1.7: Scope of the Criminal Justice System

The Scope of the Criminal Justice System

Before returning to the meat of criminal procedure law, let us consider for a moment just how large and important a system is being governed by nine Justices interpreting a handful of ancient clauses.

Beginning around 1970, the United States began a massive increase in incarceration. Between 1980 and 2010, the incarceration rate more than doubled. Despite a small drop in incarceration over the past decade, as of early 2022 the United States incarcerated about 2 million people, including inmates at prisons, local jails, and juvenile facilities, among other places. This chart (released to the public domain via Wikimedia Commons) shows how the incarceration rate (essentially, the number of inmates per 100,000 U.S. residents) was relatively flat for decades through the 1960s, began rising after 1970, and then increased rapidly after 1985. The rate has decreased slightly over the past few years.

The U.S. 2021 incarceration rate was 664 per 100,000 residents, exceeding every other country in the world. The states with the highest incarceration rates in 2021 were Mississippi (1,031), Louisiana (1,094), and Oklahoma (993). The states with the lowest rates were Rhode Island (289), Vermont (288) and Massachusetts (275). Even these states have higher incarceration rates than most countries, including Iran (228), South Africa (248), Israel (234), New Zealand (188), Singapore (185), Poland (188), Jamaica (137), Iraq (126), France (93), and Ireland (72).³

The next chart (provided courtesy of The Sentencing Project) shows the raw numbers of prisoners in America. Note that this does not include inmates in jails or juvenile facilities.

Nationwide, the total prison and jail population as of December 31, 2020 was 1,691,600.⁴ In addition, 3,890,400 persons were under supervision—on parole or probation—creating a total correctional system population of 5,500,600.

Because states house the overwhelming bulk of U.S. prisoners, state budgets fund the overwhelming bulk of U.S. correctional expenses. In 1985—just before the American prison population began its sharp increase—states spent a combined $6.7 billion on corrections. By 1990, the cost had risen to $16.9 billion. It was $36.4 billion in 2000, $51.4 billion in 2010, and $56.6 billion in 2019.⁵

The next chart (provided courtesy of the Prison Policy Initiative) shows where incarcerated women are housed and what offenses led them to confinement.

[The PPI also has a chart entitled “The Whole Pie,” which covers all incarcerated persons, male and female. Although we lack permission to include the chart in this book, students may (and should) find it online.]

The likelihood of imprisonment is not distributed evenly among different groups of Americans. Women constitute about half of the total U.S. population but only 7 percent of the total prison population. Racial disparities are also stark. In 2020, state and federal prisons housed (out of a total of 1,182,166 inmates) 389,500 Black inmates (33 percent of the total), 358,900 white inmates (30 percent of the total), and 275,300 Hispanic inmates (23 percent of the total).⁶ According to Census data taken around the same time (April 1, 2020), 76 percent of Americans described themselves as white alone (no other race), 13 percent as Black or African American alone, 3 percent as two or more races, and 18.5 percent as Hispanic or Latino.⁷ Although the demographic definitions—particularly for deciding who counts as Hispanic—used in various surveys are not always identical, the results are clear. Black and Hispanic Americans are significantly overrepresented among prisoners.

Despite the high U.S. incarceration rate, most Americans will never serve time. Instead, the majority of Americans encounter the justice system through their interactions with police officers. U.S. law enforcement agencies employ about 665,000 officers at the local, state, and federal level. That works out to about one officer for every 500 Americans. In 2019, officers performed about 10 million arrests. As was noted for incarceration, arrest rates exhibit disparities by race and sex. Of those arrested in 2019, 69.4 percent were white, and 26.6 percent were black. Males constituted 72.5 percent of those arrested in 2019. Young men are especially likely to be arrested.⁸

When suspects are arrested and prosecuted, states often provide legal counsel because the defendants otherwise could not afford it. The per capita expense on indigent defense varies tremendously among states. For example, in 2017 Wisconsin spent $86 million, or $14.83 per resident. That same year Texas spent $37 million, or $1.31 per resident.

A Few Recent Cases

We will return now to the discussion we set aside after reading Brown v. Mississippi.

“Yes, yes,” one might say, “the criminal justice system is important. As a nation we spend immense sums on police, prosecution, and prisons. And back in 1934, some goons in Mississippi abused criminal defendants, which required intervention by the Supreme Court. What about today?”

This is a fair question; otherwise, we would not have placed it in the mouths of our hypothetical students. We expect that by the end of the semester, few if any students will question whether police and prosecutors still require judicial oversight. The amount and proper form of that oversight will almost surely remain contested—indeed, the Justices themselves contest these issues every year—but the principle is likely to win near unanimous assent. To assuage skepticism without delay, however, we will present some evidence now.

In 2013, the State of California freed Kash Delano Register, whom the state had imprisoned for 34 years for a murder he did not commit.⁹ Mr. Register had been convicted on the basis of false identification testimony, and the lawyers who won his release produced proof that police and prosecutors had concealed from Register’s trial defense team evidence of his innocence, including reports of eyewitnesses who would have contradicted the testimony of prosecution witnesses, along with evidence of how police had used threats of unrelated criminal prosecution to pressure the witnesses against Register. Absent the work of students and faculty at Loyola Law School in Los Angeles, Register might remain incarcerated today. Prosecutors opposed his release until 2013. In 2016, the Los Angeles City Council approved a $16.7 million settlement payment to Register.¹⁰ The city has paid tens of millions of dollars in other recent settlements related to police conduct.¹¹

In 2012, the State of Missouri released George Allen, Jr., whom the state had imprisoned for 30 years for a St. Louis rape and murder he did not commit.¹² Although prosecutors could not explain how Allen could have travelled from his University City home to the murder scene—St. Louis was paralyzed that day by a 20-inch snowstorm—a jury eventually convicted Allen on the basis of his confession. Decades after his conviction, new lawyers for Allen—from the Bryan Cave law firm and the Innocence Project—produced evidence that police had elicited a false confession from Allen, who was mentally ill. Missouri courts found that prosecutors withheld exculpatory evidence, including lab results, fingerprint records, and information about bizarre interrogation tactics such as hypnosis of a key witness. Allen died in 2016, and the City of St. Louis and Allen’s family settled his civil rights lawsuit in 2018 for $14 million.

The National Registry of Exonerations, maintained by the University of Michigan, lists 3,176 exonerations, representing “more than 27,200 years lost.”¹³ Because it covers only exonerations, it does not include cases in which misconduct is uncovered in time to prevent a wrongful conviction.

In 2015, the Wall Street Journal reported that America’s “10 cities with the largest police departments paid out $248.7 million” in 2014 in settlements and court judgements in police misconduct cases.¹⁴ Students should keep in mind that because so much misconduct cannot be remedied through monetary damages, numbers like these understate the problem.

Chicago has settled several multi-million-dollar cases in recent years. Examples include: “A one-time death row inmate brutally beaten by police: $6.1 million. An unarmed man fatally shot by an officer as he lay on the ground: $4.1 million.”¹⁵ Another involved an officer who “posted messages on his Facebook page falsely calling [a] teen a drug dealer and criminal” and officers handcuffing this same teen without cause. (Settlement around $500,000.) More recent cases include “a police officer [who] pointed a gun at [the plaintiff’s] 3-year-old daughter’s chest during a 2013 raid of the family’s Chicago home” and a man who spent about 20 years in prison after being framed.¹⁶

As the Baltimore Sun noted—in its 2014 report of how the “city has paid about $5.7 million since 2011 over lawsuits claiming that police officers brazenly beat up alleged suspects”—the “perception that officers are violent can poison the relationship between residents and police.”¹⁷ The newspaper observed:

“Over … four years, more than 100 people have won court judgments or settlements related to allegations of brutality and civil rights violations. Victims include a 15-year-old boy riding a dirt bike, a 26-year-old pregnant accountant who had witnessed a beating, a 50-year-old woman selling church raffle tickets, a 65-year-old church deacon rolling a cigarette and an 87-year-old grandmother aiding her wounded grandson.”

In multiple jurisdictions, class action lawsuits about unlawful strip searches have yielded large payments. In 2010, the Cook County (Illinois) Board of Commissioners agreed to a $55 million settlement with suspects stripped-searched at Cook County Jail. New York City reached a $50 million settlement in 2001 and another one for $33 million in 2010, both related to searches in city jails such as Rikers Island. Similar settlements (for smaller amounts) have been reached in places such as Kern County, California; Burlington County, New Jersey; and Washington, D.C. Massachusetts officials settled a suit concerning the Western Massachusetts Regional Women’s Correctional Center, agreeing to prohibit male guards from continuing their practice of videotaping the strip searches of female inmates.

Less sensational issues (nonetheless important to those involved) include the ongoing debate over “stop-and-frisk” tactics nationwide, in addition to racial profiling of motorists. These practices affect persons whose involvement with the criminal justice system might otherwise be fairly minimal. In New York City, a federal court found that NYPD officers violated the Fourth Amendment by performing unreasonable searches and seizures and further found that police violated the Equal Protection Clause of Fourteenth Amendment by stopping and frisking New Yorkers in a racially discriminatory manner.¹⁸ In Missouri, annual reports by the Attorney General regularly find racial disparities in vehicle stops.¹⁹ According to the 2017 report, Black motorists were far more likely to be stopped, despite police finding contraband less often when stopping Black motorists than when stopping white motorists. “African-Americans represent 10.9% of the driving-age population but 18.7% of all traffic stops …. The contraband hit rate for whites was 35.5%, compared with 32.9% for blacks and 27.9% for Hispanics. This means that, on average, searches of African-Americans and Hispanics are less likely than searches of whites to result in the discovery of contraband.”

In sum, the incidence of police and prosecutorial misconduct is not limited to dusty case files from the old Confederacy.

Meanwhile, crime remains a serious problem, one America has struggled with since colonial times. Since the 1800s, the United States has had a much higher murder rate than European countries otherwise similar to us in measures of economic power and educational attainment. Then, beginning around 1965, the U.S. homicide rate increased dramatically.²⁰ Although the increase was not uniform (different decades saw different trends, and different locations experienced trends differently), the United States as a whole suffered a big increase in crime from the mid-1960s through the early-1990s, with the nationwide homicide rate peaking at around 10 per 100,000 persons. Since then, crime has dropped significantly, returning over twenty years to what was observed in the early 1960s.²¹ By 2000, the homicide rate had dropped to around 5.5 per 100,000, which is close to the rates observed over the subsequent two decades.²² (Time will tell whether the rising homicide rates observed during 2020 and 2021—that is, during first years of the COVID pandemic—represent an aberration or a new normal.) In other words, American crime rates remain well above those of Western Europe, Canada, and Australia, but they are far better than American rates of a generation ago. The sharp increase in crime between the 1960s and 1990s may explain in part the rapid increase in American incarceration, as politicians offered “tough-on-crime” solutions. The causes of the huge increase in crime beginning around 1965, as well as of the subsequent decrease, are hotly disputed.²³ In any event, crime remains an important political and social issue in America. Court decisions about how police may behave will be better understood if given broader social context. For example, judicial decisions that prevent the convictions of undisputedly guilty defendants may be unpopular among voters, and voters elect the politicians who appoint and confirm Supreme Court Justices. Further, Justices may recognize their relative lack of expertise in the fields of policing and criminology, and they may hesitate to mandate practices (or to prohibit practices) without thoughtfully considering how their decisions could affect ongoing national efforts to fight crime. The debate over how much the Court should meddle in the affairs of police departments is a thread that runs through the course material.