Final EXAM - Professor: Ralph Grunewald, Ph.D., LL.M. PDF

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Professor: Ralph Grunewald, Ph.D., LL.M....

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FINAL EXAM STUDY GUIDE Exam - Everything since Exam II - Definitions from lecture and in margins - Prisonization (Definition: impact of prison on the ability to live an autonomous life), Normalization, Good Time, Dependency, Neglect, ect. - Take lecture as guideline - Numbers: No specifics by ballpark - Purpose of punishment, sentencing and types of sentences and incarceration (models) - Death penalty, Banner (resurrection); Fagan: Capital Punishment - Probation/ Parole - Juvenile Justice! - Scott/ Steinberg [p. 1012 ff.] - Terminology - Cases” only as far as addressed including… - Court decisions - Furman v Georgia (Ch. 9) - Gregg v Georgia (Ch. 9) - Roper v Simmons (Ch. 9) - In re Gault (1967) (Ch. 15) - In re Winship (1967) (Ch. 15)

Reading #16 Resurrection Evolving Standards of Decency - Furman v Georgia: Existing death penalty laws unconstitutional - Day after, five states announced their intention to resurrect capital punishment - Support for the death penalty was big enough to put on the ballot in 1972 - 2:1 voters amended state constitution to allow the death penalty - Death penalty evolving in a new way - Would have happened with or without Furman - Furman influenced speed of change, if not, direction of change - Made capital punishment a more silent issue - Effect of calling its opponents to action - Model Penal Code: once a defendant had been convicted of 1st degree murder, sentencing would take place at a separate proceeding, at which each side would be allowed to introduce evidence - 8 aggravating circumstances, jury would have to find at least 1 for the death sentence

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8 mitigating circumstances, factors that tended to make the death penalty less appropriate Point was to specify to the jury what they should be looking for Only 42 people were sentenced to death in 1973, but 149 in 1974 - More in any year since 1942 court ruled on the constitutionality - Nixon in office

Lecture #19 Wrongful Convictions - If a person is innocent, but convicted guilty - Growing # of exonerations - DNA exonerations: someone in prison saying they they are innocent - Retry police’s DNA and find out that the DNA is not actually a match - Not DNA exonerations: More than reasonable doubt that this person in prison is guilty, no DNA→ witness testimony DNA exonerations: - 354 DNA exonerations - Average time served: 14 years - Actual perpetrators imprisoned -

False or misleading forensic evidence doesn’t work specifically - Only type of evidence that can match people perfectly are DNA

Official Misconduct - Contributing factor in 51% of exonerations - Leading factor in cases of homicide By law enforcement: - Suggestive identifications - Coerced false confessions - Suppressing exculpatory evidence - Incentivizing unreliable informants Misconduct by prosecutors: - Suppressing exculpatory evidence Michael Morton’s arrest in 1987 - Official misconduct - 1986 wife found dead - 1898 convicted and sentenced for life - 1990 semen matched morton - 2005 limited DNA testing did not yield result

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2010 granted DNA testing of bandana and hair, ordered full disclosure of enforcement files - 2011 DNA matched to Mark Norwood - 2011 Morton released after 25 years in prison Tunnel vision: psychological effect that makes us unable to see the other side All circumstantial- nothing actually proving that it was him - 2013 TX supreme court held court for inquiry - DA Ken Anderson, later a judge, found guilty of criminal contempt

Mistaken Witness ID - Contributing factor in 29% for overall exonerations - Leading contributing factor (69%) of sexual assault exonerations - Contributing factor in 71% of exonerations overturned through DNA testing Why is eyewitness evidence so unreliable? - Memory does not work like a video recorder - What we perceive is not really what was there or what happened - Expectations: what we expect to see affects what we perceive - Not everything we see is recorded in the brain - Memory is a construction - Memory decays rapidly and can ve tainted or changed, but post incident evidence Misidentification of John White - 74 year old woman raped at 4 am - 6 weeks after crime he is arrested - Black male, late 20s, medium height - Sentenced to life for rape and 40 years of other crimes - Exonerated through DNA, wasn’t him - Weirdly enough was someone else in the lineup they were standing together Eyewitness Misidentification- estimator variables - Lighting - Distance - Cross- race ID - Presence of a weapon - Victim’s stress level Relative judgements - People prefer to make comparisons, rather than absolute judgements - In a lineup, they compare one person to the next - They find the one who looks most like the criminal

False confessions - Contributing factor in 12% of exonerations - 22% of homicide exonerees falsely confess - 28% of DNA exonerations where innocent defendants confessed, plead guilty, or made incriminating statements False confessions Causes: - Diminished capacity - Coercion, duress, fear of violence, threats - Threat of harsh sentence - Belief that truth will ultimately free them Chris Ochoa - 1988 Nancy DePriest 20 year old Pizza Hut raped and murdered - Ochoa and Richard Danziger arrested - Ochoa interrogated for two 12 hour sessions, threatened with DP and confessed - Plea for life; testimony against Danziger - 1990 they were both sentenced to life - Graduated HS in prison-- then went to UW law school and now is an attorney - Takes a long time to expunge the arrest (years) - Compensation? - His friend got hepatitis C in prison, was beaten up, got brain damaged and died soon afterwards Lecture #20 Sentencing and the death penalty A sentence is a penalty or sanction imposed on a person by a court upon conviction for a criminal defense - Distinguish: trial stage and sentencing stage - Bifurcated proceedings - During sentencing they consider the motive of a crime - Pre- sentencing report: depends on the sentence and the state who writes it - Sent to court and defense, then judge reads it - Difference between penalty and sanction - Penalty is more punitive- function of putting some negative stimulus (punishing) - Sanction is more general (community work), it is meant to be rehabilitated Purpose of punishment - absolute , relative: 2 types - Absolute

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Punitur quia peccatum est. Hugo Grotius: punishment is to be inflected because a crime has been committed Relative - Nemo prudens punit quia peccatum est, sed ne pecce (punitur, ne peccetur) - Plato/ seneca: punishment is to be inflicted that no crime WILL BE committed - Make sure person does not commit a crime again - Not reacting to the crime itself

Absolute - retributions -- this should not play a role (always overlaps) - Retaliation - Just deserts - “Eye for an eye” - Atonement - Repentance - “negation of the negation” Relative Positive [enable]

Negative [disable]

Individual prevention

Rehabilitation (#1 goal)

incarceration/ deterrence

General prevention

Affirmation of values and beliefs in law

Deterrence

***** → IN THE TEXTBOOK READ ABOUT SENTENCING SYSTEM 1. Indeterminate sentences a. incarceration , goal is rehab 2. Determinate sentences 3. Mandatory sentences -

America has the highest incarceration rates

The Death Penalty Pros

Cons

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There are specific lines that should never be crossed and that person crosses it with murder or homicide Life is not a spectrum If you take a life, you should suffer the consequences Should be possible and well thought through for the most serious crimes People like Ted Bundy gave up their humanity, what if they escape prison again? - Escaping prison is a crime Not immediately executed years before it actually occurs Usually around 14 years

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Very expensive because the amount of litigation We should not endorse killing Too much on the process, giving PTSD to the person doing it Death penalty is not the worst penalty, it is worse to have to spend your life rotting in prison Justice system always has doubt, taking someone’s life when you don’t really know for sure Violation of the 8th amendment? NO, not if executed properly - Person cannot be in pain - Person not sane enough, then it violates No rehabilitation Racial undertone - Supreme court said show me that it is racist-- can’t prove Overturned or abolished due to historical reasons

Review: Goals of punishment - Retribution - Incapacitation - Rehabilitation - Affirmation of values - Deterrence - Enforcement - Doesn’t work? -

Murder rates in death penalty states are higher than in non death penalty states Enforcing the death penalty and having it on the books (the ability to do it) are two very different things Years between the death penalty and execution

The Death Penalty- legal lense - “constitutionalization “ of the death penalty - In 1958 (Trop v Dulles, 356 U.S. 86,101) the supreme court noted that the interpretation of the eighth amendment contained an “evolving standard of decency that marked the progress of a maturing society”

B. Aftermath of Furman v Georgia (1972) 1. Supreme court banned death penalty for procedural reasons 2. Juries could reinstate death penalty based on “arbitrary and unfair” sentencing 3. Randomness 4. Solutions? Discussion “Supreme court… Washington Post” - Does Madison reach the means to be put to the death penalty? Or not because she does not remember their people - There was a motive, even if he doesn’t remember it--- still guilty for the crime - dementia -- low level - Truly determine after tests that his brain is damaged Is the death penalty ethical/ is there a place for it? - Is being on death row punishment enough? - Your mental state when knowing you about to die, is that the worst kind of punishment? - The victim may want their perpetrator to die, it is tough to know until we are a part of that situation “Capital punishment deters capital costs” Why do we trust professors and doctors all the time, especially with the death penalty? In every state there should be an extremely high burden of evidence - Confusion between correlation and causality - How is the jury supposed to know better - Should have sent out the bite marks to an impartial doctor, not one who has already heard all of the opinions - People choose expert witness’ that agree with them - ** Death penalty is more expensive than life in prison - How could you put a price on someone’s life? - Constitutionalization of the death penalty - Process in which the death penalty became illegal Reading #18 Is Rural America Getting Tired of Tough- on- Crime policies By: Newkirk II, Vann - American leaders have used punitive rhetoric to get elected - americans actually want fewer prisons-- not waiver politicians who put less people in them Polled (GQR/ Vera poll)

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40%= incarceration 33%= # is just right 9%= rates too low Approach to assess who is driving those attitudes and how they interact with policy Americans punitive attitudes have decreased since 1995 - 51%= too many people in prison Poll compares people in rural areas to the general population-- measures prisons geographic differences - Even conservatives aren’t thrilled with the mass incarceration - Increase of incarceration in rural cities Prison construction is a last priority Support for reform - Amplified by opioid crisis Incarceration has gone up since Trump

Lecture #21 Death Penalty Badger Poll (2006) - Murder case - Death penalty with no alternative: - 55.6% in favor - Death penalty or life without parole

Gregg v Georgia (1975) 1. Combination of five cases challenging new statutes 2. Definition of procedure a. Separate proceeding: guilt and sentence b. Statutes must require jurors to weigh i. Statutory aggravating and 1. Special circumstances” factors that make it seem more serious, speak in favor of the death penalty a. These are the factors the jury must look out for ii. Non statutory mitigating factors 1. Mitigating factors: factors that speak against the death penalty a. Whether or not it is work taking a life, jury has a lot of factors to consider c. Opportunities for appeal Effects

1. Issues that had once been decided by legislature/ governors (clemency) are “constitutional” now 2. Main effects a. Decline of clemency****DEFINE b. Abolitionist movement: first political than legal c. The “post- Gregg” trial: highly tech. and lengthy d. “Complex ever- shifting body of law” e. Irreconcilable goals: consistency and individualization Limitations of the Death Penalty - Mental illness - Ford v Wainwright (1986) - Ban of execution of persons that have become insane - Can you treat…? Juvenile Offenders - Between 1976 and 2005: 22 executions - 2005: supreme court (Roper v Simmons) banned executions of individuals under the age of 18 - Why do we waive kids to adult court? - Because of the severity of the crime - Absolute retribution on those positions - Still mature enough to know what they did was wrong? Impulse control? - What Roper considered - Female brains developed at 21, males developed at 25 - Roper said if your under 18 at the time of a crime, then you cannot be tried for the death penalty Mental Retardation - Cannot get the death penalty Death Qualified Juries 1. Should people who are opposed to the death death penalty be excluded from juries in capital cases? 2. Witherspoon v. Illinois (1968) a. No, not automatically b. But voir dire The Death Penalty II - The current debate

Justifications Deterrence a. Isaac Ehrlich (1975) 1:8? b. Hard to measure? Victim/ offender relationship (1976- 2005) - Rehabilitation conflict is high - Deterrence doesn’t reach people who are in the middle of conflict - At the point where people are about to do a homicide, they are so worked up that deterrence doesn’t reach that point Closure for victims? - Death penalty is not about justice, but revenge - Lynne henderson (1985): “The common assumptions [...] that [crime victims] are all ‘outraged’ and want revenge underlies much of the current victim’s rights rhetoric [...] these assumptions fail to address Economic aspects - Is death cheaper? - Death penalty= $2.5 mil - $5 mil per case - Much more expensive Retribution - Has “returned to intellectual respectability” (banner) - Loss of faith in power of rehabilitation - Resurgence of causal models of crime (free will) - Capital punishment is moral imperative (Banner) Racial Discrimination - Race place a complex role - McCleskey v Hemp (1987) - Statistics irrelevant unless… - … intent can be proven white victime

Lecture #22 PBS frontline documentary “solitary notion” - Who gets into solitary confinement? - What is the idea/ goal of solitary confinement and is it accomplished? - One inmate was moved to a psychiatric ward where he improved before he was moved back to solitary. What happened then and what does that tell u about the effectiveness of solitary confinement?

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Why do you think some inmates turn to such radical measures such as self- harm, provoking interventions in solitary? Does that show they are not ready for the normal prison population?

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Todd Fickett down there for assaulting a police officer, 6 months - If all windows are covered then they have to take the prisoner out - Officers regularly have to take out prisoners for self- harm - solitary = “prison within prison” - Get an hour of exercise in their cage - punishment , or because they are too dangerous to be around other inmates - punishment/ self- harm= more time in solitary

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Inmates turn to radical harm to either physically get out and have to be taken out of their cells or because they cannot handle another day in there it's made them go so crazy Began in 1800’s to see if it could reform inmates Since 1980’s began to be used to make the bad inmates stand out - U.S. has the most inmates in solitary than any other western country Todd Fickett cut open a vain - In a psych unit for the next 3 months - Serious mental illness - About treatment not punishment

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Everything bad they do leads to more time in solitary, but they are angry, so they keep doing it Weekly classes to make them less violent Step-down unit: for people transitioning out of solitary - Socialize a few hours a day and classes Todd was doing great when seeing the psychologist, but when seg began to come up, he went crazy again Do things, bad things also pass the time

Class Discussion - Fairly lower amount of women in prison - Solitary confinement #’s have decreased - Prisoners who act out have to be punished - Just going to make them worse - Not a sentence: place for mal- adapted inmates - Violent, acting out, contraband - Once in solitary, it is hard to go back - State is responsible for the health of the inmates, so have to ensure he doesn’t kill himself

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Cycle of depression

Discussion Based on this week's readings Do the prisoners in solitary confinement deserve a sympathetic relationship with the officers or should their relationships be more removed? - Should the officers know the prisoners as well as they do? - They do deserve the compassion, they are already being treated like animals, they should at least get one form of normal human contact - Not detrimental for the guard - Prison should be to reform not to punish - They are breeding these people to be aggressive towards the officers - Solitary confinement aggravates the situation How is crime treated in a rural area? - Budgets lead to this - Smaller towns have smaller budgets - Small economy can bring more jobs if a prison is built - Opioid crisis - Only some rural people are okay with tough on crime - 61% not very convincing Lecture #23 Mass Incarceration - Punishment, corrections and deterrence - Violate international standards - No appeals process - Tough on crime not on criminals - More humane prison system Why do we have mass incarceration? - Violent crime rates - Violent crime rates were already decreasing when Bill Clinton passed the act - What happened in the 1990’s? WEALTHIER Causes 1. Economic forces 2. War on poverty of the 1960’s and 1970’s was considered a failure 3. Tough on crime and lack of tolerance 4. Media’s “super construction” of crime enhances fear

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Rehab was getting stronger - People doubted it→ war on drugs brought forward and we are getting -

wealthier (1990s) Violent crime rate decreased - No data supporting mass incarceration

Recidivism - U.S. Department of Justice Study - 2005-2010 - 404k released inmates; 30 states - 67.8% of released prisoner were arrested for new crim within 3 years and 76.6% were arrested within 5 years -

Violation of parole and sent back to prison with no conviction - Original sentence comes back to life First years you have help, then you are rolling on your own

Alternatives to incarceration - Terminology - Sanctions: Variety of sentencing forms - Community Correction - Probation and parole - Probation= a sentence - Parole= Release from prison before your time has maxed out - Good time= get out early for good behaviour - Federal sentencing guidelines - Giving execution so much power Common Characteristics - Residential stability - All have a support system (where could this be?) - Professional services ( rehabilitation, medical, psychological treatment) - Accountability (measure progress and report progress) - Economic efficiency - Probation is much cheaper- $3000- more efficient - To incarcerate someone in the U.S.-- $40-50 thousand Forms of Alternative Sanctions A. Probation - Conditional release into community under supervision of correctional officials

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Numbers Prevalence Eligibility Allows a judge discretions Terms: client and probation agent/ officer **Split sentence Come initial time in jail then probation Much ...