Courts both symbolize justice and administer it. Courthouse architecture—often classic, stately, imposing—is meant to inspire awe and reverence among those who pass and enter the building. Judges, too, are symbols of the law’s majesty, sitting on an elevated bench, wearing black robes, wielding a gavel, and being addressed as ”Your Honor.” The formal language of the law, with its frequent use of Latin, reinforces the pomp and solemnity.
Only in court are the aura and mystique of the law made manifest, expressing the collective mores and will of society. Not surprisingly, judges rank high in studies of prestige, with justices of the U.S. Supreme Court standing first among all occupations. High prestige implies high expectations; many people criticize judges for not living up to them. Critics include the press, defendants, lawyers, police—even other judges. A common criticism is that judges are too lenient with offenders; other criticisms include dismissing cases for legal, technical reasons; reducing felony charges to misdemeanors; and letting convicted offenders go free or nearly free with fines, short jail terms, and probation.
The public generally rates judicial performance low and police performance high. Police gain notoriety by being overly assertive: arresting the innocent, abusing suspects, plating evidence, and entrapping. People who think judges are too soft on criminals are likely to applaud, if only tacitly, police who err in the opposite direction.
Judicial leniency is publicized; police leniency is not (Wheeler et al. 1968). The police often have probable cause for making an arrest but choose not to use it. On the other hand, more judges are prosecution rather than defense minded in their leanings and decisions (Wice 1985). For example, in voir dire (examination of potential jurors before trial), judges sometimes make only the most perfunctory attempts to determine whether veniremen are prejudiced against the defendant (Kairys et al. 1975).
Prosecution
Much lay criticism of judges is based on misunderstanding. The general public holds judges responsible for dismissing charges; in fact, the prosecutor is responsible for more dismissals. One study showed that the prosecutor typically rejected twenty out of one hundred felony arrests after initial screening. Thirty more were dismissed later by the prosecutor or judge (Boland et al. 1982). Of the remaining fifty, forty-five offenders pleaded guilty, and only five went to trial. Prosecutors thus play a pivotal part in the determination of a case.
Prosecutors bargain for guilty pleas in many cases. Hence, they do not usually go to trial or push for the maximum sentence. Several reasons have been offered for this unwillingness to push for severity: (1) Prosecutors do not want to risk losing a case at trial, (2) prosecutors face a large backlog of cases, (3) some suspects are initially overcharged, (4) some cases are routine and easily disposed of, and (5) some cases are too weak to pursue very far. Weaknesses may be due to various factors. Problems with witnesses or victims are particularly common. Either their stories are implausible or they keep changing them, or they are unwilling to testify— perhaps because they fear reprisal or perhaps they know the offenders personally (such offenders are of course easiest to identify and therefore to find and arrest).
Police and prosecutors are often assumed to be like minded and to have the same goals. But this is true only in the most exiguous sense. Often their relations are tense, sometimes breaking into overt conflict. Police think that their arrests should be prosecuted vigorously and result in conviction and punishment. Law enforcement for them is both a career and a moral commitment; hence, they accept the idea that they are the ”thin blue line.” No one imputes such qualities to assistant prosecutors, who typically are recent law school graduates who plan to leave the job in a few years for more lucrative fields. Controlling offenders is neither their career nor their passion. They want a reputation for achievement, which in the prosecutor’s office means handling a large number of cases expeditiously, securing guilty pleas, and not losing cases at trial. Prosecutors have limited resources, so they pursue cases only if the evidence appears strong enough to produce convictions were the cases to go to trial. In addition, prosecutors face pressures not only from police, but also countervailing ones from defense attorneys and judges.
Complaints about courts’ dismissing so many cases filter up to the state legislatures, which assume that judges are at fault—hence, the new laws mandating determinate sentencing. When such laws are combined with the many guilty pleas and the prosecution-minded juries, they result in a population explosion in American prisons. Even before the wave of laws on determinate sentencing, American laws were tougher than those in Western Europe. Perhaps this is because legislators pass these laws with the most serious career criminals in mind.
Defense
Defense attorneys are important members of the judicial process, but have far less power than prosecutors or judges. Defense attorneys may be hired by defendants or appointed by the judge when defendants are indigent. In some urban courts, as many as 90% of defendants are considered indigent by the judge. Therefore, the case is turned over to the public defender or assigned counsel. Public defenders predominate in urban courts; assigned counsel in rural ones.
Studies indicate that on the whole public defenders are consistently adequate or capable. Private defense attorneys hired by the defendants are much more variable, ranging from the brilliant to the ineffective. The public, long nurtured on Perry Mason television reruns or the headline exploits of F. Lee Bailey, Edward Bennett Williams, and Melvin Belli, continues to believe in the myth of brilliant, vigorous defense advocates. Few lawyers live up to this standard, however, perhaps because the pay is uncertain and the status low compared with that of other lawyers.
The life of a public defender is frustrating: (1) Few cases can be won at trial, so success in the conventional sense is elusive; and (2) clients are notoriously unsupportive. Like the general public, clients entertain the idea that defense attorneys should fit the Clarence Darrow or F. Lee Bailey mold. Defendants rarely cooperate with public defenders by telling them the truth, and defendants refuse to believe that public defenders are bona fide defense lawyers. This is because public defenders spend so little time counseling them, because there is a different public defender at each stage of the court process, and because public defenders are paid by the state and function as part of the same workgroup with judges and prosecutors every day. Resentful clients and poor pay make the life of public defenders unattractive; many leave after a few years on the job.
Most people arrested for felonies are poor, so they tend to be powerless. In the cities, many of them are young and either black, Hispanic, or members of some other minority. Thus they have little in common with judges, who are usually white, non-Hispanic, middle class, and older; but most researchers find that such extralegal factors are relatively unimportant in sentencing decisions (Hagan 1974; Kleck 1981; Lotz and Hewitt 1977). Seriousness of offense and past record are the factors that matter most.
Juries
Finally, there are the jurors. Trials are costly, time consuming, and unpredictable—three reasons why few cases go to a jury and many are instead disposed of via dismissals and guilty pleas. But the United States holds more trials by jury than any other nation, indeed more than all others combined. And what transpires in these trials forms a baseline for the rest of the cases: Defense attorneys and prosecutors first try to anticipate how a jury will react to their case, then they decide what kind of plea bargain to make. Three kinds of cases are more likely than others to result in a trial: first, very serious crime (murder, kidnapping, and forcible rape), which would be likely to draw a stiff penalty even if there were a plea bargain; second, those cases where the defense attorney thinks there is a good prospect of gaining an acquittal; and, third, those cases where the defendant ignores the public defender’s advice and stubbornly insists on a trial.
Over the centuries juries have been both praised and castigated, called the palladium of liberty, and damned as the apotheosis of amateurs selected for their lack of ability. Such rave and critical reviews abound, but juries were little understood because for a long time researchers ignored them. In 1966 Kalven and Zeisel brought forth a compendium of findings in The American Jury. They discovered among other things that (1) in about 80% of the cases where juries are not hung, they reach the same verdict as judges (to convict or acquit); (2) juries apparently understand the facts of a case, because their verdicts are no more likely to disagree with the judges’ in difficult-to-understand cases than in easy ones; (3) many of the judge-jury disagreements are due to jury values—jurors go outside the law sometimes in search of equity; and (4) very rarely does a minority persuade the majority to switch its votes in jury deliberations.
Pretrial Publicity
The same year The American Jury was published, the U.S. Supreme Court took up the issue of fair trial versus free press and overturned the conviction of Dr. Sam Sheppard for murder. It said that his trial had been marred by pretrial publicity, and that during the trial the press had been allowed to dominate the courtroom. Subsequently, commentators have consistently maintained that pretrial publicity affects jurors in a minuscule fraction of cases, if ever. Researchers, however, have discovered that (1) a majority of crime stories in the press violate fair trial standards (mentioning, for example, that the defendant has a prior record or has made a confession) and (2) jurors exposed to prejudicial publicity are more likely to vote for conviction (Padawer-Singer and Barton 1975; Tankard et al. 1979). The more informed people are about a case, the more likely they are to regard the suspect as guilty—and such information usually comes from the media.
Some jury trials are big events, attended by the national media and followed closely by a large number of citizens. They help to put the courts in the best light, by showing the due process model at work. The lawyers are in their attacking mode, the judge is dignified as he or she rules on points of law, and the jury makes the final decision (democracy in action). But while all of this press attention may promote interest in the law and support for the adversary process, it may be carried too far if the police and prosecutor feed the media damaging information about the defendant, diminishing his or her chance of getting a fair trial.
