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Criminal Justice: Criminal Courts

Abstract and Keywords

This entry on the adult court system in the United States discusses the foundation, structure, and authority of courts at federal, state, and local levels. The role of criminal courts, the nature of an adversarial justice system, the plea bargaining process, and the goals of sentencing are described. Innovations such as specialized courts, restorative justice approaches, and therapeutic jurisprudence are presented. Finally, several social work roles in the court system are identified.

Keywords: adult courts, criminal courts, restorative justice, treatment courts

The adult court system in the United States is not one system, but several, with differing jurisdictions and levels of authority. The U.S. Constitution and the state constitutions provide basic principles and procedural safeguards, which courts must uphold, and describe the various institutions of government, including the judiciary. The U.S. Congress and state legislatures decide by statute what constitutes a criminal offense and the broad parameters for sentences that may be imposed. Within our common law system, judges make legal decisions informed by precedent and custom, and in their specific rulings further add to case law as they create and modify laws. Thus, when making decisions, judges must consider constitutional mandates, legislative statutes, and decisions in prior cases (Clear & Cole, 2003).

Local, state, and federal courts have different levels of authority to hear and resolve certain kinds of cases. The Judiciary Act of 1789, passed by the Constitutional Convention, set up a tiered federal court system with higher and lower courts (Champion, 1998). The U.S. Supreme Court is the highest court in the land and the last resort for all appeals. It hears only a fraction of the cases appealed to it, about 100 of 6,000 appeals per year; less than one-half of these are criminal cases (Barlow, 2000). Below the U.S. Supreme Court in the federal system are 12 U.S. Courts of Appeals (known as circuits) and U.S. District Courts. District courts hear all cases involving federal criminal offenses as well as many civil matters.

State courts use different models of court organization. The most commonly applied model includes, from highest to lowest, a State Supreme Court, Intermediate Appellate Courts, courts of general jurisdiction, often called superior or circuit courts, and courts of limited jurisdiction, such as district or county courts (Barlow, 2000). Courts of general jurisdiction typically hear felony trials and conduct felony sentencing hearings. Felonies are more serious offenses, typically resulting in sentences of one year or more if incarceration is ordered. Courts of limited jurisdiction or lower courts typically handle preliminary hearings, arraignments, and misdemeanors. Misdemeanors are less serious crimes, typically resulting in sentences of less than one year if incarceration is ordered. Preliminary hearings are for determining whether a person should be held for trial; the focus is on establishing whether it is reasonable to think that a crime was committed and that the suspect did it. An arraignment is a hearing where the defendant is formally charged and then enters a plea. Courts of limited jurisdiction also include municipal, traffic, and justice of the peace courts.

Criminal courts hear matters of criminal law violations. They become engaged around the time criminal charges are filed and continue through sentencing, other disposition of the case, such as a probation violation hearing or dismissal, or the appeals process. In our adversarial justice system, defendants are innocent until proven guilty and have the right to legal counsel. Those who go to trial must be found guilty beyond a reasonable doubt, and the burden of proof lies with the prosecution. Criminal courts see a tremendous amount of activity. In 2002, state and federal courts convicted over 1,114,000 adults on felony charges, with state courts accounting for 94% of this total (Durose & Langan, 2004). The majority of felony convictions result from guilty pleas, and many also through plea bargaining, where the defense and the prosecution negotiate over charges and sentences and the defendant pleads guilty in exchange for leniency. In 2002, only 5% of state felony convictions resulted from trials (Durose & Langan, 2004). Goals of sentencing include proportionality—the punishment should fit the crime, equity—similar offenders and offenses should be treated the same, and social debt—consideration of the offender's criminal history (Mays & Winfree, 2005). In the 1970s a shift away from indeterminate sentencing began, where judges had more discretion regarding the sentences offenders would receive, to determinate sentencing, where the prosecution had more sentencing discretion. At the same time, the prevailing public and political focus shifted from a more rehabilitative view to a more punitive view, and sentencing laws and structures were created that required harsher sentences be imposed by the courts, including “three strikes and you're out” laws (Schiraldi, Colburn, & Lotke, 2004). Significant disagreement exists among policy makers, criminal justice officials, scholars, offenders, and the general public over how well these three goals of sentencing are accomplished under the prevailing punitive view.


Specialized courts were created to respond to defendants with persistent social problems that contribute to their involvement in the criminal justice system. Drug courts were the first, beginning in 1989 in Florida (National Criminal Justice Reference Service, 2005). More recently, communities are creating mental health courts and domestic violence courts. These courts connect defendants with counseling, treatment, and other social services and encourage them to comply with recommendations through the use of incentives (for example, deferred adjudication) and sanctions (for example, jail time) (Griffin, Steadman, & Petrila, 2002).

The first adult gun court began in Providence, Rhode Island, in 1994; currently there are only a few in the nation (Post, 2004). Created in an effort to reduce gun violence, they respond swiftly and severely to cases involving gun use or possession.

In contrast to an adversarial approach, restorative justice requires a new way to think about and respond to criminal behavior. Different models operate throughout the United States and in several countries, with names such as victim–offender mediation, circle sentencing, and community reparative boards (Bazemore & Umbreit, 2001). Restorative justice views crime as harm done to people and communities, and the emphasis in responding to crime is on repairing the harm (Zehr, 2002). Victims' needs and perspectives are an integral part of the process. Offenders are asked for real accountability through genuine dialogue with victims or community members, restitution, and community service, and are provided the opportunity to become reconnected to the community.

Another relatively new way of thinking about the law, including legal procedures such as court hearings, is therapeutic jurisprudence. Therapeutic jurisprudence considers the law's impact on individuals' emotional and psychological well-being. This way of viewing the law recognizes that legal rules and procedures, as well as behaviors by legal actors such as judges, have therapeutic and antitherapeutic consequences, and the focus is on finding ways to increase therapeutic outcomes from the legal system. Wexler (2007) suggests several useful examples of what this may look like in practice. Social workers can contribute to this new emphasis. Therapeutic jurisprudence has much in common with the value orientation of the profession and social workers' expertise in encouraging positive client changes.

Social Work Roles

Social work employment in judicial work is found in pretrial diversion services, preparation of pre-sentence investigations, and victim and witness assistance programs. Pretrial diversion services seek to remove defendants from the criminal justice system and refer them to community-based services and treatment. These programs are conducted in probation departments, courthouses, jails, and independent agencies (Clark & Henry, 2003). Pre-sentence investigations are conducted to help the judge decide on the most appropriate sentence for the defendant. Probation officers (some of whom are social workers) prepare written reports based on an investigation of factors such as the circumstances surrounding the crime, the offender's background, the mental health and substance abuse issues, and the treatment resources available in the community. Victim and witness assistance programs are conducted primarily in prosecutors' offices and courthouses. Social workers in these programs provide a range of services, including crisis counseling, trauma assessment, referrals to address immediate needs, orientation to the judicial process, and assistance in developing victim impact statements (National Association of Social Workers, 2005).

Although less common, social workers are also involved in death and nondeath penalty mitigation and restorative justice programs. In capital mitigation work, social workers gather extensive information and do a multidimensional assessment to assist the jury in understanding the offender so that it may consider life in prison without parole rather than the death penalty (Schroeder, 2003). Within restorative justice programs, social workers prepare victims and offenders for their meetings with each other and facilitate victim–offender mediation sessions.

Future Trends and Challenges

Future challenges facing the criminal court system include finding a way to balance the discretion of judges and of prosecutors, allowing for flexibility in sentencing in order to appropriately respond to the needs and circumstances of individual offenders without sacrificing the goal of equity in sentencing. Courts will need to find ways to effectively respond to the many individuals that come into contact with the court system with complex needs such as mental illness, substance abuse, and homelessness. The rising and substantial financial costs of incarceration and the human consequences to families and communities caused by the high incarceration rates of their members must be addressed. A more reasonable balance should be found between securing public safety and incarceration as a response to criminal behavior. Finally, social workers should actively engage in the development and evaluation of policies and programs that would support effective prevention efforts and rehabilitative responses to criminal behavior.


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    Bazemore, G., & Umbreit, M. (2001). A comparison of four restorative conferencing models (U.S. Department of Justice Publication No. NCJ 184738). Washington, DC: U.S. Government Printing Office.Find this resource:

      Champion, D. J. (1998). Criminal justice in the United States (2nd ed.). Chicago: Nelson-Hall.Find this resource:

        Clark, J., & Henry, D. A. (2003). Pretrial services programming at the start of the 21st century: A survey of pretrial services programs (U.S. Department of Justice Publication No. NCJ 199773). Washington, DC: U.S. Government Printing Office.Find this resource:

          Clear, T. R., & Cole, G. F. (2003). American corrections (6th ed.). Belmont, CA: Wadsworth/Thomson Learning.Find this resource:

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              Griffin, P. A., Steadman, H. J., & Petrila, J. (2002). The use of criminal charges and sanctions in mental health courts. Psychiatric Services, 53(10), 1285–1289.Find this resource:

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                  National Association of Social Workers. Victim assistance programs provide an array of services to crime victims [Online]. Retrieved April 6, 2005, from http://www.naswnys.org/crime_victims/victim_assistance_programs_provi.htm/

                  National Criminal Justice Reference Service. In the spotlight drug courts – Summary [Online]. Retrieved April 1, 2005, from http://www.ncjrs.org/drug_courts/summary.html/

                  Post, L. (2004). Gun courts aim to break cycle. The National Law Journal, 26(39).Find this resource:

                    Schiraldi, V., Colburn, J., & Lotke, E. (2004). Three strikes and you're out: An examination of the impact of strikes laws 10 years after their enactment. Washington, DC: Justice Policy Institute.Find this resource:

                      Schroeder, J. (2003). Forging a new practice area: Social work's role in death penalty mitigation investigations. Families in Society: The Journal of Contemporary Human Services, 84(3), 423–432.Find this resource:

                        Wexler, D. B. Therapeutic jurisprudence: An overview [Online]. Retrieved March 12, 2007, from http://www.law.arizona.edu/depts/upr-intj/

                        Zehr, H. (2002). The little book of restorative justice. Intercourse, PA: Good Books.Find this resource: