Ableism is the oppression people and groups face due to a perceived or lived disability.
Ableism can result in the denial of resources, agency and dignity based on one’s abilities, whether mental, intellectual, emotional or physical. As the Anti-Violence Project explains, “Ableism depends on a binary, and benefits able-bodied people at the expense of disabled people. Like other forms of oppression, ableism operates on individual, institutional and cultural levels.” Ableism extends to oppression that a person or groups may face on account of the social expectation to be sane, rational, and not neurodivergent or psychiatrically disabled. Ableism, as experienced and structured, is inseparable from racism and classism. As we show in Criminal Court 101, individuals endure ableist oppression throughout the criminal process. The law only recognizes a narrow band of disabilities as legitimate and worthy of accommodations, even those can be deeply inadequate and often harmful, leaving many people with disabilities who are criminalized abandoned.
Alternatives To Incarceration
Alternatives to incarceration (ATI) are when a person charged with or convicted of a crime is offered an alternative option instead of incarceration. Participants must successfully complete the ATI program mandates in order to avoid jail or prison and/or to receive reduced criminal sanctions.
Alternatives to incarceration include supervision programs (typically with some element of “treatment,” counseling, therapy, or employment/education/housing services), probation, house arrest, location tracking, community service, and fines and restitution. In many cases, whether or not someone is eligible for an ATI is decided by the judge or prosecutor after someone has already been convicted or pled guilty. Although ATIs have been widely embraced, these replace one form of supervision (prison), with another (therapeutic programs), but do not reduce the state’s power to criminalize and intervene in people’s lives.
The arraignment is the first appearance before a judge, during which a person accused of a crime is notified of and answers the charges against them.
It is the beginning of the criminal case from the court’s perspective. In some jurisdictions, a person accused of a crime will have more than one arraignment, once before the grand jury hears the case and once after the grand jury has voted on an indictment. Arraignments are short and impersonal appearances that rarely give the person accused a full picture of the charges against them.
Bail is the process for securing release for someone who is charged with a crime while they await trial.
Conditions of bail or release may be imposed, such as an order to not contact someone, avoid a location, not get re-arrested, take weekly drug tests, or not leave the state. The condition that people are usually most familiar with is having to pay money—which is why many people use the term “bail” to specifically refer to money bail. Although the person is technically presumed innocent when bail is set, the courts have the authority to supervise and restrict the accused’s freedom.
Instead of seeing the rush of migrants at borders in the United States and Europe as the source of the crisis, the term border imperialism directs our attention to the border itself as the source of the crisis.
Organizer and author Harsha Walia explains that border imperialism encapsulates four elements: “first, the mass displacement of impoverished and colonized communities resulting from asymmetrical relations of global power, and the simultaneous securitization of the border against those migrants whom capitalism and empire have displaced; second, the criminalization of migration with severe punishment and discipline of those deemed ‘alien’ or ‘illegal’; third, the entrenchment of a racialized hierarchy of citizenship by arbitrating who legitimately constitutes the nation-state; and fourth, the state-mediated exploitation of migrant labor, akin to conditions of slavery and servitude, by capitalist interests.”
Cisheteropatriarchy is the oppressive set of assumptions that maintains that the normal expression of sexuality is one of a married couple of two people, male and female, whose gender corresponds with their birth sex.
These views permeate dominant culture and are expressed in everyday discourse, the media, welfare systems, and areas of law, including criminal law. These assumptions are apparent in the moral panics and subsequent attempts to regulate and criminalize a range of sexual practices deemed deviant such as promiscuity, pornography, sex work, one-parent families, and extra-marital sex.
Criminal laws define what is a crime: the actions, activities, or behaviors that the state condemns and can punish by limiting a person’s freedom or by monetary sanctions, like fines and fees.
Sometimes lower-level offenses*, like “disorderly conduct” or drinking in public spaces, are characterized as violations rather than crimes because they don’t give someone a criminal record. What ends up being considered a crime is the outcome of specific decisions made by legislators about what kinds of conduct to punish, by whom, and how. Those decisions have historically tended to criminalize poor, Black, Indigenous, Latinx, LGBTQ, disabled, migrant, and radical left communities and persons.
*A note on the term “lower-level offenses.” Colloquially we use this term to refer to charges that societally we think of as being "less serious" or "less violent", we also use this term to refer to charges which we think of as carrying a less severe punishment. It's important to note that those connections are often assumed because of the language used and they do not always mean this legally. Many charges we think of as being "lower-level" carry potentially lengthy prison sentences and the assumption of violence is much more complicated.
Criminal procedure are the rules of criminal court.
The rules as written tell criminal court actors (judges, prosecutors, probation officers, clerks, and defense attorneys) what they have to do in order for a criminal case to move forward. The rules are written by legislators who have historically given most power to judges and prosecutors, who also have tremendous power to decide how to interpret those rules. Their way of enforcing the rules is just as important as the rules themselves. Criminal procedure tells us what kind of proof the prosecutor needs to provide to justify a charge. It spells out the deadlines prosecutors have to provide the proof. It also dictates the kind of information the defense is entitled to receive to prepare for trial or a plea and what kind of evidence can be produced at trial. Criminal procedure regulates the kinds of behavior, questions, and actions that are permitted or required when prosecuting, defending, or deciding a criminal case. Criminal procedure is the “how” of criminal law.
Diversion refers to any formal procedural intervention, led or facilitated by state actors (police, DAs, or judges), that temporarily and conditionally redirects a person’s path through the criminal process away from arrest, jail, charges, plea, or conviction in exchange for enrollment and participation in a program (“rehabilitation,” “community service,” “treatment,” or “education,” etc.).
Generally, diversion programs must create the possibility of closing a case without a conviction or with a reduced charge (like a misdemeanor instead of a felony). You can read more about different kinds of diversion here. Diversion programs are similar to what courts call alternatives to incarceration or problem-solving courts, but often diversion programs come with the promise that the charges the prosecutor initially brought will be reduced or dropped.
The grand jury is a group of people selected from the public to decide together whether the prosecutor has probable cause to pursue charges against a defendant.
The purpose of grand juries is to secure an indictment. Although grand juries are seen as a check on the prosecutor’s power, these tend to function like a rubber stamp.
An indictment is a formal statement the prosecutor writes charging a person with an offense, substantiated through a grand jury or preliminary hearing determining there is probable cause. The evidence required for an indictment is low–all the prosecutor needs is probably cause.
The judge’s role is to make decisions about requests or arguments about charges, bail, and pre-trial supervision made by the defense or prosecutor.
The judge is supposed to be impartial—not prefer one side over the other. But most judges are former prosecutors and their former experiences inevitably inform their rulings. In other words, a judge often functions as a second prosecutor.
Jury nullification is when jurors (whether as part of a grand jury or trial jury) vote against an indictment or return a ‘Not Guilty’ verdict even if they believe the accused person has broken the law.
Motions are legal requests the parties make.
In criminal court, the motions filed during court appearances usually concern what evidence the prosecution will be permitted to present at trial. The defense will move to suppress (keep out) certain kinds of evidence the prosecutor may try to introduce, or to prevent the prosecution from using evidence of the defendant’s prior convictions. The defense rarely wins on these motions. The defense can also file a motion to ask the judge to dismiss the charges, but that rarely happens. The judge can dismiss the charges if they disagree with the grand jury that there is enough evidence to sustain the charges. The defense can also file a motion to ask the judge to reduce the bail and to order that the prosecution turn over evidence. The judge has decision-making power over motions and the ruling on these motions will determine how a trial will go.
A plea bargain is when the prosecutor allows the defense to plead guilty to a charge less than the maximum charge in exchange for giving up their right to trial.
Over 90 percent of cases are resolved by plea bargains. Prosecutors have all the leverage in plea bargain negotiations.
The purpose of the preliminary hearing is for a judge or magistrate to decide whether the prosecution has probable cause to pursue the charges against the accused. They are sometimes called probable cause hearings.
Judges are often reluctant to dismiss charges at this stage, and it does not happen frequently.
Preventive detention is when an accused person is detained for the duration of their prosecution and no amount of money can secure their freedom. In some states this is referred to as “remand.”
Judges imposing and prosecutors seeking preventative detention often make arguments that the person accused is a danger to the community. Preventative detention denies someone their freedom when they are technically presumed to be innocent.
Prison Industrial Complex
As defined by Critical Resistance, "The prison industrial complex (PIC) is a term we use to describe the overlapping interests of government and industry that use surveillance, policing, and imprisonment as solutions to economic, social and political problems.
Through its reach and impact, the PIC helps and maintains the authority of people who get their power through racial, economic and other privileges. There are many ways this power is collected and maintained through the PIC, including creating mass media imagesthat keep alive stereotypes of people of color, poor people, queer people, immigrants, youth, and other oppressed communities as criminal, delinquent, or deviant. This power is also maintained by earning huge profits for private companies that deal with prisons and police forces; helping earn political gains for “tough on crime” politicians; increasing the influence of prison guard and police unions; and eliminating social and political dissent by oppressed communities that make demands for self-determination and reorganization of power in the US."
To determine probable cause, courts ask whether a person of reasonable caution believes that a crime has been committed, supported by specific objective facts. There’s not much more guidance than this general statement, but it is intended to be a low burden of proof.
The amount of evidence required for probable cause is not clearly defined. Here are some examples: The police cannot arrest someone just because they don’t like the way a person looks, but if, for example, they see someone running in an area the police say is a “high crime area” with a bulge in their pocket, the police could stop, and search that person—and that usually is enough probable cause for an arrest. Before a grand jury, if a witness can describe a person engaging in a criminal act and they seem credible, that is usually enough for probable cause for an indictment. The witness does not need to bring video surveillance, or medical records. A single witness is enough.
A probation hold renders someone ineligible for release until the judge determines, through a separate hearing, whether the terms of their probation have been violated and probation should be revoked. A probation hold is also sometimes called a “detainer.”
Something similar can happen when someone is on parole and is re-arrested. This is often called a "parole hold." You can learn more about probation and parole holds here.
Problem-solving courts are specialized criminal courts that offer enhanced supervision and “treatment” in addition to or in lieu of incarceration.
Oftentimes, the person being prosecuted needs to plead guilty to the top charge and then if they complete the program successfully, the conviction will be eligible for expungement (although this doesn’t always occur in practice). There are many kinds of problem- solving courts but they generally fall into three categories: (1) “treatment” courts, such as mental health courts and drug courts; (2) offense-specific courts, such as domestic violence courts and community courts; and (3) status courts, such as veterans courts and homelessness courts. As law professor, Erin Collins explains, “Despite this diversity, the universe of problem-solving courts is united by a common claim, namely, that these courts solve a problem that would otherwise lead to repeated interaction with the criminal legal system.” As with alternatives to incarceration, problem solving courts preserve the state’s power to criminalize but do it in new, and seemingly less offensive ways than incarceration.
Prosecutors, often called District Attorney’s or State’s Attorneys, are lawyers for the government. They hold the power to decide who is charged with a crime, whether to prosecute someone at all, what charges to file, whether to request bail and how much, and whether to enter into a plea agreement. This is called “prosecutorial discretion.”
In many places, the head District or State Attorney is an elected position, and this elected official then supervises a team of hired prosecutors (often called Assistant District Attorneys or ADAs) who actually handle most of the cases in criminal court. In a few states, like Connecticut, Alaska, and New Jersey, the head prosecutor is appointed, not elected. Prosecutors are one of the most powerful actors in criminal court.
Public defenders are defense lawyers paid for by the state to represent accused people who cannot afford legal assistance.
Just because they are paid by the government doesn’t mean they are on the government’s side - lots of public defenders are very skilled and deeply committed to their clients’ rights and freedoms. The quality of the representation and when you get a lawyer varies across jurisdictions and depends on the resources available. Not every state has an organization dedicated to representing low-income people accused of crimes. In those states, attorneys are appointed on a case-by-case basis. And, even in places with dedicated public defender agencies, like New York City, the agencies are notoriously underfunded and overworked, with annual caseloads spanning from 50-590 cases per public defender.
As geographer and organizer Ruth Wilson Gilmore has said, “Capitalism requires inequality and racism enshrines it…All capitalism is racial from its beginning, which is to say the capitalism that we have inherited is constantly and reproducing itself and it will continue to depend on racial practice and racial hierarchy. No matter what.”
Capitalism requires a division of labor and power. There are those who own and profit from the factories, the land, the intellectual property, the companies and there are those whose labor is exploited to produce value that keeps the economy going. One of the ways our society differentiates between these roles and preserves the power of the capital owning class is by justifying these differences as racial hierarchies. Groups of people are classified based on real or imagined attributes and their lives are devalued on account of these traits. Criminalization is a tool the state uses to manage those discarded by racial capitalism, and reinforces race and class based hierarchies by marking people with criminal records and depriving them of life chances.
Settler colonialism is a type of colonialism where the land and resources of an indigenous peoples are stolen by settlers who permanently form a society there.
The United States was founded as a settler colonial society committed to conquering territory, systematically excluding and eliminating native peoples and enslaving people of African descent for the benefit of White settlers. To this day, the U.S. state denies Indian sovereignty and reparations for slavery and colonization, while it celebrates and maintains the same legal political institutions responsible for dispossession and genocide.
Speedy trial is the constitutional right of people accused of crimes to be tried for the alleged crimes within a reasonable amount of time, without arbitrary or indefinite delays. But in many states, this right is rarely enforced with thousands languishing in jails waiting for their cases to be resolved.
The trial penalty refers to the substantial difference between the sentence offered by the prosecutor as part of a plea deal versus the potential sentence imposed if the accused person takes their case to trial. The trial penalty discourages persons accused from going to trial, despite their right to do so, constitutionally.