Chapter 7 Death Row Research Paper


You will choose an area of Criminal Justice covered in chapter 7 and write a 3 to 5

page research paper NOT including your cover page, and Works Cited page.

Your paper can be on your chosen area of Criminal Justice in general or a more specific paper on

events, individuals and/or groups that were involved in one of these categories.

Examples of acceptable topics: The Conflict model, Academic Criminal Justice, Social Policy

in Criminal Justice, Trends in Criminal Justice, Multiculturalism, Death Row, Ethics in Criminal


Things that need to be present in every APA paper and/or assignment:

1. Title Page (all double-spaced and centered)

a. Title of Paper

b. Student’s name

c. School name

d. Running head needed (the words “Running head” must be present as well… this

is only on the title page though)

e. Page number of 1

2. Abstract (all double-spaced)

a. The word “Abstract” should be centered on the page.

b. The first line of the abstract is not indented or tabbed.

c. Running head needed, however, the words “Running head” should not be present.

d. Page number of 2

3. Content/body of paper (all double spaced)

a. Running head needed, however, the words “Running head” should not be present.

b. Appropriate page numbers (3 through how many pages are presented)

c. Must have in-text citations (should be from academic sources).

d. Must appropriately address short and long quotes.

e. Must address all questions/issues from assignment/research paper instructions.

4. Reference page (The word “References” should be centered; should be double spaced

between references; references themselves can either be double-spaced or single-spaced;

it looks tidier when the references are single-spaced with a double space between


a. Hanging indentations


Adams State University – CEP© Page 14 of 62 October 2018

b. Sources should have the appropriate page numbers in references (when


c. Running head needed, however, the words “Running head” should not be present.

d. Appropriate page number.

5. Running Heads

a. Be at the top of every page and it should be even with the page number; it should

be flush on the left margin.

b. The words “running head” should only be present on the Title Page and the “R” in

Running should be capitalized, but the rest should be lower case (Running head: ).

c. The title or partial title used for the Running head should be in all capital letters

on every page.

6. Page numbers

a. There should be a page number on the top of every page and it should be even

with the Running head; it should be flush on the right margin.

b. Page numbers start on the Title Page; the Title Page is always page 1.

c. the Abstract is page 2

d. Content should begin on page 3+

e. References page should also have a page number.

NOTE: If you do not have access to a word processor, please note that one typed page generally

translates to two hand written pages (depending on your hand writing). If you are handwriting

your Term Paper, remember that if I cannot read your work I cannot grade it.

Chapter 7
Schmalleger, Frank. Criminal Justice. Pearson Education. Kindle Edition.
The Courts
Introduction In 2014, former TSA employee Dennis Marx of Cummings, Georgia,
walked into the Forysth County Courthouse and opened fire, injuring a deputy
sheriff.2 The 48-year-old Marx, who was armed with an assault rifle and a number
of improvised explosive devices, was known to locals as a self-proclaimed
“sovereign citizen.” Officials said that he planned to “take the courthouse hostage.”
Marx had been due to appear in court on drug and gun charges. The local SWAT
team, which was rushing to answer another call, arrived on the scene within 37
seconds of Marx’s attack, and shot him dead before he could inflict further damage.3
Incidents like the Georgia courthouse attack highlight the critical role that our
nation’s courts and the personnel who staff them play in the American system of
justice. Without courts to decide guilt or innocence and to impose sentence on those
convicted of crimes, the activities of law enforcement officials would become
meaningless. There are many different kinds of courts in the United States, but
courts at all levels dispense justice daily and work to ensure that all official actors in
the justice system carry out their duties in recognition of the rule of law. At many
points in this textbook and in three specific chapters (Chapters 5, 10, and 11), we
take a close look at court precedents that have defined the legality of enforcement
efforts and correctional action. In Chapter 3, we explored the law-making function of
courts. To provide a picture of how courts work, this chapter will describe the
American court system at both the state and federal levels. Then in Chapter 8, we
will look at the roles of courtroom actors— from attorneys to victims and from
jurors to judges—and we will examine each of the steps in a criminal trial.
History and Structure of the American Court System Two types of courts function
within the American criminal justice system: state courts and federal courts. Figure
7–1 outlines the structure of today’s federal court system, and Figure 7–2 diagrams
show variation among state court systems. This dual-court system is the result of
general agreement among the nation’s founders about the need for individual states
to retain significant legislative authority and judicial autonomy separate from
federal control. Under this concept, the United States developed as a relatively loose
federation of semi-independent provinces. New states joining the union were
assured of limited federal intervention into local affairs. State legislatures were free
to create laws, and state court systems were needed to hear cases alleging violations
of those laws. In the last 200 years, states’ rights have gradually waned relative to
the power of the federal government, but the dual-court system still exists. Even
today, state courts do not hear cases involving alleged violations of federal law, nor
do federal courts get involved in deciding issues of state law unless there is a
conflict between local or state statutes and federal constitutional guarantees. When
such conflicts arise, claimed violations of federal due-process guarantees—
especially those found in the Bill of Rights—can provide the basis for appeals made
to federal courts by offenders convicted in state court systems. Learn more about
the dual-court system in America at flg-2-2a1.html. This chapter describes both state and federal court systems in terms of their
historical development, jurisdiction, and current structure. Because it is within state
courts that the majority of criminal cases originate, we turn our attention first to
The State Court System The Development of State Courts Each of the original
American colonies had its own court system for resolving disputes, both civil and
criminal. In 1629, the Massachusetts Bay Colony created a General Court, composed
of the governor, his deputy, 18 assistants, and 118 elected officials. The General
Court was a combined legislature and court that made laws, held trials, and imposed
sentences.4 By 1776, all of the American colonies had established fully functioning
court systems. Following the American Revolution, state court systems were
anything but uniform. Initially, most states made no distinction between original
jurisdiction (the lawful authority of a court to hear cases that arise within a specified
geographic area or that involve particular kinds of law violations) and appellate
jurisdiction (the lawful authority of a court to review a decision made by a lower
court). Many, in fact, had no provisions for appeal; Delaware, for example, did not
allow appeals in criminal cases until 1897. States that did permit appeals often
lacked any established appellate courts and sometimes used state legislatures for
that purpose. By the late nineteenth century, a dramatic increase in population,
growing urbanization, the settlement of the West, and other far-reaching changes in
the American way of life led to a tremendous increase in civil litigation and criminal
arrests. Legislatures tried to keep pace with the rising tide of cases. They created a
multiplicity of courts at the trial, appellate, and supreme court levels, calling them
by a diversity of names and assigning them functions that sometimes bore little
resemblance to those of similarly named courts in neighboring states. City courts,
which were limited in their jurisdiction by community boundaries, arose to handle
the special problems of urban life, such as disorderly conduct, property disputes,
and enforcement of restrictive and regulatory ordinances. Other tribunals, such as
juvenile courts, developed to handle special kinds of problems or special clients.
Some, such as magistrate’s or small-claims courts, handled only minor law
violations and petty disputes; still others, such as traffic courts, were very narrow in
focus. The result was a patchwork quilt of hearing bodies, some only vaguely
resembling modern notions of a trial court. State court systems developed by
following one of several models. One was the New York State Field Code of 1848,
which was eventually copied by most other states. The Field Code clarified
jurisdictional claims and specified matters of court procedure, but it was later
amended so extensively that its usefulness as a model dissolved. Another court
system model was provided by the federal Judiciary Act of 1789 and later by the
federal Reorganization Act of 1801. States that followed the federal model
developed a three-tiered structure of (1) trial courts of limited jurisdiction, (2) trial
courts of general jurisdiction, and (3) appellate courts.
State Court Systems Today The three-tiered federal model was far from perfect,
however. Within the structure it provided, many local and specialized courts
proliferated. Traffic courts, magistrate’s courts, municipal courts, recorder’s courts,
probate courts, and courts held by justices of the peace were but a few that
functioned at the lower levels. A movement toward simplification of state court
structures, led primarily by the American Bar Association and the American
Judicature Society, began in the early twentieth century. Proponents of state court
reform sought to unify redundant courts that held overlapping jurisdictions. Most
reformers suggested a uniform model for states everywhere that would build on (1)
a centralized court structure composed of a clear hierarchy of trial and appellate
courts, (2) the consolidation of numerous lower-level courts with overlapping
jurisdictions, and (3) a centralized state court authority that would be responsible
for budgeting, financing, and managing all courts within a state. The court reform
movement continues today. Although reformers have made substantial progress in
many states, there are still many differences between and among state court
systems (as Figure 7–2 shows). Reform states, like California, which early on
embraced the reform movement, are now characterized by streamlined judicial
systems consisting of precisely conceived trial courts of limited and general
jurisdiction, supplemented by one or two appellate court levels. Nonreform, or
traditional, states, like Georgia, retain judicial systems that are a conglomeration of
multilevel and sometimes redundant courts with poorly defined jurisdictions. Even
in nonreform states, however, most criminal courts can be classified within the
three-tiered structure of two trial court echelons and an appellate tier. State Trial
Courts Trial courts are where criminal cases begin. The trial court conducts
arraignments, sets bail, takes pleas, and conducts trials. (We will discuss these
separate functions in more depth later in this chapter and in the next.) If the
defendant is found guilty (or pleads guilty), the trial court imposes sentence. Trial
courts of limited (or special) information on the charge, the plea, the finding of the
court, and the sentence. All but six of the states make use of trial courts of limited
jurisdiction.5 These lower courts are much less formal than courts of general
jurisdiction. Trial courts of general jurisdiction—variously called high courts, circuit
courts, or superior courts—are authorized to hear any criminal case. In many states,
they also provide the first appellate level for courts of limited jurisdiction. In most
cases, superior courts offer defendants whose cases originated in lower courts the
chance for a new trial instead of a review of the record of the earlier hearing. When
a new trial is held, it is referred to as a trial de novo. Trial courts of general
jurisdiction operate within a fact-finding framework called the adversarial process.
That process pits the interests of the state, represented by prosecutors, against the
professional skills and abilities of defense attorneys. The adversarial process is not a
free-for-all; rather, it is constrained by procedural rules specified in law and
sustained through tradition. State Appellate Courts Most states today have an
appellate division, consisting of an intermediate appellate court (often called the
court of appeals) and a high-level appellate court (generally termed the state
supreme court). High-level appellate courts are referred to as courts of last resort,
indicating that no other appellate route remains to a defendant within the state
court system once the high court rules on a case. All states have supreme courts,
although only 39 have intermediate appellate courts.6 An appeal by a convicted
defendant asks that a higher court review the actions of a lower court. Once they
accept an appeal, courts within the appellate division do not conduct a new trial;
instead, they review the case on the record. In other words, appellate courts
examine the written transcript of lower court hearings to ensure that those
proceedings were carried out in a fair manner and in accordance with proper
procedure and state law. They may also allow attorneys for both sides to make brief
oral arguments and will generally consider other briefs or information filed by the
appellant (the party initiating the appeal) or the appellee (the side opposed to the
appeal). State statutes generally require that sentences of life imprisonment or
death be automatically reviewed by the state supreme court. Most convictions are
affirmed on appeal. Occasionally, however, an appellate court will determine that
the trial court erred in allowing certain kinds of evidence to be heard, that it failed to
interpret properly the significance of a relevant statute, or that some other
impropriety occurred. When that happens, the verdict of the trial court will be
reversed, and the case may be sent back for a new trial, or remanded. When a
conviction is overturned by an appellate court because of constitutional issues or
when a statute is determined to be invalid, the state usually has recourse to the state
supreme court; when an issue of federal law is involved, as when a state court has
ruled a federal law unconstitutional, it goes to the U.S. Supreme Court. Defendants
who are not satisfied with the resolution of their case within the state court system
may attempt an appeal to the U.S. Supreme Court. For such an appeal to have any
chance of being heard, it must be based on claimed violations of the defendant’s
rights, as guaranteed under federal law or the U.S. Constitution. Under certain
circumstances, federal district courts may also provide a path of relief for state
defendants who can show that their federal constitutional rights were violated.
However, in the 1992 case of Keeney v. Tamayo-Reyes, 7 the U.S. Supreme Court
ruled that a “respondent is entitled to a federal evidentiary hearing [only] if he can
show cause for his failure to develop the facts in the state-court proceedings and
actual prejudice resulting from that failure, or if he can show that a fundamental
miscarriage of justice would result from failure to hold such a hearing.” Justice
Byron White, writing for the Court, said, “It is hardly a good use of scarce judicial
resources to duplicate fact-finding in federal court merely because a petitioner has
negligently failed to take advantage of opportunities in state court proceedings.”
Likewise, in Herrera v. Collins (1993),8 the Court ruled that new evidence of
innocence is no reason for a federal court to order a new state trial if constitutional
grounds are lacking. The Keeney and Herrera decisions have severely limited
access by state defendants to federal courts. State Court Administration To function
efficiently, courts require uninterrupted funding, adequate staffing, trained support
personnel, well-managed case flow, and coordination between levels and among
jurisdictions. To oversee these and other aspects of judicial management, every
state today has its own mechanism for court administration. Most make use of state
court administrators who manage these operational functions. State court
administrators can receive assistance from the National Center for State Courts
(NCSC) in Williamsburg, Virginia. The NCSC, founded in 1971 at the behest of Chief
Justice Warren E. Burger, is an independent, nonprofit organization dedicated to the
improvement of the American court system. You can visit the NCSC at At the federal level, the court system is administered by the
Administrative Office of the United States Courts (AOUSC), located in Washington,
D.C. The AOUSC, created by Congress in 1939, prepares the budget and legislative
agenda for federal courts. It also performs audits of court accounts, manages funds
for the operation of federal courts, compiles and publishes statistics on the volume
and type of business conducted by the courts, and recommends plans and strategies
to efficiently manage court business.
Dispute-Resolution Centers and Specialized Courts Often, it is possible to resolve
minor disputes (in which minor criminal offenses might otherwise be charged)
without a formal court hearing. Some communities have dispute-resolution centers
that hear victims’ claims of minor wrongs they have suffered, such as being subject
to the passing of bad checks, trespassing, shoplifting, or petty theft. Such centers
function today in more than 200 locations throughout the country.9 Frequently
staffed by volunteer mediators, such programs work to resolve disagreements
without assigning blame. Disputeresolution programs began in the early 1970s,
with the earliest being the Community Assistance Project in Chester, Pennsylvania;
the Columbus, Ohio, Night Prosecutor Program; and the Arbitration as an
Alternative Program in Rochester, New York. Following the lead of these programs,
the U.S. Department of Justice helped promote the development of three
experimental Neighborhood Justice Centers in Los Angeles, Kansas City, and Atlanta.
Each center accepted both minor civil and criminal cases. Mediation centers are
often closely integrated with the formal criminal justice process and may
substantially reduce the caseload of lower-level courts. Some centers are, in fact, run
by the courts and work only with court-ordered referrals; others are
semiautonomous but may be dependent on courts for endorsement of their
decisions; and still others function with complete autonomy. Rarely, however, do
dispute-resolution programs entirely supplant the formal criminal justice
mechanism, and defendants who appear before a community mediator may later be
charged with a crime. Community mediation programs have become a central
feature of today’s restorative-justice movement. Unlike dispute-resolution centers,
community courts are always official components of the formal justice system and
can hand down sentences, including fines and jail time, without the need for further
judicial review. Community courts began as grassroots movements undertaken by
community residents and local organizations seeking to build confidence in the way
offenders are handled for less serious offenses. A distinguishing feature of
community courts is their focus on quality-of-life crimes that erode a
neighborhood’s morale. Like dispute-resolution centers they emphasize problem
solving rather than punishment, and build on restorative principles such as
community service and restitution. Other authors note that “The basic premise
behind the problem-solving court model is the idea that instead of merely
adjudicating legal questions or punishing criminal behavior after the fact, courts
should seek to prevent crime by directly addressing its underlying causes.”10
Community courts generally sentence convicted offenders to work within the
community, “where neighbors can see what they are doing.”11 A recent study of the
Red Hook Community Justice Center in Red Hook, New York, found that defendants
considered the community court to be more fair than traditional courts.12
According to the study, perceptions of fairness were primarily related to the more
personal role played by community court judges, who dispense with much of the
formality of traditional courts and who often offer support and praise to defendants
who work within the parameters set by the court. Finally, a 2013 National Center for
State Courts’ study found the Red Hook center to be effective in reducing recidivism,
noting that “RHCJC defendants were significantly less likely than downtown
defendants to be re-arrested… .”13 Recently, the community justice movement has
led to the creation of innovative lowlevel courts in certain parts of the country.
These specialized courts focus on relatively minor offenses, and handle special
populations or address issues. Some hear only cases involving veterans, others focus
on the needs of the mentally ill or the homeless. Still others handle only sex
offenders charged with lessor offenses. The Brooklyn Mental Health Court provides
an example of a specialized court that, in its own words, “seeks to craft a meaningful
response to the problems posed by defendants with mental illness in the criminal
justice system.”14 The Brooklyn court attempts to address both the needs of
defendants with mental illness and public-safety concerns. It uses the authority of
the court to provide counseling and treatment for defendants with identified serious
and persistent mental illnesses in lieu of jail or prison time. The court employs onsite clinical teams to assess the degree of mental illness from which a defendant
suffers, and to gauge the risk that the defendant represents to the community were
he or she to be released into a community-based supervision program. Specialized
courts that deal with specific offenses include gun courts, domestic violence courts,
driving while intoxicated (DWI) or driving under the influence (DUI) courts, and
drug courts. Other specialized courts, called reentry courts, utilize the drug-court
model to facilitate the reintegration of drug-involved offenders paroled into the
community after being released from prison. Using the authority of the court to
apply graduated sanctions and positive reinforcement, reentry courts marshal
resources to support positive reintegration by the returning offender. Reentry
courts are discussed in more detail in Chapter 12. Most specialized court programs
are motivated by two sets of goals: (1) case management, in which the court works
to expedite case processing and reduce caseloads, as well as to reduce time to
disposition (thus increasing trial capacity for more serious crimes); and (2)
therapeutic jurisprudence, in which the court works to reduce criminal offending
through therapeutic and interdisciplinary approaches that address addiction and
other underlying issues without jeopardizing public safety and due process.15
Specialized courts can be distinguished from other criminal courts by the fact that
they operate according to a problem-solving model, rather than a retributive one—
meaning that they seek to address the root causes of law violation, whether they lie
within the individual, the community, or the larger culture.16 Their purpose is not
only to make justice more efficient, but more effective, as well.
The Federal Court System Whereas state courts evolved from early colonial
arrangements, federal courts were created by the U.S. Constitution. Article III,
Section 1, of the Constitution provides for the establishment of “one supreme Court,
and… such inferior Courts as the Congress may from time to time ordain and
establish.” Article III, Section 2, specifies that such courts are to have jurisdiction
over cases arising under the Constitution, federal laws, and treaties. Federal courts
are also to settle disputes between states and to have jurisdiction in cases where
one of the parties is a state. Today’s federal court system represents the culmination
of a series of congressional mandates that have expanded the federal judicial
infrastructure so that it can continue to carry out the duties envisioned by the
Constitution. Notable federal statutes that have contributed to the present structure
of the federal court system include the Judiciary Act of 1789, the Judiciary Act of
1925, and the Magistrate’s Act of 1968. As a result of constitutional mandates,
congressional action, and other historical developments, today’s federal judiciary
consists of three levels: (1) U.S. district courts, (2) U.S. courts of appeal, and (3) the
U.S. Supreme Court. Each is described in turn in the following sections.
U.S. District Courts The U.S. district courts are the trial courts of the federal court
system.17 Within limits set by Congress and the Constitution, the district courts
have jurisdiction to hear nearly all categories of federal cases, including both civil
and criminal matters. There are 94 federal judicial districts, including at least one
district in each state (some states, like New York and California, have as many as
four), the District of Columbia, and Puerto Rico. Each district includes a U.S.
bankruptcy court as a unit of the district court. Three territories of the United
States—the Virgin Islands, Guam, and the Northern Mariana Islands—have district
courts that hear federal cases, including bankruptcy cases. There are two special
trial courts that have nationwide jurisdiction over certain types of cases. The Court
of International Trade addresses cases involving international trade and customs
issues. The U.S. Court of Federal Claims has jurisdiction over most claims for money
damages against the United States, disputes over federal contracts, unlawful
“takings” of private property by the federal government, and a variety of other
claims against the United States. Federal district courts have original jurisdiction
over all cases involving alleged violations of federal statutes. A district may itself be
divided into divisions and may have several places where the court hears cases.
District courts were first authorized by Congress through the Judiciary Act of 1789,
which allocated one federal court to each state. Because of population increases
over the years, new courts have been added in a number of states. Nearly 650
district court judges staff federal district courts. Because some courts are much
busier than others, the number of district court judges varies from a low of 2 in
some jurisdictions to a high of 27 in others. District court judges are appointed by
the president and confirmed by the Senate, and they serve for life. An additional 369
full-time and 110 part-time magistrate judges (referred to as U.S. magistrates before
1990) serve the district court system and assist the federal judges. Magistrate
judges have the power to conduct arraignments and may set bail, issue warrants,
and try minor offenders. U.S. district courts handle tens of thousands of cases per
year. During 2015, for example, 80,069 criminal cases18 and 279,035 civil cases19
were filed in U.S. district courts. Drug prosecutions and the prosecution of illegal
immigrants, especially in federal courts located close to the U.S.–Mexico border,
have led to considerable growth in the number of cases filed.20 During the last 20
years, the number of cases handled by the entire federal district court system has
grown exponentially. The hiring of new judges and the creation of new courtroom
facilities have not kept pace with the increase in caseload, and questions persist as
to the quality of justice that overworked judges can deliver. In 2011, in response to
rapidly growing caseloads, Roslyn O. Silver, a federal judge in the Ninth Circuit’s
Tucson division, declared a federal court emergency in Arizona. The emergency
declaration came in response to the rising number of illegal immigration and drug
smuggling cases handled by federal courts in the state. In fact, federal criminal
caseloads in Arizona rose 65% from 2008 to 2011 after the Department of
Homeland Security established a policy of criminal prosecution for anyone caught
crossing the border illegally.21 Under emergency declarations, federal courts can
avoid certain Speedy Trial Act requirements and push the time limit for a trial to
begin to 180 days (up from the 70 days normally required by the legislation).
Another pressing issue facing district court judges is the fact that their pay, which at
$200,000 in early-201522 placed them in the top 1% of income-earning Americans,
is small compared to what most could earn in private practice. Recently, U.S.
Supreme Court Justice, John Roberts, noted that because of relatively low pay,
“judges effectively serve for a term dictated by their financial position rather than
for life.” U.S. Courts of Appeal The 94 judicial districts are organized into 12 regional
circuits, each of which has a U.S. court of appeals.24 A court of appeals hears appeals
from the district courts located within its circuit, as well as appeals from decisions
of federal administrative agencies. The U.S. Court of Appeals for the Federal Circuit
and the 12 regional courts of appeal are often referred to as circuit courts. Early in
the nation’s history, the judges of the first courts of appeal visited each of the courts
in one region in a particular sequence, traveling by horseback and riding the
“circuit.” Today, the regional courts of appeal review matters from the district
courts of their geographic regions, from the U.S. Tax Court, and from certain federal
administrative agencies. A disappointed party in a district court often has the
opportunity to have the case reviewed in the court of appeals for the circuit. Each of
the First through Eleventh Circuits includes three or more states. Each court of
appeals consists of six or more judges, depending on the caseload of the court.
Circuit court judges are appointed for life by the president (with the advice and
consent of the Senate). The judge who has served on the court the longest and who
is under 65 years of age is designated as the chief judge. The chief judge performs
administrative duties in addition to hearing cases and serves for a maximum term of
7 years. There are 167 judges on the 12 regional courts of appeal. The U.S. Court of
Appeals for the District of Columbia, which is often called the Twelfth Circuit, hears
cases arising in the District of Columbia and has appellate jurisdiction assigned by
Congress in legislation concerning many departments of the federal government.
The U.S. Court of Appeals for the Federal Circuit (in effect, the Thirteenth Circuit)
was created in 1982 by the merging of the U.S. Court of Claims and the U.S. Court of
Customs and Patent Appeals. The court hears appeals in cases from the U.S. Court of
Federal Claims, the U.S. Court of International Trade, the U.S. Court of Veterans
Appeals, the International Trade Commission, the Board of Contract Appeals, the
Patent and Trademark Office, and the Merit Systems Protection Board. The court
also hears appeals from certain decisions involving the secretaries of the
Department of Agriculture and the Department of Commerce and cases from district
courts involving patents and minor claims against the federal government. Almost
all appeals from federal district courts go to the court of appeals serving the circuit
in which the case was first heard. Federal appellate courts have appellate
jurisdiction over the decisions of district courts within their circuits. Criminal
appeals from federal district courts are usually heard by panels of three judges
sitting on a court of appeals rather than by all the judges of each circuit. A
defendant’s request for appeal, when granted, has been interpreted to mean the
opportunity for one appeal; hence, the U.S. Supreme Court need not necessarily hear
the appeals of defendants who are dissatisfied with the decision of a federal appeals
court. Federal appellate courts operate under the Federal Rules of Appellate
Procedure, although each has also created its own separate Local Rules. Local Rules
may mean that one circuit, such as the Second, will depend heavily on oral
arguments, whereas others may prefer written summary depositions. Appeals
generally fall into one of three categories: (1) frivolous appeals, which have little
substance, raise no significant new issues, and are generally disposed of quickly; (2)
ritualistic appeals, which are brought primarily because of the demands of litigants,
even though the probability of reversal is negligible; and (3) nonconsensual appeals,
which entail major questions of law and policy and on which there is considerable
professional disagreement among the courts and within the legal profession.25 The
probability of reversal is, of course, highest in the case of nonconsensual appeals. In
2013, the Judicial Conference of the United States, the primary policymaking arm of
the federal courts, urged Congress to create 70 permanent new federal judgeships in
appellate and district courts.26 The conference cited a need for 5 new appeals court
judges and 65 new federal judges at the district level.
The U.S. Supreme Court At the apex of the federal court system stands the U.S.
Supreme Court. The Supreme Court is located in Washington, D.C., across the street
from the U.S. Capitol. The Court consists of nine justices. Eight are associate justices,
and the ninth presides over the Court as the chief justice of the United States (Table
7-1). Supreme Court justices are nominated by the president, are confirmed by the
Senate, and serve for life. Lengthy terms of service are a tradition among justices.
One of the earliest chief justices, John Marshall, served the Court for 34 years, from
1801 to 1835. The same was true of Justice Stephen J. Field, who sat on the bench
between 1863 and 1897. Justice Hugo Black passed the 34-year milestone, serving
an additional month before retiring in 1971. Justice William O. Douglas set a record
for longevity on the bench, retiring in 1975 after 36 years and 6 months of service.
You can view the biographies of today’s Supreme Court justices. The Supreme Court
of the United States wields immense power. The Court’s greatest authority lies in its
capacity for judicial review of lower court decisions and state and federal statutes.
By exercising its power of judicial review, the Court decides what laws and lower
court decisions are in keeping with the intent of the U.S. Constitution. The power of
judicial review is not explicit in the Constitution but was anticipated by its framers.
In the Federalist Papers, which urged adoption of the Constitution, Alexander
Hamilton wrote that through the practice of judicial review, the Court would ensure
that “the will of the whole people,” as grounded in the Constitution, would be
supreme over the “will of the legislature,” which might be subject to temporary
whims.27 It was not until 1803, however, that the Court forcefully asserted its
power of judicial review. In an opinion written for Marbury v. Madison (1803),28
Chief Justice John Marshall established the Court’s authority as final interpreter of
the U.S. Constitution, declaring, “It is emphatically the province of the judicial
department to say what the law is.
The Supreme Court Today The Supreme Court reviews the decisions of lower courts
and may accept cases both from U.S. courts of appeal and from state supreme courts.
It has limited original jurisdiction and does not conduct trials except for disputes
between states and for some cases of attorney disbarment. For a case to be heard, at
least four justices must vote in favor of a hearing. When the Court agrees to hear a
case, it will issue a writ of certiorari to a lower court, ordering it to send the records
of the case forward for review. Once having granted certiorari, the justices can
revoke the decision. In such cases, a writ is dismissed by ruling it improvidently
granted. The U.S. Supreme Court may review any decision appealed to it that it
decides is worthy of review. In fact, however, the Court elects to review only cases
that involve a substantial federal question. Of approximately 5,000 requests for
review received by the Court yearly, only about 200 are actually heard. A term of the
Supreme Court begins, by statute, on the first Monday in October and lasts until
early July. The term is divided among sittings, when cases will be heard, and periods
of time for the writing and delivering of opinions. Between 22 and 24 cases are
heard at each sitting, with each side allotted 30 minutes for arguments before the
justices. Intervening recesses allow justices time to study arguments and supporting
documentation and to work on their opinions.
The review of the arrest proceeds in a relatively informal fashion, with the judge
seeking to decide whether, at the time of apprehension, the arresting officer had
reason to believe both (1) that a crime had been or was being committed and (2)
that the defendant was the person who committed it. Most of the evidence
presented to the judge comes either from the arresting officer or from the victim. If
probable cause is not found to exist, the suspect is released. As with a first
appearance, a probable cause hearing should take place within 48 hours. In 1991, in
a class-action suit entitled County of Riverside v. McLaughlin, 31 the U.S. Supreme
Court imposed a promptness requirement on probable cause determinations for incustody arrestees. The Court held that “a jurisdiction that provides judicial
determinations of probable cause within 48 hours of arrest will, as a general matter,
comply with the promptness requirement.” The Court specified, however, that
weekends and holidays could not be excluded from the 48-hour requirement (as
they had been in Riverside County, California) and that, depending on the specifics
of the case, delays of fewer than 2 days may still be unreasonable. During a first
appearance, the suspect is not given an opportunity to present evidence, although
the U.S. Supreme Court has held that defendants are entitled to representation by
counsel at their first appearance,32 and that an indigent person is entitled to have
an attorney appointed for him or her at the initial appearance.33 Following a
reading of the charges and advisement of rights, counsel may be appointed to
represent indigent defendants and proceedings may be adjourned until counsel can
be obtained. In cases where a suspect is unruly, intoxicated, or uncooperative, a
judicial review may occur without the suspect being present. Some states waive a
first appearance and proceed directly to arraignment (discussed later), especially
when the defendant has been arrested on a warrant. In states that move directly to
arraignment, the procedures undertaken to obtain a warrant are regarded as
sufficient to demonstrate a basis for detention before arraignment. Pretrial Release
A significant aspect of the first appearance hearing is the consideration of pretrial
release. Defendants charged with very serious crimes, as well as those thought likely
to escape or to injure others, are usually held in jail until trial. Such a practice is
called pretrial detention. Most defendants, however, are afforded the opportunity
for release. Many jurisdictions make use of pretrial services programs, which may
also be called early intervention programs.34 Such programs, which are typically
funded by the states or by individual counties, perform two critical functions: (1)
They gather and present information about newly arrested defendants and about
available release options for use by judicial officers in deciding what (if any)
conditions are to be set for defendants’ release before trial, and (2) they supervise
defendants released from custody during the pretrial period by monitoring their
compliance with release conditions and by helping to ensure that they appear for
scheduled court events. Learn more about pretrial services at The initial pretrial
release/detention decision is usually made by a judicial officer or by a specially
appointed hearing officer after considering the background information provided by
the pretrial services program, along with the representations made by the
prosecutor and the defense attorney. In making this decision, judicial officers are
concerned about two types of risk: (1) the risk of flight or nonappearance for
scheduled court appearances and (2) the risk to public safety.
Bail Bail is the most common release/detention decision-making mechanism in
American courts. Bail serves two purposes: (1) It helps ensure reappearance of the
accused, and (2) it prevents unconvicted persons from suffering imprisonment
unnecessarily. Bail involves the posting of a bond as a pledge that the accused will
return for further hearings. Bail bonds usually involve cash deposits but may be
based on property or other valuables. A fully secured bond requires the defendant
to post the full amount of bail set by the court. The usual practice, however, is for a
defendant to seek privately secured bail through the services of a professional bail
bond agent. The bond agent will assess a percentage (usually 10% to 15%) of the
required bond as a fee, which the defendant will have to pay up front. Those who
“skip bail” by hiding or fleeing will sometimes find that the court has ordered them
to forfeit their bail. Forfeiture hearings must be held before a bond can be taken, and
most courts will not order bail forfeited unless it appears that the defendant intends
to avoid prosecution permanently. Bail forfeiture will often be reversed if the
defendant later appears willingly to stand trial. In many states, bail bond agents are
empowered to hunt down and bring back defendants who have fled. In some
jurisdictions, bond agents hold virtually unlimited powers and have been permitted
by courts to pursue, arrest, and forcibly extradite their charges from foreign
jurisdictions without concern for the due-process considerations or statutory
limitations that apply to law enforcement officers.35 Recently, however, numerous
states have enacted laws that eliminate for-profit bail bond businesses, replacing
them instead with state-operated pretrial services agencies. Visit the Professional
Bail Agents of the United States at to learn more about the
job of bail bond agent and to view the group’s code of ethics. Alternatives to Bail The
Eighth Amendment to the U.S. Constitution does not guarantee the opportunity for
bail but does state that “[e]xcessive bail shall not be required.” Some studies,
however, have found that many defendants who are offered the opportunity for bail
are unable to raise the money. Years ago, a report by the National Advisory
Commission on Criminal Justice Standards and Goals found that as many as 93% of
felony defendants in some jurisdictions were unable to make bail.
To extend the opportunity for pretrial release to a greater proportion of
nondangerous arrestees, a number of states and the federal government now make
available various alternatives to the cash bond system. Alternatives include (1)
release on recognizance, (2) property bond, (3) deposit bail, (4) conditional release,
(5) third-party custody, (6) unsecured bond, and (7) signature bond. Release on
Recognizance (ROR) Release on recognizance (ROR) involves no cash bond,
requiring as a guarantee only that the defendant agree in writing to return for
further hearings as specified by the court. As an alternative to a cash bond, ROR was
tested during the 1960s in a social experiment called the Manhattan Bail Project.39
In the experiment, not all defendants were eligible for release on their own
recognizance; those arrested for serious crimes, including murder, rape, and
robbery, and defendants with extensive prior criminal records were excluded from
participating in the project. The rest of the defendants were scored and categorized
according to a number of “ideal” criteria used as indicators of both dangerousness
and likelihood of pretrial flight. Criteria included (1) no previous convictions, (2)
residential stability, and (3) good employment record. Those likely to flee were not
released. Studies of the bail project revealed that it released four times as many
defendants before trial as had been freed under the traditional cash bond system.38
Even more surprising was the finding that only 1% of those released fled from
prosecution—the same percentage as for those set free on cash bonds.39 Later
studies, however, were unclear as to the effectiveness of ROR, with some finding a
no-show rate as high as 12%.
Property Bonds Property bonds substitute other items of value in place of cash.
Land, houses, automobiles, stocks, and so on may be consigned to the court as
collateral against pretrial flight. Deposit Bail Deposit bail, an alternative form of cash
bond available in some jurisdictions, places the court in the role of the bond agent,
allowing the defendant to post a percentage of the full bail with the court. Unlike
private bail bond agents, court-run deposit bail programs usually return the amount
of the deposit except for a small administrative fee (perhaps 1%). If the defendant
fails to appear for court, the entire amount of court-ordered bail is forfeited.
Conditional Release Conditional release imposes a set of requirements on the
defendant that might include participation in a drug-treatment program; staying
away from specified others, such as potential witnesses; and attendance at a regular
job. Release under supervision is similar to conditional release but adds the
stipulation that defendants report to an officer of the court or to a police officer at
designated times. See CJ Exhibit 7–1 for a discussion of the different people and
systems involved in making pretrial release decisions. Third-Party Custody Thirdparty custody is a bail bond alternative that assigns custody of the defendant to an
individual or agency that promises to ensure his or her later appearance in court.41
Some pretrial release programs allow attorneys to assume responsibility for their
clients in this fashion. If a defendant fails to appear, the attorney’s privilege to
participate in the program may be ended. Unsecured Bonds Unsecured bonds are
based on a court-determined dollar amount of bail. Like a credit contract, this bail
alternative requires no monetary deposit with the court. The defendant agrees in
writing that failure to appear will result in forfeiture of the entire amount of the
bond, which might then be taken in seizures of land, personal property, bank
accounts, and so on. Signature Bonds Signature bonds allow release based on the
defendant’s written promise to appear. Signature bonds involve no particular
assessment of the defendant’s dangerousness or likelihood of later appearance in
court. They are used only in cases of minor offenses, such as traffic-law violations
and some petty drug-law violations. Signature bonds may be issued by the arresting
officer acting on behalf of the court. Pretrial Release and Public Safety Pretrial
release is common practice. Approximately 57% of all state-level felony
defendants42 and 36% of all federal defendants43 are released before trial. At the
state level, 43% of all defendants are detained until the court disposes of their case.
Murder defendants (88%) are the most likely to be detained. A majority of statelevel defendants charged with motor vehicle theft (61%), robbery (58%), or
burglary (54%) are also detained until case disposition. At the federal level 88% of
defendants in immigration cases were detained, while only 30% of violent offenders
were held until trial.44 A growing movement, arguing that defendants released
before trial may be dangerous to themselves or to others, seeks to reduce the
number of defendants released under any conditions. Advocates of this conservative
policy cite a number of studies documenting crimes committed by defendants
released on bond. One study found that 16% of defendants released before trial
were rearrested, and of those, 30% were arrested more than once.45 Another study
determined that as many as 41% of those released before trial for serious crimes,
such as rape and robbery, were rearrested before their trial date.46 A more recent
study, one which focused on the pretrial release of federal criminal defendants
between 2008 and 2010, found that 22% of those released either violated the terms
of their release, were rearrested for new offenses, or failed to appear for trial. Not
surprisingly, such studies generally find that the longer the time spent between
release and trial, the greater the likelihood of misconduct.47 In response to findings
like these, some states have enacted danger laws, which limit the right to bail to
certain kinds of offenders.48 Other states, including Arizona, California, Colorado,
Florida, and Illinois, have approved constitutional amendments restricting the use
of bail.49 Most such provisions exclude defendants charged with certain crimes
from being eligible for bail and mandate that other defendants being considered for
bail meet stringent conditions. Some states combine these strictures with tough
release conditions designed to keep close control over defendants before trial. The
1984 federal Bail Reform Act50 allows federal judges to assess the danger of an
accused to the community and to deny bail to defendants who are thought to be
dangerous. In the words of the Act, a suspect held in pretrial custody on federal
criminal charges must be detained if “after a hearing… he is found to pose a risk of
flight and a danger to others or the community and if no condition of release can
give reasonable assurances against these contingencies.”51 Defendants seeking bail
must demonstrate a high likelihood of later court appearance. The Act also requires
that a defendant have a speedy first appearance and that a detention hearing be held
in conjunction with the initial appearance if he or she is to be detained. Learn more
about pretrial release at the federal level at In the 1990 case of U.S. v. MontalvoMurillo, 52 how-ever, a defendant who was not provided with a detention hearing at
the time of his first appearance and was subsequently released by an appeals court
was found to have no “right” to freedom because of this “minor” statutory violation.
The Supreme Court held that “unless it has a substantial influence on the outcome of
the proceedings… failure to comply with the Act’s prompt hearing provision does
not require release of a person who should otherwise be detained” because
“[a]utomatic release contravenes the statutory purpose of providing fair bail
procedures while protecting the public’s safety and assuring a defendant’s
appearance at trial.”53 Court challenges to the constitutionality of pretrial detention
legislation have not met with much success. The U.S. Supreme Court case of U.S. v.
Hazzard (1984),54 decided only a few months after enactment of federal bail
reform, held that Congress was justified in providing for denial of bail to offenders
who represent a danger to the community. Later cases have supported the
presumption of flight, which federal law presupposes for certain types of
The Grand Jury The federal government and about half of the states use grand juries
as part of the pretrial process. Grand juries comprise private citizens (ranging in
number from 5 to 23, depending on the state and the grand jury’s purpose) who
hear evidence presented by the prosecution. Grand juries serve primarily as filters
to eliminate from further processing any cases for which there is not sufficient
evidence. In early times, grand juries served a far different purpose. The grand jury
system began in England in 1166 as a way of identifying law violators. Lacking a law
enforcement agency with investigative authority, the government looked to the
grand jury as a source of information on criminal activity in the community. Even
today, grand juries in most jurisdictions may initiate prosecution independently of
the prosecutor, although they rarely do. Grand jury hearings are held in secret, and
the defendant is generally not afforded the opportunity to appear before the grand
jury.56 Similarly, the defense has no opportunity to cross-examine prosecution
witnesses. Grand juries have the power to subpoena witnesses and to mandate a
review of books, records, and other documents crucial to their investigation. After
hearing the evidence, the grand jury votes on the indictment (a formal listing of
proposed charges) presented to it by the prosecution. If the majority of grand jury
members agree to forward the indictment to the trial court, it becomes a “true bill”
on which further prosecution will turn. The United States is one of only a few
countries in which grand juries are still used. In 2014, a grand jury in St. Louis
County, Missouri, grabbed the nation’s attention when it refused to indict Ferguson
police officer Darren Wilson. Wilson shot and killed 18-year-old Michael Brown
during a street-stop that turned violent. The grand jury’s decision led to nights of
protest in cities across the nation by those who felt that the killing of the young
black man was unjustified.
The Preliminary Hearing States that do not use grand juries rely instead on a
preliminary hearing “for charging defendants in a fashion that is less cumbersome
and arguably more protective of the innocent.”57 In these jurisdictions, the
prosecutor files an accusatory document called an information, or complaint,
against the accused. A preliminary hearing is then held to determine whether there
is probable cause to hold the defendant for trial. A few states, notably Georgia and
Tennessee, use both the grand jury mechanism and a preliminary hearing as a
“double check against the possibility of unwarranted prosecution.”58 Although the
preliminary hearing is not nearly as elaborate as a criminal trial, it has many of the
same characteristics. The defendant is taken before a lower court judge, who
summarizes the charges and reviews the rights to which all criminal defendants are
entitled. The prosecution may present witnesses and offers evidence in support of
the complaint. The defendant is afforded the right to testify and may also call
witnesses. The primary purpose of the preliminary hearing is to give the defendant
an opportunity to challenge the legal basis for his or her detention. At this point,
defendants who appear to be or claim to be mentally incompetent may be ordered
to undergo further evaluation to determine whether they are competent to stand
trial. Being competent to stand trial, which was briefly discussed in Chapter 3, may
become an issue when a defendant appears to be incapable of understanding the
proceedings or is unable to assist in his or her own defense due to mental disease or
defect. In 2003, the U.S. Supreme Court placed strict limits on the government’s
power to forcibly medicate some mentally ill defendants to make them competent
to stand trial.59 In the case of Sell v. U.S., 60 the Court ruled that the use of
antipsychotic drugs on a nonviolent offender who does not represent a danger while
institutionalized must be in the defendant’s best medical interest and be
“substantially unlikely” to cause side effects that might compromise the fairness of
the trial. Barring a finding of mental incompetence, all that is required for the
wheels of justice to grind forward is a demonstration “sufficient to justify a prudent
man’s belief that the suspect has committed or was committing an offense” within
the jurisdiction of the court.61 If the magistrate finds enough evidence to justify a
trial, the defendant is bound over to the grand jury. In states that do not require
grand jury review, the defendant is sent directly to the trial court. If the complaint
against the defendant cannot be substantiated during the preliminary hearing, he or
she is released. A release is not a bar to further prosecution, however, and the
defendant may be rearrested if further evidence comes to light.
Arraignment and the Plea Once an indictment has been returned or an information
has been filed, the accused will be formally arraigned. Arraignment is “the first
appearance of the defendant before the court that has the authority to conduct a
trial.”62 Arraignment is generally a brief process with two purposes: (1) to once
again inform the defendant of the specific charges against him or her and (2) to
allow the defendant to enter a plea. The Federal Rules of Criminal Procedure allow
for one of three types of pleas to be entered: guilty, not guilty, and nolo contendere.
A nolo contendere (no-contest) plea is much the same as a guilty plea. A defendant
who pleads “no contest” is immediately convicted and may be sentenced just as
though he or she had pleaded guilty. A no-contest plea, however, is not an admission
of guilt and provides one major advantage to defendants: It may not be used later as
a basis for civil proceedings that seek monetary or other damages against the
defendant. Some defendants refuse to enter any plea and are said to “stand mute.”
Standing mute is a defense strategy that is rarely employed. Defendants who choose
this alternative simply do not answer the request for a plea; however, for procedural
purposes, a defendant who stands mute is considered to have entered a plea of not
guilty. Plea Bargaining In 2012, 53-year-old Kenneth Kassab, of Marquette,
Michigan, was on the verge of pleading guilty to federal charges of illegally
transporting thousands of pounds of explosives, but changed his mind at the last
minute and decided to go to trial.63 Kassab, who always maintained his innocence,
was arrested after his employer had ordered him to use a truck to move a large
number of 50-pound bags of fertilizer similar to those that had been used in the
1995 bombing of the Alfred P. Murrah federal building in Oklahoma City, Oklahoma.
Kassab had thought of accepting a plea deal offered by prosecutors in order to avoid
what might have been a lengthy prison sentence—which a judge could have
imposed had he been convicted at trial. Instead, a week after deciding to reject the
plea arrangement, a federal jury found him not guilty and he was set free. Kassab’s
case is unusual because 97% of all federal criminal defendants agree to plead guilty
rather than going to trial—a significant increase from the 84% who made that
choice in 1990.64 Guilty pleas often are not as straightforward as they might seem
and are typically arrived at only after complex negotiations. Plea bargaining is a
process of negotiation that usually involves the defendant, the prosecutor, and the
defense counsel and is founded on the mutual interests of all involved. Defense
attorneys and their clients will agree to a plea of guilty when they are unsure of
their ability to win acquittal at trial. Prosecutors may be willing to bargain because
the evidence they have against the defendant is weaker than they would like it to be.
Plea bargaining offers prosecutors the additional advantage of a quick conviction
without the need to commit the time and resources necessary for trial. Benefits to
the accused include the possibility of reduced or combined charges, reduced defense
costs, and a shorter sentence than might otherwise be anticipated. The U.S. Supreme
Court has held that a guilty plea constitutes conviction.65 To validate the conviction,
negotiated pleas require judicial consent. Judges often accept pleas that are the
result of a bargaining process because such pleas reduce the court’s workload.
Although few judges are willing to guarantee a sentence before a plea is entered,
most prosecutors and criminal trial lawyers know what sentences to expect from
typical pleas. Bargained pleas are commonplace in both federal and state courts.
Some surveys have found that 94% of state criminal cases are eventually resolved
through a negotiated plea.66 Some Supreme Court decisions, however, have
enhanced the prosecutor’s authority in the bargaining process by declaring that
defendants cannot capriciously withdraw negotiated pleas.67 Other rulings have
supported discretionary actions by prosecutors in which sentencing
recommendations were retracted even after bargains had been struck.68 Some
lower court cases have upheld the government’s authority to withdraw from a
negotiated plea when the defendant fails to live up to certain conditions.69
Conditions may include requiring the defendant to provide information on other
criminals, on criminal cartels, or on activities of smugglers. In 2012, in two decisions
that expanded the authority of judges in the plea-bargaining process, the U.S.
Supreme Court held that the Sixth Amendment right to effective assistance of
counsel applies to all critical states of criminal proceedings, including that of plea
bargaining.70 The Court also held that, “as a general rule, defense counsel has the
duty to communicate formal prosecution offers to accept a plea on terms and
conditions that may be favorable to the accused.” Failure to communicate such
offers to the defendant may be the basis for later appeal, but only where the
defendant can demonstrate a reasonable probability that those offers would have
been accepted and that the plea would have been entered without the prosecution’s
canceling it, or the trial court’s refusing to accept it. Although it is generally agreed
that bargained pleas should relate in some way to the original charges, this is not
always the case. Entered pleas may be chosen for the punishments likely to be
associated with them rather than for their accuracy in describing the criminal
offenses in which the defendants were involved.71 This is especially true when the
defendant wants to minimize the socially stigmatizing impact of the offense. For
example, a charge of indecent liberties, in which the defendant is accused of sexual
misconduct, may be pleaded out as assault. Such a plea, which takes advantage of
the fact that indecent liberties can be considered a form of sexual assault, would
effectively disguise the true nature of the offense. Even though the Supreme Court
has endorsed plea bargaining and protected suspects’ rights during the process, the
public sometimes views it suspiciously. Law-and-order advocates, who generally
favor harsh punishments and long jail terms, claim that plea bargaining results in
unjustifiably light sentences. As a consequence, prosecutors, almost all of whom
regularly engage in the practice, rarely advertise it. Plea bargaining can be a
powerful prosecutorial tool, but this power carries with it the potential for misuse.
Because they circumvent the trial process, plea bargains can be abused by
prosecutors and defense attorneys who are more interested in the speedy
resolution of cases than they are in seeing justice done. Carried to the extreme, plea
bargaining may result in defendants being convicted of crimes they did not commit.
Although it is rare, innocent defendants (especially those with prior criminal
records) who think a jury will convict them—for whatever reason—may plead
guilty to reduced charges to avoid a trial. In an effort to protect defendants against
hastily arranged pleas, the Federal Rules of Criminal Procedure require judges to (1)
inform the defendant of the various rights he or she is surrendering by pleading
guilty, (2) determine that the plea is voluntary, (3) disclose any plea agreements,
and (4) make sufficient inquiry to ensure there is a factual basis for the plea.

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