NCJ Number
79371
Date Published
1981
Length
291 pages
Annotation
This critical analysis of the American legal system suggests that despite the constitutional guarantees of due process of law, every major legal institution metes out justice with discretion that slights defendants' rights to presumed innocence, defense counsel, and justice before the law.
Abstract
The work alleges that a gap exists between actual judicial practices and the fair, judicious, lawful practice due process was meant to guarantee. It offers examples of how police, judges, attorneys, and juries practice discretionary justice by protecting the rights of the defendant only after satisfying complex bureaucratic, social, and political imperatives. These include such considerations as the current backlog of cases, the social-economic status of the accused, and the ideologies of judges, prosecutors, and juries, which may reflect corruption, prejudice, or caprice. Components of the criminal justice system -- American police, bail, prosecutor, defense attorneys, judges, American criminal jury, and the ideal of the just society -- are dealt with in individual chapters from historical, political, and bureaucratic perspectives. The extent to which intended functions are implemented is assessed, and the primary barriers affecting the perceived appropriate operating procedures are analyzed. Accordingly, the American police are discussed in terms of use of force, crime prevention, discretion and its consequences, and extent of police abuse of their powers. The bail-granting process is described historically and through the role of the bail bondsman and the concept of preventive detention. Defense attorneys' functions within the adversarial ideal are considered against the potential for attorney misconduct and in relation to plea bargaining, assigned counsel compensation, and defending minorities or unpopular causes; the right to effective counsel is weighed against factors creating incompetence. The image and role of judges are dealt with in descriptions of processes for becoming a judge and for removing judges, and in discussions of judicial qualifications and evaluation of judicial performance. In addition, judges' misconduct, neutrality, and discretion are assessed. Jury functions, selection, and deliberations are also discussed. In conclusion, the author contends that developing a viable criminal justice system in accordance with the due process ideal would contribute significantly to overcoming the crime problem.