Below is the link to the article Peter Kiers mentioned:
http://www.nytimes.com/2014/03/20/nyregion/new-york-courts-meet-elusive-goal-from-arrest-to-arraignment-in-under-24-hours.html?hpw&rref=nyregion&_r=0
Many of the questions raised during the tour are key to understanding how the system actually functions in its day to day operations. For example, is there any disparity between males and females who are RORed? Although Mr. Kiers pointed out that most defendants arraigned are men and that RORs seem to be distributed equally regardless of gender, he failed to mention that the arresting officers and the precinct have a large amount of discretion which influence who actually makes it to arraignment. In other words, a male and female may both be arrested for the same crime (e.g. Jumping a train turnstile) and have similar criminal histories, but police may decide to release the woman with a ticket at the precinct but send the male to central book to be processed. Once in central booking, the defendant now has to face the district attorney's office which can decide to decline prosecution, to change what the defendant is being charged with, or to even add more charges. After about 24 hours of processing, the defendant finally stands before the judge.
During the tour most may remember that I asked Judge Yavinsky "what factors help you decide whether to set bail, release, or remand a defendant?" to which he responded, "do you want the book answer or the REAL answer?" His response captures the very reason why I asked the question. During all my time in court, much of how the judges make their decisions seem completely arbitrary. Judge Yavinsky admitted that ten judges will give the same defendant 10 different dispositions. In my opinion, this system is saturated with arbitrary discretion at every single level. Sometimes, it seems as if standing in the way of going to Rikers or going home is whether or not the judge is having a good day. Do not misunderstand me, some level of discretion is necessary otherwise we would have computers administering cold justice based of formulas and algorithms, but there needs to be some level of uniformity and objectivity, not "subjective objectivity."
My fellow Verons, am I the only one who thinks this degree of discretion is dangerous? Shouldn't oversight and accountability be streamlined? This unchecked systematic discretion breeds discrimination.
12 comments:
Thank you for your post, Anthony.
If you recall, Professor Waterston also raised some gender-specific questions, perhaps to detect the existence of the kind of gender-based discrimination that you draw our attention to in the CJS. Professor, can you share with us your motivation for raising those questions? And whether or not the answers met your expectations?
From the tour and your post, I conclude that of all groups involved in the criminal justice system, the black male is treated least fairly. Just stating the obvious here. Beyond the racial dimension, I wonder if this tells us that the notions of "weakness" and "vulnerability" ascribed to the female gender influences the administration of justice. In the spirit of making each other uncomfortable, I ask: is it possible that women have a comparative advantage over men in the American criminal justice system? On my way home from school yesterday, the following tweet appeared on my twitter timeline from the account @uberfacts: "On average, males receive prison sentences that are 63% longer than females for the exact same crimes. After reading your post I searched the Internet to verify the fact and found the following study that confirms the claim [in Federal cases, however]: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144002 . What does this tell us about our criminal justice system? Where does gender equality fit in all this?
Further, I agree that some level of uniformity is needed to protect the rights of defendants from the whims of siting judges. As you put it, the degree of discretion is excessive and ultimately dangerous; I share this concern and it is for this reason that I asked a question on how the system holds judges accountable for making erroneous decisions. Perhaps if judges suffer the same scrutiny as court clerks do, they'll be deterred from making sub-optimal decisions.
Finally, the subtext of Anthony's post is this idea of prevailing impunity among judges, and in the CJS at large. Let's look into this!
P.S I cannot wait to read Michelle Alexander; Thomas Giovanni introduced me to her work last summer and I have since then listened to some of her speeches.
Thank you.
I am also really excited to read Michelle Alexander. Up to this point, all I know about her is from following her on Facebook!
I agree with Anthony's and James's points that such discretion seems potentially dangerous. But I must confess that I found the judge to be far more human, more clued in to the multiple contexts that one needs to consider when dispensing justice, than I expected. Maybe I simply liked the fact that he started as a criminal defense lawyer. But he did seem to understand that justice happens in a murky reality and that we often operate far from the ideal. A common sense individual takes nothing away from the structural injustices James refers to; but it is useful to question our sense of the CJS as a monolith.
Thank you, Anthony, for your observations and questions.
You note that the judges seem to have the license to bestow decisions that are "completely arbitrary" (your words).
Yes, Judge Yavinsky said that 10 judges may hand down 10 different dispositions. But he also said that there must be consistency in those determinations. If there is consistency, does that suggest the decisions are not "completely arbitrary"? I pose this as a question and am not suggesting an answer.
How might judges make more explicit that which underlies the consistency/the patterns of their decisions? If there is consistency, then there is a pattern, then there must be something guiding that pattern. How can one bring that "something" into the light of day? How can that be done? (I think it can be done).
What would happen if judges are NOT given the ability to bestow discretionary judgment? The "3 Strikes" mandate did away with such discretion. When that happened, what were the consequences? How well did that work out?
To answer James's question: I am not exactly sure why I asked the question. I suppose it was a little bit of Thomas Giovanni mixed with a little bit of Appolonia Moriarty that made me wonder about the race/sex/class conjunction in Brooklyn Criminal Court: who (demographically speaking) is represented among the "defendants," who among the court personnel (prosecutors, defense lawyers, clerks), who among the "victims"? And are the more powerful players (court personnel) aware of/conscious of the demographic configuration in these courtroom dramas? If they are not aware, why not? If they are aware, what do they think it means? What are their explanations for it?
Thanks you Anthony for the insightful post.
I agree with Prof. Reitz point that the judge seems far more human. His tone and usage of language was very surprising, as it was more down to earth.
James, your question on if women have a comparative advantage over men in the American criminal justice system-- The involvement of women and girls in the criminal justice system has largely been as crime victims rather than as perpetrators. While females make up about half of violent crime victims, they represent a minority of offenders.
Previous research has indicated that after arrest, women are more likely than men to be cautioned rather than charged. Woman offenders are more likely than men to be discharged or given a community sentence and less likely to be fined or sentenced to prison.
Woman sent to prison may or may not receive shorter sentences than men. Majority of the crimes which women get arrested for are drug related offenses and therefore we must take into account the seriousness of the offence and difference in the offenders history into account (between males and females).
Thanks for the great blog Anthony!
I have to say, Professor Waterston definitely beat me to the blog this week. I completely agree with what she is saying in regards to the consistency of judge’s decisions. Although Anthony is raising an important point regarding judge’s discretion, I think it is important to remember that Judge Yavinsky specifically said the fact that they have this discretion is ok as long as there is consistency with the application of their discretion. To answer Professor Waterston’s question I would say that this does in fact mean that judge’s decisions are not “completely arbitrary.” Anthony has suggested that these decisions are arbitrary because a judge’s decision may depend on the type of day he/she is having, but I do not feel that Judge Yavinsky implied this at all; in fact, he was arguing that a Judge’s job is to avoid making arbitrary decisions by maintaining consistent applications of their discretion, and thus following a pattern (as Professor Waterston has suggested).
With that all being said, this is all just an idealized vision of criminal justice. Although judges are supposed to be consistent with their application of discretion, this is not always the case, and it causes plenty of problems. On top of the fact that judges may not always be consistent with the application of their discretion, it also becomes problematic, and downright unfair, that one judge may be significantly more strict than another, and the type of sentence you receive may very well be dependent on the judge you happen to be sitting in front of. It is partly for this very reason that I agree that as important as having discretion is to maintain the humanity in the criminal justice system, some changes may be necessary to create at least some level of uniformity in the decisions of judges.
Just a little follow up, re: Michael's response. I also asked if there is a way to make more explicit what shapes the pattern? This question goes to Anthony's concern about what discretion really means. Is there a way to make explicit what makes for the pattern? If so, how can that be done?
Great post, Anthony.
First, I can say that I agree with both Anthony, as well as Michael. Our criminal justice system could really benefit by balancing both objectivity mixed with some subjectivity. The problem with having a completely subjective/objective system have been previously stated - how then are we supposed to achieve or in the least strive for such balance of a system? Is it too pessimistic to believe such change is unattainable? It is my belief that through education of the actors involved in the system, change is possible. More specifically, through education, actors in the system can learn about the "best" methods and practices to distribute justice.
On another note, the gap between men and women in jails and prisons is very interesting. If you all recall, when Anthony asked the Judge the factors considered when determining to set bail, release, etc. - the judge started off (every time) if HE has strong community ties, if HE has a job, if HE... UNTIL it was said if SHE or he has to take care of someone. The consideration of gender roles is paramount in decided the outcome of being arrested, for instance. As women are seen as the nurturing and "motherly" type, they are often "let go" because of their "roles" in society. It is ASSUMED they are the primary caretakers when that may not always be the case.
Thank you Anthony for starting us off this week.
There are rules that govern the determination of sentences which the judges should follow. I agree that it is a bit dangerous to rely on judges' discretion because as Anthony points out, his/her mood might affect the sentence handed down. But that sentence is within the controls of the guidelines set. There should be checks and balances on the judges. However, their discretion is necessary because without it the system will be robotic, more chaotic, cold, impersonal etc (to paraphrase Anthony). A certain amount of human discretion is vital for any system to work. We rely on it all the time . For example, we may have a paper to turn in and due to some emergency (not the dog ate your homework), we may be late to turn it in, We appeal to the professor to accept it (and may further ask that we not be penalized). We hope that the professor will be reasonable and be lenient. Although in this example the consequences are not as dire as those involved in the criminal justice system, it is still all based on someone else's discretion. So as Anthony says, there should be oversight placed on the judges. But I think that we are going around in circles because "who will guard the guards"? Who will oversee the oversight committee? As long as their is human involvement, there will be discretions and indiscretions. Anything else will be robotic, indifferent, cold etc. I cannot think of any solution except us, as individuals. We see the flaws and we aim to correct those flaws and stay true to our ideals when we are placed in positions of authority where we can affect the change necessary.
The statistics my fellow Verons have posted are astounding. It is true that there seems to be gender disparity in the criminal justice system. Again that points to discretion again; on the part of the arresting officer etc. The system should be equal and fair for all. Penalties for crime should be colorblind and race-blind and socioeconomic-blind (if those phrases exist) but like everything else in life, it is not. Discretion plays a big part. As Ana pointed out, there seems to be a foregone conclusion that the arrested client is male (based on Judge Yavinsky's repeated use of "he".
We can't force others to have our point of views but we can advocate for change. Again I say, when we get to the positions where we can really affect change, let us be true to ourselves, our values etc and do not become corrupt by the system. I cannot think of any other solution. Maybe I am jaded or pessimistic but we are only responsible for our actions.
Have a great day. See you all in class.
Great blog Anthony,
I think that everyone has said what I would in regards to this issue. I think that our criminal justice system will always be flawed because we're human. It might be pessimistic to say, but with humanness, we face issues in objectivity and subjectivity and I'm not too confident that this can ever be remedied. People will always carry biases and certain heuristics that they rely on when passing judgement on any situation.
I would like to disagree with what Simonne has suggested though, in regards to penalties for crime being color/race/socioeconomically blind. We have to always take into consideration those factors of one's identity because those influence the actions we take. There is an issue in how we take these factors into consideration though. We fail to understand that these factors in one's life shapes their experience, and thus their actions. It should be taken into consideration when someone is poor and is selling marijuana to pay for rent, in that their actions shouldn't be treated the same as those from someone who is far better off, etc. The way in which we use these factors in our court system isn't for the benefit of the marginalized, instead, used to prove some self-fulfilling prophecy when the poor keep being thrown behind bars for being poor.
Also, in regards to James' question about gender, this is true, but this is partly because of patriarchy. Okay, okay, I know you all are tired of hearing me blame patriarchy, but hear me out. Patriarchy ascribes these "rules" that certain genders must follow (like the boxes we made in class). Excluding the certain crimes in which a woman is prosecuted far more harsh than a man is (i.e., in intimate partner violence, the average prison sentence of men who kill their women partners is 2 to 6 years. Women who kill their male partners are sentenced on average to 15 years. This is despite the fact that 86% of female offenders kill in self-defense, while males are most likely to kill out of possessiveness (82%), abuse (75%) and during arguments (63%)). The fact that on average, males receive prison sentences that are 63% longer than females for the exact same crimes is at the fault of, in part, patriarchy. Men are "expected" to be aggressors and the perpetrators of crime, and when a woman exhibits these qualities, they are prosecuted a lot less than men because there are stereotypes about women being "more innocent, more reformable and less dangerous than men," (according to a 1991 NCFM report by John Ryan and Ian Wilson), and/or the fact that they might be "caregivers" is taken into consideration, and therefore, they are given lenient punishment. It isn't women who provide this context on which this occurs, it is patriarchy that drives these ideals, and the result of this is patriarchy biting itself in the ass. Barbara Swartz, the former Director of New York's Women's Prison Project, called this the "chivalry factor" and said, "If there were more women judges, more women would go to jail."
Hello Everyone,
Our visit last week to CJA was an eye opening experience that helps give a better understanding of the daily operations of the organization. I felt a sense of entitlement as we were able to go through a separate entrance while others had to wait on line. This was a very different experience to earlier with Thomas Giovanni.
As our tour progressed, I found it very particular that the court room was empty. I was not use to hearing every creak. The emptiness of the court room made me miss the chaotic hustle and bustle of trails. When the director of operations spoke, I was confused because of the particular jargon of the court system. The labels will confuse anyone that is not familiar with the system. I did not realize that certain information was not present. I believe it was Professor Waterston that posed the question of the statistics of the gender of the arresting officers. The judge also gave answers with lots of legal jargon that was hard to follow.
I have a question: Is there a way for someone to work with in the criminal justice system and not be consumed by law and to treat each case differently.
I do not think I can say this any better than Imtashal and Apollonia have said it but the underlying reason for gender disparities in sentencing are worth reiterating.
As long as men and women commit crimes that are consonant with the normative expectations for their gender (for example, a woman being a prostitute or a man being a drug dealer) there is less disparity. When either sex violates gender expectations (for example, a female murderer or a male prostitute) they are punished more harshly than a person of the opposite sex committing the same crime.
We pay a high price for gender non-conformity.
Hi Everyone,
Thanks for the post Anthony!
I agree with Anthony that there is some discretion when it comes to rulings. In response to Professor Waterston's statement about the fact that these decisions must be "consistent," I ask, what kind of consistency is this? If one is consistent, cant they be consistent in the use of a pattern that is sexist, for example? A judge can consistently give women shorter sentences because of a preconceived assumption that women are "more innocent or less dangerous," as Apple has shown. While i think that many judges may make a sincere effort to make decisions unbiasedly, we are all human, and we all bring with us our experiences and beliefs. I'm not sure, then, what the remedy to this would be.
As many of you have already said, the solution is not to completely ignore our experiences, by creating some kind of computerized formula, because our experiences are important to truly being well-informed about the nature of a crime. We should consider the circumstances that may provoke people to commit crimes. However, we should strive to actually consider these factors because they really do help us understand if the problem lies within the person himself, or within the system he is forced to live in.
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