1.9. How Cases Move Through the System

How Cases Move Through the System

The criminal justice process is not what gets portrayed on television, and most cases do not go to trial or result in a prison sentence. Part of the problem is that our current system is overloaded and ensuring due process and crime control can be more challenging than one thinks. To effectively process cases through the criminal justice system, discretion is an important tool for police, prosecutors, judges, and correctional officials. Discretion provides freedom to make decisions, specifically, it is the power to make decisions on issues within legal guidelines. Many people see discretion as the most powerful tool of the criminal justice system. ^{[1] [2]}

Ethics refers to the understanding of what constitutes good or bad behavior and helps to guide our behaviors. Ethics are important in the criminal justice system because people working in the system get authority, power, and discretion from the government. ^[3] Imagine in the above case where the speeding and swerving occurred because the person drove drunk due to the breakup. It would be unethical for police to allow them to drive home because they were drinking and driving, which is a crime. Most people would see it as an abuse of discretion if the officer said, “I know you are drunk, but break-ups suck. Please stop crying, drive home, and forget this happened.” Ethics and discretion often go hand-in-hand.

Samuel Walker referred to the criminal justice system as a funnel. In 1967, The President’s Commission on Law Enforcement and the Administration of Justice published a report on the funneling effect of the criminal justice system. ^[5] The criminal justice system is often referred to as a funnel because most cases do not go through all steps in the system, some because of discretion, and a large portion because they are unknown to police. The question remains: is the criminal justice system effective at catching, prosecuting, convicting, and punishing offenders? Does the system properly do its job at all levels? Walker was critical of this report and said the report did not account for the crimes unknown to police, often referred to as the dark figure of crime. He also recognized that the most serious crimes are often reported the most, which may confuse the public about the reality of other crimes. ^[6] Others also criticized the report for only looking at reported crimes and adult crimes, but those issues will be highlighted in our next chapter on data in the criminal justice system. It is important to recognize the disparity between crimes that were reported and not reported. This discrepancy was a shock in the 1970s, especially after the United States started asking people about their victimization. The number of crimes people say they experienced far exceeded the crimes they reported to the police. ^[7]

The main idea to understand is that the funnel effect is said to represent how cases move through the system by the offenses unknown to police versus known, arrests then made, prosecutions, plea bargains or trials, sentencing, and whether the individual receives probation, prison, or parole. ^[8]

Samuel Walker referred to the criminal justice system as a funnel. In 1967, The President’s Commission on Law Enforcement and the Administration of Justice published a report on the funneling effect of the criminal justice system. ^[10] The criminal justice system is often referred to as a funnel because most cases do not go through all steps in the system, some because of discretion, and a large portion because they are unknown to police. The question remains: is the criminal justice system effective at catching, prosecuting, convicting, and punishing offenders? Does the system properly do its job at all levels? Walker was critical of this report and said the report did not account for the crimes unknown to police, often referred to as the dark figure of crime. He also recognized that the most serious crimes get reported the most, which may confuse the public about the reality of other crimes. ^[11]

Others also criticized the report for only looking at reported crimes and adult crimes, but those issues will be highlighted in our next chapter on data in the criminal justice system. It is important to recognize the disparity between crimes that were reported and not reported. This discrepancy was a shock in the 1970s, especially after the United States started asking people about their victimization. The number of crimes people say they experienced far exceeded the crimes they reported to the police. ^[12]

The main idea to understand is that the funnel effect is said to represent how cases move through the system by the offenses unknown to police versus known, arrests then made, prosecutions, plea bargains or trials, sentencing, and whether the individual receives probation, prison, or parole. ^[13]

The funnel is one way to look at the criminal justice system, but we will see later how it can be much more complicated than this analogy suggests. It is important to know many crimes are unknown to the police, which we will often refer to as the dark figure of crime. Additionally, plea bargains are a comprehensive tool, especially since it would cost our society so much to prosecute and allow a trial for every individual who committed a crime. Costs are a genuine issue that the system faces daily, and if the U.S. were to punish everyone for violating the law, there would not be any money left over for important things like education, healthcare, repairing highways, and so much more. We would see most of our taxpayers paying for just crime control, which may not be the best use of all that money. Again, this brings in the importance of discretion in the criminal justice system.

Sometimes taking away discretion is excellent and sometimes having too much is wrong, but finding that balance is very important. Sometimes a judge may use discretion to release a domestic violence offender to community probation when an officer did not have the discretion to arrest. The judge’s discretion may cause the victim to get revictimized, but it may not. Some offenders may be at a higher risk of reoffending and being able to determine this is valuable. We will discuss this later when talking about using evidence-based practices in the criminal justice system.