Week Six, Law and Society

Assignments for Week 6:

I. Read Chapter 5 in your Samaha textbook and Lecture 5 below for this week’s quiz. 

II.  Cases in class this week:

            Chapter 5, Toops v. State

            Chapter 5, U.S. v. Haynes

            Chapter 5, State v. Stewart

            Chapter 5, State v. Shelley

Lecture 5, Legal Institutions and Processes

The Courts

1.  The courts in the criminal justice system are organized to operate adversarially, with "ritualized combat" between the prosecution and the defense, but in fact the vast majority of cases are disposed of with some form of negotiation, or plea-bargaining.  Contrary to the image of a full-scale criminal trial that is embedded in the collective consciousness of Americans, relative to the number of criminal cases where trial could occur, only a small percentage (10%, in most jurisdictions) actually go to trial.

2.  The prosecutor and the defense attorney are typically portrayed as adversaries.  However, they are typically part of a "courtroom workgroup," more often committed to the efficient functioning of the court than to the public or the defendant, and cases move through the system on something like an assembly line.  At every stage, the poor and minorities are at a disadvantage.  As one classic example, middle-class and wealthy people accused of serious crimes rarely sit in jail awaiting trial for a significant period of time.  Rather, they are able to get out on bail, even if the bail amount is high.  Historically, accused individuals who are poor have often been unable to make even modest bail and have sat in jail for many months awaiting disposition of their case for trial.

3.  Many defendants who to go to trial choose a bench trial before a judge, at least partly on the premise that they will face harsher consequences if convicted in a jury trial.  This choice is always a gamble, as some research suggests that juries are more likely to acquit than are judges.  Although Americans regard trial by jury as essential to a democracy, and it is guaranteed by the Bill of Rights, trial by jury has been criticized as unnecessary, wasteful, and incompetent. 


1.  If either a judge or jury find the defendant guilty, a sentence is imposed by the judge.  Judges in the past had considerable discretion in sentencing, but since the late 1970s, the federal system and many state systems have adopted sentencing guidelines as a constraint on judicial discretion.  Sentencing guidelines use a number of criteria, such as the seriousness of the offense, mitigating circumstances (e.g., not using a weapon), the degree of injury, and the past record of the offender to specify presumptive sentences.  If judges choose to impose a sentence that varies from the guidelines, they are required to provide a written justification for their decision.

2.  The introduction of sentencing guidelines in the United States has led to longer average prison sentences and has contributed to prison overcrowding.  Sentencing guidelines have been criticized on many grounds, including the claim that they create new sentencing disparities and interfere with the judge's application of common sense to cases.  Criminologists have criticized the harsh sentences of the recent guidelines era as out of proportion to the harm of the criminal conduct they address. 

3.  Those who have been convicted of crimes in the American system have the option of appealing the decision to a higher court; if they are able to raise a significant constitutional issue, the case may be appealed right up to the United States Supreme Court.  Most appeals are based on alleged violation of procedural due process rights. 

Law and the Civil Justice System

1.  The civil justice system has an impact on the lives of large numbers of ordinary people, sometimes in profound ways.  From early times, a primary objective of the civil justice system has been for the state to provide a non-violent mechanism for the resolution of interpersonal disputes.  The civil laws are concerned with private, not public, wrongs, and disputes between private parties (although the government is sometimes a party in the suits).  The the vast majority of disputes -- between husbands and wives, landlords and tenants, consumers and retailers, and so on -- are resolved without resorting to law.   

2.  Civil litigation in the contemporary era is more likely than in the past to involve class-action suits, where large numbers of plaintiffs (e.g., consumers injured by a particular product; workers jeopardized by dangerous working conditions) join together in a lawsuit.  Corporations are the most common targets of these class-action suits.  Recent legislation has seriously limited the possibility of class-action suits by saying that if state laws differ (which is always the case), then people from different states will not be able to enter into a suit together.  Attorneys will be less likely to involve themselves in a costly action if the financial outcome is limited.   

Some Major Types of Civil Law

1.  The term tort is used for a private injury (to a person or property) caused by one party to another.  In classical legal terms, a tort involves a breach of duty by one party toward another, with some form of injury resulting.  A tort may be intentional -- for example, in a case of defamation of character -- although no violation of the criminal code is involved.  A large percentage of tort actions, however, arise out of unintentional actions (or failure to act), such as negligence.  Automobile accidents, for example, typically involve negligence, and are the most common basis for litigation in the United States.   

2.  In addition to torts, the civil justice system covers a vast range of disputes arising out of all manner of business and personal dealings.  Contracts are an essential element of a complex, modern society, especially where many of one's dealings are with strangers.  The contract has been defined as an enforceable promise about what is owed to and by people who have entered into some sort of exchange relationship with one another. 

3.  Another class of civil cases concerns issues pertaining to property.  Property in complex, modern societies takes many forms, from real property (such as land) to intellectual property, such as a patent, copyrighted creative work, or trademark.  Family law encompasses matters pertaining to separation, annulment, and divorce, as well as custody issues. 

© Karen Donahue 2017