William R. Kelly - The Crisis in Americas Criminal Courts: Improving Criminal Justice Outcomes by Transforming Decision-Making

William R. Kelly is a professor of sociology at the University of Texas at Austin. He has taught and conducted research in criminology and criminal justice for more than thirty years and has published extensively on a variety of justice matters. Kellys consulting work spans local, state, and federal governments and has given him the opportunity to collaborate with a large number of justice agencies. He currently serves on the City of Austin Public Safety Commission and on the Magistrate Judge Merit Selection Panel for the Western District of Texas.

He has written four books on reforming the American criminal justice system. Criminal Justice at the Crossroads: Transforming Crime and Punishment was published by Columbia University Press in May of 2015. The Future of Crime and Punishment: Smart Policies for Reducing Crime and Saving Money was published by Rowman & Littlefield in July of 2016. It was revised and updated, and a new edition was published in 2019. From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice was published by Rowman & Littlefield in June of 2017, and Confronting Underground Justice: Reinventing Plea Negotiation for Effective Criminal Justice Reform was also published by Rowman & Littlefield in 2018.

F irst and foremost, I must once again express my profound gratitude to my wonderful wife, Emily, who has been so encouraging and supportive in this effort and those that preceded this one. She has also been an excellent sounding board for many of the ideas contained herein. More importantly, she is the best life partner one could imagine.

I also want to thank several undergraduate students who provided very able research assistance over the course of this project. Michaela Capplleo was indispensable in assisting with the interviews I conducted with progressive prosecutors. Echo Nattinger, Taryn Shanes, Clemens Finger, Saskia Reford, Emily Schuerman, Jordan Ludzenski, Peeyal Kumar, and Maura Evans were extremely valuable in reducing the literal mountains of research I had collected into meaningful summaries. Molly Karten, Jake Wigel, and Brianna Goodfriend conducted extensive background research on the prosecutors I interviewed as well as compiled summary data on their elections. I also want to thank Saskia Reford and Emily Schuerman for reading earlier drafts of the manuscript and offering terrific criticisms and edits. It is so encouraging to know that there are such smart students who are really interested in criminal justice reform.

Id like to express my gratitude to Dan Mears for his usual extraordinarily insightful comments. I also thank the Charles Koch Foundation for financial support for conducting the prosecutor interviews.

As usual, Rowman & Littlefield has been wonderful, especially Kathryn Knigge and Becca Beurer. Thank you for all you have done to help make this book a reality.

T he administration of criminal justice is divided into four segments: state legislatures and Congress, law enforcement, the courts, and corrections. State legislatures at the state level and Congress at the federal level 1) write the criminal code, which defines behaviors that are violations of the criminal law; 2) prescribe how sentencing shall be conducted and what the punishment is; and 3) establish the rules for the lawful operation of the criminal justice system (the code of criminal procedure).

As I discussed in the introduction, both state legislatures and Congress have expanded the criminal code dramatically over the past fifty years. The result is the broadening of criminal liability, in turn increasing the number of individuals who end up in the criminal justice system. State and federal sentencing laws have also changed in striking ways, especially in terms of the upsurge of mandatory sentences. The goal has been to enhance punishment for more people. Changes to the criminal and penal codes have clearly accomplished that objective.

The code of criminal procedure, as the name implies, stipulates how the government shall lawfully conduct the business of the criminal justice system. This includes constitutional protections and guarantees found largely in the Bill of Rights, such as the Fourth Amendment protection against unreasonable searches and seizures, the Fifth Amendment protection against self-incrimination and double jeopardy, the Sixth Amendment right to counsel and to trial, and the Eighth Amendment prohibition against cruel and unusual punishment, among others. The code of criminal procedure also reflects decades and decades of court decisions that clarify, modify, or change what these protections and guarantees mean.

Law enforcement controls the front door of the justice system, responding to suspected crimes, investigating and gathering evidence, and arresting suspects once probable cause has been established. Probable cause, or the reasonable belief that a crime has been committed and that the suspect probably committed the crime, is the necessary evidentiary standard for a lawful arrest. Once an arrest is made, the police consider the case cleared, meaning essentially the end of their involvement, with the exception of things such as subsequent follow-up investigation or testifying at hearings and trials. After an arrest is made, the case is handed off to the court system, in particular the prosecutor and individuals who work in what is called the pretrial system.

Corrections consists of the sets of individuals, agencies, and institutions that are responsible for imposing correctional control over individuals who have been convicted of a crime. It includes jail, prison, probation, and parole, as well as variations or modifications of each of these. Jail, prison, and probation are forms of post-conviction sentences that are imposed on individuals. Jail and prison serve to physically separate offenders from the community. Probation is conditional supervised release to the community and is a sentence imposed in lieu of incarceration. Parole is also defined as conditional supervised release to the community, but it is what is imposed on individuals who are released early from prison.

The criminal court system consists of everything from the point of arrest to the carrying out of the sentence, everything between law enforcement and corrections. It includes the very early phases of processing cases, such as booking suspects into jail and the preliminary hearing where detention decisions are made, to charging and prosecutorial decisions, indictment, arraignment, pretrial hearings, plea deals and the occasional criminal trial, and determining the sentence.

While criticism of US criminal justice spans across all of its components from police to prison and parole and everything in between, the court system is the primary focal point of this book. That is not to say that the concerns or problems with other components of American criminal justice are unimportant. The US correctional system, especially prison and jail, have been the primary targets of criminal justice reform. Mass incarceration, probably the most commonly voiced criticism of US criminal justice policy, goes directly to the extensive use of prison and jail for punishing individuals convicted of crimes. The critiques of prison and jail do not end with the sheer size. The racial and ethnic disparities surrounding who is incarcerated are also commonly voiced. There also has been a good deal of criticism leveled at probation and parole systems, directed in part on the failure to adequately address the criminogenic needs of those under supervision and what is perceived to be an excessive use of revocation. Law enforcement certainly has been under fire for use of force, officer-involved shootings, and racial profiling, among other things.