CRIME AND PUNISHMENT: THE U.S.

CRIMINAL JUSTICE SYSTEM In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders. These are their stories. Thus begins each new episode of the popular television series Law and Order, broadcast on NBC since its debut in September 1990. The shows lead-in statement reminds viewers of two essential aspects of criminal procedure, also mentioned by Lawrence Friedman1: the police arrest, but the prosecutors decide whom to prosecute. The prosecutors can bring a defendant to trial, but the judge can let him go. So can the jurytwelve laypeople, more or less randomly chosen, yet invested with enormous power: a jury deliberates in secret, behind closed doors, without giving reasons for what it does. It is the voice of the communitya voice harsher at times, more lenient at other times, than the voice of formal law. Unlike the judge-made rules of tort and contract, the rules of criminal justice have been codified since the 19th century, in response to the social changes brought about by urbanization and industrialism.

The cities were filling up with a rowdy and bawdy population much different from the small,
tight, godly communities that formed during the colonial period. Riots and disorders were common. The white Anglo-Saxon Protestant (WASP) Americans felt threatened. Hence the need for urban police forces, the development of which is another innovation in the CJS during the 19th century, along with the rise of the penitentiary. Another example of the way in which CJ rules were expressed formally is represented by the CJ code of Pennsylvania, a state that as early as 1794, established the first legal distinction between first-degree murderwillful, deliberate, and premeditated killingand second-degree murder, based on a variety of circumstances: in the case of murder one, these circumstances were special (e.g. killing a police officer or another public official, killing during the commission of a felony such as rape, robbery, or kidnapping, lying in wait for the victim, etc.); second-degree murder was distinguished by mitigating circumstances and the sentence for it was not death, but life imprisonment.

Later in the 19th century and in the period around 1900, the CJS underwent some major reforms: reformatories: unlike the classic penitentiary, a reformatory is more geared toward
rehabilitation rather than absolute regimentation; ex. Elmira, in NY, which opened in 1876. By the end of the 19th century, there were about 88 reformatories in the country. the indeterminate sentence: a man would be sent to prison for a minimum term, at the end of which his fate would be decided by the prison officials who had watched and reported on his behavior. The first general statute on the indeterminate sentence was adopted in NY, in 1889. Many other states followed by the early 20th century Parole: a system of letting prisoners out of prison early, but subject to certain conditions and supervision; it caught on after 1870. Probation, both for children and adults; adult probation entered the law in CA in 1903; under this system, a person convicted of crime is spared prison altogether in exchange for a certain period of supervision by a probation officer. While humanizing the system, this also rendered it arbitrary by
1

Most of the info on this topic comes from chapter 5 of Friedmans book, Law in America: A Short History. The other sources are listed at the end of the document.

shifting power to the probation officer. Probation went mostly to first offenders, and to men or women who pleaded guilty. the rise of the juvenile court, not just for delinquents but also for truants and abandoned children. There were no juries, and usually no lawyers. In CA, immigrant parents made heavy use of the juvenile justice system, as they were frustrated by Americanized and rebellious children, boys who roamed in gangs, girls who stayed out all night and were sexually active. The introduction of the insanity plea: Insanity was an issue in the celebrated trial of Charles Guiteau, in 1881. Guiteau shot president James A. Garfield at the Baltimore and Potomac train station in Washington, D.C.; Garfield died of his wounds two months later. Insanity was Guiteaus only defense, but in the end it was the jurors gut feelings that prevailed, and not the scientific arguments made by doctors on both sides. The jury convicted Guiteau, and he went to his death on the gallows. The above reforms were designed to

shift emphasis away from the offense to the offender himselfhis character, personality,
propensities for evil or for good. It still mattered, however, how serious the crime was, whether forging a check or cold-blooded murder. The reforms tailored justice to the individual case. When crime became a major political issue, as it happened after 1950, the emphasis shifted back to the offense. make CJ more scientific, more professional. The Structure of the CJS There is no single, unified system. There are, in a way, 3 separate layers of CJ, at the trial level, on top of each other:

Courts that deal with petty crimes, or misdemeanors (vagrancy, prostitution, drunkenness,
etc.): municipal courts, or police courts, or courts of the justices of the peacethe name varies. Process here is hasty and careless, and punishment may include fines and county jail sentences. Courts that handle ordinary but serious crimes, or felonies (burglaries, aggravated assaults, forgeries, and rapes). Felony prosecutions are the domain of the jury, but this is a shrinking domain, as jury trial has been gradually replaced by the guilty plea. The guilty plea has become part of the relatively unfair process of plea bargaining (in exchange for the defendants admission of guilt, the prosecutor agrees to drop some charges or to ask for a milder sentence). Courts that handles lurid, sensational cases, involving dangerous killers, gangsters, celebrities, etc. Here due process receives due attention, for the jury is meticulously selected and lawyers take advantage of every trick of the trade. (Hence the often misleading message that, when the defendant is let off, justice is essentially a fraud). These trials can go for weeks, even months, and they are highly publicized. The Death Penalty in the 19th century

In some states, only murder qualified for the DP. Michigan became the first state to abolish the
DP on March 1, 1847, and March 1 is now International DP Day.

 There was also a movement to end public executions; NY did this in 1835.2 But in the west it
was unofficially alive in the form of vigilante justice. In the south, it survived in the form of lynch law. The last public execution in the US was that of a black man, in 1936, in Owensboro, KY.3 NY was also the first state to replace the execution by hanging with the electrical chair, in the 1880s. This was superseded by the gas chamber (beginning with 1924) and then by lethal injection (the most common method of execution since the mid 1980s). In 1892, the federal government reduced the number of federal crimes to 3: treason, murder, and rape. In the decade of the 1910s, about 100 people were executed each year in the US. The Lizzie Borden Trial (1893)

perhaps the most famous case of the 19th century: Lizzie Borden was charged with the brutal murder of her father, Andrew Borden and his second wife, Abby Borden in their home in Fall River, Massachusetts, on August 4, 1892; Not only wasnt there any direct evidence against LB (the murder weapon, presumably an axe, was never found), or any clear motive (other than her alleged hatred against her stepmother4), but pleading on her behalf at the trial, Ex-Gov. Robinson instructed the jury to recognize that such acts are physically and morally impossible for this young woman. He also reminded the jury that in olden days sacrifices were offered, but in these days we dont even hang witches in Massachusetts. In his turn, the District Attorney for the State replied that even those who stand close to the sanctuary are not free from the taint of sin. He revealed his misogynism by stating that women make up for lack of strength in cunning, their hates are more undying, more unyielding, and their passions stronger. The foremost of the murderers of the early ages were women, and they have even come down to these times. . . . The arm that wielded that hatchet was strong only in hatred. As Friedman points out, a whole way of life, that of WASPs, was on trial, which also explains her acquittal: LB was churchgoing and a member of a prominent family; to accuse such a person of so hideous a crime was to suggest a seething cauldron of corruption and pathology under the smooth surface of bourgeois life. It was to suggest that her way of life was stifling, frustrating that her respectability was a kind of prison that drove her mad. It was, in fact, too unthinkable for the jury.

REDEFINING CRIME The nineteenth century saw a redefinition of the concept of crime. The Victorian Compromise

In Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776-1865, Louis Masur describes how, in the 1830s, public hangings were abandoned in favor of executions in the seclusion of prison yards.
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Angela Carters short-story The Fall River Axe Murders (1991)a tale of victimization that, in emphasizing Lizzie Bordens nostalgia for lost affection (following the death of her mother), makes her seem less monstrous.

 Whereas the Puritans saw no difference between sin and crime, 19th century people were mainly
concerned with controlling vice, rather than wiping it out altogether. This was called the Victorian compromise, geared towards keeping vice illegitimate and in its placethat is, within socially acceptable limits. Victimless Crime The Victorian compromise broke down in the late 19th century, as there was a new, heightened emphasis on victimless crime. The battle against immorality (gambling, drinking, prostitution, etc.) heated up and extended well into the 1920s.

This was the period of a strong temperance movement, which ended up with the Eighteen
Amendment (1919) and the Volstead Act, which Congress passed to enforce the amendment. The act made it a crime to make or sell liquor in almost any guise. Millions violated and got away with it; but many thousands were caught, fined, or even jailed. The noble experiment, as Herbert Hoover called it, proved, however, a dismal failure, dying in 1933, when the Twenty-first Amendment put an end to Prohibition by replacing the Eighteenth Amendment. Since the use of alcohol was often associated with such social ills as poverty and insanity, temperance often went hand in hand with other reform movements. The Comstock Law of 1873: an act of Congress, named after Anthony Comstock, a onetime dry goods salesman who became obsessed with the idea of stamping out all forms of smut and immorality. The law made it a crime to disseminate what Comstock and others considered filth through the mails (including any material on contraception.) Abortion became a criminal act. The campaign against abortion resulted in the death of Madame Restell (born Ann Trow), the most famous and successful of the early 19th century NY abortionists. She had gotten rich selling female monthly pills and catering primarily to well-off married women. Hounded by the authorities, she committed suicide, slitting her wrists in the bathtub of her NY home. Initially met with fierce opposition to her ideas, Margaret Higgins Sanger (1879-1966), a nurse from NY, gradually won some support for a womans choice to decide how and when, if ever, she will bear children. On October 16, 1916, Sanger opened a family planning and birth control clinic in Brooklyn, the first of its kind in the United States. It was raided nine days later by the police. She served 30 days in prison. An initial appeal was rejected but a state appellate court in 1918 allowed doctors to prescribe contraception. Legal controls over sexual behavior were tightened. The age of consent was raised from 10 (according to common law) to 18 (in some states, such as CA, Nebraska, and North Dakota) and 16 in almost every other state. This was also a period of concern about the so-called white slave tradethe victims of which were young, innocent, needy girls, often country girls unfamiliar with the big city. Added to this was a horror of foreign prostitutes. The Mann Act (1910) made it a crime to harbor any alien prostitute or to transport any woman or girls across state lines for purposes of prostitution and debauchery. The nations first black heavyweight boxing champion Jack Johnson was prosecuted under the Mann Act, most likely because his girlfriend was white.5

Sen. John McCain has recently requested a posthumous presidential pardon for Jack Johnson, claiming that Johnson was wronged by the 1913 conviction (10 months in prison), which is widely seen as racially motivated.

The Mann Act eventually became almost meaningless, as the government stopped prosecuting people who were simply immoral and had no connection with the traffic in sex. The red-light abatement movement was a serious but unsuccessful attempt to close down the red-light districts. CRIMINAL JUSTICE IN THE 20TH CENTURY New technology and new social situations create new problems, and the criminal code responds accordingly. In the 20th century, the automobile revolutionized certain forms of crime, including bank robbery. This was also the century of organized crime, the mafia, and criminal gangs. The War on Drugs: the sole survivor of the hot war against vice Sex and drugs have traded places in the legal system. In the 19th century, sex outside of marriage, was theoretically at least a crime in many states; but it was not a crime to buy, sell, or use opium. Today the situation is basically reversed. The old lawsagainst fornication, adultery, and sodomysurvive mostly in parts of the south. Even the enforcement is at best sporadic. The Supreme Court has struggled in vain to define obscenity; meanwhile, pornography is not only basically legal, but it floods the Internet. (More on this in the last course lecture). By the end of the 20th century, the penal codes of the states eliminated most of the victimless sexual crimes. In many states, the war on drugs has resulted in harsher and harsher laws, including life imprisonment and even death.6 Congress enacted an Opium Exclusion Act in 1909. The most important step was the Harrison Narcotics Act, a federal statute of 1914. Its aim was to centralize control of drug use in the medical profession. In Webb v. U.S. (1919), the Supreme Court ruled that any doctor who prescribed drugs for an addict was breaking the law. The Rise of the FBI

The FBI, under J. Edgar Hoover, marked the entry of the federal government into the law
enforcement business. The FBI list of the ten most wanted fascinated the public in the 1920s and 30s; Scarface, Al Capone, and other celebrity gangsters like Bonnie and Clyde, were notorious figures. The FG began to invest in CJ, for ex., by giving grants to local police depts. During WWII, the government prosecuted draft evaders, butchers who sold black market beef, and landlords who violated rent control laws. Dumping toxic wastes into rivers was not a crime until the passage of environmental laws (from the late 1960s through the early 1980s).

In 2001, 8 days after Timothy McVeigh had been executed on June 11, Juan Raul Garza, a narcotics smuggler who admitted to ordering drug-related murders, is put to death by the federal government on the same gurney.

The murder rate skyrocketed in the postwar period, putting great pressure on the political system. Ironically, at the very time the Supreme Court, headed by Chief Justice Earl Warren, was expanding the rights of African-Americans and of criminal defendants (see below) the states initiated a program of: tightening laws: one example is the three strikes law in CA, under which a prisoner convicted of a third serious felony faced, in effect, life imprisonment. In the most notorious case, one Jerry Dewayne Williams found himself facing a possible sentence of 25 years to life for stealing a slice of pepperoni pizza from four kids in Redondo Beach, Ca. In the end, the judge reduced Ws prior felonies to misdemeanors. eliminating the indeterminate sentence eliminating parole in some states, which adopted sentencing guidelines that divided crimes into multiplex categories. cutting down on time off for good behavior by passing (1984, WA state) truth in sentencing lawslaws that required convicts to serve at least 85 percent of their sentence. building new and bigger prisons. Landmark Decisions Expanding Defendants Rights: The Right to Counsel

Gideon v. Wainwright (1963)

Clarence Earl Gideon was arrested for breaking into a poolroom in Florida in 1961. When he requested a court-appointed lawyer to defend him, the judge denied his plea, saying that state law required appointment of a lawyer only in capital cases. Gideon defended himself and was found guilty. While in prison, he spent hours in the library studying law books and handwriting a petition to the Supreme Court to hear his case. The U.S. Supreme Court decided that Gideon had been denied a fair trial and ruled that every state must provide counsel for people accused of crimes who cannot afford to hire their own. When Gideon was retried with the help of a defense attorney, he was acquitted. Just three years later, in Miranda v. Arizona, the Supreme Court decided that the accused should have the right to counsel long before they get to a courtroom.

Miranda v. Arizona (1966)

Ernesto Miranda was convicted in a state court in Arizona of kidnapping and rape. His conviction was based on a confession Miranda gave to police officers after two hours of questioning, without being advised that he had the right to have an attorney present. In its ruling the Supreme Court required that police officers, when making arrests, must give what are now known as Miranda warnings7 that suspects have the right to remain silent, that anything they say may be used against them, that they can have a lawyer present during questioning, and that a lawyer will be provided if they cannot afford one. The Death Penalty In the first half of the 20th century, the DP was abolished by some states, while in others, it was used only for murder. Today some dozen or so states have no DP at all. Others have it on the books, but have not put anyone to death since the 70s. A fairly large group of statesCA among themhave hundreds on death row, but execute very few of them. The vast bulk of the executions take place in the south and in the border states (Louisiana and Texas).
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In October 2007 the Supreme Court ordered a stay in an execution in Mississippi in order to assess the constitutionality of lethal injection. This de facto moratorium on the DP ended in April 2008 when the Supreme Court upheld Kentuckys method of execution by lethal injection, rejecting the claim that the particular drug combination involved causes suffering that amounts to cruel and unusual punishment, in violation of the Eighth Amendment.

Landmark Cases
Furman v. Georgia (1972) On August 11, 1967, the victim awoke in the middle of the night to find William Henry Furman, a 26year-old African-American, burgling his house. At trial, Furman said that while trying to escape, he tripped and the weapon he was carrying fired accidentally, killing the victim. Because the shooting occurred during the commission of a felony, Furman was charged for murder, which made him eligible for the death penalty under then-extant state law. And because Furman couldnt afford a lawyer, the Superior Court of Chatham County, GA, appointed one. The trial last just one day, during which the Court denied Furmans insanity plea and found him guilty based largely on his own statement. He was sentenced to death on April 24, 1969. But on May 3, 1969, Chief Justice W. H. Duckworth stayed the execution so that Furman could file a petition with the U.S. Supreme Court. Furman was no longer represented solely by court-appointed counsel: his case had generated some publicity, and several lawyers were now handling his appeal. On 17 January 1972 the parties argued their case before the U.S. Supreme Court in Washington, D.C. The Court had agreed to hear the case to answer the legal question of whether the death penalty violates the Eighth Amendment to the U.S. Constitution, which states that Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 8 The Courts opinion, issued on June 29, split 5 to 4 in overturning the imposition of the death penalty on the grounds that in Furmans case, the DP constituted cruel and unusual punishment. There were in fact nine separate opinions, one for each justice. For the most part, Justice William O. Douglas opinion spoke for the five-member majority. He noted that English law had evolved to consider the death penalty unfair when applied selectively to minorities. In America, the Court had already held that discriminatory enforcement of the law violates the equal protection clause of the Fourteenth Amendment. Therefore, if a death penalty statute was applied in a discriminatory manner, it was unfair and constituted cruel and unusual punishment. For Furman, the death penalty was unfair because there had not been enough protection for him at trial. Significance: the decision placed stringent requirements on DP statutes, protecting minorities and other historically oppressed groups. However, the case did not give the states much guidance on how to make their DP statutes comply with the Eighth Amendment. Gregg v. Georgia (1976) reaffirmed the Supreme Courts acceptance of the use of the DP and established the division of a capital trial into two phases. First came the guilt phase. Next, if the jury found the defendant guilty, came the penalty phase. This was a kind of second trial, to decide on life or death. The statute required the jury to consider any mitigating circumstances and had a long list of special circumstancesfrom killing a police office to racially motivated murdersthat justify the DP.
8

The phrase is taken from the English Bill of Rights of 1689.

Speaking of special circumstances, even die-hard opponents of the DP kept quiet when Timothy McVeigh was put to death in 2001. He had, after all, set off a bomb that killed 168 people. Rape used to be a capital crime in the southern statesbasically for black men who raped white women. Later, however, the Supreme Court struck down the statutes that allowed the death penalty for rape. In Coker vs. Georgia (1977), the Court ruled that use of the death penalty in rape cases is unconstitutional because the sentence is disproportionate to the crime, since the rape did not result, or was not intended to result, in the childs death. in Kennedy v. Louisiana (2008), the Court struck down a law that allows the execution of people convicted of raping a child. In a 5-4 vote, the Court said the Louisiana law allowing the death penalty to be imposed in such cases violates the Constitutions ban on cruel and unusual punishment, as well as a national consensus on the issue. Arguments for the DP: it deters and reduces crime; it saves money and lives; it gives victims family emotional closure. Arguments against the DP: the risk of executing innocent people9; its inconsistent applicationa failure to distinguish among various kinds of homicide; allotting more funds to crime prevention would prevent more murders than whatever number, if any, would deter. THE COLOR OF CRIME AND PUNISHMENT IN THE U.S. Crime and punishment in America have a colorjust turn on a television, or open a magazine, or listen carefully to the rhetoric of a political campaignand you will see what I mean.Glenn Loury, A Nation of Jailers Crime is also highly correlated with income and class, which in turn are closely bound up with race.

In 1939, 26% of the prison population was black, and in 1985, 46 %. Almost a third of young black males were either in prison, jail, or on parole in the 1990s. The DP affects blacks at a much greater rate than whites. The same holds true of the war on drugs. In the past, the whole system of criminal justice was colored by prejudice, and not only in the south. Whether this is still the case is a matter of some dispute. After all, today there are black judges, lawyers, and prosecutors, and blacks sit on juries. But, as Friedman reminds us, in a society intensely conscious of race, prejudice may work in subtle ways, hard to detect. Racial profiling is a case in point. In his turn, Glenn Loury calls attention to the racial disparity in punishment policies in the U.S., which he sees as a morally troubling residual effect of the nations history of enslavement, disenfranchisement, segregation, and discrimination. Not only does America imprison at a far higher rate than other industrial democracies, but its harsh punitive methods indicate that the goal of the prison system is not rehabilitation or reform, but retribution.10 Thus, two thirds of state prison inmates are poorly educated black and Hispanic men residing in urban centers. Loury blames the American society for first tolerating crime-promoting conditions in the sprawling urban ghettoes and then pointing its fingers at/punishing the lawbreakersthe scapegoats it has created to assuage its fears and indulge its need to feel virtuous about itself.

In a number of sensational cases, men on death row went free after DNA evidence or some other dramatic turn of events proved they were innocent. 10 Friedman maintains, however, that in recent years, federal courts extended the rights of prisoners as well by declaring whole state systems of prisons unconstitutional because of filth, neglect, and brutality.

Noting that pathological or dysfunctional behavior is not independent of the behavior of the people who stand outside the contexts in which it may occur, Loury insists that problems of the urban underclass involve the entire society: hence, the fundamental premise that should guide us is that we are all in this together.

The O.J. Simpson Trials (1995-1997) The criminal trial of former football star O.J. Simpson was among the most highly publicized trials in U.S. history. Simpson was acquitted of murder, but found guilty of wrongful death11 in a later civil lawsuit filed by the parents of Nicole Brown Simpson and Ronald Goldman. The lengthy criminal trial, for the murders of his former wife, Nicole Brown Simpson, and Ronald Goldman, a local restaurant waiter, was nationally televised. In the civil trial, a jury in February 1997 awarded the heirs of the victims a total of $33.5 million. Simpson hired a group of lawyers the media called the Dream Team, because of their high fees and notoriety. This group included Johnnie Cochran, who had defended other celebrities such as Michael Jackson. In both proceedings, but especially in the criminal trial, the issue of race played a dominant role. Simpson, an African American, was portrayed by his attorneys as another victim of the racist beliefs and behavior of members of the Los Angeles Police Department (LAPD). 12 The defense team asserted that the LAPD fabricated the physical evidence and that Simpson had been on his way to a golf outing in Chicago when the crimes were committed. In its opening statements the prosecution argued that Simpsons history of domestic violence against Nicole Brown Simpson showed a link to her murder. His pattern of abuse and his need to control his former wife culminated, according to Clark, in her murder, the final and ultimate act of control. When the verdict was finally read on October 3, 1995, some 142 million people listened or watched. It seemed the nation stood still, divided along racial lines as to the defendant's guilt or innocence. The case fits the category of lurid, sensational cases which, according to Friedman, feed the perception that dangerous killers and gangsters can buy their way out of the system. While there is an element of truth in this, the further conclusion, that the system is riddled with errors in such a way as to let too many criminals off, is wide of the mark. Sources
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Wrongful death is a claim in common law jurisdictions against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives. It is often easier for a family to seek retribution against someone who kills a family member through tort than a criminal prosecution. However, the two actions are not mutually exclusive; a person may be prosecuted criminally for causing a persons death (whether in the form of murder, manslaughter, criminally negligent homicide, or some other theory) and that person can also be sued civilly in a wrongful death action. 12 Simpsons lawyers argued that their client was framed by a racist police detective, Mark Furhman, who had previously been recorded on tape making racist statements about black Americans. Furham was accused of planting a leather glove with the blood of the victims at the scene of the crime.

Capital Punishment TimelineCBS News http://www.cbsnews.com/elements/2007/10/16/in_depth_us/frameset3374729.shtml The New York Times. April 17, 2008. http://topics.nytimes.com/top/reference/timestopics/subjects/c/capital_punishment/index.html?scp=1spot&sq=death%20penalty&st=cse O.J. Simpson.Further Readings. http://law.jrank.org/pages/10289/Simpson-O-J.html Will Go to the Jury Today. The New York Times. June 20, 1893. Reprinted in Retellings: A Thematic Literature Anthology. Eds. M.B. Clark and A.G. Clarke. McGraw Hill, 2003. http://law.jrank.org/pages/12834/Furman-v-Georgia.html http://www.oyez.org/cases/2000-2009/2007/2007_07_343/

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