Carolanne Hines

CRJU 7370

Week 8 Assignments

6 October 2013

Explain how the US Supreme Court defines “person” under §1983.

Since the §1983was passed in 1866, the definition of “person” has undergone change. At first, it was defined as an “individual officers”. This means that liability rests with the government employee and they can be liable while performing their duty as “individual officers”. However, because of the Eleventh Amendment, the government cannot be sued (Ross, 2013).

However, Will v. Mischigan Department of Sate Police (1989) ruled that government employees cannot be sued if they are acting in an official capacity. But still, “person” was defined to not include government or state agencies. But, with Kentucky v. Graham (1985), people can still sue the state for conjunctive relief (Ross, 2013).

The definition of “person” later evolved in Monell v. Department of Social Services of the City of New York (1978). “Person” now included local governments. This decision, in accordance with other legislation, changed the definition of “person” to include political bodies, municipalities, and other local governments (Ross, 2013).

Describe and explain the four essential elements the plaintiff must prove in order to prevail in a § 1983 action.

The four essential elements for a plaintiff to prevail in a § 1983 action :

1. the person must be a “protected person within the meaning of the act” – essentially, the person can be anyone in U.S. jurisdiction. As described above, a “person” can include government employees, political parties, local governments, municipalities, etc.
2. “the defendant must be acting under the color of law” – acting within the scope of their authority. This includes employees who are acting under the “color of state law” and are “state actors”. These laws include local ordinances, state laws, and federal laws as well as agency rules. However, federal employees are exempt from this.
3. the idea that “every individual public official and governmental entity may be liable for constitutional deprivations”.
4. there must be a violation of a constitutional right. This does not include negligence. There must be some sort of constitutional right violated by an employee and it has to fall under § 1983 legislation (Ross, 2013).

Fully review Monroe v. Pape, 365 U.S. 167 (1961) and explain the significance of this U.S. Supreme Court decision as it applies to §1983 litigation.

In Monroe v. Pape (1961), Chicago City police officers searched the house of Mr. And Mrs. Monroe in the middle of the night without warrant or following any of the other procedural guidelines for search and seizure. Mr. Monroe was taken to the police station and interrogated for several hours about a two-day-old murder. He did not have phone privileges, but was later released without charges. The family brought charges against the City of Chicago and 13 police officers under §1979, the “Ku Klux Act”. The Supreme Court held “The City of Chicago is not liable under § 1979, because Congress did not intend to bring municipal corporations within the ambit of that section.”

This type of suit, being §1979, exempts the City of Chicago from civil suit. However, had the petitioners filed the suit under § 1983, the City of Chicago may have been held liable because of their newly formed status as a “person”.

Describe and discuss examples of acting “under color of law” in policing and corrections.

Acting under “color of law” generally means that the defendant must have been acting in an official capacity, in accordance with their job and position.

In West v. Atkins (1988), the Supreme Court held that “A physician who is under contract with the State to provide medical services to inmates at a state prison hospital on a part-time basis acts "under color of state law," within the meaning of § 1983, when he treats an inmate.” This decision came after a prisoner was treated by a part-time physician, who was a private contractor not on government payroll, providing orthopedic services was accused of not providing adequate services to a prison inmate. The inmate felt he had the right to file suit under § 1983 because of his incarceration status, he did not have the right to choose his own physician.

In another example, Ousley v. Town of Lincoln (2004), the petitioner, Ousley, had an altercation with a Lincoln, Rhode Island police officer which left him injured. Ousley had appeared in front of the officer's police car, and the details between when he appeared and when he was brought in to have his injuries tended are murky. However, he he filed charges against the police officer and the town of Lincoln including one under § 1983 stating the officer had violated his civil rights in that Officer Hardy violated his civil rights, the town of Lincoln violated his civil rights, conspiracy to violate his civil rights, and supervisory liability. He also filed other charges: failure to train, assault and battery, malicious prosecution, and intentional infliction of emotional distress.

Describe and fully explain the purpose and the essential components of discovery and provide examples.

Discovery is how one party gains information held by another party. Discovery is made up of five basic tools:

1. Interrogatories – Written questions which is meant to garner a response from the other party. By federal law, one party allowed to pose 30 questions to the other party. The individuals involved in the lawsuit sit down, with their attorneys in tow, and answer the questions while under oath.
2. Requests for production – this allows one party go get evidence from another party, specifically in the form of documents, rules, incident reports, photos, videos, medical and autopsy reports, and investigative reports.
3. Requests for admission – This is a document that is aimed at to the opposing party for them to admit or deny a specific statement. This allows for a case to be sorted out without having to go to trial.
4. Depositions – this is a testimony given out of court, while under oath. Both parties in a civil suit will take depositions of the opposing side. Although the depositions are performed out of court, they are still recorded and transcribed by the court reporter. This can also include a written affidavit.
5. Examination of physical evidence – this includes medical records of the injured party (Ross, 2013).

Based on case law, explain the differences among sovereign, absolute, and qualified immunity.

Sovereign immunity was established in that it seemed illogical to file suit against the entity who is governing and upholding the laws. In essence, it protects the government from being sued by citizenry. The Eleventh Amendment protects the government from being sued. In United States v. Clarke (1934), the Supreme Court held that the government was protected from civil suit due to sovereign immunity (Ross, 2013).

Absolute immunity is derived solely from the responsibility of the individual. It is generally given to judges, legislators, prosecutors, and members of a parole board (Ross, 2013). In Pierson v. Ray (1967), an interracial group of religious individuals on a “pilgrimage” were attempting to board a segregated bus in Jackson, Mississippi in 1961. The group was arrested and tried under municipal regulations. The petitioners filed a § 1983 action – “which makes liable "every person" who under color of law deprives another person of his civil rights” and “at common law for false arrest and imprisonment”. The Supreme Court held “The settled common law principle that a judge is immune from liability for damages for his judicial acts was not abolished by § 1983”.

Qualified immunity is a doctrine that states certain government employees have a type of immunity that comes into play when the employee reasonably did not know that they were violating another person's civil rights. It is solely based on discretion; without qualified immunity, police officers would not be able to legally utilize their discretion. In Malley v. Briggs (1986), a § 1983 action was filed after a few individuals were arrested due to possession of marijuana, evidence which was gained through a wire tap. The arrestees argued that the wiretap violated their Fourth and Fourteenth Amendment rights. The Supreme Court held that the officers who performed the wire tap, and the judge who signed the warrant were “not entitled to absolute immunity, but only to qualified immunity from liability for damages.” Also, in their decision, the Supreme Court stated “Neither the common law nor public policy affords any support for absolute immunity. Such immunity cannot be permitted on the basis that petitioner's function in seeking the arrest warrants was similar to that of a complaining witness, since complaining witnesses were not absolutely immune at common law. As a matter of public policy, qualified immunity provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”

Based on the United States Supreme Court’s decision in Cleavinger v. Saxner (1985) explain why

criminal justice personnel do not possess absolute immunity.

In Cleavinger v. Saxner (1985), several federal inmates were tried by the prison's discipline committee and found guilty of work stoppage and other charges, and were required to forfeit a specified number of “good days” and put into administrative hold. Later, after the inmates petitioned the warden, the charges were dropped and expunged and the inmates were released on parole. They filed suit against the petitioners and the case was dropped by the Federal District Court in that the petitioners have absolute immunity. Later, the Federal District Court reinstated the suit and found the petitioners guilty of violating the inmates Fifth Amendment Rights and rejected their rights to absolute immunity. When the case reached the Supreme Court, they held the “Petitioners are entitled to only qualified immunity.”

In this case, the Supreme Court set forth the criteria for absolute and qualified immunity. In his opinion, Justice Blackmon, stated “It is the business of prison officials, of course, to maintain order within their institutions. But this fact does not support a claim that every step taken to protect constitutional rights of prisoners will lead to a breakdown in institutional discipline and security.” Blackmon also put forth “the line between absolute immunity and qualified immunity often is not an easy one to perceive and structure. That determination in this case, however, is not difficult, and we readily conclude that these committee members fall on the qualified immunity side of the line .”

Based on this case, and the opinion delivered by Justice Blackmon, it can be said that criminal justice personnel do not possess absolute immunity because of safeguards put into place, along with a long line of prescience and tort law protecting the absolute immunity of judges and prosecutors and the qualified immunity of criminal justice personnel.

Describe how a job assessment and developing workable policies and procedures may assist in

developing risk management strategies (attach appropriate case decisions to support your response).

Risk management is composed of risk financing and risk control. Risk financing involves ways agencies can pay for losses. Risk control is something that falls back on administrators and other managerial personnel. Risk control involves job assessment and developing workable policies – “it seeks to promote a proactive approach to efficient organizational operations and to decrease risk of exposure” (Ross, 2013).

There are several ways of doing this:

1. “Identifying potential risk exposures of the organization” – Job assessment, in essence, does just that. Job assessment examines the functions of line officers and managers and how often “occurrences” happen. By doing this, the seriousness of the risk can be identified.
2. “Examining the alternatives available to either eliminating potential risks or mitigating the effects of those that cannot be eliminated” – By creating workable policies, this assists in eliminating these risks and mitigating these factors.
3. “Selecting the best alternative or combination of alternatives to deal with each exposure” – this also deals with policy development. Management can look upon past cases such as Monell v. Department of Social Services (1978), to create new and alternative policy to deal with each exposure.
4. “Implementing the chose techniques” – Managers and supervisors use the policy and the alternatives created to deal with occurrences.
5. “Monitoring the process in order to alter or improve the program based on observed results” – Again, using the policies and procedures developed, administrators can follow the progress of their employees and officers to see what works and what does not. Not every single situation will have a definitive policy to lay out guidelines for how officers should act, however these guidelines should follow regulations (Ross, 2013)

Using several risk control strategies, describe methods in which a police or correctional agency may reduce its liability risk in one of the following areas (Select Only One): police pursuits; responding to the mentally ill (in the community or in a confinement facility); use of force (in the community or in a confinement facility); reducing assaults in correctional facilities; or reducing suicides in jails.

Using the example of dealing with a mentally ill individual, there are several risk control strategies that would assist officers in responding to this situation.

1. Loss prevention – loss prevention involves obviating, simply. Officers should always anticipate that an individual they will be dealing with may be mentally ill. In order to compensate, officers should be prepared for that eventuality and keep their equipment up to date and keep in mind policy and procedures that would for handing and detaining mentally ill individuals
2. Risk Transfer – Risk transfer involves moving risk from one party to another. In dealing with someone who is mentally ill, this would involve having the individual cleared by a mental health professional before bringing them to a detention facility.
3. Training – Officers should always be up to date on current policies in dealing with someone they suspect is mentally ill. However, initial training can create a foundation for officers to which they can build up a knowledge base on how to handle difficult situations arising from responding to a mentally ill person.

Works Cited

Cleavinger v. Saxner, 474 U.S. 193 (1985)

Kentucky v. Graham, 473 U.S. 159 (1985)

Malley v. Briggs, 475 U.S. 335 (1986)

Monell v. Department of Soc. Svcs., 436 US 658 (1978)

Monroe v. Pape, 365 U.S. 167 (1961)

Ousley v. Town of Lincoln, C.A. No. 02-139S, (2004).

Pierson v. Ray, 386 U.S. 547 (1967)

Ross, D. (2013).Civil liability in criminal justice (6th ed). Waltham, MA: Anderson Publishing.

West v. Atkins - 487 U.S. 42 (1988)

Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)

United States v. Clarke, 33 U.S. 436 (1834)

Carolanne Hines 0 Comments

Abstract

Strain theory and anomie are two nearly identical structural theories that are used to explain crime by analyzing environmental conditions including cultures, subcultures, urbanization, social norms and values, and societal goals. This theory works in tandem with social disorganization by explaining the formation of subcultures as an effort to combat invading populations with different norms and values.

Evaluation of Strain Theory and Anomie

Anomie and Strain theories have undergone many different revisions, but essentially still center on how societal goals, social position, and a lack of social integration lead to a strain on individuals in the lower class. This strain on lower class peoples causes them to act out with delinquent and criminal behaviors that would otherwise not happen if the malintegration or lack of social norms were not present (Akers & Sellers, 2013).

Durkheim

The first individual to pioneer this concept was Emile Durkheim. He patented the term “anomie”, or a “state of normlessness or lack of social regulation in modern society as one condition that promotes higher rates of deviant behaviors such as suicide” (Akers & Sellers, 2013). In Durkheim's discussions on suicide, he states that “no living being can be happy or even exist unless his needs are sufficiently proportioned to his means... if his needs require more than can be granted, or even merely something of a different sort, they will be under continual friction and can only function painfully” (Durkheim, 2012). He surmises that because man's needs are biological and psychological, unlike animals, it adds an extra dimension of need for humans. Because psychological needs are different for every person, some more so than others, when these needs are not met the person is under constant psychological torture and will try to alleviate this torture.

Merton

Robert Merton later reformed the idea and applied this to modern societies. To Merton, an anomic society was one where there was no balance between social structure and culture. He specifically applied this to American culture, stating because of malintegration of cultural beliefs of success being the quintessential goal, the American Dream, those who lack legitimate and legal means to obtain said goal will resort to illegitimate and illegal means to obtain success (Akers & Sellers, 2013). To those who are under the cultural strain, this warps their ethical system to a means justifies the ends, or a teleological ethical system. Because those who are “strained” view their ends as morally just because the culture states that success is the panacea, the affirmed and ultimate societal goal, people will justify their means, no matter how illegitimate or illegal, as just because they are in pursuit of success (Pollock, 2012).

There are several different responses of individuals, which are both moral and immoral. First, strained individuals can conform. The individual can simply accept they are at a disadvantage, but still strive for success with the tools they are given by society. Second, is innovation – the most common deviant response. When a strained individual chooses innovation, they will use whatever means necessary to achieve success, whether the means are moral or immoral. Essentially, the Macgyver of society. The third response is rebellion. Strained individuals who rebel reject societal norms altogether and aim to overthrow the system using any means possible (nonviolent or violent). The fourth response is retreatism – a retreatist will completely back away from society by becoming a “social dropout”. Retreatists will go about this by drug and alcohol use. Merton also classified individuals with mental illnesses as retreatists. Lastly, there are the ritualists. They give up on societal goals completely and cease their efforts in obtaining success. Instead, they cling to the resources they have already obtained while still following society's norms (Akers & Sellers, 2013).

Cohen

In addition to Merton's work, Albert Cohen further elaborated on strain/anomie as well. Cohen studied lower class adolescent boys who had become involved in delinquent behavior. Cohen still agreed that strained individuals will use specific means to obtain societal goals, however he disagreed with Merton in that the main societal goal was not success, but status and social acceptance. Cohen defined status as “meeting society's standards of dress, behavior, scholastic abilities, [etc]” (Akers & Sellers, 2013).

Cohen determined that lower class adolescent boys who were unable to obtain these goals had “status deprivation” which leads to “status frustration”. Because of the sheer numbers of lower class adolescent boys who were unable to obtain status because of their lack of verbal or social skills, they formed a delinquent subculture. In this subculture, individuals would reject typical societal standards in obtaining status, and use other negative means in obtaining their goals such as violence, maliciousness, aggression, etc. Cohen justified this by using the example of property crimes committed by delinquent subcultures – there is no monetary gain in the crime, but still they commit the act to gain status within their subculture (Akers & Sellers, 2013).

Cloward and Ohlin

Another interpretation of strain/anomie was produced by Richard Cloward and Lloyd Ohlin. This offshoot was titled differential opportunity and delinquent subcultures. Their theory draws from both anomie/strain as well as social disorganization.

Social disorganization theory is similar to anomie/strain in that they are both structural theories, which “account for variations in crime rates across communities by examining the variations in structural characteristics and conditions of each community” (Akers & Sellers, 2013). Social disorganization is based on a social phenomena found both in human societies and animal societies. When a new species moves into a community, the community changes drastically because of the intensified competition for resources. The new species gains dominance and the original population in the community will die out or move away. In human societies, especially cities, this phenomena has also been documented. For instance, Robert Park observed how urban expansion will cause disorganization within a community leading to the “invasion, domination, and succession” cycle noted in animal societies (Akers & Sellers, 2013).

Burgess later developed the concentric zone theory which described cities as rings of concentric circles – when the inner ring grew, the outer rings of the city felt the affects. When one ring invaded another ring, the invading ring would then dominate the original ring and eventually overtake the newly gained territory. The area of invasion is known as a “zone in transition”. This zone is indicative of “physical decay, poor housing, incomplete and broken families, high rates of illegitimate births and infant deaths, and an unstable heterogeneous population” (Akers & Sellers, 2013).

Cloward and Ohlin's theories adapt anomie/strain, social disorganization, as well as Aker's social learning theory by stating that “deviant adaptions are explained by location in both the legitimate and illegitimate opportunity structures” (Akers & Sellers, 2013). Essentially, when one ring invades another, the original population will go through the reactions described by Merton. Individuals who are strained from the invasion will either use adapting behaviors or deviant behaviors in reaction to the invading ring.

Social learning plays a part in the adaptational reactions. The invasion of the ring will create “learning environments” for conformists or ritualists. They will follow the new social rules imposed by the invading population and will either strive toward the new population's societal goals or will cling to their current resources and cease their attempts at advancement. Conversely, those who choose deviant behaviors will create delinquent subcultures as a result of the invading population (Akers & Sellers, 2013).

In addition, Cloward and Ohlin also disagree with Merton's original theory in that strained individuals who are blocked from legitimate means of obtaining the societal goal will not automatically start searching for illegitimate means of obtaining the societal goal simply because illegitimate means may be just as scarce as legitimate means of obtaining the societal goal (Akers & Sellers, 2013).

Cloward and Ohlin also differentiated between the different types of delinquent subcultures formed by strained individuals based on their reactions to blocked legitimate means of obtaining the goal. These subcultures include the criminal subculture, the conflict subculture, and the retreatist subculture (Akers & Sellers, 2013).

The criminal subculture is self explanatory – the individuals within the subculture are innovators in that they will use whatever means necessary, specifically criminal or delinquent behaviors, to obtain the societal goals. They are teleologists; for them, the means justify the ends. The conflict subculture is described by their status as a fighter or a warrior amongst their peers. Members of the conflict subculture have just as few legitimate opportunities as illegitimate and because of that their societal goal shifts to who is the most fearless or toughest – essentially instead of success, it becomes status within the subculture. The last subculture is the retreatist subculture. This is similar to Merton's list of reactions. Retreatists mainly focus on drugs and alcohol as a way to escape from the societal goal. However, their use of drugs and alcohol within the subculture will gain them status because of their ability to maintain their addiction and habit (Akers & Sellers, 2013).

Miller

Miller's research primarily focuses on lower class adolescent males, as do many of the other anomie/strain theorists. Because these individuals have given up on the overall societal goal and now have created a new goal, or focal concern, within their subculture, they now have a new value structure. These values consist of:

1. “Trouble” – the ability to get away with breaking the law
2. “Toughness” – physical prowess and fearlessness
3. “Smartness” – ability to “one up” others
4. “Excitement” – thrill seeking
5. “Fatalism” – dealings with luck
6. “Autonomy” – freedom within their subculture from traditional authority figures (Akers & Sellers, 2013).

Crimes

Anomie/Strain theory can be used to describe multiple crimes indicative of lower class neighborhoods or subcultures specific to youth, gang related crime, and other monetary or violent crimes.

Juvenile Delinquency

There are several different theories as to why juveniles commit crime. Some say it is due to bad influences (social learning theory) while others say it is due to environmental factors (social disorganization theory, strain, or anomie). Some juvenile offenders become lifelong criminals while others phase out of delinquent behavior (Loeber, Farrington & Petechuk, 2013).

A factor that could attribute to that deals with value structures as well as societal goals. When juveniles shift into adulthood, their values and morals change with added responsibility. Juveniles cease following juvenile-specific social goals and move toward more adult societal goals. Because of this, their adaptive methodology changes. For some, they conform. The newly transitioned adult gets a job, a car, a place of their own and works to obtain adult related goals. Some become ritualists and cling to what they have, while following society's standards and norms. However, for those juveniles who continue to engage in delinquent behavior they become innovators or rebels. Their goals shift to adult-oriented goals, however their values do not. They will still use whatever means necessary to obtain success or status (Loeber, Farrington & Petechuk, 2013).

Property Crimes and Larceny

Property crimes can be explained by strain/anomie as well. Merton described how innovators will use whatever means necessary to obtain the societal goal. For American society, that goal is success/status. American society is materialistic. We covet what other people have, whether it is a huge expensive flat screen TV, a nice laptop, priceless art work, etc. The list of material items that can be stolen is astronomical.

For instance, celebrities in American society are known for their money, possessions, and influence. Consider rap/hip-hop culture which is indicative of money, drugs, sex, and guns. This image is present as what success and status is for certain subcultures. Individuals in this subculture will follow Merton's adaptional behaviors to obtain said goals. For innovators or rebels, they will use illegal and immoral means to obtain achieve this image including theft, especially of jewelry, firearms, money, drugs, etc. Also, using the example of the rap/hip-hop subculture, many of the proponents are from inner city areas which fall into Park's social disorganization theory. Because of the disorganization and the invasion of newer populations, property crime in this subculture, especially theft and vandalism, runs rampant (Blanchard, 1999).

Violent Crimes

Many different violent crimes can be explained by social disorganization theory and strain/anomie theory. Some of these crimes include rape, murder, and aggravated assault.

Rape

An old phenomena, that has recently been relabelled in light of new events and cases is rape culture. Rape culture is an “environment in which rape is prevalent and in which sexual violence against women is normalized and excused in the media and popular culture.  Rape culture is perpetuated through the use of misogynistic language, the objectification of women’s bodies, and the glamorization of sexual violence, thereby creating a society that disregards women’s rights and safety” (“Rape Culture”, 2014).

This type of behavior has is indicative of strain/anomie because of a clash in subcultures – the rape subculture with society's values on the way women should be treated. The media, society, and law dictate that rape is wrong, immoral, and illegal, however because of social learning as well as strain/anomie, this particular set of behaviors has become prevalent among younger men in frat subcultures. These types of subcultures view social status as the ultimate goal and view sexual conquest as a means to achieve this goal. It goes back to the stereotype that men who have been with many women are jocks or studs – they idealize a particular male stereotype, which is that particular subculture's ultimate goal. In essence, they value the devaluation of women, especially the innovator subtype, to the point where rape becomes the main vehicle to which they obtain their goals due to some block in their legitimate means of consensually bedding as many women as possible.

The innovators in this subculture will use terms to devalue women such as victim blaming, pressuring others to “score”, trivializing sexual assault, defining manhood as being sexually dominating or assertive, sexually explicit jokes, etc (“Rape Culture”, 2014).

Assault

Cloward and Ohlin discuss different types of subcultures where certain behaviors are acceptable in order to obtain the specific culture's goal. In the conflict subculture, Cloward and Ohlin state that because both legitimate and illegitimate opportunities for obtaining their goals are scarce the members of the subculture shift their goals from success to status and said status is gained by becoming the toughest member of the subculture. This is done through fighting (Akers & Sellers, 2013).

Because Cloward and Ohlin studied mainly lower class adolescent boys, their findings showed most of their tension or aggression was directed at adults. The members of this subculture viewed adults as weak. There are no strong adult role models, so to adapt members would use aggression to determine status (Akers & Sellers, 2013).

Another explanation for assault can be explained by Park's interpretation of social disorganization. Using the invasion, domination, and succession model, it can be shown that assault and aggression may play a large part considering the model is adversarial. It is very much an us versus them situation (Akers & Sellers, 2013).

Gang Related Crimes

Gang related crimes are the proverbial bread and butter for anomie/strain theorists, especially in dealing with delinquent subcultural crime. Gang related offenses encompass many of the above mentioned crimes, however because they are attributed to an entire subculture instead of behaviors of a strained individual.

In the National Youth Gang Survey, policing agencies submitted data they have collected regarding gang related crimes. Data collected from 2010 to 2011 shows a 51% increase from the previous year, with a 48% increase in violent crimes and a 33% increase of drug related crimes. One of the factors relating to the increase in violent crimes concentrated on conflict between gangs. This plays into Cloward and Ohlin's take on strain/anomie, specifically in dealing with the invasion, domination, succession cycle. The study specifically describes the migration of gangs as well as intra-gang conflict regarding value structures that are specifically drug related (“National Youth Gang”, 2014).

Another factor the study describes is a return from confinement. This is interesting because gang members who were recently released from prison will have been immersed in prison culture and subcultures within the institution. Gang members who have been incarcerated have a different value structure and status within gangs. Through social learning, new criminal or deviant behaviors can be taught to other gang members, leading to more deviant and illegal behaviors (“National Youth Gang”, 2014).

The study also mentions new conflict arising from the emergence of new gangs. This reflects social disorganization theory because of Park's invasion, domination, and succession cycle.

Delinquent subcultures, such as gangs, follow Merton's innovator reactionary pattern. Some of the crimes and behaviors attributed to this include aggravated assault, drug sales, firearm use, robbery, burgulary, motor vehicle theft, and larceny. These illegal/illegitmate means of obtaining success reflect Merton's concept of the innovator (“National Youth Gang”, 2014).

Conclusion

Overall, strain/anomie can explain crimes that are contained within specific subcultures and are a direct result of environmental conditions, however unlike social learning theory or psychological or biological theories, crime is blamed on the environment or the culture rather than the individual. It seems that the theories do have merit in describing gang related activities and inner city crimes related to environmental struggles, but fails with crimes such as murder that is not related to some sort of cultural ritualism, some forms of rape, some forms of property crimes, etc.

Works Cited

Akers, R., & Sellers, C. (2013). Criminological theories. (6th ed.). Oxford, New York: Oxford University Press.

Blanchard, B. (1999, July 26). The social significance of rap & hip-hop culture. Retrieved from https://www.stanford.edu/class/e297c/poverty_prejudice/mediarace/socialsignificance.htm

Durkheim, E. (2012). Suicide. In J. Jacoby, T. Severance & A. Bruce (Eds.), Classics of Criminology (4th ed.). Long Grove, Illinois: Waveland Press, Inc.

Loeber, R., Farrington, D., & Petechuk, D. U.S. Department of Justice, (2013). Bulletin 1: From juvenile delinquency to young adult offending (study group on the transitions between juvenile delinquency and adult crime) (242931 ). Retrieved from website: https://ncjrs.gov/pdffiles1/nij/grants/242931.pdf

National Youth Gang Survey Analysis. (n.d.). Gang-Related Offenses. Retrieved April 25, 2014, from http://www.nationalgangcenter.gov/survey-analysis/gang-related-offenses

Pollock, J. (2012). Ethical dilemmas and decisions in criminal justice. (8th ed.). Belmont, California: Wadsworth.

Rape culture. (2014, April 25). Retrieved from http://www.marshall.edu/wcenter/sexual-assault/rape-culture/

Carolanne Hines 0 Comments

Abstract

Structural theories examine the relationship of crime and the environment around the criminal. Most of these post-modern theories try to explain how adverse conditions within a community or environment affect an individual or group's ability to maintain social norms or whether they descend into delinquent behaviors. Some of these theories include conflict theory, Marxist theory, feminist theory, and other structural theories.

Conflict Theory and its Derivatives

Social Contract Theory, as promulgated by John Locke, Thomas Hobbes, and Jean-Jacques Rousseau, states “given that men are naturally self-interested, yet they are rational, they will choose to submit to the authority of a Sovereign in order to be able to live in a civil society, which is conducive to their own interests” (Friend, 2014). In essence, individuals are willing to give away some of their liberties in order to live an a civil society. This idea is the basis of most of the world's legal systems, the U.S. included. Conflict theory, states otherwise.

Conflict theory assumes that there is no agreement or relinquishing of rights for protection; society is held together in balance by conflicting interests and who has the power, or upper hand, in said interests. Those who have the power are able to propagate their interests and agendas, including what is considered legal, moral, and right. Those who are not in power and still practice their own belief systems are in violation of the law (Akers & Sellers, 2013).

Thorsten Sellen described how conflict may arise between different cultures sharing the same geological area:

1. “When these codes clas on the border of contiguous cultural areas”
2. “When, as may be the case with legal norms, the law of one cultural group is extended to cover the territory of another”
3. “When members of one cultural group migrate to another” (Sellen, 2012).

A historical example of this would be the extermination of the Jews by the Nazis during World War II. With the Nazi party in power, they implemented their own legal codes and moral codes. These legal codes include statutes discriminating against Jewish people and moral codes which directed the citizenry to scorn Jews (Friedlander, 1993). Other examples include the dynamics between Native American tribes and colonials, Russians and Siberians, British Colonials and Indians (Sellen, 2012).

The power is exerted through two types of social control – informal and formal. Informal social control deals with familial relationships, circles of friends, churches, local organizations, and groups within the community. These types of relationships are developed through the teaching of folkways and mores. Formal social control deals with law, which relies on “external application of formal negativesanctions in the form of punishment for wrongdoing” (Akers & Sellers, 2013). These two social controls have a negative relationship in that a lack of informal social control increases formal social controls, and vice versa. When one type of social control disintegrates, the other grows to fill the gaps (Akers & Sellers, 2013).

Both formal and informal social controls rely on socialization, “the process of teaching and learning values, norms, and customs through examples and the application of positive and negative social sanction” (Akers & Sellers, 2013). The most important part of socialization is that formal social controls are concurrent with informal social controls.

Emile Durkheim developed consensus theory as a sociological approach to the relationship between formal and informal social controls. His theory states “the content and general nature of the law evolves from the type of 'solidarity' that characterizes the society” (Akers & Sellers, 2013). The two types of solidarity he describes are mechanical and organic. Societies with mechanical solidarity find the law oppressive and “punitive”. For societies with organic solidarity, they are more diverse and interdependent upon one another. Because of that, punishment is less punitive and more and more restrictive of personal liberties. For instance, societies under Sharia law would be considered mechanical – crimes known as hadd (unlawful sexual intercourse, false accusation of unlawful intercourse, consumption of alcohol, theft, and highway robbery) carry a serious bodily punishment such as “flogging, stoning, amputation, exile, or execution” (Johnson & Vriens, 2013). American society would be considered organic because its deprivation of liberty as is its main form of punishment for crimes. Consider: the U.S. leads the world in the amount of prisoners incarcerated. Over 2.2 million individuals are incarcerated the majority of which are for reoccurring drug offenses (Dodge, 2014).

Conflict theorists such as Richard Quinney, William Chambliss, and Austin Turk later applied conflict theory to criminal law itself. Their main argument is how most criminological theories only focus on the causes deviant behaviors, not on who or what classified those behaviors as deviant in the first place. The individuals or groups who state specific behaviors are deviant or criminal are the ones in power, and with increased diversity the power is constantly in flux – “social structure is comprised of the working arrangements, coalitions, and balancing forces 'in a shifting but dynamic equilibrium of opposing group interests and efforts'” (Akers & Sellers, 2013). In sum, when various groups with different norms and values interact, one group's set of norms will conflict with another group's, however the group in power has the final say in what behaviors are normal or deviant, regardless if it clashes with another group's values or norms. Groups can differ due to demographics such as class, race, age, socioeconomic status, ethnicity, gender or other characteristics “that denote social position in society” (Akers & Sellers, 2013).

Marxist Theory

As mentioned in conflict theory, certain groups of individuals who differ because of specific demographics such as race, age, socioeconomic status, etc who are not in a position of power can come into conflict with the group in power due to a differing of societal norms and values. Marxist theory focuses on how socioeconomic status and political power are the main drivers in this conflict.

Karl Marx

The first individual to suggest socioeconomic status and political power caused societal conflict was Karl Marx. His theory suggests that in late-stage capitalism, the power is concentrated within a small, wealthy group of individuals (the bourgeoisie) and use their power to deprive the poorer social group of their liberties (the proletariat). The bourgeoisie is the ruling class and in control of the means of production, while the proletariat are “the workers or masses who have only their labor to sell” (Akers & Sellers, 2013). This system will remain stable until the proletariat chooses to rebel and overthrow the bourgeoisie. The proletariat will then establish a classless, socialist society in which there will be “economic and social equality” (Akers & Sellers, 2013).

Willem Bonger

Bonger was the first to adapt Marx's theory to crime. He theorized that crime was caused by capitalism. Because private ownership of industry creates “egoistic tendencies”, including greed and selfishness, which would develop into “egoistic acts” and “capable of crime”. The elite's greediness would cause a dearth of morality and a general normlessness throughout society as a whole, people would be more apt to commit deviant behaviors. However, because the bourgeoisie are the law makers and therefore exempt from any punishment they would incur from their deviant behaviors, the proletariat would not be as lucky because of their disadvantaged position. This leads to crimes like “juvenile delinquency, the criminality of women, prostitution, alcoholism”, etc (Akers & Sellers, 2013).

Richard Quinney

Quinney is mainly known for taking Marx's theory, mainstreaming it, and using it to establish causes of crime. He caused a resurgence of Marxism during the 1970's, a movement known as Neo-Marxism, which theorized capitalism was the source of crime as a means of social control and punishment given to individuals was not for the crime, but for society to “siphon off surplus labor from the population” (Akers & Sellers, 2013). According to the theory, this excess, unused labor can grow restless and as a result grow into a revolutionary movement against the state. He had four rationales to justify that capitalism caused crime:

1. “the development of capitalist political economy, including the nature of the forces and relations of production, the formation of the capitalist state, and the struggle between those who do and those who do not own and control the means of production”
2. “the systems of domination and repression established in the development of capitalism, operating for the benefit of the capitalist class and secured by the capitalist state”
3. “the forms of accommodation and resistance to the conditions of capitalism by all people oppressed by capitalism, especially the working class”
4. “the relation of the dialectics of domination and accommodation to patterns of crime in capitalist society, producing the crimes of domination and the crimes of accommodation” (Quinney, 2012).

Because the state wants to maintain power, it must enact social controls in order to keep the masses in line. These social controls are laws. The state will continually put resources into this endeavor by constructing criminal justice institutions, or “projects and services which are required to maintain social harmony” (prisons, jails, probation offices, etc) (Quinney, 2012). These are known as social expenses. Essentially, the state would be willing to expend resources to keep the population in line by implementing a criminal code and imprisoning violators as a means of social control and to expand their social capital.

Quinney explored two different forms of Marxism – instrumental and structural. Instrumental Marxism states that the state is only and will ever be a capitalist instrument. Structural Marxism differs in that the state has “relative autonomy” and it is not completely under the control of the elite. The law is not some tool to keep the masses oppressed and mirrors the interests of the ruling elite; it is a social control to deal with deviant behaviors. If an individual in the ruling elite breaks a law, they will be punished just the same as if it were a regular person in the masses. Structuralism relates more closely to conflict theory than Marxism (Akers & Sellers, 2013).

The types of crimes committed by the oppressed proletariat fall into two different categories – crimes of resistance and crimes of accommodation. Crimes of resistance are directly aimed specifically at the state as a means of rebellion. Crimes of accommodation include “predatory crimes such as burglary and robbery... murder, assault, rape” etc. Violent crimes committed by the proletariat are considered a result of the state's oppression (Akers & Sellers, 2013).

Other Marxist's Theories

Many other Marxists such as Michael J. Lynch and W. Byron Groves felt the correlation described between Marxism and crime was weak. They sought to expand the connection between Marxism and crime passed “blame everything bad on capitalism”. They expanded the theory to include facets of anomie, strain, and social disorganization theory by discussing how the “economic inequality [affects] crime through alienation, family disorganization, parental socialization practices, and other variables...” (Akers & Sellers, 2013).

David Greenburg postulated how Marxism correlates with crime on a macro level, saying “Marxists do not deny that social-psychological processes and face-to-face interactions may have some importance for understanding crime and criminal justice, but they try to see these as shaped by larger social structures... they give particular attention to the organization of economic activity, without neglecting the political and ideological dimensions of society” (Akers & Sellers, 2013).

Greenburg utilized juvenile delinquency as a means to explain his theory. He argues that juvenile delinquency cannot be fully explained by current means, “but it can be readily understood as a consequence of historically changing position of juveniles in... the long-term tendencies of a capitalist economic system” (Akers & Sellers, 2013). He surmises that because juveniles of all socioeconomic statuses are not part of the labor market, but still have the urge to possess material goods due to peer influences, will use delinquent behaviors to obtain material goods. However, juveniles will only resort to delinquency if they believe the ends are worth the means. Greenburg suggests that the younger the individual is, the less severe the punishment will be for them, and their knowledge of that will determine whether or not they will resort to delinquency (Akers & Sellers, 2013).

Mark Colvin and John Pauly also used juvenile delinquency to explain their take on Marxist Theory by discussing how parents of different socioeconomic statuses socialize their children. They surmise that white collar workers have stronger morals and norms and therefore pass those onto their children, while workers on the other end of the spectrum are subject to harsher treatment by their employers and society in general, and pass those ideas onto their children by utilizing the same disciplinary measures they would incur in the workplace. In addition, working parents who have marginal or inconsistent employment circumstances will reflect this in the discipline of their children. This leads to an increase in juvenile delinquency (Akers & Sellers, 2013).

Feminist Theory

Feminist theory arose out of the supposed bias of the mostly male dominated criminal justice system and it tries to form a better understanding of gender roles and how they affect crime. Because the predominant societal model is patriarchal, where the “rights and privileges of males are superior and those of females are subordinated”, the women's rights movement caused friction concerning societal gender roles.

Kathleen Daly and Meda Chesney-Lind

Daly and Chesney-Lind assert that because society encourages masculinity, the power balance favors males, while females are left with less power. Utilizing labeling theory, it can be ascertained that females are more harshly punished for wrongdoing than males. However, data collected on sentencing patterns demonstrate this hypothesis to be false. This may be attributed to chivalry hypothesis which states male judges and officers will be more lenient and compassionate toward female offenders out of a sense of chivalry. Paternalism may be another cause for this discrepancy – it states that males authority figures in the criminal justice system will be more sympathetic to women because they feel women are weaker or passive. However, paternalism is a double edged sword. A paternalistic authority figure could easily use a harsher punishment as a means of control (Akers & Sellers, 2013).

Chesney-Lind further explored this idea by examining the sentencing of female juvenile delinquents. She noted the sentencing guidelines were much harsher for females adjudicated for status offenses such as truancy, smoking, running away from home, or disciplinary issues – “girls were more likely than boys to be incarcerated for status offenses, although less likely for serious offenses.” Chesney-Lind speculated this was due to the fact that female juvenile delinquents who were committing status offenses could compromise their traditional gender roles (Akers & Sellers, 2013).

Freda Adler

Adler published a book, Sisters in Crime, which discussed her theory that with the women's rights movement and more gender equality, future crime statistics will show crimes committed by women slowly meeting up with figures for males. Adler demonstrates this with qualitative and quantitative evidence by showing the increase in the arrest rates of females as well as anecdotal evidence and stories from other females. Adler states, “in the same way that women are demanding equal opportunity in fields of legitimate endeavour, a similar number of determined women are forcing their way into the world of major crimes” (Akers & Sellers, 2013).

Adler has coined this the “masculinity thesis” – she believes “as women gain equality with men, they will increasingly assume masculine characteristics, some of which result in negative outcomes such as a greater tendency to commit crime (Akers & Sellers, 2013).

Rita Simon

Simon also published data showing more women being convicted of property offenses including white collar crime and occupationally related crime, instead of violent offenses, as Adler contended. Simon theorized women will be more educated as a result of the women's rights movement and as a result avoid violence.

John Hagan

Hagan expanded upon feminist theory suggesting gender was not the main culprit in statistical disparities; family structure and parental controls of boys versus girls play a factor in crime committed by females. He explained this by describing two different types of families:

1. Patriarchal families – Fathers typically run the household while mothers take a submissive role by not working at all, or taking a position where tasks are delineated to her – not a leadership position. Mothers tend to “exert more control” over both sons and especially daughters than a mother would in an egalitarian family. Because of the greater control over daughters, sons are more likely to be risk-takers than daughters.
2. Egalitarian families – Both mothers and fathers have the same role whether it is “obey” or “command”. Mothers are more likely to “exert more control over sons than daughters”, but not as much as a mother in a patriarchal family. Sons will still be more likely to engage in risk-taking behaviors, but the margin between sons and daughters will be smaller (Akers & Sellers, 2013).

Radical and Critical Theories

Radical and Critical Theories encompass many different cultural theories of crime such as constitutive criminology, left realism, cultural criminology, and peacemaking. These theories, generally, have not had much empirical evidence to prove, however they do contribute new structural ideas to criminology.

Stuart Henry and Dragan Milovanovic

Henry and Milovanovic coined the term constitutive criminology to be used as an umbrella for a variety of post modern criminological concepts. Some of these include “semiotics, edgework, chaos theory, and catastrophe theory.” These types of perspectives shy away from empirical, objective, and empirical research and lean more toward a transformationist subjective worldview in favor of underprivileged minority groups (Akers & Sellers, 2013). Henry and Milovanovic specifically disapprove of searching for the causes of crime and merely view crime as a tautological construct – it is what it is because it is.

Jock Young and other British Criminologists

Young developed the theory of left realism throughout the 1970's and 1980's as a way to counteract the conservative movement in Britain at the time. Britain was implementing a great deal of “get tough on crime” policies as a means of crime control. However, Young and his cohorts viewed this system as oppressive and unfeeling. They felt not enough attention was being given to the pain and suffering of crime victims while crime itself is an “epiphenomenon” where the criminal themselves were some sort of social outcast or “homunculus” who is not responsible for their own actions and should not be treated punitively. Although this idea seems novel, it is merely a rehashing of “liberal crime control policies”, specifically concerning restorative justice (Akers & Sellers, 2013).

Jeff Ferrell

Ferrell's theory of cultural criminology describes the entirety of the criminal justice system as a web that intertwines between all members – judges, officers, offenders, bystanders, victims, etc. Ferrell combines ideas such as “symbolic interactionism, social constructionism, verstehen, social disorganization, anomie, subcultures, labeling, conflict, techniques of neutralization” and any other criminological theory or idea that can fit into his web. Cultural criminology is incredibly subjective and does not rely on any empirical evidence, simply “the real life feelings, emotions, symbolic meanings, and human agency that infuse the social context and dynamic daily life of both offenders and non-offenders” (Akers & Sellers, 2013).

Harold E. Pepinsky and Richard Quinney

Peacemaking criminology was mainly promulgated by Pepinsky and Quinney (Marxist theory). They describe the criminal justice system as war – between offenders, victims, and the system itself. Pepinsky and Quinney suggest to try including less punitive measures between the constituents of the system and make a move toward more peaceful solutions; “peacemaking criminology advocates mediation, conflict resolution, reconciliation, and reintegration of the offender back into society”. In sum, instead of resorting to violence, this approaches promotes love, understanding, and acceptance (Akers & Sellers, 2013).

Conclusion

This set of structural theories encompasses many different approaches to how the criminal justice system should function relative to the environment and culture. However, many of these theories completely lack any kind of empirical evidence proving their usefulness.

Works Cited

Akers, R., & Sellers, C. (2013). Criminological theories. (6th ed.). Oxford, New York: Oxford University Press.

Dodge, J. (2014, May 06). U.s. leads world in prison population by wide margin; failed drug policies blamed. CBS Chicago. Retrieved from http://chicago.cbslocal.com/2014/05/06/u-s-leads-world-in-prison-population-by-wide-margin-failed-drug-policies-blamed/

Friend, C. (2014, May 8). Social contract theory. Retrieved from http://www.iep.utm.edu/soc-cont/

Friedlander, S. (1993). Memory, history, and the extermination of the Jews of Europe. Bloomington, Indiana: Indiana University Press.

Johnson, T., & Vriens, L. (2013, January 09). Islam: Governing under sharia. Retrieved from http://www.cfr.org/religion/islam-governing-under-sharia/p8034

Quinney, R (2012). Class, State, and Crime. In J. Jacoby, T. Severance & A. Bruce (Eds.), Classics of Criminology (4th ed.). Long Grove, Illinois: Waveland Press, Inc.

Sellin, T (2012). Culture Conflict and Crime. In J. Jacoby, T. Severance & A. Bruce (Eds.), Classics of Criminology (4th ed.). Long Grove, Illinois: Waveland Press, Inc. 

Carolanne Hines 0 Comments

Carolanne Hines

6 October 2013

Wade v. Smith, 461 U.S. 30 (1983)

CASE FACTS

In Wade v. Smith (1983), petitioner Wade was incarcerated at Algoa Reformatory, a detention center for young offenders during 1976. Because of prior incidents causing Wade to fear for his safety, he voluntarily admitted himself into protective custody. However, due to disciplinary issues while Wade was in protective custody, he was put into administrative segregation with another inmate. Defendant, Smith, was a guard on duty at Algoa Reformatory. After Wade was placed in a cell with another inmate, Smith placed a third inmate in the cell with Wade when he first came on duty. The third inmate placed in the cell had been put in administrative segregation for fighting. The two other inmates harassed, beat, and sexually assaulted Wade.

This is not the first incident of violence while Smith was on duty. A few weeks prior, another inmate was beaten to death while in administrative segregation. Also, there was no real reason for a third inmate to be put into the same cell as Wade and the other inmate; there was another cell in the block with only one inmate there. Smith had made no effort to determine whether or not there was another cell available to place the third inmate in.

Wade filed suit against Smith and three other prison guards for violating his Eight Amendment rights – cruel and unusual punishment. Wade felt that because of his history and the circumstances the guards should have know that an assault was imminent.

ISSUE/ISSUES

What types of immunities do prison guards have in a situation where an inmate feels his/her Eighth Amendment Right have been violated due to negligence or reckless conduct on part of an employee of the criminal justice system? Yes, a petitioner has the right to collect punitive damages from an employee of the criminal justice system if their negligence or recklessness resulted in the injury of another.

COURT DECISION AND RATIONALE

The Supreme Court affirmed the lower court's decision, holding “A jury may be permitted to assess punitive damages in a § 1983 action when the defendant's conduct involves reckless or callous indifference to the plaintiff's federally protected rights, as well as when it is motivated by evil motive or intent” and “The common law... allows recovery of punitive damages in tort cases not only for actual malicious intent, but also for reckless indifference to the rights of others. Neither the policies nor the purposes of § 1983 require a departure from the common law rule.”

The Supreme Court also ascertained “There is no merit to petitioner's contention that actual malicious intent should be the standard for punitive damages because the deterrent purposes of such damages would be served only if the threshold for those damages is higher in every case than the underlying standard for liability in the first instance.”

When the case was taken to trial, a federal judge stated that “Wade could make out an Eighth Amendment violation only by showing "physical abuse of such base, inhumane and barbaric proportions as to shock the sensibilities.” Also, the federal judge commented “Further, because of Smith's qualified immunity as a prison guard, see Procunier v. Navarette (1978), the judge instructed the jury that Wade could recover only if the defendants were guilty of "gross negligence" (defined as "a callous indifference or a thoughtless disregard for the consequences of one's act or failure to act") or "[e]gregious failure to protect" (defined as "a flagrant or remarkably bad failure to protect") Wade.”The lower court awarded Wade punitive damages in the form of $5,000 and compensatory damages in the form of $25,000. Also, most federal courts and state courts agree that punitive damage awards do not require only malicious intent. They also consider standards of negligence, recklessness, or other activities that fall short of maliciousness.

In the case, Smith argues that “the deterrent and punitive purposes of punitive damages are served only if the threshold for punitive damages is higher in every case than the underlying standard for liability in the first instance.” However, Justice Brennan disagrees in that punitive damages are not a right to a prevailing plaintiff and are not the main course for constructing a deterrent for reckless behavior. Also, Smith feels that “too low a standard of exposure to punitive damages in cases such as this threatens to undermine the policies of his qualified immunity as a prison guard.” Justice Brennan feels this is an overstatement of his immunity.

Overall, the main objective in the Supreme Court's decision to affirm the decision of the lower court is based in the fact that not only malicious actions against another person merits punitive damages, but also acting a a reckless or negligent manner can also cause someone to incur punitive damages. Also, the court shows that punitive damages are not means for a deterrent because punitive damages are not a right for a prevailing plaintiff.

DISSENTING AND CONCURRING OPINIONS

Justice Brennan delivered the opinion of the court, while Justices White, Blackmun, Stevens, Marshall agreed. Justices Rehnquist, O'Connor, Powell, and Burger dissented.

In Justice Rehnquist's dissent, he states that the justices who affirmed the decision should be at fault for construing § 1983 legislation with recent tort decisions. Justice Rehnquist's main concern is the balance between the original legislation and newer torts that change the way § 1983 is interpreted.

The main gist of Justice Rehnquist's descent is that receiving punitive damages is not the singular remediation for a § 1983 action. He argues that congress would not be in support this decision. Justice Rehnquist also casts doubt on whether or not whether or not punitive damages should be awarded in a § 1983 action. He asserts that “the phrase "for redress" at the end of the section means that Congress intended to limit recovery to compensatory damages.”

Justice Rehnquist also surmises that congress would not approve of punitive damages as the sole remediation for a § 1983, although Justice Brennan disagrees stating, “Congress did approve a punitive civil remedy in an 1870 Civil Rights Act. Act of May 31, 1870, § 2, 16 Stat. 140 (creating private cause of action for fixed penalty on behalf of persons suffering racial discrimination in voting registration) [and in] 1889 Colo. Sess. Laws 64 (enacting punitive damages statute, including awards for 'wanton and reckless disregard,'...” Justice Brennan, rebutting Justice Rehnquist's opinion, stated “These statutes do not support Justice Rehnquist's speculation that Congress acted expressly when it intended to approve punitive damages, since both statutes created new remedies not available at common law; moreover, they undercut his argument that Congress was hostile to punitive civil remedies in favor of private parties.”

CASE SIGNIFICANCE AND ANALYSIS

This case is important in that it establishes standards to which punitive damages can be awarded for certain types of negligent or reckless conduct, regardless of whether or not the actor's intent was malicious under § 1983.

Wade v. Smith (1983) also relates to the case Procunier v. Navarette, 434 U. S. 555 (1978). In this case, a prison inmate filed a § 1983 action against prison officials for interfering with his outgoing mail. The petitioner, Navarette, alleged that several prison officers and supervisors were failing to mail some of his outgoing correspondences during the 15 months he was incarcerated. Navarette expressed the importance of these correspondence because they were addressed to lawyers, law students, members of the media, and inmates in other facilities. Navarette filed a § 1983 action against six prison officials involved in tampering with his mail. His suit included violations of his First and Fourteenth Amendment rights – freedom of speech and due process.

In this case, the Supreme Court held that “Petitioners, as state prison officials, were entitled to immunity unless they "knew or reasonably should have known" that the action they took with respect to respondent's mail would violate his federal constitutional rights, or they took the action with the "malicious intention" to cause a deprivation of constitutional rights or other injury to respondent” and “There was no established First and Fourteenth Amendment right protecting state prisoners' mail privileges at the time in question, and therefore, as a matter of law, there was no basis for rejecting the immunity defense on the ground that petitioners knew or should have known that their alleged conduct violated a constitutional right.”

Procunier v. Navarette (1978) is similar in that both cases deal with constitutional rights issues arising out of the prison system. Where one case deals with actual physical injury, and the other deals with interfering with correspondence, the Supreme Court ruled that the state prison officials would have had immunity if they were ignorant of the fact that this would have violated Navarette's constitutional rights. Also, the Supreme Court affirmed that there is no constitutional right, in the first place, protecting a prisoner's correspondence.

Wade v. Smith (1983) affects the criminal justice system in that recklessness or negligence can be a liability. There is no more “ignorance” defense. The defendant, Smith, could not have used this as his defense. Now, anyone working in the criminal justice system will be liable for their actions both malicious and negligent when it pertains to violating someone's constitutional rights. This decision increases an officer's liability in that punitive damages can be awarded for both malicious intent and recklessness, however punitive damages are not the sole means of remediation for a prevailing plaintiff.

Because of the increased liability toward a police officer, additional training and consideration must be taken into account. Obviously, officers are given ethics training which allows them to utilize their discretion in order to make a fair and rational decision. This training also allows them to use their best judgment in a situation and not bend or delve into maliciousness. However, with the standard lowered to include negligence, additional training may be required concerning the use of discretion. Smith used his discretion in placing the third inmate into the cell with Wade and the second inmate, however he did not have enough applicable or situational information to ascertain whether or not that was a “right” or just decision. Officers who undergo training for discretionary use should also be taught to properly balance thorough investigation with split-second decision making. This allows an officer to ensure all avenues are investigated before making a decision that could affect someone's health and safety while being able to make a rational and just decision if pressed.

STANDARDS

This decision sets a new standard in liability for police officers. They now must be more aware of their surroundings and the impact of their decisions, regardless of intent.

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