How Cases Move Through the System

The criminal justice process is not what gets portrayed on television, and most cases do not go to trial or result in a prison sentence. Part of the problem is that our current system is overloaded and ensuring both due process and crime control can be more challenging than one thinks. In order to effectively process cases through the criminal justice system, discretion is an important tool for police, prosecutors, judges, and correctional officials. Discretion provides freedom to make decisions; specifically it is the power to use one’s judgement in making decisions within legal guidelines. A police officer may use their discretion to search an individual who appears to be engaged in specific, criminally suspicious, behaviors in public – or to let a speeding motorist go with only a warning. Similarly, prosecutors exercise their discretion in dropping a case that they believe they cannot win in court, or in charging an individual with the violation of every possible criminal law. Many people see discretion as for the most powerful, and least regulated, tool of the criminal justice system. ^{[1] [2]}

Ethics refers to our understanding of what constitutes good or bad, moral or immoral, behaviors. Ethical behavior is incredibly important in the criminal justice system, because people working in the system get authority, power, and discretion from the government. ^[3] Imagine a case wherein a police officer let go a severely intoxicated driver with a warning, because the offender explained that they had gotten drunk after a bad break-up. Would it be ethical for police to allow the driver to simply drive off, when they represent a real threat to public safety? Or should the officer use their discretion and express empathy for an individual whose behavior is compromised by personal circumstances? Ethics and discretion often go hand-in-hand.

The criminologist Samuel Walker has referred to the criminal justice system as a funnel, and a leaky one at that. In 1967, The President’s Commission on Law Enforcement and the Administration of Justice published a report on the funneling effect of the criminal justice system. ^[5] The criminal justice system is often referred to as a funnel because most cases do not go through all steps in the system, some because of discretion, and a large portion because they are unknown to police. In other words, just as a funnel is wide at the top, and narrow at the bottom, the number of crimes that are formally processed by the criminal justice system decreases at every step, from reporting to punishment. The question remains: is the criminal justice system effective at catching, prosecuting, convicting, and punishing offenders? Does the system properly do its job at all levels? Walker was critical of this report and said the report did not account for the crimes unknown to police, often referred to as the dark figure of crime. He also recognized that the most serious crimes are often reported the most, which may confuse the public about the reality of other crimes. ^[6] Others also criticized the report for only looking at reported crimes and adult crimes, but those issues will be highlighted in our next chapter on data in the criminal justice system. It is important to recognize the disparity between crimes that were reported and not reported. This discrepancy was a shock in the 1970s, especially after the United States started asking people about their victimization. The number of crimes people say they experienced far exceeded the crimes they reported to the police. ^[7]

The funnel is one way to look at the criminal justice system, but we will see later how it can be much more complicated than this analogy suggests. Without discretion, the criminal justice system would like collapse under the sheer number of criminal cases, and costs would skyrocket. If the U.S. were to arrest, prosecute, and punish everyone who violated the law, there would not be any money left over for important things like education, healthcare, repairing highways, and so much more. We would see most of our taxpayers paying for just crime control, which may not be the best use of all that money.