempt of court
• Persons awaiting transfer to state, federal or other local authorities
• Temporarily detained persons
[1]
Snapshot of Individuals in Jail
Who goes to jail?
1. Wagner, P., & Sawyer, W. (2018). Mass incarceration: The whole pie 2018. Available at the Prison Policy Organization https://www.prisonpolicy.org/reports/pie2018.html
8.10: Growth of Prisons in the United States
Eastern State Penitentiary Design
The State Penitentiary for the Eastern District of Pennsylvania, Lithograph by P.S: Duval and Co., 1855.
Prison Growth in the United States
Proliferation1900-2000
8.11: Types of Prisons
State Prisons
https://www.oregon.gov/doc/Pages/default.aspx. California has the California Department of Corrections, and Secretary Diaz is the head of this organization (2018 to present). CDCR oversees 34 adult institutions. For more information about CDCR, see https://www.cdcr.ca.gov/.
Federal Prisons
FBOP Regional Map
BOP Regional map
Private Prisons
[1] The GEO Group, the other primary private prison company runs 136 correctional, detention, or reentry facilities. [2] Pictured below, roughly half of the 50 States in America use private prison industry prisons.
States Using Private Prison Industry
Private Prison State Map
1. See Core Civic facilities map: http://www.corecivic.com/facilities
2. See Geo Group facilities map: www.geogroup.com/LOCATIONS
8.12: Prison Levels
Alcatraz
Alcatraz
Alcatraz in the Bay against the Backdrop of San Francisco
Alcatraz in the Bay against the Backdrop of San Francisco
Minimum – These prisons usually have dorm style housing, typically for only non-violent offenders, with shorter sentences (or sentence lengths left after downgrading). The fencing or perimeters of these types of facilities are usually low levels. The BOP generally refers to these as camps.
Low – These types of prisons are similar to minimums, to include some kind of dormitory style housing. However, there are normally more serious or disruptive offenders in these types of prisons. The fencing around the perimeter of these is generally higher, and maybe even a double fence. Offenders are typically in these institutions for longer periods.
Medium – Here, there is a transition from dorm-style housing to cells. Normally, there are two persons to a cell, but not always. The perimeter is usually a high fence, and may even have barbed wire, or there are large walls surrounding the institution. Freedom of movement within the institution is reduced, seen as privilege. Inmates here typically longer sentences, and include violence convictions.
High or Maximum – Similar to medium, but most of these offenders have violence convictions, and longer sentences, including life. Many of these individuals will spend most of their day in a cell, and more often than not, these are single occupancy.
Super-Max or Administrative Control – Depending on what the mission is for that particular prison, the prisoners in these institutions could be vastly different. For instance, if it is a facility that is designated for mental health, it would not operate the same as one that is a super-max. The super-max facilities would have individuals in their cells for almost all of every day. Many services would come to them at their cell, instead of them going somewhere (i.e., sick call), the cells would almost all be single occupancy. Visitation of these inmates would be much more regimented and monitored. Most of these individuals are also classified as extreme threats to the successful operations of the prison and are long-term inmates (LWOP – life without the possibility of Parole).
Intake Centers – An intake center can be part of an institution, running alongside the normal operations of an institution. The purpose of an intake center is to classify the offenders coming from the various courts in the jurisdiction, post felony conviction. The offender has an initial classification, where they are getting assigned to one of the jurisdiction’s prisons, based on a point system for that agency. This assessment is looking at priors, prior and current violence, escape risk, and potential self-harm. For example, Coffee Creek Correctional Facility in Oregon is their intake of prison. It also is the women’s prison for Oregon. Inmates come to CCCF and are assessed, then shipped off to one of the other institutions in Oregon (or placed in a level there if female). Inmates will gain later classifications at their destination prison, in terms of work assignments, mental health status, cell assignments, and other items.
8.13: Who Goes to Prison
People Incarcerated in the U.S.
People Incarcerated in the U.S.
US State and Federal Prison population | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/08%3A_Corrections/8.08%3A_Types_of_Jails.txt |
Diversion is a process whereby an individual, at some stage, is diverted from continuing on in the formal justice process. Diversion can come as early as initial contact with a law enforcement officer. This discretion that the officer uses could be considered a diversion, as the officer is saying that this individual does not need to continue on the justice path. It could be a verbal warning, or a warning ticket, or just a decision by the officer to not start a formal ticket (citation).
Different Diversion Points in the System
9.02: Intermediate Sanctions
[1] Because of the sheer volume of these intermediate sanctions, it is important to put it in the perspective of jails and prisons. Below is a graphic to demonstrate how much we are talking about.
U.S. Correctional Control
National correctional control, 2018
What Would You Do?
1. Bureau of Justice Statistics. (2018). Probation and Parole in the United States, 2016. Available at: https://www.bjs.gov/content/pub/pdf/ppus16_sum.pdf
9.03: Probation
https://probation.smcgov.org/history-probation.
John Augustus
Probation is a form of a suspended sentence, in that the jail or prison sentence of the convicted offender is resuspended, for the privilege of serving conditions of supervision in the community. Conditions of probation often include: report to a probation officer, submit random drug screens, do not consort with known felons, pay court costs, restitution, and damages, attend AA or NA courses, as well as other conditions. Probation lengths vary greatly, as do the conditions of probation place on an individual. Almost all people on probation will have at least one condition of probation. Some have many conditions, depending on the seriousness of the conviction, while others are just a blanket condition that is imposed on all in that jurisdiction, or for that conviction type. Juvenile Probation Departments were within all States in the 1920s, and by the middle of the 1950s, all States had adult probation.
Probation Officers
criminaljusticeofficehours.libsyn.com/dr-brian-lovins-probation-coaches?fbclid=IwAR2pHROGAPpm09-PFqVzFG10ItFhCi1huFItChe65Ew7-gXDB0OSacCliQs
Individuals on Probation
Use of Probation in the U.S.
Correctional Control by Type 1975-2016
Probation Success
[1] listed the successful completion rate at about 56%. In years past, this number has been reported higher, upwards of 65%, depending on the years 2008-2013. [2] There are a host of reasons listed for unsuccessful completion, which include: incarcerated on a new sentence/charge, or placement for the current sentence/charge, absconding (fleeing jurisdiction), discharged to warrant or detainer, other unsatisfactory reason, death, or some other unknown or not reported reason. Unsuccessful completion can produce some different responses but can include a concept called tourniquet sentencing. Tourniquet sentencing is where the restrictions of a level of sanction are increased, due to non-compliance, in order to force compliance. If an individual on probation is not adhering to the conditions of probation, a PO can recommend a probation revocation hearing. This bench hearing can lead to an informal admonishment by a judge, an increase in the sanctions or sanction lengths, an increased level of control (moving from regular probation to intensive supervised probation), even up to placement in a secure facility (jail or prison), all depending on the infraction of the condition of probation that has been violated. Many go from regular probation to ISP, in an effort to force compliance through increased monitoring.
Intensive Supervised Probation
Intensive Supervision Probation (ISP) began in the late 1950s, and early 1960s, in California. Their basic premise was to allow caseworkers (POs) to have smaller caseloads and increase the level of treatment across offenders. As stated, many promised multiple success measures. However, if an individual who was revoked because of a technical violation due to an increase in control, they were not seen as a failure. Rather, they were seen as a success because of the way the public was served by the recidivism. However, this went directly against the notion that ISPs could save money. Because of these problems, the earlier forms of ISPs may have become less popular. In the 1980s, a newer model of the ISP was created in Georgia. More emphasis was placed on the control aspect rather than on treatment. Further, less emphasis was placed on the reduction of money saved.
ISP Success
[3] They examined the effectiveness of ISPs in reducing recidivism and saving costs. In a random sample of 14 cities across 9 States, they evaluated the reductions of recidivism against a sample of regular probationers. Their findings suggested that there were higher amounts of technical violations, which were probably substance violations, but there were no significant differences between control-centered ISPs and regular probation, as far as new arrests. Moreover, when looking at outcomes over 3 years, they found that recidivism rates were slightly higher for these ISPs (39%), vs. regular probation (33%). Also, there were no substantive cost savings. Other studies have produced similar findings as to the effects of non-treatment oriented ISPs. While these findings might be better than prison recidivism rates, there were no reductions in prison overcrowding, which was also one of the intents of ISP.
1. Kaeble, D. (2018). Probation and Parole in the United States, 2013. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, April 2018, NCJ 251148 https://www.bjs.gov/content/pub/pdf/ppus13.pdf
2. Huberman, E. J., & Bonczar, T. P. (2014). Probation and parole in the United States, 2013. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, October 2014, NCJ 248029 https://www.bjs.gov/content/pub/pdf/ppus13.pdf
3. Petersilia, J. R., & Deschenes, E. (2004). Evaluating intensive supervision probation/parole (ISP) for drug offenders. Santa Monica, CA: RAND Corporation. https://www.rand.org/pubs/reprints/RP168.html | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/09%3A_Community_Corrections/9.01%3A_Diversion.txt |
Boot Camp Success
[1] For prosocial individuals, structure and discipline can be advantageous. However, when individuals of differing levels of antisocial attitudes, antisocial associates, antisocial temperament (personality), and antisocial (criminal history) are all mixed together, the reductions in recidivism generally do not appear. As we have discussed in the section on rehabilitation, criminogenic needs are often not addressed within boot camps. Thus, boot camps fail to reduce recidivism for several reasons. First, since boot camps fail to address criminogenic needs, they tend not to be effective. Second, because of the lower admission requirements of boot camps, individuals are generally “lumped” together into a start date within a boot camp. Therefore, high-risk offenders and low-risk offenders are placed together, building a cohesive group. Thus, lower-risk offenders gain antisocial associates that are high-risk. Finally, when boot camps emphasize the increase of physicality, rather than behavioral change, it generally does not reduce aggressive behavior (antisocial personality & recidivism). A recent meta-analysis (a study of studies of a topic) found this to be the case. [2] For more information on the status of boot camps, please see https://www.crimesolutions.gov/PracticeDetails.aspx?ID=5 .
Platoon Formation in a Boot Camp
Moriah
1. Parent, D. G. (2018). Research for practice: Correctional Boot Camps: Lessons from a decade of research. U.S. Department of Justice, Office of Justice Programs, National Institute of Justice (June 3rd), NCJ 197018 https://www.ncjrs.gov/pdffiles1/nij/197018.pdf
2. Wilson, D. B., MacKenzie, D. L., & Mitchell, F. N. (2005). Effects of correctional boot camps on offending. Campbell Systematic Reviews, 6, 1-42.
9.06: Halfway Houses
Halfway House Success
9.07: House Arrest
House Arrest Success
9.09: Restorative Justice
Restorative Justice Processes
Restorative Justice
Restorative Justice Success
9.10: Parole
Oregon Sentencing Guidelines
Oregon Sentencing Guidelines Grid
[2]. As discretionary parole went down, mandatory parole went up. This is logical though, as once they had passed a date for discretionary parole, the next date would be an inmate’s mandatory parole date. As you can see from the image below, these proportions of releases switched in the 1990s.
Parole Releases
Parole Releases
Parole Success
1. Hughes, W., & Beck (2001).
Trends in State Parole, 1990-2000. Bureau of Justice Statistics Special Report. ODJ.
2. Hughes, T., Wilson, D., & Beck, A. (2001). Trends in State parole, 1990-2000. Washington, DC: Bureau of Justice Statistics, Special Report, NCJ 184735 https://www.bjs.gov/content/pub/pdf/tsp00.pdf .
9.11: Current Issues in Corrections
Learning Objectives
• Understand what are some current issues within the world of corrections
• Recognize the different concepts of how we view these issues
• Understand how punishment has increased and what are the outcomes of large scale incarceration
Critical Thinking Questions
1. What are some of the reasons we have so many people in jails and prisons?
2. What impacts these levels of people under corrections?
3. Can we solve these issues?
4. What has been our approach to this point? Has it worked?
9.12: Current Issues in Corrections- Mass Incarceration
International Imprisonment Rates
Mass Increase in Incarceration
Mass Increase in Incarceration
Full Jails?
This story is more common than you think. It happens to tens of thousands of individuals a year. What should the community do?
9.13: Current Issues in Corrections- War on Drugs and Gangs
Transcarceration
Get Tough Policies
[1] This policy increased sentence lengths for 40 felonies, which included life imprisonment. Perhaps the largest 3 strikes policy was in 1994, in California, with Proposition 184, commonly called the Three Strikes and You’re Out policy. It mandated a minimum of 25 years of prison for individuals committing 3 felonies. What made this policy more pervasive than others was the way in which it could be applied. If a person had two previous strikes for violent, or serious felonies (not necessarily violent), any new felony was life imprisonment, with a minimum of 25 years. For a more detailed view of this policy, see https://lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171025_Drug-Mand-Min.pdf
[2]
Federal Drug Inmates
Federal Drug Inmates
1. Wright, P. (1995). Three strikes racks ‘em up. Journal of Prisoners on Prisons, 6(2), 3-6. https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=162918
2. Meierhoefer, B. (1992). The general effect of mandatory minimum prison terms: A longitudinal study of federal sentences imposed. Federal Judicial Center. www.fjc.gov/sites/default/files/2012/GenEffMM.pdf
9.14: Current Issues in Corrections- Aging and Overcrowding
[1]
Aging Prisoners
Aging Prisoners
[2]
Overcrowding
Rates of Correctional Control
Aging Prisoner Graphic
[3] report details the volume of individuals with each state. Please take a moment to review the last portion of this report to see how many are under correctional control, found here: https://www.prisonpolicy.org/reports/correctionalcontrol2018.html#statedata
[4] This similar issue was presented in California over ten years ago. A three-judge panel ruled with the prisoners, citing the need for California to reduce its prison population to a level where the individuals could effectively be managed, and cared for [emphasis on the latter]. Dealing with overcrowding is a constant issue for most prisons and jails. Some have resolved to release more out into the community at a higher volume, on parole or just release. However, this too has its own set of problems, as reentry is now becoming the current issue within corrections.
1. McKillop, M., & Boucher, A. (2018). Aging prison populations drive up costs. Older individuals have more chronic illnesses and other ailments that necessitate greater spending. Available at: https://www.pewtrusts.org/en/research-and-analysis/articles/2018/02/20/aging-prison-populations-drive-up-costs
2. McKillop, M., & Boucher, A. (2018). Aging prison populations drive up costs. Older individuals have more chronic illnesses and other ailments that necessitate greater spending. Available at: https://www.pewtrusts.org/en/research-and-analysis/articles/2018/02/20/aging-prison-populations-drive-up-costs
3. Jones, A. (2018). Correctional control 2018: Incarceration and supervision by state Prison Policy Initiative. Available at: https://www.prisonpolicy.org/reports/correctionalcontrol2018.html#statedata .
4. Estelle v. Gamble, 429 U.S. 97 (1976). | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/09%3A_Community_Corrections/9.04%3A_Boot_Camps_and_Shock_Incarceration.txt |
[1] Sensationalized media exposure in the 1990s facilitated the public’s fear of youth crime, which resulted in get tough legislation and a perceived need to “do something” about juvenile crime. [2] The juvenile court was criticized for its inability to control youth crime and, as a result, policies shifted from rehabilitation to punishment of juvenile offenders. [3] This punishment included an increase in the number of states that adopted new legislation or revised their previous statutes to facilitate the transfer of youthful offenders from juvenile court to criminal court to be tried as adults. [4]
Ted Talks: Jeffrey Brown An architect of the “Boston miracle,” Rev. Jeffrey Brown started out as a bewildered young pastor watching his Boston neighborhood fall apart around him, as drugs and gang violence took hold of the kids on the streets. The first step to recovery: Listen to those kids don’t just preach to them and help them reduce violence in their own neighborhoods. It’s a powerful talk about listening to make a change. https://www.ted.com/talks/jeffrey_brown_how_we_cut_youth_violence_in_boston_by_79_percent?language=en#t-24954
1. Benekos, P., & Merlo, A. (2004). Controversies in juvenile justice and delinquency. Anderson Publishing.
2. Myers, D.L. (2001). Excluding violent youth from the juvenile court: The effectiveness of legislative waiver.New York: LBF Scholarly Press.
3. Feld, B.C. (2001). Race, youth violence, and the changing jurisprudence of waiver. Behavioral Sciences & the Law, 19(1), 3-22.
4. Snyder, H. N., & Sickmund, M. (2006). Juvenile offenders and victims: 2006 National Report. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention
10.02: Juvenile Justice
[1] Unfortunately, sensationalized media exposure of violent youth has led to exaggerated public fear of juvenile crime, get tough legislation, and a perceived need to “do something” about juvenile crime. [2] This punitive position is nothing new. Before the inception of the juvenile justice system a mere 100 years ago, youth were treated the same as adults. They were considered culpable for their actions and housed alongside adult offenders in jails and prisons. Recent research has utilized neuroscience to support the need to treat juveniles differently because they are different. The sections of the brain that govern characteristics associated with moral culpability do not stop maturing until the early 20s. Therefore, it is assumed that someone under age 20, such as a juvenile delinquent, has an underdeveloped brain.
Ted Talks: Stephen Case The youth crime ‘problem’ is examined as a social construction and moral panic created by institutions in Western societies. The talk traces the evolution of youth crime into a phenomenon persistently misrepresented as an escalating social epidemic. The developmental life stages of ‘childhood’ and ‘adolescence’ as inventions are explored, highlighting differences between young people and adults. In this way, ‘youth crime’ can be identified as a social problem requiring distinct responses. A running theme is a child as a source of adult anxiety and fear, motivating societies to create structures, processes, theories, and images of youth crime that punish lawbreakers. The ‘solution’ is the ‘positive youth justice’ model. Children should not be punished as if they are adults but their criminal behavior should be seen as a normal part of growing up. Instead, they should be worked with to meet their needs, to embrace their human rights and to promote their life chances. https://www.youtube.com/watch?v=QYWPyiZIpV8
1. Cox, S. M., Conrad, J. J., & Allen, J. M. (2003). Juvenile justice: A guide to theory and practice. McGraw-Hill Humanities, Social Sciences & World Languages.
2. Benekos, P., & Merlo, A. (2004). Controversies in juvenile justice and delinquency. Anderson Publishing. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/10%3A_Juvenile_Justice/10.01%3A_Youth_Crime.txt |
parens patriae originated in the 12th century with the King of England and literally means “the father of the country.” Applied to juvenile matters, parens patriae means the king is responsible for and in charge of everything involving youth. [1] Parens patriae was often used by royalty in England from their homes in the name of the king. Children were often seen as property and were thus subject to the wishes of the king or his agents. [2] This was especially relevant when they violated the law.
[3]
parens patriae had a substantial influence on events in the United States, such as the child-saving movement, houses of refuge, and reform schools. The persistent doctrine of parens patraie can be seen evolving from “king as a father” to a more general ideology, that of the state “acting in the best interest of the child.” Subsequent matters involving youth revolve around this notion of acting in the best interest of the child, whether children were taken away from wayward parents, sent to reform schools for vagrancy, or even held in institutions until they read the age of majority, or 18 years old. The idea is that the state is acting in their best interest, protecting the youth from growing up to be ill-prepared members of society. Thus, the courts are intervening for the youth’s own good.
house of refuge in New York City in 1825. These were urban establishment used to corral youth who were roaming the street unsupervised or who had been referred by the courts. [4]
parens patriea, many of the parents of these youth were not involved in the placement of their children in these houses. The case of Ex Parte Crouse is an example. [5]
Reform Schools: The 1850s ushered in the development of reform schools or institutions used for the housing of delinquent and dependent children. The schools were structured around a school schedule rather than the work hours that defined the workhouses and houses of refuge. Many reform schools operated like a cottage system where the youth were divided into “families” with cottage parents who oversaw the day to day running of the family, discipline of the youth, and schooling. The structure is still used in some youth correction institutions today, however, back in the nineteenth century, children were often exploited for labor and many of the school de-emphasis formal education. [6] Additionally, the emphasis of the reform school was on the strength of the family and they believed that by reinserting a strong family presence in the lives of the youth, they would be deterred from further criminal pursuits. [7] Regardless of the lack of evaluations as to the effectiveness of these institutions, the popularity of reformatories continued to grow.
parens patriae. However, in 1870, a boy named Daniel Turner was considered a “misfortunate”, or someone who was in danger of becoming delinquent because his family was poor and unable to care for him. He was remanded to a Chicago house of refuge for vagrancy, not a delinquent act. His father filed a writ of habeas corpus and the court ruled that the state has no power to imprison a child, who has committed no crime, on the mere allegation that he is “ destitute of proper parental care, and is growing up in mendicancy, ignorance, idleness, and vice.” [8] People Ex Rel. O’connell v. Turner, 55 Ill. 280 (Ill. 1870). This effectively closed the reform schools in Illinois since they could no longer house non-criminal children. This case challenged the practice of parens patriae and ruled that the state can only take control of children if the parents are completely and utterly unfit and/or the child had committed some act of “gross misconduct.” [9]
Child Saving Movement: By the end of the ninetieth century, cities were experiencing the effects of three major things: industrialization, urbanization, and immigration. Industrialization refers to the shift in work from agricultural jobs to more manufacturing work. This led to a greater number of people moving from the country to the cities, and the cities increasing exponentially in population without the infrastructure to support the increase. Immigration refers to the internal migration of people in America and the external movement of people from other countries. Within America, people were moving from the southern states (remember, this is not long after the end of the Civil War, which ended in 1865) and immigrating from European countries such as Ireland (the potato famine lasted from 1845-1854 and killed an estimated 1.5 million people). Millions of Germans and Asians also immigrated to America during this time lured by Midwest farmlands and the California Goldrush. [10]
[11] Nonetheless, the child-saving movement emerged during this time in an effort to change the way the state was dealing with dependent, neglected, and delinquent children. The child savers were women from middle and upper-class backgrounds.
[12]
Creation of the Juvenile Court
, Commonwealth v. Fisher Commonwealth v. Fisher, 213 Pennsylvania 48 (1905) , conveyed the legal authority of the new juvenile court under parens patriae:
"To save a child from becoming a criminal, or from continuing in a career of crime, . . . the legislatures surely may provide for the salvation of such a child, if its parents or guardians be unable or unwilling to do so, by bringing it into one of the courts of the state without any process at all, for the purpose of subjecting it to the state's guardianship and protection."
1. Merlo, A., & Benekos, P. (2019). The Juvenile Justice System, Delinquency, Processing, and the Law (9th ed.) Pearson.
2. Shoemaker, D. (2018). Juvenile Delinquency (3rd ed.). Rowman & Littlefield.
3. Merlo, A., & Benekos, P. (2019). The Juvenile Justice System, Delinquency, Processing, and the Law (9th ed.). Pearson.
4. Merlo, A., & Benekos, P. 2019. The Juvenile Justice System, Delinquency, Processing, and the Law (9th ed.). Pearson.
5. Ex Parte Crouse (1839)
6. Mennel, R.M. (1973). Thorns & Thistles: Juvenile Delinquents in the United States from 1825–1940. Hanover, NH: University Press of New England.
7. Shoemaker, D. (2018). Juvenile Delinquency (3rd ed.). Rowman & Littlefield.
8. People Ex Rel. O’connell v. Turner, 55 Ill. 280 (Ill. 1870).
9. Fox, S.J. (1970). Juvenile Justice Reform: An Historical Perspective. Stanford Law Review, 22:1187–1239
10. History (n.d.). US immigration before 1965. https://www.history.com/topics/u-s-i...on-before-1965
11. Feld, B.C. (1999). Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.
12. Platt, A. (1977). The Child Savers: The Invention of Delinquency (2nd ed., pp.83). Chicago: University of Chicago Press. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/10%3A_Juvenile_Justice/10.03%3A_History_of_the_Juvenile_Justice_System.txt |
[1] The juvenile court oversees cases for youth between the ages of 7 and 17. Seven is considered the lower limit of the reaches or protections of the juvenile justice system, while 17 is the upper limit. At 18, youth are considered adults and are tried under the laws of the adult criminal justice system. However, some states have differing upper age limits. For example, in Oregon, the Oregon Youth Authority houses youth until the age of 25. Other states have similar provisions and although the lower limit is seven years of age, most states do not intervene in cases under nine.
Youth Processing Ages
Podcast: Caught
1. Feld, B.C. (1999). Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.
2. Feld, B.C. (1999). Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.
3. Feld, B.C. (1999). Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.
10.05: Juvenile Justice Process
[1] Some states with very specific and real gang problems devised targeted gang suppression laws and legislation, while other states did not. The fear of youth crime led states to create mandatory minimum legislation (like Measure 11 laws in Oregon), waiver and transfer laws, and zero tolerance policies.
[2] Due to the loose definitions of parens patrea and the court’s attempt to act in the best interest of the child, after World War II, the juvenile court was criticized for disregarding due process.
Due process refers to the procedural rights established in the Constitution, especially the Bill of Rights. It includes rights such as the right to legal counsel, right to call witnesses, and right to be notified of charges (which will be revisited in In re Gault). The original juvenile court did not implement due process rights because it was intervening in the lives of youth for their own good, not in such a formalized adult way where they would need constitutional protections. However, because of the abuse of power, this changed in later decades.
1. Feld, B.C. (2003). The Politics of Race and Juvenile Justice: The ‘Due Process Revolution’ and the Conservative Reaction. Justice Quarterly 20:765-800.
2. Rubin 1985
10.06: Due Process in the Juvenile Court
Kent v. United States (1966) [1]
parens patriae philosophy of the Juvenile Court ‘is not an invitation to procedural arbitrariness.'” [2]
In re Gault (1967). [3]
In re Winship (1970) [4]
Breed v. Jones (1975) [5]
[6]
1. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045 (1966).
2. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, pp. 554-556 (1966)
3. In re Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967)
4. In re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970)
5. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779 (1975)
6. 27 Raley, Gordon. 1995. "The JJDP Act: A Second Look." Juvenile Justice Journal, 2:11–18.
10.07: The Juvenile Justice and Delinquency Prevention Act of 1974
[1] While historically, the overseeing of juvenile matters fell on the states, the JJDP Act established some oversight at the federal level.
[2] In 1992, as part of the reauthorization of JJDPA, states were encouraged to identify gaps in their ability to provide appropriate services for female juvenile delinquents (42 U.S.C. 5601; OJJDP). The federal government expected states to provide specific services for the prevention and treatment of female delinquency and prohibit gender bias in the placement, treatment, and programming of female delinquents.
Campaign for Youth Justice
1. Office of Juvenile Justice and Delinquency Prevention (1998). Juvenile female offender: A status of the state's report.
2. Office of Juvenile Justice and Delinquency Prevention (1998). Juvenile female offender: A status of the state's report. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/10%3A_Juvenile_Justice/10.04%3A_Delinquency.txt |
[1]
superpredator– youth so impulsively violent, remorseless, and have no respect for human life- led to widespread reform and more punitive approaches to juvenile crime and delinquency. This included more punitive sentences, lowering the age at which a juvenile could be tried as an adult, and loosening the provisions for trying juveniles in adult court. The motto “adult time for adult crime” drove accountability initiatives and get-tough campaigns. A youth was no longer seen as vulnerable minors in need of protection and treatment. Instead, the narrative changed and they were seen as violent monsters acting “with no conscience and no empathy”, a statement Hillary Clinton has publicly regretted saying.
Rethinking zero tolerance
Waiver and Adult Time
prosecutorial, legislative, and judicial waiver. The prosecutorial waiver also is referred to as “Direct File” and “Concurrent Jurisdiction.” With this waiver mechanism, the legislature grants a prosecutor the discretion to determine in which court to file charges against the juvenile. [2] The prosecutor, or district attorney, can choose to file charges in juvenile court or adult criminal court. This procedure does not require a transfer hearing, so the defense is not accorded the opportunity to present evidence in an attempt to avoid the transfer [3]
Legislative waiver, or statutory waiver, identifies certain offenses which have been mandated by state law to be excluded from juvenile court jurisdiction. It is utilized as a method to decrease or eliminate the discretionary powers of judges and prosecutors. For example, the number of state statutes specifies that violent felony offenses such as homicide, rape, and robbery, when committed by older adolescents, are automatically sent to adult criminal court.
In the News: Raising the Age and Raising the Bar
“Raise the Age” legislation passed in 2017, all minors on Rikers Island awaiting trial or otherwise, have to be moved out of the notorious New York City jail in October 2018. Rikers Island is famed for abuse, corruption, and violence and has begun the 10 years shut down a plan to close the scandal-ridden jail complex. The jail houses some 9,000 inmates, more than 2,000 who are juveniles. The plan is to reduce the jail population while moving the inmates to other facilities throughout New York’s boroughs.
Judicial waiver affords the juvenile court judge the authority to transfer a case to adult criminal court. [5] There are three types of judicial waiver: discretionary, presumptive, and mandatory.
discretionary (regular) transfer allows a judge to transfer a juvenile from juvenile court to adult criminal court. [6] With this type of transfer, the burden of proof rests with the state and the prosecutor must confirm that the juvenile is not amenable to treatment. As discussed previously, in Kent v. United States (383 U.S. 541, 566-67 [1966]), the Supreme Court outlined threshold criteria that must be met before a court can consider waiving a case. These waiver statutes typically include a minimum age, the specified type of offense, a sufficiently serious prior record, or a combination of the three.
Presumptive waiver shifts the burden of proof from the State to the defendant. It is presumptive because it is presumed that it will occur unless the youth can meet the burden of proof and provide a justifiable reason to remain in juvenile court. If the youth is unable to show just cause or sufficient reason why the case should be tried in juvenile court, the case will be transferred and tried in adult court.
mandatory waiver. Mandatory waiver means that a juvenile judge must automatically transfer to adult court juvenile offenders who meet certain criteria, such as age and current offense. In these cases, the role of the judge is simply to confirm that the waiver criteria are met and then to transfer the case to adult court. Mandatory waiver attempts to remove all discretionary powers from the juvenile court judge in transfer proceedings. [7]
State juvenile courts with delinquency jurisdiction handle cases in which juveniles are accused of acts that would be crimes if adults committed them.
In 45 states, the maximum age of juvenile court jurisdiction is age 17. Five states– Georgia, Michigan, Missouri, Texas, and Wisconsin–now draw the juvenile/adult line at age 16.
However, all states have transfer laws that allow or require young offenders to be prosecuted as adults for more serious offenses, regardless of their age
In addition to increasing transfer mechanisms, at least 13 states lowered the age of majority to 15, 16, and 17, which allowed the youth of these ages to be automatically tried in adult criminal courts. These were supposed to provide procedures that curbed only the worst of the worst offenders, however, these provisions increased the prosecution of all juvenile offenders and youth of color in particular.
Ted Talks: Alice Goffman In the United States, two institutions guide teenagers on the journey to adulthood: college and prison. Sociologist Alice Goffman spent six years in a troubled Philadelphia neighborhood and saw first-hand how teenagers of African-American and Latino backgrounds are funneled down the path to prison — sometimes starting with relatively minor infractions. In an impassioned talk she asks, “Why are we offering only handcuffs and jail time?” https://www.ted.com/talks/alice_goffman_college_or_prison_two_destinies_one_blatant_injustice?language=en
1. Krisberg, B., & Austin,J. (1978). History of the Control and Prevention of Juvenile Delinquency in America. In B. Krisberg & J. Austin (Eds.), The Children of Ishmael: Critical Perspective on Juvenile Justice (pp. 7-50). Palo Alto, CA: Mayfield.
2. Feld, B.C. (2001). Race, youth violence, and the changing jurisprudence of waiver. Behavioral Sciences & the Law, 19(1), 3-22.
3. Steiner, B., Hemmens, C., & Bell, V. (2006). Legislative waiver reconsidered: General deterrent effects of statutory exclusion laws enacted post-1979. Justice Quarterly, 23(1), 34-50
4. Restivo, E. (2019, Feb 14). Stop putting juveniles in solitary confinement. Daily News. www.greensburgdailynews.com/opinion/columns/stop-putting-juveniles-in-solitary-confinement/article_d438d7bc-4e3d-5a9e-97da-22706d6037c8.html
5. Hemmens, S., & Bell, C. (2006). Legislative waiver reconsidered: General deterrent effects of statutory exclusion laws enacted Post 1990. Justice Quarterly, 23(1), p34-59.
6. Sanborn, J. (2004). The adultification of youth. In P. Benekos & A. Merlo (Eds.), Controversies in juvenile justice and delinquency (pp. 143-164). Anderson Publishing.
7. Burke, A. (2016). Trends of the time. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/10%3A_Juvenile_Justice/10.08%3A_Getting_Tough-_Initiatives_for_Punishment_and_Accountability.txt |
Empirical research drives recent reform efforts. The past decade has witnessed the identification of key developmental processes associated with delinquent behavior, such as brain development research. Ergo, evidence-based practices, which utilize the scientific method to assess the effectiveness of interventions, policies, and programs. In looking at what works, what doesn’t, and what is promising, researchers and policymakers alike assess the implementation of interventions to best meet the needs of the individual youth.
Additionally, several noteworthy Supreme Court cases exemplify society’s evolving standards of decency and the treatment of youth. These key cases demonstrate a move back to rehabilitation and acknowledge the fundamental differences between children and adults.
Key Supreme Court Cases
Roper v Simmons (2005)
Roper v. Simmons). Although Christopher Simmons planned and committed a capital offense (he murdered his neighbor, Shirley Cook), the court ruled that 18 years of age is where criminal responsibility should rest. That is to say, if a child is too young to vote, sign contracts, or do a number of other things (because society deems them not responsible enough), then they are too young to receive the death penalty. The court stated,“the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be “cruel and unusual.” Simmons received life in prison. It was ruled that imposing the death penalty on a person who was under the age of 18 at the time of the crime constituted cruel and unusual punishment. At the time of the Roper v Simmons verdict, the U.S. was only one out of a handful of countries that still imposed the death penalty on juveniles (among other countries were Yemen, Saudi Arabia, and Iran).
Graham v Florida (2010)
life in prison without the possibility of parole (LWOP). This was until the 2010 case of Graham v. Florida. Terrance Graham received life in prison for a felony offense (armed burglary) when he was only 16 years old. Since Florida does not have parole, his sentence de facto became a life without the possibility of parole. The Supreme Court heard his case and ruled that it was unconstitutional to sentence a minor to life without the possibility of parole for a non-homicide offense.
Miller v Alabama (2012)
Graham v. Florida abolished life without the possibility of parole for non-homicide offenses, youth under the age of 18 were still receiving that sentence for crimes of murder. In 2012, Evan Miller was 14 years old when he killed his neighbor by severely beating him with a baseball bat while attempting to rob him. With contemporary research about brain formation and juvenile culpability, the Supreme Court ruled that youth are not as responsible as adults for their actions because their brains have not fully formed. In the majority opinion, Justice Elena Kagan wrote that “mandatory life without parole for those under age of 18 at the time of their crime violates the 8th Amendment’s prohibition on cruel and unusual punishments.” “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features – among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” Justice Kagan said. “It prevents taking into account the family and home environment that surrounds him – and from which he cannot usually extricate himself – no matter how brutal or dysfunctional.”
Montgomery v Louisiana (2016)
Montgomery v. Alabama barred mandatory life without parole sentences retroactively. This meant that all youth sentenced prior to 2012 with LWOP sentences needed to be retried. | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/10%3A_Juvenile_Justice/10.09%3A_Returning_to_Rehabilitation_in_the_Contemporary_Juvenile_Justice_System.txt |
Detention: In the first stages of the justice system, the court must decide if it will detain the youth. If a youth is detained, he/she is sent to a detention center, which is a short-term, secure facility. These are comparable to adult jails. Youth are often kept in detention facilities while waiting for disposition or transfer to another location. The average length of stay is 2-3 weeks. Factors that increase the likelihood of detention include prior offenses, age at first offense and current age, and the severity of the current offense. Research also suggests that race, gender, and socioeconomic status also play a role in deciding whether to detain a youth.
Group Homes: Group homes are long-term facilities where youth are allowed and encouraged to have extensive contact with the community. Youth attend regular school, hold jobs, take public transpiration, etc. In many group homes, youth learn independent living skills that prepare them for living on their own. These are similar to adult halfway houses.
Boot Camps and Wilderness Camps: Boot Camps are secure facilities that operate like military basic training. They focus on drills, manual labor, and physical activity. They are often punitive and overly strict. Despite popular opinion, research shows that these are ineffective for preventing future delinquency. The length of stay is generally for several weeks. On the other hand, ranch/wilderness camps are actually prosocial and preventative. These are long term residential facilities that are non-restrictive and are for youth who not require confinement. These include forestry camps and wilderness programs.
Residential Treatment Centers: RTCs are long term facilities that focus on individual treatment. They include positive peer culture, behavior modification programming, and helping youth develop healthy coping mechanisms. Many have specific targeted populations, such as kids with histories of substance abuse or issues with mental health. They are often considered medium security, and the average stay is often six months to a year.
Long-term Secure Facilities: Long term facilities are strict secure conferment. These include training schools, reformatories, and juvenile correctional facilities. These facilities are often reserved for youth who have committed serious offenses. They are similar to adult prisons but operate under a different philosophy. For example, incarcerated youth are still required to attend school, which is within the facility.
Disproportionate Minority Contact: Considerable research on disproportionate minority contact has been conducted over the past three decades. Disproportionate minority contact (DMC) “occurs when the proportion of youth of color who pass through the juvenile justice system exceeds the proportion of youth of color in the general population.” [1] It can be assessed at every stage of the juvenile justice system, from arrest to adjudication. Research shows minority youth are over-represented in arrests, sentencing, waiver, and secure placement. States receiving federal grant money are required to address DMC “regardless of whether those disparities were motivated by intentional discrimination or justified by ‘legitimate’ agency interests.” [2]
In the News: The Prison Pipeline
[3]
sites.duke.edu/education303final/an-in-depth-look-at-zero-tolerance-policies-and-racial-biases/
Conclusion
Mongomery v Louisiana in 2016, the pendulum of juvenile justice swings from a parens patriae model of protection of youth to juvenile waiver, fear of youth crime, and punishment, back to incorporating brain research in assessing rehabilitation. The juvenile justice system was designed to treat juveniles differently from adults and take their unique needs and circumstances into consideration. Youth are malleable and can change their trajectories with the right treatment and intervention at the right time.
1. Short, J., & Sharp, C. (2005). Disproportionate minority contact in the juvenile justice system. Washington, DC: Child Welfare League of America.
2. (Johnson, 2007, p. 374).
3. (Urbina, 2009, para 4).
4. Urbina, I. (2009, Oct. 1). It’s a fork, it’s a spoon, it’s a….weapon? The New York Times. https://www.nytimes.com/2009/10/12/education/12discipline.html | textbooks/workforce/Corrections/Introduction_to_the_American_Criminal_Justice_System_(Burke_et_al.)/10%3A_Juvenile_Justice/10.11%3A_Juvenile_Institutions.txt |
Case (1)
Case Cites (2)
Court: (3)
Judicial History: (4)
Facts: (5)
Issue: (6)
Holding: (7)
Reasoning: (8)
Decision: (9)
Concurrent Opinion: (10)
Dissenting Opinion: (11)
1. Case. The case identifies the parties involved in the controversy.
2. Case Cites. The citation shows where to find the case in various legal data bases such as case reporters, case digests, or through the use of legal research providers such as Lexis Nexis or Westlaw.
3. Court. This refers to the final court authority deciding the controversy.
4. Judicial History. This is the procedural judicial history of the case. It tells you which court decided what and shows how the case ended up in the final court’s authority and jurisdiction.
5. Facts. Identifies the parties in the case. It also provides a summary of the legally relevant facts explaining what occurred between the parties before the case entered into the judicial system.
6. Issue. This is the question or rule of law being decided by the courts. It is typically posed in a question format. The issue is derived from the facts specific to each case.
7. Holding. The holding answers the question posed in the issue. It is usually answered positively or negatively, “yes” or “no.”
8. Reasoning. The reasoning tells the reader why the court decided the issue the way it did. It provides the legal analysis of the legal arguments behind the case.
9. Decision. The decision of the court shows how the court disposed of the case. For example, the court can decide to sustain or reverse the decision of the lower court.
10. -11. Concurrent / Dissenting Opinion. A judge hearing a case may or may not agree with the majority of judges’ decision. If so, he may write a separate concurring opinion if he agrees with the outcome of the case but for differing reasons as to why. Or, the judge may write a dissenting opinion detailing the reasons for refusing to join in the majority opinion.
1.2: Case Brief Sample - Miranda v. Arizona
384 U.S. 436 (1966)
Court: United States Supreme Court.
Judicial History: Ernesto Miranda (D) was convicted for kidnapping, rape, and robbery by the Arizona criminal courts. D appealed to the Arizona Supreme Court but the conviction was sustained. The U.S. Supreme Court granted certiorari to determine the role police have in protecting the rights of the accused from issues arising in four different cases (Miranda v. Arizona; Vignera v. New York; Westover v. United Stated; and California v. Stewart).
Facts: D was a Mexican immigrant living in Phoenix, AZ. D had a history of mental instability and was a 9th grade drop out. D was identified as a suspect in the kidnapping and rape of an 18 year old girl. D was arrested by the Phoenix Police Department at his home and taken to the police station for questioning. D was not advised of his Constitutional guarantees of self-incrimination or to have attorney present. After two hours of police interrogation, D confessed to the crimes. D was convicted and sentenced concurrently to twenty years each. D appealed to the Arizona Supreme Court citing that his confession was not truly voluntary but the AZ Supreme Court sustained the conviction.
Issue: During custodial interrogation and before questioning, must the police (1) inform a suspect that he has a right to remain silent (2) warn him that any statements he makes may be used against him and (3) advise him that he has a right to an attorney?
Holding: Yes. Law enforcement officers must inform a person of his rights when that person is in custody and subject to an interrogation. Any incriminating statements obtained in violation of these rights are inadmissible at trial.
Reasoning: The Supreme Court scrutinized coercive conditions in which police were obtaining and introducing incriminating admissions obtained during police questioning which was in conflict with one of the Nation’s most cherished principlesthe right against self-incrimination. In order to preserve Constitutional protections guaranteed by the 5th and 6th Amendments, the Court ruled that these protections would be extended from criminal trials to custodial interrogations. Statements or confessions would not be made admissible at trial unless a suspect was informed that (1) he has a right to remain silent (2) anything he says will be used against him in court (3) he has the right to consult with a lawyer and to have that lawyer present during questioning and (4) if he cannot afford and attorney, one will be appointed to him by the court.
Decision: 5-4. Miranda’s conviction overturned and remanded back to state court.
Opinion: Chief Justice Warren, joined by Justices Black, Douglas, Brennan, and Fortas.
Dissenting Opinions: Written by Chief Justice Harlan and joined by Justices Stewart and White. These new rules do not discourage police brutality or coercion but rather negate police pressures and ultimately discourage any suspect confessions at all. Furthermore, the new rules do not discourage any officers already predisposed to corrupt practices. The court is taking a real risk with society’s welfare as it relates to crime control and engaging in hazardous experimentation.
Dissenting in Part Opinion: Written by Justice White. There is no support in the history of the protection to support the majority findings. Furthermore, the language does not allow for such a basis in common law.
Follow-Up
After Miranda’s conviction was overturned, the state court retired him. Miranda’s confession was not introduced into evidence. The prosecution relied on witness testimony and Miranda was again convicted and sentenced to 20-30 years in prison.
1.3: Case Brief Template
Case
Case Cites
Court:
Judicial History:
Facts:
Issue:
Holding:
Reasoning:
Decision:
Concurrent Opinion:
Dissenting Opinion:
2.1: Amendmant IV
Searches and Seizures
The purpose of the 4th Amendment is to deny the national government the authority to make general searches and seizures of property. A major issue over the years has been the interpretation of "unreasonable" searches and seizures. The rules can be complicated. They also change often, but the general principle is that searches are valid methods of enforcing law and order, but unreasonable searches are prohibited.
The Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Over the years, the Supreme Court has interpreted the 4th Amendment to allow the police to search the following:
• The person arrested
• Things in plain view of the accused person
• Places or things that the arrested person could touch or reach or are otherwise in the person's "immediate control"
• Property where there is strong suspicion that a person could be in immediate danger | textbooks/workforce/Corrections/Principles_and_Procedures_of_the_Justice_System_(Alvarez)/01%3A_Briefing_Cases/1.1%3A_Case_Brief_Nomenclature.txt |
Street encounters between citizens and police officers are incredibly rich in diversity.1
There are probably no encounters on the streets (or anywhere else) that are more “rich in diversity” than those daily exchanges between officers and the public. After all, they run the gamut from “wholly friendly exchanges of pleasantries” to “hostile confrontations of armed men involving arrests, or injuries, or loss of life.”2
Situated between these two extremes—but much closer to the “wholly friendly exchange” end—is a type of encounter known as an investigative contact or “consensual encounter.” Simply put, a contact occurs when an officer, lacking grounds to detain a certain suspect, attempts to confirm or dispel his suspicions by asking him questions and maybe seeking consent to search his person or possessions. As the Supreme Court explained:
Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage— provided they do not induce cooperation by coercive means.3
One of the interesting things about contacts is that they usually pose a dilemma for both the suspect and the officer. For the suspect (assuming he’s guilty) the last person on earth he wants to chat with is someone who carries handcuffs. But he also knows that his refusal to cooperate, or maybe even a hesitation, might be interpreted as confirmation that he is guilty. So he will ordinarily play along for a while and see how things go, maybe try to outwit the officer or at least make up a story that is not an obvious crock.
Meanwhile, the officer knows that, while his badge might provide some “psychological inducement,”4 he cannot “throw his weight around.”5 Thus he must employ restraint and resourcefulness, all the while keeping in mind that the encounter will instantly become a de facto detention if it crosses the line between voluntariness and compulsion.6 So it often happens that both the suspect and the officer are role-playing—and they both know that the other knows it.
For officers, however, acting skills and resourcefulness are not enough. As one court put it, they must also have been “carefully schooled” in certain legal rules—the “do’s and don’ts” of police contacts7—so as to prevent these encounters from inadvertently becoming de facto detentions, at least until they develop grounds to detain or arrest. What are these “do’s and don’ts”? That is the subject of this article. To set the stage, it should be noted that, whenever an officer interacts with anyone in his official capacity, the law will classify the interaction as an arrest, detention, or contact. Arrests and detentions differ “markedly”8 from contacts because they constitute Fourth Amendment “seizures” which require some level of suspicion; i.e., probable cause or reasonable suspicion.9 So, as long as the encounter remains merely a contact, the Fourth Amendment and its various restrictions simply do not apply.
One other thing. Officers will sometimes contact a suspect at his home. Known as “knock and talks,” these encounters are subject to the same rules as contacts that occur in public places. But because they are viewed as more of an intrusion, there are some additional restrictions that we will cover in the article “Knock and Talks” that begins below.
The Test: “Free to Terminate”
A police-suspect encounter will be deemed a contact if a reasonable person in the suspect’s position would have “felt free to decline the officers’ requests or otherwise terminate the encounter.”10 In other words, “So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.”11 Later we will discuss the many circumstances that are relevant in making this determination. But first it will be helpful to discuss some important general principles.
REASONABLE “INNOCENT” PERSON
We begin with a principle that might seem peculiar at first: The fictitious “reasonable person” is “innocent” of the crime under investigation. What this means is that the circumstances are viewed through the eyes of a person who, although not necessarily a pillar of the community, is not currently worried about being arrested.12 Said the Third Circuit, “[W]hat a guilty [suspect] would feel and how he would react are irrelevant to our analysis because the reasonable person test presupposes an innocent person.”13
The reason this is significant is that a person who was guilty of the crime under investigation would necessarilyviewtheofficers’words and actions much differently—much more ominously—than an innocent person, and might therefore erroneously conclude that any perceived restriction on his freedom was an indication that he had been detained. For example, in In re Kemonte H. the court ruled that a reasonable innocent person who saw two officers approaching him on the street “would not have felt restrained” but would instead “only conclude that the officers wanted to talk to him.”14
FREE TO DO WHAT?
In the past, the test was whether a reasonable person would have believed he was “free to leave” or “free to walk away” from the officers.15 This test made sense—and it still does if the encounter occurs on the streets or other place that the suspect could easily leave if he wanted to. But contacts also occur in places that the suspect has no desire to leave (e.g., his home, his car) and in places he cannot leave easily (e.g., a bus, the shoulder of a freeway, his workplace. For that reason, the Supreme Court in Florida v. Bostick simplified things by ruling that freedom to terminate—not freedom to leave—is the correct test because it can be applied “equally to police encounters that take place on trains, planes, and city streets.”16 (In this article, we will use the terms “free to terminate,” “free to go” and “free to leave” interchangeably.)
OBJECTIVE VS. SUBJECTIVE CIRCUMSTANCES
In applying the “free to terminate” test the only circumstances that matter are those that the suspect could have seen or heard. Thus, the officer’s thoughts, beliefs, suspicions, and plans are irrelevant unless they were somehow communicated to the suspect.170
As the California Supreme Court explained:
[A]n officer’s beliefs concerning the potential culpability of the individual being questioned are relevant to determining whether a seizure occurred only if those beliefs were somehow manifested to the individual being interviewed—by word or deed—and would have affected how a reasonable person in that position would perceive his or her freedom to leave.18
For the same reason, the suspect’s subjective belief that he could not freely terminate the encounter is also immaterial.19 For example, an encounter will not be deemed a seizure merely because the suspect testified that, based on his prior experiences with officers, he thought he would be arrested if he did not comply with all of the officer’s requests.20
SHOULD VS. MUST
The test is whether a reasonable person would have believed he must stay or was otherwise required to cooperate with officers. This means a detention will not result merely because a reasonable person would have believed he should stay and cooperate, or because the officer’s request made him “uncomfortable.”21 As the Court of Appeal noted, “Cooperative citizens may ordinarily feel they should respond when approached by an officer on the street but this does not, by itself, mean that they do not have a right to leave if they so desire.”22
REFUSAL TO COOPERATE
Because contacts are, by definition, consensual, a suspect may refuse to talk with officers, refuse to ID himself, or otherwise not cooperate.23 “Implicit in the notion of a consensual encounter,” said the Court of Appeal, “is a choice on the part of the citizen not to consent but to decline to listen to the questions at all and go on his way.”24 Or, as the Ninth Circuit put it, “When a citizen expresses his or her desire not to cooperate, continued questioning cannot be deemed consensual.”25
COMPARE MIRANDA
It is important not to confuse the “free to terminate” test with Miranda’s test for determining whether a suspect was “in custody.” While both tests attempt to gauge the coercive pressures that existed during a police encounter, a suspect will be deemed “in custody” for Miranda purposes only if he reasonably believed he was effectively under arrest.26 But, as noted, a contact will become a de facto detention if the suspect reasonably believed that he was not free to terminate the encounter.
IF THE SUSPECT RUNS
There is one exception to the “free to terminate” rule: If the suspect ran from the officers when they attempted to contact him, and if they gave chase, the encounter will not be deemed a seizure until they apprehend him.27 Thus, if the suspect discarded drugs, weapons or other evidence while running, the evidence will not be suppressed on grounds that the officers lacked grounds to detain or arrest him.
TOTALITY OF CIRCUMSTANCES
In applying the “free to terminate” test, the courts will consider the totality of circumstances.28 Although there are some actions that will, in and of themselves, result in a seizure (e.g., pulling a gun), in most cases it takes a “collective show of authority.”29 As the California Supreme Court explained, “This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation.”30
FREE TO TERMINATE VS. STREET REALITY
Before going further, it must be acknowledged that many of the things that officers may say and do without converting a contact into a detention would plainly cause some innocent people to believe they were not free to terminate the encounter. But this does not mean, as some have suggested, that the test is a sham or, at best, naive.31
Instead,likemanyotherFourthAmendment“tests” (such as determining whether there are grounds to arrest or pat search a suspect) it is simply a practical—albeit imperfect—compromise between competing interests. As the Fourth Circuit put it, if a suspect decided to walk off, it “may have created an awkward situation,” but “awkwardness alone does not invoke the protections of the Fourth Amendment.”32 Similarly, the Ninth Circuit observed that “we must recognize that there is an element of psychological inducement when a representative of the police initiates a conversation. But it is not the kind of psychological pressure that leads, without more, to an involuntary stop.”33
Having covered the basic principles, we will now examine the various circumstances that are especially relevant in determining whether an encounter with an officer was a contact or a seizure.
Engaging the Suspect
Regardless of why the officers wanted to contact the suspect—whether he was acting suspiciously, or he resembled a wanted fugitive, or he was just hanging out in a high-crime area—the manner in which they get him to stop and talk to them is critical. This is because the usual methods of stopping a suspect constitute such an assertion of police authority that they automatically result in a seizure. As the Supreme Court put it, a seizure is likely to occur if an officer’s “use of language or tone of voice indicat[ed] that compliance with the officer’s request might be compelled.”34
COMMANDS TO STOP
Commanding a suspect to “stop,” “hold it,” “come over here,” or otherwise make himself immediately available to the officer is such an overt display of police authority that it will automatically render the encounter a de facto detention.35 “[W]hen an officer ‘commands’ a citizen to stop,” said the Court of Appeal, “this constitutes a detention because the citizen is no longer free to leave.”36
REQUESTS TO STOP
Unlike a command to stop, a request to do so demonstrates to the suspect that he has a choice and that the officer is not asserting his authority. For example, the courts have ruled that none of the following requests resulted in a detention: “Can I talk to you for a moment?”37 “Hey, how you doing? You mind if we talk?”38 “Gentlemen, may I speak with you just a minute?”39
The courts are aware, however, that an officer’s manner and tone of voice in making such a request may send an implicit message that the suspect has no choice. As the court explained in People v.Franklin:
[I]f the manner in which the request was made constituted a show of authority such that [the suspect] reasonably might believe he had to comply, then the encounter was transformed into a detention 40
For example, in U.S. v. Buchanon a state trooper who had stopped to assist the occupants of a disabled vehicle started thinking they might be transporting drugs, at which point he said, “Gentlemen, why don’t you all come over here on the grass a second if you would please.” Although the trooper’s words were phrased as a request,the court listened to a recording of the incident and concluded that his tone of voice was “one of command.”41
DEMONSTRATING URGENT INTEREST
A request to stop might be deemed a detention if it was accompanied by one or more circumstances that demonstrated an unusual or urgent interest in the suspect.42 This occurred in People v. Jones when an Oakland police officer engaged three suspects by pulling his patrol car to the wrong side of the road, parking diagonally against traffic, then asking them to stop. Said the court, “A reasonable man does not believe he is free to leave when directed to stop by a police officer who has arrived suddenly and parked his car in such a way as to obstruct traffic.”43
APPROACH AND ASK QUESTIONS
A detention will not result if an officer merely walks up to a suspect, flashes a badge or otherwise identifies himself and— without saying or doing anything to indicate the suspect was not free to leave—begins to ask him some questions.44 As the court observed in People v. Derello, “[T]he officers were doing exactly what they were lawfully entitled to do, which is to approach and talk if the subject is willing.”45
RED LIGHTS
Shining a red light at a moving or parked vehicle is essentially a command directed at the driver to stop or stay put and thus necessarily results in a seizure of the driver if he complies.46 As the Court of Appeal noted, “A reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer.”47
Although a red light constitutes a command to only those people to whom it reasonably appeared to have been directed (usually the driver),48 when an officer lights up a vehicle all passengers are also deemed detained. This is because they know that, for officer-safety purposes, the officer may prevent them from leaving the vehicle and may otherwise restrict their movements while he is dealing with the driver. As the Supreme Court explained in Brendlin v. California, “An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely.”49 Such a detention of the passengers is, however, legal so long as the officer had grounds to detain the driver or other occupant.
SPOTLIGHTS, HIGH BEAMS, AMBER LIGHTS
Using a white spotlight or high beams to get the suspect’s attention is a relevant but usually insignificant circumstance. (This subject is covered below in the section “Officer-Safety Measures.”) Also note that because an amber warning light is a safety measure that is directed at approaching motorists, it has no bearing on whether the suspect was detained.50
BLOCKING THE SUSPECT’S PATH
A detention will ordinarily result if officers stop the suspect by blocking his vehicle or path so as to prevent him from leaving.51 For example, in People v. Wilkins 52 a San Jose police officer was driving through the parking lot of a convenience store when he noticed that two men in a parked station wagon had ducked down as if to conceal themselves. Having decided to contact them, the officer “parked diagonally” behind the vehicle, effectively blocking it in. He soon learned that one of the men, Wilkins, was on searchable probation, so he searched him and found drugs. The court, however, ruled that the search was unlawful because “the occupants of the station wagon were seized when [the officer] stopped his marked patrol vehicle behind the parked station wagon in such a way that the exit of the parked station wagon was prevented.”
A detention will not result, however, merely because officers stopped a patrol car behind a pedestrian or to the side of a vehicle. As the court explained in People v. Franklin, “Certainly, an officer’s parking behind an ordinary pedestrian reasonably would not be construed as a detention. No attempt was made to block the way.” 53 Similarly, the courts have ruled that a seizure does not result when an officer only partially blocked the suspect.54 For example, in U.S. v. Basher the Ninth Circuit ruled that, although an officer testified that he “parked his vehicle nose to nose with Basher’s truck,” this did not constitute a detention because the officer also testified that “there was room to drive way.”55 And in a forfeiture case, U.S. v. \$25,000, the court ruled that two DEA agents had not inadvertently detained a person they spoke with at LAX because, among other things, one of the agents stood “about two feet” in front of the suspect, and the other stood “behind and to the side” of him.56
“YOU’RE FREE TO GO”
The easiest and most direct method of communicating to a suspect that he is free to go is to say so.57 Although such a notification is not required,58 it is recommended, especially in close cases. As the Court of Appeal put it, “[T]he delivery of such a warning weighs heavily in favor of finding voluntariness and consent.”59
When giving a “free to go” advisory, however, officers must not place any conditions or restrictions on the suspect’s freedom to leave. This is because a suspect is either free to go or he’s not; there’s no middle ground. For example, despite such an advisory, the courts have ruled that encounters became detentions when an officer told the suspect that he would have to wait for a K9 to arrive,60 or “wait a minute,”61 or remain in the patrol car while the officer talked to another person.62 Similarly, informing a suspect that he is free to go will have little impact if officers conducted themselves in a manner that reasonably indicated he was not; e.g., the officer used a “commanding tone of voice,”63 the officer kept “leaning over and resting his arms on the driver’s door.”64
LOCATION OF THE ENCOUNTER
The courts frequently mention whether the encounter occurred in a place that was visible to others, the theory being that the presence of potential witnesses might provide the suspect with a greater sense of security.65 For example, the courts have noted in passing that “many fellow passengers [were] present to witness the officers’ conduct,”66 “the incident occurred on a public street,”67 “the encounter here occurred in a public place—the parking lot of a [7-Eleven] store— in view of other patrons.”68 Nevertheless, the fact that a contact occurred in a more isolated setting is seldom a significant circumstance. As the Third Circuit observed, “The location in itself does not deprive an individual of his ability to terminate an encounter; he can reject an invitation to talk in a private, as well as a public place.”69
Officer-Safety Measures
A suspect who is being contacted may, of course, pose a threat to officers. This can present a problem because many basic officer-safety precautions are strongly suggestive of a detention. To help resolve this dilemma, the courts have ruled that some inquiries and requests pertaining to officer safety will not convert the encounter into a seizure.
REMOVE HANDS FROM POCKETS
A detention will not result if officers simply requested that the suspect remove his hands from his pockets or keep them in sight.70 Thus in such a case, U.S. v. Basher, the Ninth Circuit explained that “[p]olice officers routinely ask individuals to keep their hands in sight for officer protection,” and here the request “does not appear to have been made in a threatening manner.”71 Once again, note the importance of the officers’ choice of words and their attitude. As the Court of Appeal explained, “[I]f the manner in which the request was made constituted a show of authority such that appellant reasonably might believe he had to comply, then the encounter was transformed into a detention.”72
EXIT THE VEHICLE
For officer-safety purposes, officers may also request that the occupants of a parked vehicle step outside. But a detention will likely result if they expressly or impliedly commanded them to do so. Thus, in People v. Rico the court said, “While the appellants’ initial stop did not constitute a detention, the officer’s subsequent ordering the appellants to alight from their vehicle and remain by the patrol car constituted a detention.”73
SPOTLIGHTS, HIGH BEAMS
A seizure does not result merely because officers utilized a white spotlight or high beams to illuminate the suspect, whether for officer safety or to get the suspect’s attention.74 For example, in People v. Perez 75 a San Jose police officer on patrol at night noticed two men in a car parked in an unlit section of a motel parking lot known for drug sales. As the officer pulled up to the car, he turned on his high beams and white spotlight to “get a better look at the occupants.” He eventually arrested the driver for being under the influence of PCP, and one of the issues on appeal was whether his use of the lights converted the encounter into a detention. In ruling it did not, the court said, “While use of high beams and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention.” Similarly, in People v. Franklin 76 a Ridgecrest officer on patrol in a high crime area spotlighted Franklin who was walking on the sidewalk. He did this because, although it was a warm night, Franklin was wearing a full-length camouflage jacket. When the officer stopped behind him, Franklin turned and walked toward the officer and repeatedly asked, “What’s going on?” Because Franklin was sweating and appeared “real jittery,” the officer asked him to remove his hands from his pockets. As he did so, the officer saw blood on his hands, which ultimately led to Franklin’s arrest for a murder that had just occurred in a nearby motel room. Again, the court rejected the argument that the spotlighting rendered the encounter a seizure, saying, “the spotlighting of appellant alone fairly can be said not to represent a sufficient show of authority so that appellant did not feel free to leave.”
PAT SEARCHES
A nonconsensual pat search is both a search and a seizure and will therefore automatically result in a detention.77 As the court explained in In re Frank V., “Since Frank was physically restrained by the patdown, it constituted a detention.”78
HANDCUFFS, OTHER RESTRAINT
Not surprisingly, a detention will also automatically result if officers handcuffed or otherwise restrained the suspect. This is because such measures are classic indications of a detention or arrest.79
DRAWN WEAPON
Even more obviously, a detention will result if an officer drew a handgun or other weapon as a safety precaution.80 It is even significant that the officer “had his hand on his revolver.”81 However, the fact that an officer was visibly armed has “little weight in the analysis.”82 As the Supreme Court observed, “That most law enforcement officers are armed is a fact well known to the public. The presence of a holstered firearm thus is unlikely to contribute to the coerciveness of the encounter absent active brandishing of the weapon.”83
NUMBER OF OFFICERS
Finally, the presence of backup officers, the number of them, their proximity to the suspect, and the manner in which they arrived and conducted themselves are all highly relevant.84 For example, in U.S. v. Washington the court ruled the defendant was seized mainly because he was “confronted” by six officers who had gathered “around him.”85 And in U.S. v. Buchanon the court ruled the defendant was detained largely because of “[t]he number of officers that arrived [three], the swiftness with which they arrived, and the manner in which they arrived (all with pursuit lights flashing).” These circumstances, said the court, “would cause a reasonable person to feel intimidated or threatened.”86 In contrast, the presence of backup officers has been deemed less significant when they were “posted in the background,”87 were “out of sight,”88 were “four to five feet away,”89 or were “little more than passive observers.”90
Conducting the Investigation
After engaging the suspect and taking appropriate safety measures, officers will ordinarily begin their investigation by asking questions. As the court observed in People v. Manis, “When circumstances demand immediate investigation by the police, the most useful, most available tool for such investigation is general on-the-scene questioning.”91
In addition to such questioning, there are some other investigative procedures that officers may ordinarily utilize without converting the encounter into a detention. But first, we will discuss—actually, reiterate—the all-important subject of the officers’ general attitude.
Respectfulness
Lacking grounds to detain or arrest the suspect, officers must be courteous and demonstrate a respectful attitude. Even if he is a notorious sleaze with a bloated criminal record and a bad attitude, they must be careful not to impose their authority on him, at least until they develop grounds to do so. It doesn’t matter whether they choose to adopt a friendly tone or one that is more businesslike. What counts is that they create—and maintain—a noncoercive environment. As the Court of Appeal explained, “It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not.”92
For example, in U.S. v. Jones 93 an encounter quickly became a detention when, upon approaching the suspect, the officers immediately requested that he lift his shirt and consent to a search. Said the court, “A request certainly is not an order, but a request—two back-to-back requests in this case— that conveys the requisite show of authority may be enough to make a reasonable person feel that he would not be free to leave.” And in Orhorhaghe v. I.N.S. the Ninth Circuit ruled that an encounter was converted into a de facto detention mainly because the officer “acted in an officious and authoritative manner that indicated that [the suspect] was not free to decline his requests.”94
In contrast, in Ford v. Superior Court the court ruled that, “[a]lthough petitioner was never told in so many words that he was not under arrest or that he was free to leave, that advice was implicit in the sergeant’s apology for the time it was taking to interview other witnesses.” 95 Similarly, the courts have noted the following in ruling that a contact had not degenerated into a de facto detention:
• The officer “spoke in a polite, conversational tone.” 96
• The officer “seemed to act cordially.”97
• His tone “was calm and casual.”98
• The conversation was “nonaccusatory.”99
• “[A]t no time did [the officers] raise their voices.” 100
• Their “tone of voice was inquisitive rather than coercive.”101
To say that officers must be respectful does not mean they may not demonstrate some degree of suspicion. After all, most people are aware that officers do not go around questioning people at random in hopes that they had just committed a crime. Thus, in People v. Lopez the court noted that, while the officer’s questions “did indicate [he] suspected defendant of something,” and that his questions were “not the stuff of usual conversation among adult strangers,” his tone was apparently “no different from those presumably gentlemanly qualities he displayed in the witness box.”102
Officers may also demonstrate respectfulness if they take a moment to explain to the suspect why they wanted to speak with him, rather than begin by abruptly asking questions or making requests. For example, in rejecting an argument that a DEA agent’s initial encounter with the defendant at an airport terminal had become a de facto detention, the court in U.S v. Gray noted that the agent “informed Gray of the DEA’s purpose and function.”103 Similarly, in U.S. v. Crapser the Ninth Circuit pointed out that the officer began by “explain[ing] to [the suspect] why the police had come to her motel room.” 104
In contrast, in People v. Spicer 105 officers pulled over a car driven by Mr. Spicer because it appeared that he was under the influence of something. While one officer administered the FSTs to Mr. Spicer, the other asked his passenger, Ms. Spicer, to produce her driver’s license. Although he had good reason for wanting to see the license (to make sure he could release the car to her) he did not explain this. As Ms. Spicer was looking for her license in her purse, the officer saw a gun and arrested her. But the court ruled the gun was seized illegally mainly because the officer’s blunt attitude had effectively converted the encounter into a de facto detention. Said the court, “Had the officer made his purpose known to Ms. Spicer, it would have substantially lessened the probability his conduct could reasonably have appeared to her to be coercive.”
Requesting ID
Before attempting to confirm or dispel their suspicions, officers will almost always ask the suspect to identify himself, preferably with a driver’s license or other official document. Like a request to stop, a request for ID will not convert an encounter into a seizure unless it was reasonably interpreted as a command.106 As the Supreme Court put it, “[N]o seizure occurs when officers ask . . . to examine the individual’s identification—so long as the officers do not convey a message that compliance with their requests is required.”107 Similarly, the Court of Appeal explained:
It is the mode or manner in which the request for identification is put to the citizen, and not the nature of the request that determines whether compliance was voluntary.108
Even if the suspect freely handed over his license or other identification, a seizure might result if the officer retained it after looking it over. This is mainly because, having examined the suspect’s ID, the officer’s act of retaining it could reasonably be interpreted as an indication that he was not free to leave.109 As the Ninth Circuit put it, “When a law enforcement official retains control of a person’s identification papers, such as vehicle registration documents or a driver’s license, longer than necessary to ascertain that everything is in order, and initiates further inquiry while holding on to the needed papers, a reasonable person would not feel free to depart.”110 For example, the courts have ruled that a detention resulted when an officer did the following without the suspect’s consent:
• took his ID to a patrol car to run a warrant check.111
• kept the ID while conducting a consent search.112
• pinned the ID to his uniform.113
Asking Questions
Although officers may pose investigative questions to the suspect,114 questioning can be problematic if, as often happens, the suspect’s answers were vague, nonresponsive, inconsistent, or nonsensical as this will necessarily prolong the encounter and may cause the officers to become frustrated which, in turn, may cause them to act in an aggressive or authoritative manner.115 As the Tenth Circuit noted, “Accusatory, persistent, and intrusive questioning can turn an otherwise voluntary encounter into a coercive one.”116 Although the line between permissible probing and impermissible pressure can be difficult to detect, the following general principles should be helpful.
INVESTIGATIVE VS. ACCUSATORY QUESTIONING
There is a big difference between investigative and accusatory questions. As the name suggests, accusatory questions are those that are phrased in a manner that communicates to the suspect that the officers believe he is guilty of something, and that their objective is merely to confirm their suspicion. While this type of questioning is appropriate in a police interview room, it is strictly prohibited during contacts. As the Court of Appeal observed:
[Q]uestions of a sufficiently accusatory nature may by themselves be cause to view an encounter as a nonconsensual detention. . . . [T]he degree of suspicion expressed by the police is an important factor in determining whether a consensual encounter has ripened into a detention.117
For example, in Wilson v. Superior Court 118 LAPD narcotics officers at LAX received a tip that comedian Flip Wilson would be arriving on a flight from Florida and that he would be transporting drugs. When one of the officers spotted Wilson in the terminal, he approached him and, according to the officer, “I advised Mr. Wilson that I was conducting a narcotics investigation, and that we had received information that he would be arriving today from Florida carrying a lot of drugs.” Wilson then consented to a search of his luggage in which the officers found cocaine.
In a unanimous opinion, the California Supreme Court suppressed the drugs because the encounter had become an illegal de facto detention when Wilson gave his consent. Said the court, “[A]n ordinary citizen, confronted by a narcotics agent who has just told him that he has information that the citizen is carrying a lot of drugs, would not feel at liberty simply to walk away from the officer.”
In contrast to accusatory questioning, investigative inquiries convey the message that officers are merely seeking information or, at most, are exploring the possibility the suspect might have committed a crime. In other words, while such questioning is “potentially incriminating,”119 it is also potentially exonerating. For example, in U.S. v. Kim 120 a DEA agent approached two suspected drug dealers on an Amtrak train and greeted them with, “You guys don’t have drugs in your luggage today, do you?” One of the men, Kim, consented to a search of his luggage in which the agent found methamphetamine. In rejecting Kim’s argument that the agent’s question rendered the encounter a seizure, the court said “[t]he tone of the question in no way implied that [the agent] accused or believed that Kim had drugs in his possession; it was merely an inquiry.”
PERSISTENCE
If the suspect agreed to answer the officers’ questions (and, again, assuming he was guilty), officers will often be unable to obtain the truth unless they are persistent. But persistence, in and of itself, will not render an encounter a detention. For example, in United States v. Sullivan 121 a U.S. Parks police officer contacted Sullivan and asked him “if he had anything illegal in [his] vehicle.” Sullivan hesitated, then asked “illegal”? The officer repeated the question, at which point Sullivan “turned his head forward and looked straight ahead.” The officer persisted, telling Sullivan that “if he had anything illegal in the vehicle, it’s better to tell me now.” Still no response. Eventually, Sullivan admitted “I have a gun” and, as a result, he was convicted of being a felon in possession of a firearm. In rejecting Sullivan’s argument that the officer’s persistent questioning had converted the contact into a seizure, the court said, “[T]he repetition of questions, interspersed with coaxing, was prompted solely because Sullivan had not responded. They encouraged an answer, but did not demand one.”
On the other hand, a seizure will certainly result if officers persisted in asking questions after the suspect made it clear that he wanted to discontinue the interview. For example, in Morgan v. Woessner the court ruled that baseball star Joe Morgan was unlawfully seized at Los Angeles International Airport when an LAPD narcotics officer continued to question him after Morgan had “indicated in no uncertain terms that he did not want to be bothered.” Said the court, “We find that Morgan’s unequivocal expression of his desire to be left alone demonstrates that the exchange between Morgan and [the officer] was not consensual.”122
LENGTHY QUESTIONING
Because contacts are usually brief, the length of the encounter is seldom a significant issue.123 But lengthy questioning will not ordinarily convert a contact into a seizure so long as the suspect continued to express—explicitly or implicitly—his willingness to assist officers in their investigation. An example is found in an Oakland murder case, Ford v. Superior Court.124 Here, a contact with a “witness” to a murder (who was actually the murderer) began at the crime scene and ended with his arrest twelve hours later in a police interview room. Despite the length, the court ruled the encounter had remained consensual throughout because the suspect “deliberately chose a stance of eager cooperation in the hopes of persuading the police of his innocence,” and the officers merely played along until they had probable cause.
MIRANDA WARNINGS
If an encounter is merely a contact, officers should never Mirandize the suspect before asking questions.125 This is mainly because Miranda warnings are commonly associated with arrests and, furthermore, they are likely to be interpreted as an indication that the officers have evidence of the suspect’s guilt.
“YOU’RE FREE TO DECLINE”
Just as officers are not required to inform suspects that they are free to leave (discussed earlier), they need not inform them that they can refuse to answer their questions.126 Still, it is a highly relevant circumstance.127
Warrant checks
Running a warrant check without the suspect’s consent will not automatically result in a detention.128 But it can be problematic, especially if the officer walks off with his ID to run the warrant check on his radio or in-car computer. For example, in U.S. v. Jones the court said that “[w]ithin thirty seconds” after initiating a contact with Jones, the officer asked for some identification. At that point, “Mr. Jones handed his identification to [the officer], who relayed it to [another officer who] then walked back to his patrol vehicle to run Mr. Jones’s license.” “Mr. Jones was seized,” said the court, “once the officers took [his] license and proceeded to conduct a records check based upon it.”129
In contrast, the court in U.S. v. Analla ruled that a detention did not result because, instead of taking the suspect’s license to his patrol car, the officer “stood beside the car, near where Analla was standing.”130 Note that this issue can usually be avoided if officers obtain the suspect’s consent to temporarily carry his ID a short distance for the purpose of running a warrant check.131
Seeking consent to search
Officers who have contacted a suspect will frequently seek his consent to search his person, possessions, or vehicle. Like any other request, this will not convert the encounter into a seizure if the officers neither pressured the suspect nor asserted their authority.132 But if the suspect declines the request, they must, of course, not persist or otherwise encourage him to change his mind.
For example, in United States v. Wilson 133 a DEA agent approached Albert Wilson at the National Airport terminal in Washington, D.C. and asked to speak with him. At first, Wilson was cooperative. But when the agent asked if he would consent to a search of his coat he angrily refused and began walking away. Undeterred, the agent trailed behind him, repeatedly asking Wilson why he would not consent to a search. As they stepped outside the terminal, Wilson bolted but was quickly apprehended. The agents then searched his coat and found cocaine. On appeal, however, the court ordered it suppressed because the agent’s “persistence” had converted the encounter into a seizure. It should also be noted that, although officers are not required to notify the suspect that he has a right to refuse consent,134 such a warning is a relevant circumstance.135
Seeking consent to transport
In some cases, officers will seek the suspect’s consent to accompany them to some location such as a police station (e.g., for questioning, fingerprinting, a lineup) or to the crime scene (e.g., for a showup). Again, such a request will not convert the encounter into a detention so long as officers made it clear to the suspect that he was free to decline.136
For example, in In re Gilbert R.137 LAPD detectives went to Gilbert’s home to see if he would voluntarily accompany them to the police station to answer some questions about an ADW. Both Gilbert and his mother consented. At the station, Gilbert confessed but later argued that his confession should have been suppressed because the officers had effectively arrested him by driving him to the station. In rejecting the argument, the court said that a reasonable person in Gilbert’s position “would have believed that he or she did not have to accompany the detectives.”
In contrast, in People v. Boyer 138 several Fullerton police officers went to Boyer’s home to question him about a murder. Two of them covered the back yard while the others went to the front door and knocked. Boyer responded by running out the back door, where the officers ordered him to “freeze.” He complied and later agreed to be interviewed at the police station where he made an incriminating statement. But the court suppressed it on grounds the consent was involuntary. Said the court, “[The] manner in which the police arrived at defendant’s home, accosted him, and secured his ‘consent’ to accompany them suggested they did not intend to take ‘no’ for an answer.”
One other thing
Before transporting a suspect to a police station or anywhere else, officers may be required by departmental policy or officer-safety considerations to pat search him even though he is not being detained. As discussed earlier, this will not ordinarily convert the encounter into a detention provided that the suspect freely consented to the intrusion.
Converting Detentions Into Contacts
In the course of detaining a suspect, officers may conclude that, although they still have their suspicions, they no longer have grounds to hold him. At that point, the detention must, of course, be terminated. Nevertheless, they may be able to continue to question him if they can effectively convert the detention into a contact. As the Tenth Circuit said, “[I]f the encounter between the officer and the [suspect] ceases to be a detention but becomes consensual, and the [suspect] voluntarily consents to additional questioning, no further detention occurs.”139
What must officers do to convert a detention into a contact? The cases indicate there are three requirements:
1. Return documents: If officers obtained the suspect’s ID or any other property from him, they must return it.140 Again quoting the Tenth Circuit, “[W]e have consistently concluded that an officer must return a driver’s documentation before a detention can end.”141 Also see “Investigative requests” (Requests for ID), above.
2. “You’re free to go”: While not technically a requirement,142 officers should inform the suspect that he is now free to leave.143 As the court explained in Morgan v. Woessner, “Although an officer’s failure to advise a citizen of his freedom to walk away is not dispositive of the question of whether the citizen knew he was free to go, it is another significant indicator of what the citizen reasonably believed.”144
3. No contrary circumstances: There must not have been other circumstances that, despite the “free to go” advisory, would have reasonably indicated to the suspect that he was, in fact, not free to leave. For example, in U.S. v. Beck 145 the court ruled that a suspect was detained because, although he was told he was free to go, he was also told he could not leave unless he consented to a search or waited for a canine unit to arrive. Similarly, in U.S. v. Ramos 146 the court ruled that an attempt to convert a traffic stop into a contact had failed mainly because the driver and passenger remained separated.
In addition to these three requirements, it would be significant that the officers explained to the suspect why they wanted to continue speaking with him. As discussed earlier in the section entitled “Respectfulness,” a brief explanation of this sort is significant because such openness is more consistent with a contact than a detention, and it tends to communicate the idea that the officers are seeking thesuspect’s voluntary cooperation.147 | textbooks/workforce/Corrections/Principles_and_Procedures_of_the_Justice_System_(Alvarez)/03%3A_Consensual_Encounters__Investigative_Contacts/3.1%3A_Investigative_Contacts_-_POV.txt |
“It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” 1
Of all the police field operations that deter and thwart crime, and result in the apprehension of criminals, the investigative detention is, by far, the most commonplace. After all, detentions occur at all hours of the day and night, and in virtually every imaginable public place, including streets and sidewalks, parks, parking lots, schools, shopping malls, and international airports. They take place in business districts and in “nice” neighborhoods, but mostly in areas that are blighted and beset by parolees, street gangs, drug traffickers, or derelicts.
The outcome of detentions will, of course, vary. Some result in arrests. Some provide investigators with useful—often vital—information. Some are fruitless. All are dangerous.
To help reduce the danger and to confirm or dispel their suspicions, officers may do a variety of things. For example, they may order the detainee to identify himself, stand or sit in a certain place, and state whether he is armed. Under certain circumstances, they may pat search the detainee or conduct a protective search of his car. If they think he just committed a crime that was witnessed by someone, they might conduct a field showup. To determine if he is wanted, they will usually run a warrant check. If they cannot develop probable cause, they will sometimes complete a field contact card for inclusion in a database or for referral to detectives.
But, for the most part, officers will try to confirm or dispel their suspicions by asking questions.“When circumstances demand immediate investigation by the police,” said the Court of Appeal, “the most useful, most available tool for such investigation is general on-the-scene questioning.”2
Because detentions are so useful to officers and beneficial to the community, it might seem odd that they did not exist—at least not technically—until 1968. That’s when the Supreme Court ruled in the landmark case of Terry v. Ohio 3 that officers who lacked probable cause to arrest could detain a suspect temporarily if they had a lower level of proof known as “reasonable suspicion.”4
In reality, however, law enforcement officers throughout the country had been stopping and questioning suspected criminals long before 1968. But Terry marks the point at which the Supreme Court ruled that this procedure was constitutional, and also set forth the rules under which detentions must be conducted.
What are those rules? We will cover them all in this article but, for now, it should be noted that they can be divided into two broad categories:
1. Grounds to detain: Officers must have had sufficient grounds to detain the suspect; i.e., reasonable suspicion.
2. Procedure: The procedures that officers utilized to confirm or dispel their suspicion and to protect themselves must have been objectively reasonable.
Taking note of these requirements, the Court in Terry pointed out that “our inquiry is a dual one— whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” 5
One more thing before we begin: In addition to investigative detentions, there are two other types of temporary seizures. The first (and most common) is the traffic stop. Although traffic stops are technically “arrests” when (as is usually the case) the officer witnessed the violation and, therefore, had probable cause, traffic stops are subject to the same rules as investigative detentions.6 The other type of detention is known as a “special needs detention” which is a temporary seizure that advances a community interest other than the investigation of a suspect or a suspicious circumstance. (We covered the subject of special needs detentions in the Winter 2003 edition in the article “Detaining Witnesses” which can be downloaded on Online (www.le.alcoda.org).
Reasonable Suspicion
While detentions constitute an important public service, they are also a “sensitive area of police activity”7 that can be a “major source of friction” between officers and the public.8 That is why law enforcement officers are permitted to detain people only if they were aware of circumstances that constituted reasonable suspicion. In the words of the United States Supreme Court, “An investigative stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”9
Reasonable suspicion is similar to probable cause in that both terms designate a particular level of suspicion. They differ, however, in two respects. First, while probable cause requires a “fair probability” of criminal activity, reasonable suspicion requires something less, something that the Supreme Court recently described as a “moderate chance.”10 Or, to put it another way, reasonable suspicion “lies in an area between probable cause and a mere hunch.”11 Second, reasonable suspicion may be based on information that is not as reliable as the information needed to establish probable cause. Again quoting the Supreme Court:
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable.12
Although the circumstances that justify detentions are “bewilderingly diverse,”13 reasonable suspicion ordinarily exists if officers can articulate one or more specific circumstances that reasonably indicate, based on common sense or the officers’ training and experience, that “criminal activity is afoot and that the person to be stopped is engaged in that activity.”14 Thus, officers “must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.”15
This does not mean that officers must have direct evidence that connects the suspect to a specific crime.On the contrary, it is sufficient that the circumstances were merely consistent with criminal activity. In the words of the California Supreme Court,“[W]hen circumstances are consistent with criminal activity, they permit—even demand—an investigation.”16
We covered the subject of reasonable suspicion in the 2008 article entitled “Probable Cause to Arrest” which can be downloaded on Online (www.le.alcoda.org).
Detention Procedure
In the remainder of this article, we will discuss the requirement that officers conduct their detentions in an objectively reasonable manner. As with many areas of the law, it will be helpful to start with the general principles.
General principles
The propriety of the officers’ conduct throughout detentions depends on two things. First, they must have restricted their actions to those that are reasonably necessary to, (1) protect themselves, and (2) complete their investigation.17 As the Fifth Circuit explained in United States v. Campbell, “In the course of [their] investigation, the officers had two goals: to investigate and to protect themselves during their investigation.”18
Second, even if the investigation was properly focused, a detention will be invalidated if the officers did not pursue their objectives in a prudent manner. Thus, the Ninth Circuit pointed out that “the reasonableness of a detention depends not only on if it is made, but also on how it is carried out.”19
Although officers are allowed a great deal of discretion in determining how best to protect themselves and conduct their investigation, the fact remains that detentions are classified as “seizures” under the Fourth Amendment, which means they are subject to the constitutional requirement of objective reasonableness.20 For example, even if a showup was reasonably necessary, a detention may be deemed unlawful if the officers were not diligent in arranging for the witness to view the detainee. Similarly, even if there existed a legitimate need for additional officer-safety precautions, a detention may be struck down if the officers did not limit their actions to those that were reasonably necessary under the circumstances.
DE FACTO ARRESTS
A detention that does not satisfy one or both of these requirements may be invalidated in two ways. First, it will be deemed a de facto arrest if the safety precautions were excessive, if the detention was unduly prolonged, or if the detainee was unnecessarily transported from the scene. While de facto arrests are not unlawful per se, they will be upheld only if the officers had probable cause to arrest.21 As the court noted in United States v. Shabazz, “A prolonged investigative detention may be tantamount to a de facto arrest, a more intrusive custodial state which must be based upon probable cause rather than mere reasonable suspicion.” 22
Unfortunately, the term “de facto arrest” may be misleading because it can be interpreted to mean that an arrest results whenever the officers’ actions were more consistent with an arrest than a detention; e.g., handcuffing. But, as we will discuss later, arrest-like actions can result in a de facto arrest only if they were not reasonably necessary.23
In many cases, of course, the line between a detention and de facto arrest will be difficult to detect.24 As the Seventh Circuit observed in U.S. v. Tilmon, “Subtle, and perhaps tenuous, distinctions exist between a Terry stop, a Terry stop rapidly evolving into an arrest, and a de facto arrest.”25 So, in “borderline” cases—meaning cases in which the detention “has one or two arrest-like features but otherwise is arguably consistent with a Terry stop”— the assessment “requires a fact-specific inquiry into whether the measures used were reasonable in light of the circumstances that prompted the stop or that developed during its course.”26
Second, even if a detention did not resemble an arrest, it may be invalidated on grounds that the officers investigated matters for which reasonable suspicion did not exist; or if they did not promptly release the suspect when they realized that their suspicions were unfounded or that they would be unable to confirm them.
TOTALITY OF CIRCUMSTANCES
In determining whether the officers acted in a reasonable manner, the courts will consider the totality of circumstances, not just those that might warrant criticism.27 Thus, the First Circuit pointed out, “A court inquiring into the validity of a Terry stop must use a wide lens.”28
COMMON SENSE
Officers and judges are expected to evaluate the surrounding circumstances in light of common sense, not hypertechnical analysis. In the words of the United States Supreme Court, “Much as a ‘bright line’ rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.”29
TRAINING AND EXPERIENCE
A court may consider theofficers’interpretationofthecircumstancesbased on their training and experience if the interpretation was reasonable.30 For example, the detainee’s movements and speech will sometimes indicate to trained officers that he is about to fight or run.
NO “LEAST INTRUSIVE MEANS” REQUIREMENT
There are several appellate decisions on the books in which the courts said or implied that a detention will be invalidated if the officers failed to utilize the “least intrusive means” of conducting their investigation and protecting themselves. In no uncertain terms, however, the Supreme Court has ruled that the mere existence of a less intrusive alternative is immaterial. Instead, the issue is whether the officers were negligent in failing to recognize and implement it. As the Court explained in U.S. v. Sharpe, “The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.”31 The Court added that, in making this determination, judges must keep in mind that most detentions are “swiftly developing” and that judges “can almost always imagine some alternative means by which the objectives of the police might have been accomplished.”
DEVELOPMENTS AFTER THE STOP
The courts understand that detentions are not static events, and that the reasonableness of the officers’ actions often depends on what happened as things progressed, especially whether the officers reasonably became more or less suspicious, or more or less concerned for their safety.32 For example, in U.S. v. Sowers the court noted the following:
Based on unfolding events, the trooper’s attention shifted away from the equipment violations that prompted the initial stop toward a belief that the detainees were engaged in more serious skullduggery. Such a shift in focus is neither unusual not impermissible.33 Similarly, the Seventh Circuit said that “[o]fficers faced with a fluid situation are permitted to graduate their responses to the demands of the particular circumstances confronting them.”34 Or, in the words of the California Court of Appeal, “Levels of force and intrusion in an investigatory stop may be legitimately escalated to meet supervening events,” and “[e]ven a complete restriction of liberty, if brief and not excessive under the circumstances, may constitute a valid Terry stop and not an arrest.”35
DETENTIONS BASED ON REASONABLE SUSPICION PLUS
Before moving on, we should note that some courts have sought to avoid the problems that often result from the artificial distinction between lawful detentions and de facto arrests by simply permitting more intrusive actions when there is a corresponding increase in the level of suspicion. In one such case, U.S. v. Tilmon, the court explained:
[We have] adopted a sliding scale approach to the problem. Thus, stops too intrusive to be justified by suspicion under Terry, but short of custodial arrest, are reasonable when the degree of suspicion is adequate in light of the degree and the duration of restraint.36
In another case, Lopez Lopez v. Aran, the First Circuit said that “where the stop and interrogation comprise more of an intrusion, and the government seeks to act on less than probable cause, a balancing test must be applied.”37
Having discussed the basic principles that the courts apply in determining whether a detention was conducted in a reasonable manner, we will now look at how the courts have analyzed the various procedures that officers typically utilize in the course of investigative detentions.
Using force to detain
If a suspect refuses to comply with an order to stop, officers may of course use force to accomplish the detention. This is because the right to detain “is meaningless unless officers may, when necessary, forcibly detain a suspect.”39 Or, as the Ninth Circuit explained in U.S. v. Thompson:
A police officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop, and the use of such force does not transform a proper stop into an arrest.40
How much force is permitted? All that can really be said is that officers may use the amount that a “reasonably prudent” officer would have believed necessary under the circumstances.38
Note that in most cases in which force is reasonably necessary, the officers will have probable cause to arrest the detainee for resisting, delaying, or obstructing.41 If so, it would be irrelevant that the detention had become a de facto arrest.
Officer-safety precautions
It is “too plain for argument,” said the Supreme Court, that officer-safety concerns during detentions are “both legitimate and weighty.”42 This is largely because the officers are “particularly vulnerable” since “a full custodial arrest has not been effected, and the officer must make a quick decision as to how to protect himself and others from possible danger.” 43
Sometimes the danger is apparent, as when the detainee was suspected of having committed a felony, especially a violent felony or one in which the perpetrators were armed.44 Or it maybe the detainee’s conduct that indicates he presents a danger; e.g., he refuses to comply with an officer’s order to keep his hands in sight, or he is extremely jittery, or he won’t stop moving around.45
And then there are situations that are dangerous but the officers don’t know how dangerous.46 For example, they may be unaware that the detainee is wanted for a felony or that he possesses evidence that would send him to prison if it was discovered. Thus, in Arizona v. Johnson, a traffic stop case, the Supreme Court noted that the risk of a violent encounter “stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.”47
It is noteworthy that, in the past, it was sometimes argued that any officer-safety precaution was too closely associated with an arrest to be justified by anything less than probable cause. But, as the Seventh Circuit commented, that has changed, thanks to the swelling ranks of armed and violence-prone criminals:
[W]e have over the years witnessed a multifaceted expansion of Terry. For better or for worse, the trend has led to permitting of the use of handcuffs, the placing of suspects in police cruisers, the drawing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention.48
Thus, officers may now employ any officer-safety precautions that were reasonably necessary under the circumstances—with emphasis on the word “reasonably.”49 The Ninth Circuit put it this way: “[W]e allow intrusive and aggressive police conduct without deeming it an arrest in those circumstances when it is a reasonable response to legitimate safety concerns on the part of the investigating officers.”50 Or in the words of the Fifth Circuit:
[P]ointing a weapon at a suspect, ordering a suspect to lie on the ground, and handcuffing a suspect—whether singly or in combination—do not automatically convert an investigatory detention into an arrest [unless] the police were unreasonable in failing to use less intrusive procedures to conduct their investigationsafely.51
With this in mind, we will now look at how the courts are evaluating the most common officer safety measures.
KEEP HANDS IN SIGHT
Commanding a detainee to keep his hands in sight is so minimally intrusive that it is something that officers may do as a matter of routine.52
OFFICER-SAFETY QUESTIONS
Officers may ask questions that are reasonably necessary to determine if, or to what extent, a detainee constitutes a threat— provided the questioning is brief and to the point. For example, officers may ask the detainee if he has any weapons or drugs in his possession,or if he is on probation or parole.53
CONTROLLING DETAINEES’ MOVEMENTS
For their safety (and also in order to carry out their investigation efficiently), officers may require the detainee to stand or sit in a particular place. Both objectives are covered in the section “Controlling the detainee’s movements,” beginning on page ten.
LIE ON THE GROUND
Ordering a detainee to lie on the ground is much more intrusive than merely ordering him to sit on the curb. Consequently, such a precaution cannot be conducted as a matter of routine but, instead, is permitted only if there was some justification for it.54
PAT SEARCHING
Officers may pat search a detainee if they reasonably believed that he was armed or otherwise presented a threat to officers or others. Although the courts routinely say that officers must have reasonably believed that the detainee was armed and dangerous, either is sufficient. This is because it is apparent that a suspect who is armed with a weapon is necessarily dangerous to any officer who is detaining him, even if he was cooperative and exhibited no hostility.55 For example, pat searches are permitted whenever officers reasonably believed that the detainee committed a crime in which a weapon was used, or a crime in which weapons are commonly used; e.g., drug trafficking. A pat search is also justified if officers reasonably believed that the detainee posed an immediate threat, even if there was no reason to believe he was armed.56
We covered the subject of pat searches in the Winter 2008 edition which can be downloaded on Point of View Online at www.le.alcoda.org.
HANDCUFFING
Although handcuffing “minimizes the risk of harm to both officers and detainees,”57 it is not considered standard operating procedure.58 Instead, it is permitted only if there was reason to believe that physical restraint was warranted.59 In the words of the Court of Appeal:
[A] police officer may handcuff a detainee without converting the detention into an arrest if the handcuffing is brief and reasonably necessary under the circumstances.60
What circumstances tend to indicate that handcuffing was reasonably necessary? The following are examples:
• Detainee refused to keep his hands in sight.61
• Detainee kept reaching inside his clothing. 62
• Detainee pulled away from officers.63
• During a pat search, the detainee tensed up “as if he were attempting to remove his hand” from the officer’s grasp.64
• Detainee appeared ready to flee.65
• Detainee was hostile.66
• Onlookers were hostile.67
• Officers had reason to believe he was armed.68
• Officers had reason to believe the detainee committed a felony, especially one involving violence or weapons.69
• Officers were outnumbered.70
• Detainee was transported to another location.71
• Officers were awaiting victim’s arrival for a showup.72
Three other points
First, if there was reason to believe that handcuffing was necessary, it is immaterial that officers had previously pat searched the detainee and did not detect a weapon. This is because a pat down “is not an infallible method of locating concealed weapons.”73
Second, in close cases it is relevant that the officers told the detainee that, despite the handcuffs, he was not under arrest and that the handcuffs were only a temporary measure for everyone’s safety.74
Third, even if handcuffing was necessary, it may convert a detention into a de facto arrest if the handcuffs were applied for an unreasonable length of time,75 or if they were applied more tightly than necessary. As the Seventh Circuit put it, “[A]n officer may not knowingly use handcuffs in a way that will inflict unnecessary pain or injury on an individual who presents little or no risk of flight or threat of injury.”76 Similarly, the Ninth Circuit observed that “no reasonable officer could believe that the abusive application of handcuffs was constitutional.”77
WARRANT CHECKS
Because wanted detainees necessarily pose an increased threat, officers may run warrant checks as a matter of routine. Because warrant checks are also an investigative tool, this subject is covered in the section, “Conducting the investigation.”
PROTECTIVE CAR SEARCHES
When a person is detained in or near his car, a gun or other weapon in the vehicle could be just as dangerous to the officers as a weapon in his waistband. Consequently, the United States Supreme Court ruled that officers may look for weapons inside the passenger compartment if they reasonably believed that a weapon— even a “legal” one—was located there.78
For example, in People v. Lafitte 79 Orange County sheriff’s deputies stopped Lafitte at about 10:15 P.M. because he was driving with a broken headlight. While one of the deputies was talking with him, the other shined a flashlight inside the passenger compartment and saw a knife on the open door of the glove box. The deputy then seized the knife and searched for more weapons. He found one—a handgun—in a trash bag hanging from the ashtray. Although the court described the knife as “legal,” and although Lafitte had been cooperative throughout the detention, the court ruled the search was justified because “the discovery of the weapon is the crucial fact which provides a reasonable basis for the officer’s suspicion.” Note that a protective vehicle search may be conducted even though the detainee had been handcuffed or was otherwise restrained.80
DETENTION AT GUNPOINT
Although a detention at gunpoint is a strong indication that the detainee was under arrest, the courts have consistently ruled that such a safety measure will not require probable cause if, (1) the precaution was reasonably necessary, and (2) the weapon was reholstered after it was safe to do so.81 Said the Fifth Circuit, “[I]n and of itself, the mere act of drawing or pointing a weapon during an investigatory detention does not cause it to exceed the permissible grounds of a Terry stop or to become a de facto arrest.”82 The Seventh Circuit put it this way:
Although we are troubled by the thought of allowing policemen to stop people at the point of a gun when probable cause to arrest is lacking, we are unwilling to hold that [a detention] is never lawful when it can be effectuated safely only in that manner. It is not nice to have a gun pointed at you by a policeman but it is worse to have a gun pointed at you by a criminal.83
For instance, in United States v. Watson a detainee argued that, even though the officers reasonably believed that he was selling firearms illegally, they “had no right to frighten him by pointing their guns at him.” The court responded, “The defendant’s case is weak; since the police had reasonable suspicion to think they were approaching an illegal seller of guns who had guns in the car, they were entitled for their own protection to approach as they did.”84
FELONY CAR STOPS
When officers utilize felony car stop procedures, they usually have probable cause to arrest one or more of the occupants of the vehicle. So they seldom need to worry about the intrusiveness of felony stops.
But the situation is different if officers have only reasonable suspicion. Specifically, they may employ felony stop measures only if they had direct or circumstantial evidence that one or more of the occupants presented a substantial threat of imminent violence. A good example of such a situation is found in the case of People v. Soun in which the California Court of Appeal ruled that Oakland police officers were justified in conducting a felony stop when they pulled over a car occupied by six people who were suspects in a robbery-murder. As the court pointed out:
[The officer] concluded that to attempt to stop the car by means suitable to a simple traffic infraction—in the prosecutor’s words, “just pull up alongside and flash your lights and ask them to pull over”—“would not be technically sound as far as my safety or safety of other officers.” We cannot fault [the officer] for this reasoning, or for proceeding as he did.85
Felony extraction procedures may also be used on all passengers in a vehicle at the conclusion of a pursuit, even though officers had no proof that the passengers were involved in the crime that prompted the driver to flee. For instance, in Allen v. City of Los Angeles, a passenger claimed that a felony stop was unlawful as to him “because he attempted to persuade [the driver] to pull over and stop.” That’s “irrelevant,” said the court, because the officers “couldnot have known the extent of[the passenger’s] involvement until after they questioned him.”86
UTILIZING TASERS
Officers may employ a taser against a detainee if the detainee “poses an immediate threat to the officer or a member of the public.”87 Having stopped the detainee, and having taken appropriate officer-safety precautions, officers will begin their investigation into the circumstances that generated reasonable suspicion. As we will now discuss, there are several things that officers may do to confirm or dispel their suspicions. Controlling the detainee’s movements Throughout the course of investigative detentions and traffic stops, officers may position the detainee and his companions or otherwise control their movements. While this is permitted as an officer-safety measure (as noted earlier), it is also justified by the officers’ need to conduct their investigation in an orderly fashion.88 As the Supreme Court explained, it would be unreasonable to expect officers “to allow people to come and go freely from the physical focal point of [a detention].”89
GET OUT, STAY INSIDE
If the detainee was the driver or passenger in a vehicle, officers may order him and any occupants who are not detained to step outside or remain inside.90 And if any occupants had already exited, officers may order them to return to the vehicle.91 In discussing the officer-safety rationale for ordering detainees to exit, the Supreme Court noted that “face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements.”92
STAY IN A CERTAIN PLACE
Officers may order the detainee and his companions to sit on the ground, on the curb, or other handy place; e.g., push bar.93
CONFINE IN PATROL CAR
A detainee may be confined in a patrol car if there was some reason for it.94 For example, it may be sufficient that the officers were awaiting the arrival of a witness for a show up;95 or waiting for an officer with experience in drug investigations;96 or when it was necessary to prolong the detention to confirm the detainee’s identity;97 or if the detainee was uncooperative;98 or if the officers needed to focus their attention on another matter, such as securing a crime scene or dealing with the detainee’s associates. 99
SEPARATING DETAINEES
If officers have detained two or more suspects, they may separate them to prevent the “mutual reinforcement” that may result when a suspect who has not yet been questioned is able to hear his accomplice’s story. 100
Separating detainees is also permitted for officersafety purposes. Thus, in People v. Maxwell the court noted that, “upon effecting the early morning stop of a vehicle containing three occupants, the officer was faced with the prospect of interviewing the two passengers in an effort to establish the identity of the driver. His decision to separate them for his own protection, while closely observing defendant as he rummaged through his pockets for identification, was amply justified.” 101
Identifying the detainee
One of the first things that officers will do as they begin their investigation is determine the detainee’s name. “Without question,” said the Court of Appeal, “an officer conducting a lawful Terry stop must have the right to make this limited inquiry, otherwise the officer’s right to conduct an investigative detention would be a mere fiction.” 102
This is also the opinion of the Supreme Court, which added that identifying detainees also constitutes an appropriate officer-safety measure. Said the Court, “Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder.” 103
Not only do officers have a right to require that the detainee identify himself, they also have a right to confirm his identity by insisting that he present “satisfactory” documentation. 104 “[W]here there is such a right to so detain,” explained the Court of Appeal, “there is a companion right to request, and obtain, the detainee’s identification.” 105
WHAT IS “SATISFACTORY” ID
A current driver’s license or the “functional equivalent” of a license is presumptively “satisfactory” unless there was reason to believe it was forged or altered. 106 A document will be deemed the functional equivalent of a driver’s license if it contained all of the following: the detainee’s photo, brief physical description, signature, mailing address, serial numbering, and information establishing that the document is current. 107 While other documents are not presumptively satisfactory, officers may exercise discretion in determining whether they will suffice. 108
REFUSAL TO ID
If a detainee will not identify himself, there are several things that officers may do. For one thing, they may prolong the detention for a reasonable time to pursue the matter. As the Court of Appeal observed, “To accept the contention that the officer can stop the suspect and request identification, but that the suspect can turn right around and refuse to provide it, would reduce the authority of the officer to identify a person lawfully stopped by him to a mere fiction.” 109
Officers may also arrest the detainee for willfully delaying or obstructing an officer in his performance of his duties if he refuses to state his name or if he admits to having ID in his possession but refuses to permit officers to inspect it. 110
Also note that a detainee’s refusal to furnish ID is a suspicious circumstance that may be a factor in determining whether there was probable cause to arrest him. 111
SEARCH FOR ID
If the detainee denies that he possesses ID, but he is carrying a wallet, officers may, (1) order him to look through the wallet for ID while they watch, or (2) search it themselves for ID. 112 Officers may not, however, pat search the detainee for the sole purpose of determining whether he possesses a wallet. 113
If the detainee is an occupant of a vehicle and he says he has no driver’s license or other identification in his possession, officers may conduct a search of the passenger compartment for documentation if they reasonably believed it would be impossible, impractical, or dangerous to permit the detainee or other occupants to conduct the search. For example, these searches have been upheld when the officers reasonably believed the car was stolen, 114 the driver fled, 115 the driver refused to explain his reason for loitering in a residential area at 1:30 A.M., 116 and a suspected DUI driver initially refused to stop and there were two other men in the vehicle. 117
IDENTIFYING DETAINEE’S COMPANIONS
Officers may request—but not demand—that the detainee’s companions identify themselves, and they may attempt to confirm the IDs if it does not unduly prolong the stop. As the First Circuit advised, “[B]ecause passengers present a risk to officer safety equal to the risk presented by the driver, an officer may ask for identification from passengers and run background checks on them as well.” 118
Duration of the detention
As we will discuss shortly, officers may try to confirm or dispel their suspicions in a variety of ways, such as questioning the detainee, conducting a showup, and seeking consent to search. But before we discuss these and other procedures, it is necessary to review an issue that pervades all of them: the overall length of the detention.
Everything that officers do during a detention takes time, which means that everything they do is, to some extent, an intrusion on the detainee. Still, the courts understand that it would be impractical to impose strict time limits. 119 Addressing this issue, the Court of Appeal commented:
The dynamics of the detention-for-questioning situation may justify further detention, further investigation, search, or arrest. The significance of the events, discoveries, and perceptions that follow an officer’s first sighting of a candidate for detention will vary from case to case. 120
For this reason, the Supreme Court has ruled that “common sense and ordinary human experience must govern over rigid [time] criteria,” 121 which simply means that officers must carry out their duties diligently. 122 As the Court explained:
In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. 123
For example, in rejecting an argument that a detention took too long, the court in Ingle v. Superior Court pointed out, “Each step in the investigation conducted by [the officers] proceeded logically and immediately from the previous one.” 124 Responding to a similar argument in Gallegos v. City of Los Angeles, the Ninth Circuit said:
Gallegos makes much of the fact that his detention lasted forty-five minutes to an hour. While the length of Gallegos’s detention remains relevant, more important is that [the officers’] actions did not involve any delay unnecessary to their legitimate investigation. 125
OFFICERS NEED NOT RUSH
To say that officers must be diligent, does not mean they must “move at top speed” or even rush. 126 Nor does it mean (as we will discuss later) that they may not prolong the detention for a short while to ask questions that do not directly pertain to the crime under investigation. Instead, it simply means the detention must not be “measurably extended.” 127
EXAMPLES
The following are circumstances that were found to warrant extended detentions:
• Waiting for backup. 128
• Waiting for an officer with special training and experience; e.g. DUI drugs, VIN location. 129
• Waiting for an interpreter. 130
• Waiting for a drug-detecting dog. 131
• Waiting to confirm detainee’s identity. 132
• Officers needed to speak with the detainee’s companions to confirm his story. 133
• Computer was slow. 134
• Officers developed grounds to investigate another crime. 135
• Officers needed to conduct a field showup. 136
• There were multiple detainees. 137
• Additional officer-safety measures became necessary. 138
For instance, in People v. Soun (discussed earlier) police officers in Oakland detained six suspects in a robbery-murder that had occurred the day before in San Jose. Although the men were detained for approximately 45 minutes, the Court of Appeal ruled the delay was justifiable in light of several factors; specifically, the number of detainees, the need for officer-safety precautions that were appropriate to a murder investigation, and the fact that the Oakland officers needed to confer with the investigating officers in San Jose. 139
DELAYS ATTRIBUTABLE TO THE DETAINEE
One of the most common reasons for prolonging an investigative detention or traffic stop is that the detainee said or did something that made it necessary to interrupt the normal progression of the stop. 140 For example, in United States v. Sharpe the Supreme Court ruled that an extended detention became necessary when the occupants of two cars did not immediately stop when officers lit them up but, instead, attempted to split up. As a result, they were detained along different parts of the roadway, which necessarily made the detention more time consuming. 141
Similarly, a delay for further questioning may be necessary because the detainee lied or was deceptive. Thus, the court U.S. v. Suitt ruled that a lengthy detention was warranted because “Suitt repeatedly gave hesitant, evasive, and incomplete answers.” 142 Finally, it should be noted that the clock stops running when officers develop probable cause to arrest, or when they convert the detention into a contact. See “Converting detentions into contacts,” below.
Questioning the detainee
In most cases, the fastest way for officers to confirm or dispel their suspicion is to pose questions to the detainee and, if any, his companions. Thus, after noting that such questioning is “the great engine of the investigation,” the Court of Appeal observed in People v. Manis:
When circumstances demand immediate investigation by the police, the most useful, most available tool for such investigation is general on-the-scene questioning designed to bring out the person’s explanation or lack of explanation of the circumstances which aroused the suspicion of the police, and enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges. 143
Detainees cannot, however, be required to answer an officer’s questions. For example, in Ganwich v. Knapp the Ninth Circuit ruled that officers acted improperly when they told the detainees that they would not be released until they started cooperating. Said the court, “[I]t was not at all reasonable to condition the plaintiffs’ release on their submission to interrogation.” 144
MIRANDA COMPLIANCE
Although detainees are not free to leave, a Miranda waiver is not ordinarily required because the circumstances surrounding most detentions do not generate the degree of compulsion to speak that the Miranda procedure was designed to alleviate. 145 “The comparatively nonthreatening character of detentions of this sort,” said the Supreme Court, “explains the absence of any suggestion in our opinions that [detentions] are subject to the dictates of Miranda.” 146
A Miranda waiver will, however, be required if the questioning “ceased to be brief and casual” and had become “sustained and coercive,” 147 or if there were other circumstances that would have caused a reasonable person in the suspect’s position to believe that he was under arrest. As the U.S. Supreme Court pointed out in Berkemer v. McCarty:
If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him “in custody” for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. 148
The question arises: Is a waiver required if the detainee is in handcuffs? In most cases, the answer is yes because handcuffing is much more closely associated with an arrest than a detention. 149 But because the issue is whether a reasonable person would have concluded that the handcuffing was “tantamount to a formal arrest,”150 it is arguable that a handcuffed detainee would not be “in custody” if, (1) it was reasonably necessary to restrain him, (2) officers told him that he was not under arrest and that the handcuffing was merely a temporary safety measure, and (3) there were no other circumstances that reasonably indicated he was under arrest.151
A further question: Is a suspect “in custody” for Miranda purposes if he was initially detained at gunpoint? It appears not if, (1) the precaution was warranted, (2) the weapon was reholstered before the detainee was questioned, and (3) there were no other circumstances that indicated the detention had become an arrest. As the court said in People v. Taylor, “Assuming the citizen is subject to no other restraints, the officer’s initial display of his reholstered weapon does not require him to give Miranda warnings before asking the citizen questions.”152
OFF-TOPIC QUESTIONING
Until last year, one of the most hotly debated issues in the law of detentions (especially traffic stops) was whether a detention becomes an arrest if officers prolonged the stop by questioning the detainee about matters that did not directly pertain to the matter upon which reasonable suspicion was based. Although some courts would rule that all off-topic questioning was unlawful, most held that such questioning was allowed if it did not prolong the stop (e.g., the officer questioned the suspect while writing a citation or while waiting for warrant information), or if the length of the detention was no longer than “normal.”153
In 2009, however, the Supreme Court resolved the issue in the case of Arizona v. Johnson when it ruled that unessential or off-topic questioning is permissible if it did not “measurably extend” the duration of the stop. Said the Court, “An officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”154 Although decided before Johnson, the case of United States v. Childs contains a good explanation of the reasons for this rule:
Questions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention. They do not signal or facilitate oppressive police tactics that may burden the public—for all suspects (even the guilty ones) may protect themselves fully by declining to answer.155
Warrant checks
Officers who have detained a person (even a traffic violator 156) may run a warrant check and rap sheet if it does not measurably extend the length of the stop.157 This is because warrant checks further the public interest in apprehending wanted suspects,158 and because knowing whether detainees are wanted and knowing their criminal history helps enable officers determine whether they present a heightened threat.159 As the Ninth Circuit put it:
On learning a suspect’s true name, the officer can run a background check to determine whether a suspect has an outstanding arrest warrant, or a history of violent crime. This information could be as important to an officer’s safety as knowing that the suspect is carrying a weapon.160
While a detention may be invalidated if there was an unreasonable delay in obtaining warrant information, a delay should not cause problems if officers had reason to believe a warrant was outstanding, and they were just seeking confirmation.161
Showups
Officers may prolong a detention for the purpose of conducting a showup if the crime under investigation had just occurred, and the detainee would be arrestable if he was ID’d by the victim or a witness.162
Single-person showups are, of course, inherently suggestive because, unlike physical and photo lineups, there are no fillers, and the witness is essentially asked, “Is this the guy?” Still, they are permitted for two reasons. First, an ID that occurs shortly after the crime was committed is generally more reliable than an ID that occurs later. Second, showups enable officers to determine whether they need to continue the search or call it off.163 As the Court of Appeal observed in In re Carlos M.:
[T]he element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witness’s mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended.164
SHOWUPS FOR OLDER CRIMES
Although most showups are conducted when the crime under investigation occurred recently, there is no prohibition against conducting showups for older crimes. According to the Court of Appeal, “[N]o case has held that a single-person showup in the absence of compelling circumstances is per se unconstitutional.” 165
Still, because showup IDs are more susceptible to attack in trial on grounds of unreliability, it would be better not to use the showup procedure unless there was an overriding reason for not conducting a physical or photo lineup. As the court noted in People v. Sandoval, the showup procedure “should not be used without a compelling reason because of the great danger of suggestion from a one-to-one viewing which requires only the assent of the witness.”166
TRANSPORTING THE DETAINEE
As a general rule, showups are permitted only if they occur at the scene of the detention. This subject is discussed below in the section, “Transporting the detainee.”
DILIGENCE
Because officers must be diligent in carrying out their duties, they must be prompt in arranging for the witness to be transported to the scene of the detention. For example, in People v. Bowen 167 SFPD officers detained two suspects in a purse snatch that had occurred about a half hour earlier. The court noted that the officers “immediately” radioed their dispatcher and requested that the victim be transported to the scene of the detention. When the victim did not arrive promptly, they asked their dispatcher for an “estimation of the time of arrival of the victim,” at which point they were informed that the officer who was transporting her “was caught in traffic and would arrive shortly.” All told, the suspects were detained for about 25 minutes before the victim arrived and identified them. In rejecting the argument that the delay had transformed the detention into a de facto arrest, the court pointed out that the officers had “immediately” requested that the victim be brought to the scene; and when they realized there would be a delay, they asked their dispatcher for the victim’s ETA. Because these circumstances demonstrated that the officers took care to minimize the length of the detention, the court ruled it was lawful.
REDUCING SUGGESTIVENESS
As noted earlier, showups are inherently suggestive because the witness is not required to identify the perpetrator from among other people of similar physical appearance. Furthermore, some witnesses might assume that, because officers do not go around detaining people at random in hopes that someone will ID them, there must be a good reason to believe that the person the are looking at is the culprit. This assumption may be inadvertently bolstered if the witness sees the detainee in handcuffs or if he is sitting behind the cage in a patrol car.
Still, the courts have consistently ruled that showup IDs are admissible at trial unless officers did something that rendered the procedure unnecessarily suggestive.168 Consequently, if it was reasonably necessary to present the detainee in handcuffs for the safety of officers, the witness, or others, this circumstance is immaterial. Furthermore, officers will usually take steps to reduce any suggestiveness that is inherent in the showup procedure by providing the witness with some cautionary instructions, such as the following:
• You will be seeing a person who will be standing with other officers. Do not assume that this person is the perpetrator or even a suspect merely because we are asking you to look at him or because other officers are present.
(If two or more witnesses will view the detainee)
• Do not speak with the other witnesses who will be going with us.
• When we arrive, do not say anything in their presence that would indicate you did or did not recognize someone. You will all be questioned separately.
Transporting the detainee
A detention will ordinarily become a de facto arrest if the detainee was transported to the crime scene, police station, or some other place.169 This is because the act of removing the detainee from the scene constitutes an exercise of control that is more analogous to a physical arrest than a detention. Moreover, officers can usually accomplish their objectives by less intrusive means.
There are, however, three exceptions to this rule. First, officers may transport the detainee if he freely consented.170 Second, they may transport him a short distance if it might reduce the overall length of the detention.171 As the California Supreme Court observed, “[T]he surrounding circumstances may reasonably indicate that it would be less of an intrusion upon the suspect’s rights to convey him speedily a few blocks to the crime scene, permitting the suspect’s early release rather than prolonging unduly the field detention.”172
Third, removing the detainee to another location is permitted if there was good reason for doing so. In the words of the Ninth Circuit:
[T]he police may move a suspect without exceeding the bounds of an investigative detention when it is a reasonable means of achieving the legitimate goals of the detention given the specific circumstances of the case.173
For example, if a hostile crowd had gathered it would be reasonable to take the detainee to a place where the detention could be conducted safely.174 Or it might be necessary to drive the detainee to the crime scene or a hospital for a showup if the victim had been injured.175 Thus, in People v. Harris, the court noted, “If, for example, the victim of an assault or other serious offense was injured or otherwise physically unable to be taken to promptly view the suspect, or a witness was similarly incapacitated, and the circumstances warranted a reasonable suspicion that the suspect was indeed the offender, a ‘transport’ detention might well be upheld.”176
Another example of a situation in which a “transport detention” was deemed reasonable is found in the case of People v. Soun.177 In Soun, the Court of Appeal ruled it was reasonable for Oakland officers to drive six suspects in a San Jose robbery-murder to a parking lot three blocks from the detention site because the officers reasonably believed that they would not be able to resolve the matter quickly (given the number of suspects and the need to coordinate their investigation with SJPD detectives), plus it was necessary to detain the suspects in separate patrol cars which were impeding traffic. Said the court, “A three-block transportation to an essentially neutral site for these rational purposes did not operate to elevate [the suspects’] custodial status from detention to arrest.
Keep in mind that this exception will be applied only if officers are able to articulate one or more specific reasons for moving the detainee. Thus, in U.S. v. Acosta-Colon the court responded as follows when an officer cited only “security reasons” as justification for the move:
[T]here will always exist “security reasons” to move the subject of a Terry-type stop to a confined area pending investigation. But if this kind of incremental increase in security were sufficient to warrant the involuntary movement of a suspect to an official holding area, then such a measure would be justified in every Terry-type investigatory stop.178
Other procedures
CONSENT SEARCHES
During an investigative detention, officers may, of course, seek the detainee’s consent to search his person, vehicle, or personal property if a search would assist the officers in confirming or dispelling their suspicions.179 If a search would not be pertinent to the matter upon which reasonable suspicion was based (such as traffic stops), officers may nevertheless seek consent to search because, as noted earlier, a brief request in the course of a lawful detention does not render the detention unlawful.180 As the Supreme Court explained in Florida v. Bostick, “[E]ven when officers have no basis for suspecting a particular individual, they may generally request consent to search his or her luggage.”181
Note, however, that consent may be deemed invalid if a court finds that it was obtained after the officers had completed all of their duties pertaining to the stop, and were continuing to detain the suspect without sufficient cause.182 Officers may, however, seek consent to search if they converted the detention into a contact. (See “Converting detentions into contacts,” next page.)
FIELD CONTACT CARDS
For various reasons, officers may want to obtain certain information about the detainee, such as his physical description, vehicle description, the location of the detention, the names of his companions, and a summary of the circumstances surrounding the stop. Oftentimes, this information will be uploaded to a database or routed to a particular investigator or outside agency.
In any event, a brief delay for this purpose should not cause problems because, as the Court of Appeal observed, “Field identification cards perform a legitimate police function. If done expeditiously and in an appropriate manner after a lawful stop and in response to circumstances which indicate that a crime has taken place and there is cause to believe that the person detained is involved in same, the procedure is not constitutionally infirm.”183
FINGERPRINTING THE DETAINEE
Officers may fingerprint the detainee if, (1) they reasonably believed that fingerprinting would help confirm or dispel their suspicion, and (2) the procedure was carried out promptly. As the Supreme Court observed:
There is thus support in our cases for the view that the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime, and if the procedure is carried out with dispatch.184
PHOTOGRAPHING THE DETAINEE
A detainee may, of course, be photographed if he consented.185 But what if he doesn’t consent? Although we are unaware of any cases in which the issue has been addressed, it seems likely that it would be judged by the same standards as nonconsensual fingerprinting; i.e., taking a photograph of the detainee should be permitted if the officers reasonably believed that the photograph would help them confirm or dispel their suspicion, and the procedure was carried out promptly.186
Terminating the detention
Officers must discontinue the detention within a reasonable time after they determine that grounds for the stop did not exist.187 In the words of the Eighth Circuit, “[A]n investigative stop must cease once reasonable suspicion or probable cause dissipates.”188 Officers must also terminate the detention if it becomes apparent that they would be unable to confirm or dispel their suspicions within a reasonable time. And, of course, a traffic stop must end promptly after the driver has signed a promise to appear.189
Converting detentions into contacts
Many of the procedural problems that officers encounter during detentions can be avoided by converting the detention into a consensual encounter or “contact.” After all, if the suspect knows he can leave at any time, and if he says he doesn’t mind answering some more questions, there is no reason to prohibit officers from asking more questions.
To convert a detention into a contact, the officers must make it clear to the suspect that he is now free to go. Thus, they must ordinarily do two things. First, they must return all identification documents that they had obtained from the suspect, such as his driver’s license.190 This is because “no reasonable person would feel free to leave without such documentation.”191
Second, although not technically an absolute requirement,192 they should inform the suspect that he is now free to leave.193 As the Court of Appeal observed in People v. Profit, “[D]elivery of such a warning weighs heavily in favor of finding voluntariness and consent.”194
One other thing. The courts sometimes note whether officers explained to the suspect why they wanted to talk with him further, why they were seeking consent to search, or why they wanted to run a warrant check. Explanations such as these are relevant because this type of openness is more consistent with a contact than a detention, and it would indicate to the suspect that the officers were seeking his voluntary cooperation.195
4.2: Terry v. Ohio
PETITIONER RESPONDENT
Terry Ohio
LOCATION
Street Corner
DOCKET NO. DECIDED BY
67 Warren Court
CITATION
392 US 1 (1968)
ARGUED
Dec 12, 1967
DECIDED
Jun 10, 1968
Facts of the case
Terry and two other men were observed by a plain clothes policeman in what the officer believed to be "casing a job, a stick-up." The officer stopped and frisked the three men, and found weapons on two of them. Terry was convicted of carrying a concealed weapon and sentenced to three years in jail.
Question
Was the search and seizure of Terry and the other men in violation of the Fourth Amendment?
Conclusion
8–1 DECISION
MAJORITY OPINION BY EARL WARREN
FOR
AGAINST
Fortas
Warren
Brennan
Marshall
Stewart
Black
White
Harlan
Douglas
In an 8-to-1 decision, the Court held that the search undertaken by the officer was reasonable under the Fourth Amendment and that the weapons seized could be introduced into evidence against Terry. Attempting to focus narrowly on the facts of this particular case, the Court found that the officer acted on more than a "hunch" and that "a reasonably prudent man would have been warranted in believing [Terry] was armed and thus presented a threat to the officer's safety while he was investigating his suspicious behavior." The Court found that the searches undertaken were limited in scope and designed to protect the officer's safety incident to the investigation. | textbooks/workforce/Corrections/Principles_and_Procedures_of_the_Justice_System_(Alvarez)/04%3A_Detentions_Based_on_Reasonable_Suspicion/4.1%3A_Investigative_Detentions.txt |
Although there is certainly more to probable cause and reasonable suspicion than just principles, it’s a good place to start, so that is where we will begin this four-part series. In part two, which begins on page 9, we will explain how officers can prove that the information they are relying upon to establish probable cause or reasonable suspicion was sufficiently reliable that is has significance. Then, in the Fall 2014 edition we will cover probable cause to arrest, including the various circumstances that officers and judges frequently consider in determining whether it exists. The series will conclude in the Winter 2015 edition with an discussion of how officers can determine whether they have probable cause to search.
It is ordinarily a bad idea to begin an article by admitting that the subjects to be discussed cannot be usefully defined. But when the subjects are probable cause and reasonable suspicion1, and when the readership is composed of people who have had some experience with them, it would be pointless to deny it. Consider that the Seventh Circuit once tried to provide a good legal definition but concluded that, when all is said and done, it just means having “a good reason to act.”2 Even the Supreme Court— whose many powers include defining legal terms— decided to pass on probable cause because, said the Court, it is “not a finely-tuned standard”3 and is actually an “elusive” and “somewhat abstract” concept.4 As for reasonable suspicion, the uncertainty is even worse. For instance, in United States v. Jones the First Circuit would only say that it “requires more than a naked hunch.”5
But this imprecision is actually a good thing because probable cause and reasonable suspicion are ultimately judgments based on common sense, not technical analysis. Granted, they are important judgments because they have serious repercussions. But they are fundamentally just rational assessments of the convincing force of information, which is something the human brain does all the time without consulting a rule book. So instead of being governed by a “neat set of rules,”6 these concepts mainly require that officers understand certain principles— principles that usually enable them to make these determinations with a fair degree of consistency and accuracy.
First, however, it is necessary to explain the basic difference between probable cause and reasonable suspicion, as these terms will be used throughout this series. Both are essentially judgments as to the existence and importance of evidence. But they differ as to the level of proof that is required. In particular, probable cause requires evidence of higher quality and quantity than reasonable suspicion because it permits officers to take actions that are more intrusive, such as arresting people and searching things. In contrast, reasonable suspicion is the standard for lesser intrusions, such as detentions and pat searches. As the Supreme Court explained:
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quality or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.7
What Probability is Required?
When people start to learn about probable cause or reasonable suspicion, they usually want a number: What probability percentage is required?8 Is it 80%? 60%? 50%? Lower than 50? No one really knows, which might seem strange because, even in a relatively trivial venture such as sports betting, people would not participate unless they had some idea of the odds.
Nevertheless, the Supreme Court has refused to assign a probability percentage to these concepts because it views them as nontechnical standards based on common sense, not mathematical precision.9 “The probable cause standard,” said the Court, “is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of circumstances.”10 Similarly, the Tenth Circuit observed, “Besides the difficulty of agreeing on a single number, such an enterprise would, among other things, risk diminishing the role of judgment based on situation-sense.”11 Still, based on inklings from the United States Supreme Court, it is possible to provide at least a ballpark probability percentage for probable cause.
Reasonable suspicion, on the other hand, remains an enigma.
Probable cause
Many people assume that probable cause requires at least a 51% probability because anything less would not be “probable.” While this is technically true, the Supreme Court has ruled that, in the context of probable cause, the word “probable” has a somewhat different meaning. Specifically, it has said that probable cause requires neither a preponderance of the evidence nor “any showing that such belief be correct or more likely true than false,”12 and that it requires only a “fair” probability, not a statistical probability.13 Thus, it is apparent that probable cause requires something less than a 50% chance.14 How much less? Although no court has tried to figure it out, we suspect it is not much lower than 50%.
Reasonable suspicion
As noted, the required probability percentage for reasonable suspicion is a mystery. Although the Supreme Court has said that it requires “considerably less [proof] than preponderance of the evidence”15 (which means “considerably less” than a 50.1% chance), this is unhelpful because a meager 1% chance is “considerably less” than 51.1% but no one seriously thinks that would be enough. Equally unhelpful is the Supreme Court’s observation that, while probable cause requires a “fair probability,” reasonable suspicion requires only a “moderate” probability.16 What is the difference between a “moderate” and “fair” probability? Again, nobody knows. What we do know is that the facts need not rise to the level that they “rule out the possibility of innocent conduct.”17 As the Court of Appeal explained, “The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity.”18 We also know that reasonable suspicion may exist if the circumstances were merely indicative of criminal activity. In fact, the California Supreme Court has said that if the circumstances are consistent with criminal activity, they “demand“ an investigation.”19
Basic Principles
Having given up on a mathematical solution to the problem, we must rely on certain basic principles. And the most basic principle is this: Neither probable cause nor reasonable suspicion can exist unless officers can cite “specific and articulable facts” that support their judgment.20 This demand for specificity is so important that the Supreme Court called it the “central teaching of this Court’s Fourth Amendment jurisprudence.” 21 The question, then, is this: How can officers determine whether their “specific and articulable” facts are sufficient to establish probable cause or reasonable suspicion? That is the question we will address in the remainder of this article.
Totality of the circumstances
Almost as central as the need for facts is the requirement that, in determining whether officers have probable cause and reasonable suspicion, the courts will consider the totality of circumstances. This is significant because it is exactly the opposite of how some courts did things many years ago. That is, they would utilize a “divide-and-conquer”22 approach which meant subjecting each fact to a meticulous evaluation, then frequently ruling that the officers lacked probable cause or reasonable suspicion because none of the individual facts were compelling. This practice officially ended in 1983 when, in the landmark decision in Illinois v. Gates, the Supreme Court announced that probable cause and reasonable suspicion must be based on an assessment of the convincing force of the officers’ information as a whole. “We must be mindful,” said the Fifth Circuit, “that probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers. We weigh not individual layers but the laminated total.23 Thus, in People v. McFadin the court responded to the defendant’s “divide-and-conquer” strategy by utilizing the following analogy:
Defendant would apply the axiom that a chain is no stronger than its weakest link. Here, however, there are strands which have been spun into a rope. Although each alone may have insufficient strength, and some strands may be slightly frayed, the test is whether when spun together they will serve to carry the load of upholding [the probable cause determination].24
Here is an example of how the “totality of the circumstances” test works and why it is so important. In Maryland v. Pringle 25 an officer made a traffic stop on a car occupied by three men and, in the course of the stop, saw some things that caused him to suspect that the men were drug dealers. One of those things was a wad of cash (\$763) that the officer had seen in the glove box. He then conducted a search of the vehicle and found cocaine. But a Maryland appellate court ruled the search was unlawful because the presence of money is “innocuous.” The Supreme Court reversed, saying the Maryland court’s “consideration of the money in isolation, rather than as a factor in the totality of the circumstances, is mistaken.”
Common sense
Not only did the Court in Gates rule that probable cause must be based on a consideration of the totality of circumstances, it ruled that the significance of the circumstances must be evaluated by applying common sense, not hypertechnical analysis. In other words, the circumstances must be “viewed from the standpoint of an objectively reasonable police officer.”26 As the Court explained:
Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a practical, nontechnical conception. In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.27
Legal, but suspicious, activities
It follows from the principles discussed so far that it is significant that officers saw the suspect do something that, while not illegal, was suspicious in light of other circumstances.28 As the Supreme Court explained, the distinction between criminal and noncriminal conduct “cannot rigidly control” because probable cause and reasonable suspicion “are fluid concepts that take their substantive content from the particular contexts in which they are being assessed.”29 For example, in Massachusetts v. Upton the state court ruled that probable cause could not have existed because the evidence “related to innocent, nonsuspicious conduct or related to an event that took place in public.” Acknowledging that no single piece of evidence was conclusive, the Supreme Court reversed, saying the “pieces fit neatly together.”30 Similarly, the Court of Appeal noted that seeing a man running down a street “is indistinguishable from the action of a citizen engaged in a program of physical fitness.” But it becomes “highly suspicious” when it is “viewed in context of immediately preceding gunshots.”31
Another example of how noncriminal activities can become highly suspicious is found in Illinois v. Gates.32 It started with an anonymous letter to a police department saying that a local resident, Lance Gates, was a drug trafficker; and it explained in some detail the procedure that Gates and his wife, Sue, would follow in obtaining drugs in Florida. DEA agents followed both of them (Gates flew, Sue drove) and both generally followed the procedure described by the letter writer. This information led to a search warrant and Gates’ arrest. On appeal, he argued that the warrant was not supported by probable cause because the agents did not see him or his wife do anything illegal. It didn’t matter, said the Supreme Court, because the “seemingly innocent activity became suspicious in light of the initial tip.”
Multiple incriminating circumstances
Here is a principle that, while critically important, is often overlooked or underappreciated: The chances of having probable cause or reasonable suspicion increase exponentially with each additional piece of independent incriminating evidence that comes to light. This is because of the unlikelihood that each “coincidence of information”33 could exist in the absence of a fair or moderate possibility of guilt.
For example, in a Kings County murder case probable cause to arrest the defendant was based on the following: When the crime occurred, a car similar to defendant’s “uniquely painted” vehicle had been seen in a rural area, two-tenths of a mile from where a 15-year old girl had been abducted. In addition, an officer saw “bootprints and tire prints” nearby and “he compared them visually with boots seen in, and the treads of the tires of, defendant’s car, which he knew was parked in front of defendant’s hotel and registered to defendant. He saw the condition of the victim’s body; he knew that defendant had a prior record of conviction for forcible rape. He also knew of the victim’s occasional employment as a babysitter at the farm where defendant worked.” In ruling that these pieces of independent incriminating evidence constituted probable cause, the California Supreme Court said:
The probability of the independent concurrence of these factors in the absence of the guilt of defendant was slim enough to render suspicion of defendant reasonable and probable.34
Similarly, in a case from Santa Clara County,35 a man named Anthony Spears, who worked at a Chili’s in Cupertino, arrived at the restaurant one morning and “discovered” that the manager had been shot and killed before the restaurant had opened for the day. In the course of their investigation, sheriff ’s deputies learned that Spears had left home shortly before the murder even though it was his day off, there were no signs of forced entry, and that Marlboro cigarette butts (the same brand that Spears smoked) had been found in an alcove near the manager’s office. Moreover, Spears had given conflicting statements about his whereabouts when the murder occurred; and, after “discovering” the manager’s body, he told other employees that the manager had been “shot” but the cause of death was not apparent from the condition of the body.
Based on this evidence, detectives obtained a warrant to search Spears’ apartment and the search netted, among other things, “large amounts of bloodstained cash.” On appeal, Spears argued that the detectives lacked probable cause for the warrant but the court disagreed, saying, “[W]e believe that all of the factors, considered in their totality, supplied a degree of suspicion sufficient to support the magistrate's finding of probable cause.”
While this principle also applies to reasonable suspicion to detain, a lesser amount of independent incriminating evidence will be required. The following are examples from various cases:
• The suspect’s physical description and his clothing were similar to that of the perpetrator.36
• In addition to a description similarity, the suspect was in a car similar in appearance to that of the perpetrator.37
• The suspect resembled the perpetrator and he was in the company of a person who was positively identified as one of two men who had just committed the crime.38
• The suspect resembled the perpetrator plus he was detained shortly after the crime occurred at the location where the perpetrator was last seen or on a logical escape route.39
• In addition to resembling the perpetrator, the suspect did something that tended to demonstrate consciousness of guilt; e.g., he lied to officers or made inconsistent statements, he made a furtive gesture, he reacted unusually to the officer’s presence, he attempting to elude officers.40
• The suspect resembled the perpetrator and possessed fruits of the crime.41
• The number of suspects in the vehicle corresponded with the number of people who had just committed the crime, plus they were similar in age, sex, and nationality.42
Unique circumstances
The odds of having reasonable suspicion or probable cause also increase dramatically if the matching or similar characteristics were unusual or distinctive. As the Court of Appeal observed, “Uniqueness of the points of comparison must also be considered in testing whether the description would be inapplicable to a great many others.”43
For example, the courts have taken note of the following unique circumstances:
• The suspect and perpetrator both had bandages on their left hands;44
• The suspect and perpetrator were in vehicles of the same make and model with tinted windows and a dark-colored top with light-colored side.45 Conversely, the Second Circuit noted that “when the points of similarity are less unique or distinctive, more similarities are required before the probability of identity between the two becomes convincing.”46
Inferences based on circumstantial evidence As noted earlier, probable cause and reasonable suspicion must be based on “specific and articulable facts.” However, the courts will also consider an officer’s inferences as to the meaning or significance of the facts so long as the inference appeared to be reasonable. It is especially relevant that the inference was based on the officer’s training and experience.47 In the words of the Supreme Court, “The evidence must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”48 Or, as the Court explained in United States v. Arvizu:
The process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.49
For example, in People v. Soun 50 the defendant and three other men killed the owner of a video store in San Jose during a botched robbery. The men were all described as Asian, but witnesses provided conflicting descriptions of the getaway car. Some said it was a two-door Japanese car, but one said it was a Volvo “or that type of car.” Two of the witnesses provided a partial license plate number. One said he thought it began with 1RCS, possibly 1RCS525 or 1RCS583. The other said he thought it was 1RC(?)538.
A San Jose PD officer who was monitoring these developments at the station made two inferences:
(1) the actual license plate probably began with 1RCS, and (2) the last three numbers included a 5 and an 8. So he started running these combinations through DMV until he got a hit on 1RCS558, a 1981 Toyota registered in Oakland. Because the car was last seen heading toward Oakland, officers notified OPD and, the next day, OPD officers stopped the car and eventually arrested the occupants for the murder. This, in turn, resulted in the seizure of the murder weapon. On appeal, one of the occupants, Soun, argued that the weapon should have been suppressed because the detention was based on nothing more than “hunch and supposition.” On the contrary, said the court, what Soun labeled “hunch and supposition” was actually “intelligent and resourceful police work.”
Similarly, in People v. Carrington 51 the California Supreme Court ruled that police in Los Altos reasonably inferred that two commercial burglaries were committed by the same person based on the following: “the two businesses were located in close proximity to each other, both businesses were burglarized on or about the same date, and in both burglaries blank checks were stolen.”
Hunches and unsupported conclusions
It is well known that hunches play an important role in solving crimes. “A hunch,” said the Ninth Circuit, “may provide the basis for solid police work; it may trigger an investigation that uncovers facts that establish reasonable suspicion, probable cause, or even grounds for a conviction.”52 Still, hunches are absolutely irrelevant in determining the existence of probable cause or reasonable suspicion. In other words, a hunch “is not a substitute for the necessary specific, articulable facts required to justify a Fourth Amendment intrusion.”53
The same is true of unsupported conclusions.54 For example, in ruling that a search warrant affidavit failed to establish probable cause, the court in U.S. v. Underwood 55 noted that much of the affidavit was “made up of conclusory allegations” that were “entirely unsupported by facts.” Two of these allegation were that officers had made “other seizures” and had “intercepted conversations” that tended to prove the defendant was a drug trafficker. “[T]hese vague explanations,” said the court, “add little if any support because they do not include underlying facts.”
Information known to other officers
Information is ordinarily irrelevant unless it had been communicated to the officer who acted on it; i.e., the officer who made the detention, arrest, or search, or the officer who applied for the search or arrest warrant.56 To put it another way, a search or seizure made without sufficient justification cannot be rehabilitated in court by showing that it would have been justified if the officer had been aware of information possessed by a colleague. As the California Supreme Court explained, “The question of the reasonableness of the officers’ conduct is determined on the basis of the information possessed by the officer at the time a decision to act is made.”57
There is, however, an exception to this rule known as the “official channels rule” by which officers may detain, arrest, or sometimes search a suspect based solely on an official request to do so from another officer or agency. Under this rule, officers may also act based on information transmitted via a law enforcement database, such as NCIC and CLETS.58
Although the officers who act upon such transmissions are seldom aware of many, if any, of the facts known to the originating officer, this does not matter because, as the U.S. Supreme Court pointed out, “[E]ffective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.”59
For example, in U.S. v. Lyons 60 state troopers in Michigan stopped and searched the defendant’s car based on a tip from DEA agents that the driver might be transporting drugs. On appeal, Lyons argued that the search was unlawful because the troopers had no information as to why she was a suspected of carrying drugs. But the court responded “it is immaterial that the troopers were unaware of all the specific facts that supported the DEA’s reasonable suspicion analysis. The troopers possessed all the information they needed to act—a request by the DEA (subsequently found to be well-supported).”
Note that, although officers “are entitled to presume the accuracy of information furnished to them by other law enforcement personnel,”61 the officers who disseminated the information may later be required to prove in court that they had received such information and that they reasonably believed it was reliable.62
Information inadmissible in court
In determining whether probable cause or reasonable suspicion exist, officers may consider both hearsay and privileged communications.63 For example, although a victim’s identification of the perpetrator might constitute inadmissible hearsay or fall within the marital privilege, officers may rely on it unless they had reason to believe it was false. As the Court of Appeal observed, “The United States Supreme Court has consistently held that hearsay information will support issuance of a search warrant.... Indeed, the usual search warrant, based on a reliable police informer’s or citizen-informant’s information, is necessarily founded upon hearsay.”64 On the other hand, information may not be considered if it was inadmissible because it was obtained in violation of the suspect’s constitutional rights; e.g., an illegal search or seizure.65
Mistakes of fact and law
If probable cause was based on information that was subsequently determined to be inaccurate or false, the information may nevertheless be considered if the officers reasonably believed it was true. As the Court of Appeal put it, “If the officer’s belief is reasonable, it matters not that it turns out to be mistaken.”66 Or, in the words of the Supreme Court, “[W]hat is generally demanded of the many factual determinations that must regularly be made by agents of the government is not that they always be correct, but that they always be reasonable.”67
The courts are not, however, so forgiving with mistakes of law. This is because officers are expected to know the laws they enforce and the laws that govern criminal investigations. Consequently, information will not be considered if it resulted from such a mistake, even if the mistake was made in good faith.68 As the California Supreme Court explained, “Courts on strong policy grounds have generally refused to excuse a police officer’s mistake of law.”69 Or, as the Ninth Circuit put it, “If an officer simply does not know the law and makes a stop based upon objective facts that cannot constitute a violation, his suspicions cannot be reasonable.”70 | textbooks/workforce/Corrections/Principles_and_Procedures_of_the_Justice_System_(Alvarez)/05%3A_Arrests_Based_on_Probable_Cause/5.1%3A_Principles_of_Probable_Cause_and_Reasonable_Suspicion.txt |
Subsets and Splits