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Lecture 4

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Nicole Myers

Lecture 4 May-15-13 Bail, Courts and Juries Racial profiling: Toronto police settle human rights complaint with man who was pulled over Toronto Star 15 May 2013 Why have concerns?  Those who attribute stops to „profiling‟ (race, age, sex) less willing to accept stop as legitimate.  Racial minorities – more likely, when stopped, to view it as a result of a profile.  Support for police undermined by belief that they engage in „simple‟ profiling  Those who see the police as being polite, respectful, and acknowledging of rights, less likely to view stop as a result of profiling.  Police maintain legitimacy: exercising authority fairly.  Probably more complex than simple prejudice. Law Enforcement Priorities  Study in Seattle, Washington  Drug arrests – Blacks (increasingly) over-represented  1980 Blacks 650 per 100K Whites 350 per 100k Blacks 2709 per 100k 2000 Whites 463 per 100k  Explanations offered  Differential drug use o Suggestion:  Black people simply use more drugs  But in reality, white people use more drugs than black people  Differential visibility o Black people more visible to cops  Employed less often by employers  Have less income  Can't afford secure places to use drugs o White people do it more hidden, privately  Differential enforcement o Heightened level of surveillance o Heightened level of interaction with police Data: Different drug use:  Over representation of Blacks with crack ;  Whites with methamphetamine  Buy-and-bust  Undercover cops buying drugs to catch criminals and arrest them  Police focus their attention more on crack than methamphetamine  arrests disproportionately crack  Estimates on street:  Crack o 1 3 of transactions o 3 4 of arrests  Outdoor sales of Drugs  Black people over represented  Black people over representation from choice of drug .  Relates to definition of what the drug problem is .  Was it defined this way because of race ? o Is crack more of a problem because of the race of the people who use it? One Suggested Solution to the Profiling Problem: Random stops  Fairness  Random searches rather than profiling o Every 57th person that walks into an airport, gets searched.  “Targeted” stops may not be that efficient  Some areas – terrorism – in which careful calculations are being made, may be more effective to do random searches.  Profiling assumes statistical accuracy o Reality: LOW statistical accuracy o We are wrong more often than we are right  Profiling may be „out of date‟ (people, methods) o Maybe its different people o Maybe they're using different methods o By the time we've accumulated enough data to put together some type of a profile, the person has already shifted  Advantage: fairness  Problem:  Some instances may make no sense But need to carry through with the search .  What if 57th person is a 3 year old toddler?  Because random means random  Doesn’t matter who it is. Things to Consider… 1. Is hiring more police officers necessarily the best way of reducing crime? What kinds of arguments would you use if you were asked to argue that a particular jurisdiction (e.g, a city or region or province) needed more police? 2. Does it really matter whether the police (and other criminal justice institutions) treat people fairly? 3. Discuss the view that the (public) police are only one institution of many involved in „policing‟ our communities. 4. Should we evaluate police (primarily) on their ability to keep communities safe from crime? 5. How would you suggest we evaluate whether a police force or an individual police officer is doing a good job? What role would crime rates (or changes in crime rates) have? Some Critical Decisions in the Prosecution Process  The decision to proceed criminally  Violence against women spouses  Prosecutorial discretion  Alternatives to the prosecution process Bail  How to proceed in court (the jury)  Criminal process is not a simple set of automatic/ sequential steps.  Many decisions are involved in criminal justice process - each of which raises interesting/ important questions.  Seldom is there a simple „best‟ policy alternative. Apprehension: Toronto “Clearance Rates” (2009) Total Total % Cleared by Cleared incidents cleared Cleared Charge otherwise reported (% of cleared) All 237,600 104,232 44% 80,271 - (77%) 23,961 - (23%) B&E 17,768 4,485 25% 2598 - (58%) 1887 - (42%) Theft under 68,305 16,112 24% 8953 - (56%) 7159 - (44%) Sexual Assault-1 2323 1532 66% 1187 - (77%) 345 - (23%) Robbery 7498 2886 38% 2635 - (91%) 251 - (9%) Responding to Men‟s Violence Against Intimate (Female) Partners  How should the police and Crown Attorney respond to wife-assault cases?  What rational type of policy should we have in place around domestic violence? o What is the relationship or facts of the case? o Depend on the severity of case o Depends on context  As simple as hitting someone with a PILLOW or beating someone with a PIPE  Some levels of domestic violence are so minor that maybe want to invoke a different type of process  Concerns to think about  Woman‟s (victim‟s) wishes  “Equal treatment” – state vs. victim‟s interests? o Different offenders in similar situations receive similar types of treatment o Who's interests are we perceiving the cases with?  Criminal Justice System? - Possible response: Mandatory charging practice.  Victim? - Possible Response: All types of responses  Effects on re-offending  Importance of „fair treatment‟  Broader question: How do we think about whether a case is worthy of „full‟ prosecution?  Full prosecution - not the best way to respond The Challenge of Assault against Women by Spouses or Spousal Equivalents  How should police respond to domestic violence?  Stopping current violence  Separate partners o Sending someone to friend's/family's house to get away from each other  Refer one or both partners to some (social, counselling) service o How to deal with anger o What the law says about what you're supposed to and not allowed to do with your partner  Counsel parties o Officer gives some advice about how to resolve  Charge offender History  Gone from „not a police problem‟ to „mandatory charge‟ a(d no drop po)icies .  „not a police problem‟ o Considered personal/family matter o To be dealt with between man and women. Police could not say anything. o Left to the people in the relationship to decide what they wanted to do about the violence that was in their relationship o If they called the police, nothing was going to happen. o Police might not even COME!! :O o Because it's a private matter  Quazi „mandatory charge‟ o If police officer has reasonable and probable grounds to believe that an act of violence has taken place, they are to charge the offender o It IS mandatory, but there are a number of things that come into play  Victim will recant her statement  Because a lot of emotional feelings are present  Could be a couple that loves eachother very much but have issues on how to express themselves  Police discretion  Reasonable and probable grounds to believe  If they show up,  and they can see the physical markings of violence ,  that will instigate reasonabl/ probable grounds  And they both say nothing happened and there are no marks  Maybe something did happen but you've lost our reasonable and probable grounds  Both could be domestically violent. One could be defending, other offending. No one knows  Police will arrest them both and let court figure it out later  Preferences of women victims of spousal assault stud(es in 3 countries )  Many call police to get offender to o stop o taken away o warned n(t necessarily to begin a full criminal process ) o BUT don't want the person charged  Desire for arrest: o related tolevel ofpoverty o( victim ),  More poor, less likely to want to charge because the only person who brings in income, is now in custody. How to feed children? o offence severity  Is it worse than before?  Is it less bad? o previous rate of offending  Has it happened before?  How long ago? o Future violence?  The past was the best predictor Ontario study:  Many women not even thinking of arrest .  Thinking of protection ,mphasizing to offender seriousness of offence acc,ss to services.  Stopping the assault .  Sometimes want arrest but not prosecution eg h( . .,er night and then drop charges)  Problem of „costs‟ to others of prosecution of offender o Concerned about level of support they can get their hands on  Where to go with kids  Safety plan  Shelter o Concerned about retaliation  What's the consequence  Fear of him coming back and being more pissed than before  How much trouble am I going to be in NOW?  Threats of harming/taking away children  Threatening immigration status Women‟s ability to predict future violence  One justification for allowing „victim choice‟  Women know whether it is likely to occur again  Ability of women to predict future offending  Far more effective than any risk assessment tools  Interviewed women  Statistical models  Follow-up (6 months)  Results  Women‟s own predictions better than formal „measure‟ “Protective” Impact of Reporting to the Police Survey of U.S. women over 3-year period   Representative sample of wife-assault victims  Asked: Whether the police were informed of the incident  Then followed up after 6 months  Results o Repeat victimization rates - higher if police were not informed. Protective effect of making police aware. o First offenders/victims: 5% repeat for those whose spouses reported it to the police; 10% if not (taking into account various controls) o Repeat offenders/victims: 22% repeat for those whose spouse reported; 35% repeat for „no report‟ o No effect of who reported (spouse or someone else) o Knowing that the police knows decreased the chances of it repeating  WHY do we see this? o Maybe the police changed the offender's attitude o Maybe it came to be seen that this is criminal o There are consequences o The presence of police intervention, has some value in reducing victimization Effects - Arrest/Prosecutions and Repeated Domestic Violence  1985 Study - and follow-ups: What is the best policy (recidivism)  Looking at: Relatively less serious (misdemeanour assaults)  Offender arrested or spoken to/warned, etc.  Carried out by police on a random basis (charge/ no charge equivalent)  No simple benefit to victim of arrest policy (for lower level assaults)  Other research – „Protective orders‟ (Peace Bonds)  Comparison of: o Arrest o protective orders o both  Results (2 year follow-up) no differences. Conclusion: Type of Legal intervention may not be that critical Should there be mandatory policies? “Institutional (decision-maker) Risk” – don‟t have to worry about doing the „wrong thing‟ – if a „rule‟ governs the decision. Is „equal treatment‟ by the law the only consideration? Problem of victim participation o Assessing „true‟ wishes o Maybe they feel forced o Maybe they feel pressure o Maybe they're lying because the offender is standing right there o Should she be responsible? What about collateral consequences of prosecution to victim and children? What about other cases (e.g., non-spousal assault) in which victims prefer or do not prefer to have „their‟ offender charged?  Ontario has mandatory charge policy for domestic violence The Decision to Prosecute: An example from the past  30 January 1978: Francis Fox (Solicitor General of Canada – Liberal) announced to House of Commons -  “…resigned from cabinet”  “…brief liaison w. a married woman who became pregnant”  “She applied for and secured permission for a [legal] abortion [in an Ottawa hospital]  “On her admission to hospital [Fox] signed the name of her husband to a [hospital] admitting document. Decision on how to proceed – Provincial Attorney General  R. Roy McMurtry (Conservative, Ontario) in the provincial legislature (23 Feb. 1978)  “No charge should be brought against Mr. Fox - should not be charged with forgery  “Equality before the law…Shouldn't matter because if he wasn't someone important, no one would have cared  Case came to light – letter from private citizen to Prime Minister (Trudeau)  Unwritten hospital practice of getting husband to sign form (after admission to hospital) – no legal requirement  Prosecutions not automatic in many cases  Enough evidence for charge (forgery) but proving it difficult (effect of the forgery was immaterial)  Consequences to someone who has already suffered (Fox)  Husband requested no charges be laid against Fox  Woman involved would have had to be charged (as party to the offence)  Identities would have to become public  Not uncommon for police officers and Crown Attorney
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