From doing the crime to doing time: How just is our criminal justice system?
The shoplifting story that began this chapter has a happy ending-at least for you. When you arrive at the police station, a detective reviews the videotape from the mall and concludes, to your great relief, that you played no direct role in the shoplifting incident. Instead of being booked, you are released without charges. It has been a difficult experience, but justice has been served and you are free to go.
lt is a different story for your friends, however. The videotape provides sufficient evidence to hold them on suspicion of shoplifting. Over the next few days, they will go through various pretrial activities. During this pretrial stage, they are assumed to be innocent until proven guilty. This means the police and prosecution must show enough evidence to support the criminal charges against them.
The Sixth Amendment requires that criminal prosecutions move forward quickly. Within 48 hours of their arrest, suspects must have the opportunity to appear in court. At this first pretrial appearance, they are reminded of their rights and of the charges against them. They are also told that if they cannot afford an attorney, one will be appointed for them at public expense.
A suspect’s initial appearance in court also offers the possibility of release from jail. A judge will decide whether the defendant should be released from custody and under what conditions.
One way a defendant can be released from custody is through the posting of bail. Bail is money that a defendant hands over to the court as a guarantee that he or she will return for trial. The amount of bail is set by the judge in each particular case. Once bail has been posted, the defendant is released from jail until the trial.
A judge may decide not to set bail, depending on the circumstances of a case. For example, a judge may conclude that a defendant is a “flight risk, ”meaning he or she might not return for trial despite posting bail. Or a judge may decide that the defendant would pose a possible danger to others if released.
The issue of risk to others was at the heart of the Supreme Court’s decision in the 1987 case of United States v. Salerno. The defendant in the case argued that denying bail to suspects who were considered dangerous violated their constitutional rights. The Court concluded, however, that judges could deny bail based on public safety.
At the initial pretrial hearing, defendants facing a misdemeanor charge are required to enter a plea of guilty or not guilty. Defendants in felony cases, however, do not enter a plea until a later court appearance.
The next pretrial step in most felony cases is the preliminary hearing. The purpose of this hearing is to determine whether there is enough evidence to take a case to trial. The prosecutor must prove that there is probable cause that a crime was committed and that the suspect committed it.
During the preliminary hearing, the prosecutor calls witnesses whose testimony will support the prosecution’s case. In some states, the courts also allow cross-examination of witnesses by the defense attorney. Preliminary hearings tend to be brief, however, as the main goal is to determine whether there is sufficient evidence to justify a trial.
In some felony cases, a grand jury takes the place of a preliminary hearing. A grand jury is a type of jury that weighs evidence and determines whether a trial is warranted.
Grand juries are quite different from trial juries. They are larger, consisting of 16 to 23 jurors. These jurors serve for a set period of time-often for a month or more. They consider a number of cases rather than just one as a trial jury would. Grand juries meet in secret to protect the reputation of those under investigation.
Grand juries also differ from trial juries in that they do not hear both sides of a case. They only hear the prosecution’s version of events. Jurors must consider this question: Did a crime take place, and did this defendant commit it? If they believe the answer to both parts of the question is yes, they will return an indictment. or formal accusation, against the suspect.
Under the terms of the Fifth Amendment, any serious violation of federal law must be brought before a federal grand jury. At the state level, however, grand juries are less common. Some states do not use either grand juries or preliminary hearings. In those states, a defendant may have to stand trial based solely on a prosecutor’s formal statement of evidence to the court.
Assuming there is enough evidence to go to trial, the next step in the pretrial process is the arraignment. This is a court appearance in which the suspect must enter a plea. If the plea is guilty, the judge will set a date to announce punishment. If the plea is not guilty, the judge will set a trial date.
Before the arraignment, a defendant may arrange a plea bargain. This is an agreement in which the defendant pleads guilty in exchange for a lighter sentence. Although a plea bargain may result in jail time, some defendants choose this option to avoid a longer sentence or to spare them the time and expense of a trial.
Critics of plea bargaining argue that it sometimes lets dangerous criminals get out of jail too soon. Other critics worry that it allows the government to pressure innocent people into pleading guilty for fear of a heavy sentence should they lose in court. Supporters, however, argue that plea bargaining helps keep the court system from clogging up with too many cases.