- Viewed law as tool of power that only served ruling class [bourgeoiuse]

- Laws are made by STATE

- Represents interest of ruling class

- Crime occurs across all social strata

- Ruling class crimes go unpunished/prosecuted more lightly

- Functionalism: Elements of class system are always dysfunctional & functional

- Hard to establish functional significance of any given law

"Relative Autonomy" - law is independent of economic system but also dependent in some cases

- Interventions "transform & fix limits of production" [Forms of law are not adapted to economic structure but dislocated from it]

- Laws sanctions real rights

Constitutive Theory of Law - Law represents expressive social practice. Demands recognition of role of all social actors. W/o these actors, laws are meaningless

- Law overlaps w/ basis of productive relations

- Law is within and without, both visible and invisible structures

- Distinction between infrastructure & superstructure is flawed

Architectual Model: Infra. -Wall & Superst. -Roof ; infrastructure provides stability while superstructure provides extra support. Both mutually support each other

- Conventional Marxism supports this model

- Capitalism: Private ownership of means of production

"Private ownership" : Capitalism focuses on profiting economy

- Marxist theory approaches Capitalism as an external force

- Capitalist State must develop system that serves values [individual rights, justice, equality, & freedom]

- Law operates AGAINST state & IN ITS SERVICE [ Contradictory]

- Freedoms granted AGAINST state are not the same as those THROUGH the state

- Capitalist state may use law as means of "disciplining" specifics in interest of capitalism as a whole

- Variation: "Capital Logic School" - Emphasizes functions that must be performed to maintain capitalist system as a whole

- Law performs ideological functions"

• Law as practice: Ritualistic
• Law as consciousness: No man is the law but all men are equal under law
• "Opium of the masses" - Controls working class & benefits the ruling class

- Legal Formalism:

Legal rules stand separate from other institutions, Judges apply rules to facts regardless of social interests & public policy [Opposite of Discretion]

- Liberal Legalism:

Politics should be constrained by legal constitutional boundaries [ex. Constitution]

- Law & Ideology:

Establish link between legal principles and specific imperatives of capitalist society [ex. Workmen's Comp]

Law always responds to its subjects in some way

- Focused on polity, economy, religion, law & structures of society

- Felt that these must be separated to be understood

- European law had unique structures that made it more conducive to capitalism

- Unique factors of Europe were not reflex of economy - Rejected Marxist's Deterministic Theory (economic needs of ruling class were important but NOT DETERMINATIVE in shaping institutions)

- Actually explained by microeconomic factors

- European state separated law from political activity

- "Status" groups of lawyers

- Laws were secular/free of traditional ideas

- Decisions were based off application of universal ideas [prior cases]

- Law stands on its own - not subject to political intervention

- Europ. Law is more rational

- Highly differentiated, consciously constructed, universal

-Weber's definition of law: Identified w/ organized coercion/power

- Law is both power & authority

- Weber stressed importance of  capitalist development of 2 aspects

1) Its relative degree of calculability

2) Its capacity to develop substantive provisions [IMPORTANT - Capitalism required a highly calculable normative order]

• Provided stable/predictable envior., capitalism encouraged legalism b/c ruling class needed this type of govt. structure

- Conflict btw. self-interest of ind. & social stability a fundamental problem in sociology

- Diff. methods of social control can influence economic activities

• Actors may internalize normaive standards -> "voluntarily" fulfilling social expectations
• Or may be subjected to some external force if they deviate from expectat.

- Coercion is necessary b/c of egoistic conflict (Behavior other than self-interest is necessary for market system)

- Tradition cannot function to constrain egoistic behavior b/c market destroys social/cultural basis of tradition

- Autonomy is related to predictability. 

- Legal system has to be autonomous of sources of normative order & pure power to control effects for Capitalism

- Served more than economic functions under Capitalism

- Legitamizes domination of workers

- Legalism seemingly constrains the State, but really strengthens it 

• Srengtens the state by constraining it, commitment to a sys. of rules increases legitamacy of State & its authority

- While system guarenteed formal equal, also legitamizes class domination

- Predicts & explains how ppl define & respond to deviant behavior

- Crime is often moralistic and involv. pursuit of justice

- Crimes of self-help can be distinguished from other criminal categories

- Self-Help: Expression of grievance by unilateral aggression [ex. Personal violence]

-It's believed that self-help was displaced by law during Middle Ages, survived in traditional societ.

- Conduct classified as crime in modern societies [U.S.] is similar to self-help

- Traditional Self-help (Conflict manage./social control/tribal-traditional law -> conduct acceptable under these cate. is regarded as criminal in modern societies

- Self-help is PRESCRIBED   as a method of social control

- Private executions often result in revenge or reciprocal exchange of violence

- In these societies, conflicts btw. non-kin are handled in terms of collective resp. or collective liability

• All members of a family/group are accountable for conduct of their fellows

- Examples: Wife-beating/House burning [look at notes]

- Conduct is intended as punishment, expression of disapproval, etc.

- Conduct labeled & processed as crime in modern societies resembles conflict management

- Modern Homicide: Modern soc. -> Response to conduct that killer views as deviant. Majority can be classified as social control [self-help], even if handled as a crime

-Modern Assault: Mos cases, ppl intimately know each other. Physical attach arises from quarrels. Assault is punishment

-Modern Burglarly: Moralistic. Chose victim based on comm.'s response to specific disliked person.

-Vandalism: Moralistically similar to destruction of crops/animals/etc.

**Collective Liability: Felony Murder Rule

- Moralistic crime handled by CJ system officials is viewed differently than ppl involved [esp. offender] ; Ex. Husband shooting wife's lover

- In modern societies, citizens view their conduct as a perfectly legitimate exercise of social control

- Still a struggle bw. law & selfhelp

- Deterrent effect of law is weak - ppl are morally obligated to commit crimes

- Ppl are prepared to protect themselves & associates by any means necc.

-Sometimes there's a fear of retaliation

- Horizontal management: A different ADA handles the case at each stage in the process

- Vertical Management: Case is assigned to an ADA afer decision to charge has been made by the Felony Review Unit [This ADA will stay with case until final disposition]

- Combo: Routine cases may be handled horizontally, whereas targeted cases may be handled vertically

• Examples: Routine: D.U.I, Urinating in public ; Targeted: Sexual abuse of children

- Scholars believe that one attorney w/ continous case responsibility is beneficial to victim

-Victim has comfort of one person thruout the entire process; doesn't have to discuss case w/ a new person

- Some specialized units [Kansas City,MO] allow prosecutors to becomes involved in police investigation

1. Routine exposure to sexual assault cases results in accumulation of experiences that enhances an attorney's charging abilities
2. Having a smaller group of attorneys responsible for sexual assault cases will eliminate disparity in decision making
3. Specialized units will embody a more aggressive organi. posture toward sexual assault than non-specialized units

- Examined sexual assualt case processing before/after the creation of special unit in Indianapolis Police Dept.

• More human treament of victims, no major differences in processing outcomes [# of arrests, felony filings, charging]

- Non-legal factos [race, social class, relationship btw. victim/offender[ continued to affect case processing

*Specialized Unit for Sexual Assault Cases (Kansas City, MO)

Vertical Management. 

Prediction: Charging rates will be higher

*No Specialized Unit for Sexual Assault Cases (Miami, FL)

Horizontal Management. Unit: Specialized for sexual assault cases invo. children [irrelevant to study]. Sexual battery cases involving teens/adults are screened initially by Felony Division/Screening Unit

- Concerns w/ convictability: Exercise discretion & reject a sig. % of cases at screening, attempt to avoid "uncertainty" by filing chargers in cases were odds of convi. are good

-Assessments of convictability [legal factors]: Seriousness of offense, strength of evidence, culpability of defendant

-Prose. attempt to figure out how everyth. will be inerpreted/evaluated

-Factors that might influence charging: Male, unemployed, non-white defendants

- Victim characteristics play a role: A "stand-up" victim is an essential element of a strong case [person who judge will find credible. Ex. Older emplyed male w/ no priors]

Focal Concerns Theory:

- Prosecutors are more likely to charge when:

Offense is serious

Clear that victim has suffered real harm [gravity of injury]

Strong evidence against suspect

- Focus more on the likelih. of conviction rather than social costs of punishment

-"Downstream orientation": Predict how the victim,suspect, and incident will be viewed/evaluated by judge/jurors

- Legal sufficiency: Will accepts all cases where ALL elements of crime is present. Want to be able to prove guilt

• High levels of cases accepted at initial stage
• High levels of dismissals at preliminary/trial stage

- System Efficiency: Emphasis on case screening to alleviate case load. Cases are screened for viability.

• High levels of referral to diversionary programs [Ex. Rehab]
• Overcharging - To give leverage to prosecutor to establish plea deal

-Defendant rehabilitation: Majority of defendants shouldnt be processed in CJ system. Focus on...

• Diversion of defendants thru early diversion programs. Not seeking convictions, seeking the rehabilitaion of defendants thru non-CJ channels

-Trial Sufficiency: Prosecutors decisions reflect concerns of convictability.

• Low acceptance of cases for prosecutions.
• High level of offenders convicted at Trial

 Vertical Management

-Sex Crines Unit of Jackson county Prosecutor handles all cases of sexual assault

-Assigned pros. reviews case, decides whether or not to charge the suspect w/ a felony & then handles the case as it moves to trial

Trial Sufficiency Model

- High levels of rejections @ initial screening

- Most prosecut. said that something catastrophic would have to happen for charges to be dismissed. [ex. Victim recantation, failure to appear ooperate, info. that would lead to exoneration of defendant, or change in key witness story]

-Most cases in Kansas City resulted in guilt pleas

Victim, Suspect, Case Charac. [2 indepen. variables that affected decision to file]

1. Presence of physical evidence increased likel. of charging
2. Evidence of risk-taking behavior of victim decreased likli. of charging [Alcohol, victim sexual history] --> More influential than evidence

- Uses vertical management but only AFTER intial charging decision is made

- Most sexual battery cases are sreened by this unit

- If charges are filed, case is forwarded to the felony division for assgnemnt. to one of the circuit judges - case is then prosecuted by 1 of 3 prosecutors

- Decision is made by prosecutors in a Felony screening unit

System Efficiency Model

- High levels of case rejection, early disposal of cases, high levels of guilt pleas.

-Prose. don't overcharge except w/ Capital Offenses

Victim, suspect, case charac. [3 vari.]

1. Victim injury
2. Suspects use of weapon in assault
3. Prompt report by victim

- Extralegal chara. that decreased likeli. of charging -> Evidence that called victims moral into question

-Charges more likely to be filed w/ acquan/relatives than strangers

- Various degrees of opprobrim (public disgrace that results from someone's shameful actions) are attached to sexual assaults according to race

-Hypoth: Prosecutors are more likely to file charges in sexual assaults committed by Black offenders against white victims

- Analysis failed to support this hyp.

Kansas City

- Consistent with orignal results. Physical evidence & risk-taking behavior emerged as significant preidctors of charging

- More likely to take cases to trial

-Presence of risk-taking behavior had a more prounounced effect in cases w/o physical evidence

Miami

- Prosecutors more likely to file charges in sexual assault cases involving intimate partners than strangers

-More likely to dispose of cases thru plea bargaining

Overall

- Prosecutors charging dec. in Kansas City&Miami are nearly identical

Reflects overall desire to avoid uncertainty

 Kalven & Zeisel: Liberation hypothesis

-  Question about the victim’s moral character had substantially stronger effects on the probability of charging in cases where the evidence was weak and the assault less serious. This finding provides support for the liberation hypothesis.

-  More than 90% of criminal cases in America are never tried.

  - Overwhelming majority of individuals who are accused of crime forgo their constitutional rights and plead guilty.

a.       Plea bargaining is the primary technique used by the government to bypass the institutional safeguards in trials.

b.      Plea bargaining: an agreement (formal or informal) between the defendant and the prosecutor.

                                                              i.      Prosecutor typically agrees to a reduced prison sentences in return for the defendant’s waiver of his constitutional right against self-incrimination and his right to trial.

                                                            ii.      Guilty or Nolo Contendere

1.      Guilty plea: You accept guilt.

2.      Nolo Contendere: A no contest plea: The person that defendant is facing prosecution is accepting conviction but not admit guilt.

1.      The author’s argument

a.       Defendants are given very little choice in the matter. (But Shanza Malik argues that there are important choice made in this matter because it lessens offense)

b.      They are offered a lesser deal to take a plea of guilty or nolo contendere, in return for not going to trial.

                                                              i.      Trial is a constitutional right; and there is a possibility of acquittal through trial.

2.      Sandefur (Argues that plea bargaining is not unfair.)

a.       Attorney Timothy Sandefur, whose comments follow this article, concedes that plea bargaining is “rife with unfair prosecutorial tactics” and needs “reform”. But he rejects the propositions that plea bargaining is unconstitutional.

b.      Ignorance of law is not an excuse. Not a buyable evidence.

                                                              i.      Example tourists with handguns in the Capital.

1.      Being arrested and offered plea is probably a better option. If you do go to trial you might be charged with even more things. People are punished for not accepting plea but for breaking the law. 

a.       Fourth Amendment: Right to reasonable privacy that should not be violated unless there is probable cause. You search someone you need a search warrant. “If you’re hiding from police hide in neighbor’s house”

b.      4^th Amendment search and seizure

                                                              i.      Governmental conduct: Publicly paid police privately paid deputized police, private individual at police direction.

                                                            ii.      Standing: legitimate expectation of privacy in place searched or item seized.

                                                          iii.      Valid search warrant: probable cause, particularity of place and people to be searched, issued by impartial magistrate (Judge).

                                                          iv.      No valid warrant? Good faith, unless unreasonable.

1.      The validly of warrant depends on probable cause and particularity of person. If it is unreasonable good faith, then evidence will not be admissible.

2.      No probable cause, lying or misled police, magistrate is biased, this all impacts validity of warrant. 

a.       Exigent circumstances

                                                              i.      Hot pursuit of fleeing felon. You are in a rapid police chase and you are pursuing a fleeing felon. You can search a home in this case. If you see felon leave to a house, you can arrest them before they hide evidence. (Gun, drugs)

b.      Search incident to arrest

                                                              i.      Contemporaneous of time and place of arrest. You can’t move them and then search them. You search them on the point.  If you are arrested and police search in car: You can search interior cabin and closed containers but not trunk.

c.       Consent

                                                              i.      Cops do not have to tell people that you have right to refuse. Consent must be voluntary and intelligent. Police can obtain consent from someone who has parent authority. (If another person has possession of a house, they can agree to it)

d.      Automobile search (Do you know why I stopped you?) (Just say I have no clue!!! Make them tell you!)

                                                              i.      As long as there’s probably cause (Prior to searching vehicle) to believe that there’s evidence and contraband in car. They may check your truck.

1.      Runs a stop sign not enough.

                                                            ii.      Traffic stop: No need for probable cause.

e.       Plain view

                                                              i.      Criminality must be immediately apparent. Cop ask you license for weapon.

f.       Inventory search

                                                              i.      Must have reasonable scope and be done in good faith. If arrestee is booked in jail they are subjected in inventory search. Car is impounded and is subjected to inventory search. Don’t get car impounded! They have K-9 Unit.

g.      Special needs

                                                              i.      Random drug testing. Warrantless, suspiciousless to parolee.

1.      School searches: Must be reasonable for sex and age of student.

2.      Border searches: No one has 4^th amendment there.. It doesn’t exist.

h.      Terry stop and frisk.

                                                              i.      Brief enough attention for attention and frisk need a reasonable belief for weapon. 

1.      Exclusionary rule

a.       Evidence obtained in violation of a federal/constitutional provision is inadmissible (Can’t be used) against individual whose rights violated. 

1.      Terry v. Ohio

a.       Issue: Whether it is always unreasonable for policemen to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest?

b.      Holding: LEO is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

                                                              i.      Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

c.       Upon suspicion that the person may be armed, the police should have the power to frisk him for weapons.

d.      If the ‘stop’ and the ‘frisk’ give rise to probable cause to believe that the suspect has committed a crime, then the police should be empowered to make a formal arrest, and a full incident search of the person.

                                                              i.      A stop and a frisk is merely a minor inconvenience and petty indignity.

                                                            ii.      Limited to weapons. (Terry is a weapon doctrine) 

a.       Terry stops

                                                              i.      It is a brief detention or “seizure” for the purpose of investigating suspicious conduct.

                                                            ii.      May take place anywhere, i.e. on the street, in a car, in an airport concourse, on a bus.

b.      Terry Frisk

                                                              i.      Pat down of the body and outer clothing for weapons that is justified by a (Law enforcement officer) LEO’s belief that a suspect is armed and dangerous.

                                                            ii.      What may be seized?

1.      If a LEO finds something she reasonably believes is a weapon, it can always be seized.

2.      If instead, the LEO finds something she recognizes as contraband, without manipulating the object, she can seize it as well. (NY: only weapons)

                                                          iii.      Car Frisk: When conducting a traffic stop, if a LEO believes that a suspect is dangerous, he may search the passenger cabin of the suspect’s vehicle, limited to those areas in which a weapon may be placed or hidden.

1.      Glove compartment is ok but not trunk.