DCBA - Legal Points The following information is made available from the American Bar Association and is provided as a public service by the DuPage County Bar Association. If you require the assistance of an attorney please contact the Lawyer Referral Service, 630.653.9109. The Lawyer Referral and Mediation Service provides referrals to participating attorneys and serves the community by putting people in contact with a local attorney. Outside of DuPage County, Illinois there are several other county bar associations in the Chicago Metropolitan area that also provide Lawyer Referral Services. The Illinois State Bar also provides this service at the state level.

Please read the disclaimer before reading the questions and answers.

If you have a question that you would like to have addressed
please e-mail your request,
include your phone number if additional clarification is needed.

The following information does not constitute legal advice of any kind, but is intended to help the public with understanding some of the basic issues they may face.

The American Criminal Justice System

QUESTION 1 Is the crime rate in America increasing?

ANSWER No. Every report indicates that crime is decreasing. The bureau of Justice Statistics announced in September 1996 that the number of violent crimes fell more than nine percent in 1995 – dropping from 10.9 million in 1994 to 9.9 million in 1995. This interrupted a rising trend that had existed since the mid-1980’s. Property crimes continued a 20-year pattern of decreasing rates.

The FBI also reported, in September 1996, that the crime rate per 100,000 persons had dropped by two percent from 1994 and violent crime by four percent. The rates of murder, forcible rape and robbery showed the biggest drops.

QUESTION 2 Which populations are most victimized by crime?

ANSWER Juveniles and minorities are victims of violent crime more than other segments of the population.

QUESTION 3 What impact do handguns have on America’s crime problem?

ANSWER The U.S. has the most heavily armed citizenry in the world. It is estimated that some 223 million guns are available to the general public, and that roughly 135,000 children carry guns to school each day. Each year, the FBI receives about 274,000 reports of stolen guns.

Between 1985 and 1993, the age-adjusted rate of firearm homicides increased 212 percent, from 5.8 per 100,000 to 18.10. More U.S. teenagers die from gunshot wounds than from all natural causes of disease combined.
Gun deaths in the U.S. number about 40,000 each year – more than 100 deaths every day.
Nearly three-quarters (72 percent) of all homicides are by firearm.
Having a gun in the house increases the risk of homicide of a family member almost three times, compared to homes without guns, and the risk of suicide increases by nearly five times.
Guns are used defensively about 65,000 times each year; more than 800,000 crimes are committed with guns.
Of the 4.4 million victims of rape and sexual assault, robbery, and aggravated assault in 1993, nearly 30 percent (1.3 million) faced offenders with firearms. Of the nearly 2 million violent crimes reported to the police in 1993, about 582,000 were committed with firearms.
The number of murders rose five percent between 1990 and 1994, while the number of handgun murders rose 26 percent. The percentage of murders that were handgun-related rose eight percent during that period.
Between 1990 and 1994, the total number of gun-related murders rose 19 percent. In 1994, 70 percent of murders were gun-related.

QUESTION 4 Is there racial bias in the criminal justice system?

ANSWER According to a 1994 report from the ABA’s Criminal Justice section, minorities who are arrested are imprisoned more than non-minority arrestees, and comprise more than half of the state prison population.

The most recent statistics reveal that African-Americans are arrested and incarcerated for drug use at a much higher rate than can be accounted for by their rate of drug use. African-Americans who comprise only 12 percent of the population and 13 percent of drug users, constitute some 35 percent of those arrested for drug possession, 55 percent of those convicted on possession, and 74 percent of those sentenced to prison for possession.

On any given day, an estimated one in three young African-American men between the ages of 20 and 29 is in prison, on probation or on parole. Between 1989 and 1994, there was a 78 percent increase in the number of African-American women under correctional supervision, the highest for all demographic groups within those years.

QUESTION 5 What effect do search and seizure protections, Miranda warnings and the exclusionary rule have on law enforcement?

ANSWER Constitutional rights relevant to the criminal justice process were created to protect the integrity of the process that allows the state to take away someone’s life or liberty. The rights belong to the innocent as well as to the guilty, and help to ensure our privacy and to guarantee that the innocent go free while the guilty are punished. A two-year ABA study of problems confronting the justice system concluded in 1988 that police and prosecutors had little trouble respecting the constitutional rights regarding search and seizure and interrogation, and there is little call from police department to modify the rules.

A 1989 study by the National Center for State Courts of four intermediate appellate courts found that 20 percent of the non-sentence-related errors identified by appeals courts involved admission or exclusion of evidence issues; of that 20 percent, only 8 percent (i.e., only 1.6 percent of the total) resulted in reversible error. The cumulative loss of cases resulting from illegal searches appears to be in the range of 0.6 percent of 2.35 percent (depending on the crime and the stage of the proceedings) of all adult felony arrests.

QUESTION 6 Is the U.S. incarceration rate increasing or decreasing?

ANSWER Between 1990 and 1993, correctional populations increased by 12 percent, to 4.9 million. Apparently more people who are arrested are being incarcerated: even when adult arrests are stable, the number of people incarcerated continues to increase significantly.

QUESTION 7 Is prison capacity keeping up with the growth in the prison population?

ANSWER No. Although state spending for corrections (mostly prisons) is increasing at extremely high rates – faster than any other major area of state expenditures – capacity is growing more slowly than the growth in the number of prisoners.

QUESTION 8 How does the U.S. incarceration rate compare with other countries?

ANSWER The U.S. has at least the second highest rate of incarceration in the world. In 1993 our incarceration rate was the second highest known per capita rate of incarceration in the world – 519 per 100,000 – just slightly less than Russia’s 40 percent greater than South Africa's, more than four times Canada’s, five times Mexico’s, six times most European countries’ and almost 15 times Japan’s. In 1994 the rate of incarceration in the U.S. was up to 565 per 100,000 – an increase of more than 80 percent over 1985. The rate of incarceration in the U.S. has continued to increase since that time.

QUESTION 9 What relationship do mandatory minimum sentences have on uniformity of sentences for similar offenses?

ANSWER A recent study by the U.S. Sentencing commission found that 30 percent of defendants whose behavior made mandatory minimums applicable escaped the effects of the mandatory sentence and were charged under another statute. The study also showed that African-Americans and Hispanics escape mandatory sentences much less frequently than do whites.

QUESTION 10 What impact have mandatory minimum sentences and "truth in sentencing" laws had on the justice system?

ANSWER Actual numbers are hard to come by, but clearly the effect of these new sentencing laws – aimed at ensuring that more of those who are arrested are sent to prison, receive longer sentences, and serve greater portions of those sentences – have significant short and long-term cost implications.

Prison overcrowding has been exacerbated. Between 1990 and 1994 the capacity of state prisons increased approximately 30 percent, while the number of state prisoners grew by 35 percent. As more people are incarcerated and stay longer, either capacity will need to grow faster than at present, or overcrowding will become even more severe. In either event, costs will inevitably rise.

The prison population is also aging. Between 1990 and 1994 the number of state prisoners over the age of 55 grew by 43 percent, compared to the 35 percent overall increase in state prison population. An aging population increases costs tremendously, not simply because of the number of years involved, but also because older prisoners, like older people anywhere, require increased health care, special equipment, facilities segregated from the younger, more violent prisoners, special diets, and other costly services.

QUESTION 11 What has been the impact of "three strikes" laws on crime and the criminal justice system?

ANSWER The impact is unclear. The only real research comes from California, because that is the only state that is making frequent use of the law. While at least 22 states and the federal government have enacted three-strikes laws since 1993, the laws in most jurisdictions are drafted much more narrowly than in California, and for this reason, or because they have not seen the need, prosecutors nationwide have note extensively applied three strikes legislation.

QUESTION 12 How has "three strikes" legislation worked in California?

ANSWER The vast majority of those sentenced under the law – 85 percent – are sentenced for nonviolent offenses. And second and third strike cases are resulting in many more jury trials. While more than 90 percent of felony cases are disposed of through plea bargaining, many fewer offenders agree to plead guilty in three-strike cases. Such cases account for only three percent of the filings Los Angeles, but make up 24 percent of the jury trials.

A California study also found that African Americans – who make up seven percent of the state’s population and 20 percent of its felony arrests – are imprisoned under the law 13 times as often as white, and constitute 43 percent of third strike inmates.

QUESTION 13 Has "three strikes" legislation caused crime to go down in California?

ANSWER There is no way of knowing that for sure. Crime in California has gone down, but it began going down before the three-strikes law was passed. Also in California, there has been a reduction by 100,000 in the number of men in the crime prone age categories, and the unemployment rate has dropped by two percent. In addition, the crime rate has gone down nationwide – in states both with and without three-strikes laws. How such legislation factors into this nationwide trend is unknown.

QUESTION 14 What impact has the war on drugs had on drug use in America? How can the criminal justice system help?

ANSWER While the criminal justice system does play a major role in responding to the drug problem, near-total reliance on increased number of arrests, prosecutions, and long sentences is not the proper role for the system.

In 1995 there were an estimated 12.5 million current drug users, representing 6.1 percent of the population. The highest rates were among young people aged 16-17 (15.6 percent ) and 18-20 (18 percent). Juveniles 12-17 constituted nearly 20 percent of the drug users. Moreover, the number of juveniles who use illicit drugs regularly is continuing to grow. From 1990 to 1995, drug use among juveniles 12-17 years of age increased 27 percent.

QUESTION 15 What effect have the national drug policies had on the prison system?

ANSWER The proportion of the state and federal prison population consisting of drug offenders increased from 7.6 percent in 1980 to 25.8 percent in 1993, while the proportion consisting of violent offenders decreased from 57 percent to 44.5 percent.

QUESTION 16 How much does the U.S. spend on the criminal justice system?

ANSWER Legislatures regularly increase the demands on jails, prisons, probation and parole through initiatives that increase the number of those sentenced to prison or probation, but rarely provide sufficient funding to deal with the increased demands.

More than half of all crimes involving victims, and countless "victimless" crimes are never even brought to the attention of police, and of the crimes that result in felony convictions more that 90 percent are disposed of by a guilty plea. Even with so much of the potential burden diverted, our courts, prosecutors, defense lawyers, probation officers and prisons are barely able to handle the load that exists.

Total justice expenditures were over $74 billion in 1990. More than three-quarters of this was for police protection and corrections. State and federal funding is much lower for public defense services than for the courts, prosecution and non-defense legal services, and police. Less than three percent of the expenditures were for public defense, as compared to more than seven percent for prosecution services.

The constitutional right to effective assistance of counsel extends to defendants who cannot pay for a lawyer. From 1982 to 1988, the number of cases involving the appointment of counsel for indigent defendants increased 40 percent, from an estimated 3.1 million cases in 1982 to 4.4 million cases in 1988. Indigent defense funding also increased 40 percent during that same period, although the average cost of each case rose 14 percent.

QUESTION 17 If the crime rate is dropping, why do Americans feel more threatened by crime?

ANSWER Part of the reason could be that the apparently increasingly random nature or crime, and the inherent difficulties people feel in trying to respond adequately to random events, leads to a wide-spread, unfocused level of tension. A contributing factor could well be that while the rate of murders and other serious violent crimes dropped between 1990 and 1995, network news coverage of murder stories (even excluding the coverage given to the O.J. Simpson trial), more than quadrupled, according to the Center for Media and Public Affairs.