For the general public, Police are usually the first point of contact with the Criminal Justice system. While, ideally, police should work to peacefully resolve conflicts, all too often an officer’s presence and behavior can serve to escalate, rather than de-escalate a dangerous situation. There are many factors at work: Overpolicing of minority neighborhoods; failure of police forces to self-regulate (the duty to intervene); use of force policies; the failure to follow an effective use of force continuum to provide for the least force necessary; arresting an individual as opposed to issuing a citation; mandates of Americans with Disabilities Act with respect to arrest of mentally disabled persons; training officers to understand the neighborhoods which they patrol; creating a police force which reflects the community; training and supervision of officers; properly screening officers at the time of hiring; strategies to break down the blue wall of silence; and divesting police of functions better performed by other agencies.
Once an officer takes a person into custody a decision must be made, usually for more serious crimes in conjunction with prosecutors, as to what specific crimes will be charged. There is a tremendous amount of discretion in the charging process. Behind this discretion, questions arise as to the extent to which impermissible factors such as race, ethnicity, and gender are considered; and there may be an implicit incentive to “overcharge” those who do not have the economic means to mount a defense, in hope of a quick plea bargain resolution.
Bail and Pre-trial Detention
The concept of “innocent until proven guilty” requires that, except for very limited circumstances, someone who is arrested is entitled to their freedom. In many cases their release is conditioned upon posting a cash bail. Despite the requirements of state law, all too often the financial situation of the detainee is not considered. This raises serious concerns regarding disparities among different courts; the extent to which impermissible factors such as race, ethnicity, and gender are considered; the extent to which such impermissible factors are incorporated into standards which may appear facially neutral; the failure to institute procedures to evaluate the financial ability of detainees to post cash bail; the desirability and underlying efficacy of cash bail in securing the presence of the detainee at subsequent proceedings; the impact of pre-trial detention upon the detainee’s ability to meaningfully participate in the defense of the charges against them; and the impact of prolonged incarceration upon the plea bargaining process.
At each stage of in-court proceedings the disparity between defendants of different economic means becomes
exacerbated. Although right to counsel is guaranteed by the Pennsylvania and United States Constitutions, Pennsylvania is the only state which provides no statewide funding for public defenders. Funding is totally at the discretion, and means, of county governments. The right to a fair trial is not only dependent upon having a public defender, but also the resources which are provided to that attorney. Access to private investigators, psychiatric professionals, forensic experts, jury consultants, and in capital cases, mitigation experts, can greatly affect the ultimate outcome at each stage of the proceedings. For example, often cases can turn upon pre-trial hearings to suppress evidence for violations of the Fourth Amendment.
Those hearings can be determined by investigative and forensic evidence. Thus, it is simply not enough to provide counsel. That counsel must be armed with the tools they need to adequately confront the evidence produced by the prosecution. And, once again, the lack of such resources can push innocent defendants to enter into plea agreements for crimes which they did not commit in order to avoid the risk of lengthy jail sentences.
Although there are sentencing guidelines there is still considerable discretion available to a sentencing judge based upon the record produced during the sentencing hearing. Once again, the availability of tools such as expert testimony, and the resources to utilize them can greatly impact the outcome. Additionally, disparities among individual judges may affect the outcomes for two similarly situated individuals, including biases rooted in impermissible factors such as race, ethnicity, socio-economic status, and gender, including sexual orientation. Most recently, the challenge of implicit biases which are incorporated into so-called risk assessment algorithms need to be researched and documented.
For a convicted defendant who is sentenced to incarceration, an entirely new set of life altering circumstances are presented by the prison-industrial complex. Problems faced by the incarcerated fall into two categories – abuse and neglect. Abuse includes physical and sexual assaults on inmates, by corrections officers, or even corrections officers in concert with other inmates; and overuse of disciplinary measures such as restraint chairs, and solidary confinement. Neglect involves failure to provide adequate medical care; care and provisions for pregnant inmates; lack of rehabilitative opportunities and education; disparities in the provision of such opportunities based upon race or gender; and the failure to accommodate religious beliefs.
Probation and Parole often become ways to trap convicted defendants in the criminal justice system long after their contemplated sentences should have been served. Pennsylvania has the second highest percentage of residents on supervision of all the states. On a daily basis, 7,000 people are incarcerated as a result of a supervision violation. Many of these violations involve failure to pay fines, costs or restitution, without regard to the defendant’s ability to pay. A defendant can be initially re-incarcerated without even seeing a judge. Court administrative personnel can preside over the initial violation hearing. Until a recent court victory, probation officers were even violating defendants for the use of medically prescribed marijuana.
Consequences of Conviction
Even after a defendant has been released from incarceration and managed to successfully navigate the ensnaring system of supervision, the effects of a criminal conviction can haunt them for the rest of their lives. The collateral effects of a conviction can bar a person who has paid their “debt to society” from full participation in society. This can include being barred from a licensed profession or career (there are 29 licensing boards in Pennsylvania); being denied housing; being denied a job; and all of the consequences which flow from greatly diminished economic activity. It will be important to document the impact of these consequences upon the stated goal of reentry into society.
Civil Asset Forfeiture
Another potential collateral consequence of interaction with the Criminal Justice system is the loss of property. Police and prosecutors can seize property which they believe is involved in a criminal activity without even charging, let alone convicting, the property owner of a crime. Since the process is civil in nature, none of the protections, such as right to counsel, which would attend a criminal proceeding are provided to the property owner. The assets seized, very often cash, become the property of law enforcement. This has resulted in substantial amounts of money for prosecutors to give to local police departments. In many ways, it is similar to what in the legislative arena is referred to as “walking around money” -- money doled out to curry favor. The difference is that the forfeiture money is taken from people who may have never been convicted of anything. The good news is that legislative attempts to reform this area have garnered support from both liberal and conservative forces in the legislature.