AMERICAS COURTS AND THE CRIMINAL JUSTICE SYSTEM

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David W. Neubauer, Ph.D. UNIVERSITY OF NEW ORLEANS

Henry F. Fradella, J.D., Ph.D. CALIFORNIA STATE UNIVERSITY, LONG BEACH

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AMERICAS COURTS AND THE CRIMINAL JUSTICE SYSTEM

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America’s Courts: And the Criminal Justice System, Eleventh Edition David W. Neubauer and Henry F. Fradella

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220

9 Defendants and Victims

AP Photo/Bob Breidenbach, Pool

Sarah Ballard tries to control her emotions as she deliv- ers a victim impact statement in which she described how her life

was changed by her mother’s death in a nightclub fire in Rhode

Island that was caused when indoor fireworks ignited soundproofing

foam that had been installed in the club. The owners of the club pled

“no contest” to 100 counts of involuntary manslaughter. One was

sentenced to 4 years in prison and the other was spared any period

of incarceration when he received a suspended sentence and 500

hours of community service. Families of those who died in the fire

expressed outrage at the plea-bargained sentence. Stories like this

call into question how the criminal justice system treats victims.

9781285820170, America’s Courts: And the Criminal Justice System, Eleventh Edition, Neubauer/Fradella – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

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Chapter Outline CHARACTERISTICS OF DEFENDANTS

Overwhelmingly Male

Courts, Controversy, & Racial Discrimination

Can Latinos Get Equal Justice under the Law?

Mostly Underclass Racial Minorities Overrepresented

DEFENDANTS IN COURT Pro Se Defendants Social Media Trap

COURTS THROUGH THE EYES OF VICTIMS AND WITNESSES

Frustrations in Coping with the Process Travails of Testifying Surprising Support for the System

VICTIMS AND WITNESSES THROUGH THE EYES OF THE COURT

Lack of Cooperation Witness Intimidation

CHARACTERISTICS OF VICTIMS Prior Relationships between Defendants

and Victims Domestic Violence

CASE CLOSE-UP: Thurman v. Torrington and Domestic Violence Arrests

AIDING VICTIMS AND WITNESSES Victim/Witness Assistance Programs Victim Compensation Programs Victims’ Bill of Rights Victim Impact Statements

Courts, Law, & Media Law and Order: Special Victims Unit

(NBC, 1999–present)

AIDING OR MANIPULATING VICTIMS?

The Victims’ Rights Movement Differing Goals Do Victims Benefit?

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9781285820170, America’s Courts: And the Criminal Justice System, Eleventh Edition, Neubauer/Fradella – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

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officer on the scene described Pervis Tyrone Payne as looking like “he was sweating blood.” The officer’s partner followed the trail of blood into the

kitchen, where he found Charissee Christopher and her two-year-old daughter Lacie butch- ered to death. After returning a verdict of guilty on two counts of first-degree murder, the trial proceeded to the penalty phase of a capital murder prosecution. The defense called four witnesses, who testified that Payne was a very caring person but had such a low score on an IQ test that he was mentally handicapped. The prosecutor countered by calling the victim’s grandmother to the stand, who testified that three-year-old Nicholas (the lone survivor) kept asking why his mother didn’t come home, and he cried for his sister. During closing arguments, the prosecutor made maximum use of this emotional testimony, imploring the jury to make sure that Nicholas would know later in life that justice had been done in his mother’s brutal slaying. The Memphis, Tennessee, jury imposed the death penalty.

The difficulty with the grandmother’s testimony in this case is that, just a couple of years be- fore, the Supreme Court had ruled that such emotional statements are inadmissible because they tend to mislead jurors. But in the interim, the membership of the Court had changed with the addition of two conservatives appointed by Republican presidents. By agreeing to hear the case, the Court was signaling that it might be willing to reverse itself and allow victim impact statements during sentencing.

o sw

The first

222

After reading this chapter, you should be able to:

List the three characteristics of defendants. Describe how victims and witnesses view the court process. Describe how court actors view victims and witnesses. Discuss the prior relationships between defendants and victims and why this is important in domestic violence cases. Identify three types of programs that are designed to aid victims and witnesses in coping with the criminal justice process. Explain why some view victim programs as aiding victims whereas others view these programs as manipulating victims.

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Learning Objectives

9781285820170, America’s Courts: And the Criminal Justice System, Eleventh Edition, Neubauer/Fradella – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

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Defendants and VictimsChapter 9 223

Payne v. Tennessee directs our attention to both defendants and their victims. All too often, when we think about the criminal courts, our minds immedi- ately focus on the members of the courtroom work group: prosecutors, defense attorneys, and judges. We are less likely to think about the other partici- pants: victims, witnesses, or even defendants. Yet these other actors are also important.

Victims greatly influence workload. Courts are passive institutions. They do not seek out cases to decide; rather, they depend on others to bring matters to their attention. How many cases are filed, as well as what kinds of cases are brought to court, is determined by the decisions of others— police, victims, and those who violate the law in the first place. Thus, the courtroom work group has very little control over its workload. Second, victims, witnesses, and defendants are the consum- ers of the court process. Democratic governments are expected to be responsive to the wishes and demands of their citizens; victims and witnesses often complain about how the courts handle their cases. Victims and defendants are both subjects and objects of the criminal justice process. Their impor- tance for how the courtroom work group admin- isters justice on a day-to-day basis is the subject of this chapter.

CHARACTERISTICS OF DEFENDANTS

In some ways, those accused of violating the criminal law are a diverse lot. Although many defendants are economically impoverished, their numbers also include high-ranking government officials, businesspeople, and prominent local citi- zens. An indicator of the diversity of defendants centers on how often they are involved with the criminal justice system. At one end of the spec- trum are those who are arrested once and are never involved again. At the other end are a small group of career offenders who are responsible for a disproportionate share of offenses (Tracy, Wolfgang, & Figlio, 1990; Wolfgang, Figlio, & Sellin 1972). In fact, it is estimated that over 70 percent of all serious criminal offenses are com- mitted by roughly 7 percent of offenders, a group commonly referred to as career criminals, (DeLisi 2005; Vaughn & DeLisi, 2008). To complicate

matters further, a generational effect seems to be indicated. Violent offenders are much more likely to have experienced neglect, abuse, or violence in their families (Farrington, 2006; Harlow, 1999). Moreover, conviction of a parent is correlated with the likelihood of a child offending and being con- victed (Farrington, 2006; Roettger & Swisher, 2011; Rowe & Farrington 1997). Whether it is possible to predict who will become a career criminal, how- ever, is subject to extensive debate.

Aside from certain aspects of diversity, the majority of violators conform to a definite profile. Compared to the average citizen, felony defen- dants are significantly younger, overwhelmingly male, disproportionately members of racial minor- ities, more likely to come from broken homes, less educated, more likely to be unemployed, and less likely to be married (see Table 9.1). Three characteristics of defendants—sex, poverty, and race—figure prominently in discussions of crime and crime policy and therefore deserve expanded treatment.

Overwhelmingly Male Defendants are overwhelmingly male. In fact, women account for only 25.5 percent of all arrests for all crimes (Federal Bureau of Investigation, 2011). Although these percentages represent a sig- nificant increase over the past few decades, it is unclear whether women are actually committing

SOURCE: Thomas H. Cohen and Tracey Kyckelhahn. Felony Defendants in Large Urban Counties, 2006. Washington, DC: Bureau of Justice Statistics, 2010. Available online at http://bjs.ojp.usdoj.gov/content/ pub/pdf/fdluc06.pdf.

Male 82%

Racial or ethnic minorities 71%

At least one prior conviction 61%

Younger than age 35 53%

Under criminal justice supervision at the time of arrest (probation, parole, pretrial release, or in custody)

31%

TABLE 9.1 ■ PROFILE OF FELONY DEFENDANTS

9781285820170, America’s Courts: And the Criminal Justice System, Eleventh Edition, Neubauer/Fradella – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

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224 Part II / Legal Actors

rates of female involvement in the justice system have been increasing in recent years, but their absolute numbers still fall well below those of males.

Mostly Underclass Typical felony defendants possess few of the skills needed to compete successfully in an increasingly technological society. They are drawn from what sociologists call the urban underclass (Jencks & Peterson, 1991). In turn, the more poverty in a com- munity, the higher the amount of crime (Hipp &

more crimes or whether changes in the criminal justice system itself have occurred. For example, decreases in sexist and paternalistic thought pro- cesses might now lead police to arrest and pros- ecutors to charge female offenders at higher rates than in the past (Pollock & Davis, 2005). Accord- ing to this view, there has been no major shift in girls’ or women’s relative violence (Schwartz, Steffensmeier, Zhong, & Ackerman, 2009). On the other hand, there is empirical evidence that the gap between male and female offenders in vio- lent crimes is decreasing (Lauritsen, Heimer, & Lynch, 2009). Whatever the causes, it is clear that

The nomination of Sonia Sotomayor and a recent report of the U.S. Census Bureau (2011) have focused attention on race, ethnicity, and the justice system. More than one-third of our nation’s population belongs to a minority group. Sotomayor

is the first Hispanic, an ethnic group that constitutes the fastest-growing segment of the U.S. population, to serve on the U.S. Supreme Court. The U.S. Census Bureau reports that Hispanics now constitute nearly one in six residents, or 50.5 million people. Even more telling for the future: 44 percent of children younger than 18 years and 47 percent of children younger than 5 are now from minority families.

Hispanics (the identification adopted by the government) or Latinos (a term some in this group prefer) are diverse in terms of country of origin. Some, like Sonia Sotomayor, are from Puerto Rico, a U.S. territory. Others are Cuban, many of whose parents fled the dictatorship of Fidel Castro. Others are from Mexico, the world’s 12th most populous country, with over 114 million people. Others are from other central and South American countries. Although united by the Spanish language, the Latino population is heterogeneous in many ways.

Most importantly for American politics, Hispanics are also diverse in terms of their immigration status. No accurate counts of how many illegal immigrants are in the country

exist, but many estimate about 11 million. (Some advocacy groups place the number higher.) The majority of detained immigrants do not have an attorney during their deportation hearings (Hamblett, 2012). Immigration has become a major political issue in the United States, dividing both the Ameri- can population and the nation’s two major political parties. Part of this debate focuses on the role of the criminal justice system.

Hispanics share many of the same social disadvantages as Blacks (Demuth, 2003), including poverty, unemployment, living in neighborhoods with high crime rates and a history of discrimination. But in addition, they face some unique prob- lems surrounding language and cultural heritage. Some Latino victims/defendants speak little if any English, which makes it hard for them to understand what is happening during investi- gations, arrests, court appearances, and the like. Besides lacking language skills, Latino victims/defendants also often lack a basic understanding of the American justice system. Their heritage is European law, which places less emphasis on the rights of crim- inal defendants. Moreover, in some of their native countries, the justice system has a history of suppression, which makes them particularly fearful of governmental officials.

The social disadvantages faced by Latinos have several important consequences for the criminal justice system. For one, Latinos express the same levels of lack of confidence in the U.S. criminal justice system as Blacks (Pew Hispanic Center, 2009). Perhaps for this reason, they are less likely to report crimes to the police. In crimes of violence such as

CAN LATINOS GET EQUAL JUSTICE UNDER THE LAW?

COURTS, C O N T ROV E R S Y,

& RACIAL DISCRIMINATION

9781285820170, America’s Courts: And the Criminal Justice System, Eleventh Edition, Neubauer/Fradella – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

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Defendants and VictimsChapter 9 225

opposed to those of mainstream society” insofar as they endorse violence as an appropriate response to disrespect (see also, Bourgois, 2003).

Racial Minorities Overrepresented Race remains a divisive issue in American politics, and nowhere is this more evident than in the area of crime. African-Americans, Hispanics, and Native- Americans are arrested, convicted, and imprisoned at significantly higher rates per capita than Whites. At the same time, it is important to stress that his- torically Whites constituted the majority of those in

Yates, 2011). The association of crime with poverty helps to explain, in part, why the overwhelming number of crimes—primarily burglary, theft, and drug sale—are committed for economic motives. Although crimes of violence dominate the head- lines, most defendants are not dangerous; they are charged with property or drug offenses. As for violent crimes, competing theories offer vary- ing explanations for the fact that the “ghetto poor” are disproportionately involved in violent crime. Anderson (1999, p. 33) argued that the “street code” in such economically depressed areas leads to a subculture with norms that are “conspicuously

assaults, robberies, and rapes, for example, Hispanic women report the crime to authorities just 35 percent of the time, as compared with 51 percent for White women, and 63 percent for Black women (Karmen, 2012). The lack of trust in gov- ernmental authorities coupled with a fear of being deported is a major reason Latinos often do not report crimes to the police. In turn, Latinos may be targeted because they are less likely to report the crime.

It is also harder for police and prosecutors to deal with crimes in which Latinos are victims or defendants. Traditionally, the Hispanic population was concentrated in states sharing a border with Mexico and a few big cities. Today, the population has spread across the nation, meaning that many police depart- ments have few if any officers who can take an accurate police report from a Spanish speaker. The same barriers face prosecu- tors, public defenders, and judges, with justice sometimes lost in the translation. For example, following the slaying of a Hispanic migrant worker, six Spanish-speaking witnesses were held for months in jail as material witnesses, but they had no court- appointed lawyer because no one in the public defender’s office could read the letters they wrote (Alexander-Bloch, 2007).

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