Awesome
Beautiful
SocofLaw
Winter
2014
Week 2
Week 2
Reading
Notes: Friedman, Ch. 5
Friedman, Lawrence M. 2002. Law in America: a short history. New York, NY: Modern Library.
Chapter 5: Crime & Punishment in the Republic
1. Definition
of Crime:
a. Behaviors
that the state undertakes to punish.
b. Varies
based on culture, time, and place.
c. Exists
in every society.
2.
Crime
& Punishment in Colonial America
a.
All
“evil acts” are crimes. Sin = Crime; violations of moral code were punished on
a regular basis. No such thing as a “victimless crime.” (76)
i.
Example:
fornication/adultery, idleness, breaking Sabbath
b.
Except
for debt, crimes rarely resulted in imprisonment. Death penalty and banishment
were reserved for “hopeless cases” but all colonies did this to some extent.
Punishments were public and bodily, meant to teach the offenders the errors of
their ways. (77-79)
i.
Example:
public degradation, branding, whipping, sitting in the stocks
ii.
Even
the death penalty was carried out in the public square – the hangman.
c. These practices did not apply to
slaves.
3. Criminal
Justice in the Nineteenth Century
a. The
rise of the penitentiary was brought about as urban areas grew and bonds of
tight-knit communities were severed. (81)
i.
Movement against death penalty and
public executions. (89-90)
ii.
Replaced the hangman; goal was to remove
the offenders from society and bring about rehabilitation through discipline
and detachment from the outside world. (81)
iii.
Another goal was “making the system more
rational” by creating a “code” – if an act was not defined by this code, it
could no longer be considered a criminal act. (82) This was meant to make the
system more scientific and professional; to focus on the offender, not so much
the offense. (87)
b. Police
forces began cropping up in U.S. cities by 1850 and nearly every city had a
police force by the late 19th century. (82)
i.
“Corruption and brutality were rampant.”
(83)
c. Reforms
in the late 19th century
i.
penitentiaries were replaced by
“reformatories” which were less harsh.
ii.
Inderterminate sentences, probation, and
parole were inventions meant to deal with each offender and crime on a
case-by-case basis. (83-85)
1. Probation
problematic because power shifted to the probation officer and much of their
determinations were arbitrary and not bound by evidence. (85)
iii.
People’s
concern grew about the treatment of juveniles in the system, and this brought about the rise of juvenile
courts. (85-86)
1.
Problematic
because it wasn’t bound by code, and youths could be sent to “prison”
(reformatories, industrial schools, etc) for things not considered crimes for
adults.
2.
Also
used to deal with abused/neglected/abandoned children and children who lived in
undesirable situations on the streets or in “houses of ill-repute”
iv.
Struggles to define “insanity,” as only
those of sane mind could be convicted of a crime. (87-88)
1. Problematic
because arguments would ensue regarding the sanity of the accused, but despite
best efforts to be scientific, it would come down to gut feelings of the
jurors.
d. Other
issues in 19th Century Criminal Justice:
i.
The death penalty was used less and less
and the list of capital crimes became shorter – eventually being reduced to
just three: treason, murder, and rape. Public executions were mostly done away
with, gallows were erected in private yards at the jails. The electric chair
was brought into use in New York in the 1880s (and over time, several states
adopted this method).
ii.
Criminal Justice “System” is a bit of a
misnomer, as it implies order and “clean lines of authority.”
1. Legislatures,
police, prosecutors, judges, and juries do not make a linear hierarchy, each
operating independently of the others.
2. A
tiered criminal court system processes cases differently in each tier.
a. Plea-bargaining
began sometime in the 19th century and has kept many cases out of
trial courts since.
b. For the first time, defendants were
given the right to testify for themselves.
c. Rules
of evidence became more and more complicated in jury trials.
iii.
The early 19th century
produced the “Victorian Compromise” which acknowledged so-called victimless
crimes and punished only the most blatant offenders. By the late 19th
century (into the 20th century), this had shifted again and “the
battle against immorality heated up.”
a. The
Comstock Law of 1873 made it illegal to distribute “filth” through the mail.
b. An
1895 federal outlawed interstate lotteries.
c. The
temperance movement began in the 19th century and brought on
prohibition of alcohol (the 18th Amendment) and the Volstead Act
which enforced it in the 1920s.
d. A
1907 Arkansas law which banned the manufacture, distribution, and sale of
cigarettes was brought on by this same “battle against immorality.”
e.
Abortions
became a criminal act.
f.
Legal
controls on sexual behavior were tightened. The age of consent was raised from
10 (common law) to 16 in most states and as high as 18 in some (CA, NE, ND, and
TX). A frenzy over the “white slave trade” (prostitution trafficking) ensued
leading to the Mann Act of 1910. The “red-light abatement movement” was an
attempt to close down red-light districts.
iv.
Selling and using drugs were not crimes.
Some regulation existed in the form of laws and ordinances aimed at opium dens,
but otherwise was not an issue in the 19th century.
a. New
technology and social change created the need for changes to the criminal code
and new techniques for “controlling unwanted behavior”
i.
The automobile (invented in the early 20th
century) made certain types of crimes easier (bank robberies, for example).
ii.
Rise in “organized crime” (Mafia,
criminal gangs).
iii.
Late 20th century computers
and the introduction of hackers and “cyberporn.”
b. The
federal government became significantly involved in criminal justice matters.
i.
First
federal prison opened in 1891, on the rise into the 20th
century
ii.
Federal legislation increased the number
and importance of federal crimes: the Mann Act, the National Motor Vehicle
Theft Act, draft evasions, sales of black market beef, tax fraud and evasion, narcotics
and prohibition cases, etc.
1. 1910:
15,371 total federal criminal cases
1932: 70,252 Prohibition cases alone
1932: 70,252 Prohibition cases alone
c. Crime
became an issue of national importance and a focus of presidential politics.
d. J.
Edgar Hoover’s FBI brought the federal government “into the law enforcement
business”
i.
“ten most wanted” list was subject of
public fascination
e. The
advent of mass media (radio, TV, movies) brought national attention to local
issues
f. Enormous
increases in violent crime after 1950 led to enormous changes in policy agendas
and implementation
i.
Supreme Court and state
legislatures’ policy agendas at odds: Warren’s
court was expanding rights for criminal defendants while states were tightening
laws, building more/bigger prisons, dismantling institutions that provided too
many rights & privileges for prisoners
1. California’s
3-strikes law
2. Indeterminate
sentences abolished in several states; mandatory sentencing took its place.
a. “Truth
in Sentencing Laws” implemented in some states ensured that convicts served at
least 85% of sentence
3. Parole
system heavily challenged, eliminated outright in some states.
ii.
Federal
government gave “incentive grants” for building prisons to states that had
tighter laws (listed above).
iii.
The rise of the “American gulag” in the
late 20th century
1. 1997:
1.6 million men and 133K women in prison + 3.9 million on probation/parole
2. 1998:
California had more prisoners than France, GB, Germany, Japan, Singapore, &
Netherlands combined.
3. Violence, extortion, rape became
commonplace in prisons; “factories for crime”
g. Other
issues in 20th Century criminal justice:
i.
in the first half of the 20th
century, the movement away from the death penalty continued – some states
abolished it completely (WI, MI, HI), others reserved it only for murder (and
rape, in the South, if it was committed by black men against white women).
1. 1950
Gallup poll: slight majority AGAINST death penalty; spiked after the 1950s
(declined again in the 2000s)
2. Furman v. Georgia
(1972): SCOTUS declared all existing death penalty statutes unconstitutional in
a 5-4 decision
3. 1976:
Georgia came up with a plan for the death penalty acceptable to SCOTUS –
case-by-case consideration for death penalty, mitigating factors taken into
account by jury, statutory list of “aggravating circumstance,” mandatory review
of each case by GA Supreme Court. Other states followed suit with similar laws.
4. Capital
punishment remains a complicated issue –
a. some
states do not allow it; some allow it but rarely if ever use it; some states
have hundreds on death row but rarely execute anyone.
b. Most
executions occur in Southern and border states.
c. Texas
accounts for 1/3 of all executions (248 executions between 1976 & 2001)
d. Inmates
wait on death row for years, sometimes decades, to be executed.
ii.
The 19th century’s focus on
sexual behaviors was replaced by the war on drugs in the 20th
century
1. The
War on Drugs contributes tremendously to the rise of inmate populations. Life
imprisonment for serious drug offenses is possible in some states.
2. Billions
of dollars spent by federal government on drug enforcement.
iii.
The CJS has a disproportionate impact on
racial minorities (particularly African-Americans), and this has increased over
time.
1. 1939:
26% of prison population was black
2. 1985:
46% of prison population was black
3. 1999:
2.8 times as great as the rate in 1980; 8.2 times as great as the rate for
whites.
4. Almost
1/3 of all black males were in prison, jail, or on probation/parole in the
1990s
5. The
death penalty applied disproportionately to blacks.
6. The
war on drugs affects blacks disproportionately
i.
Crack v. Powder cocaine – crack receives
harsher treatment; 95% of all federal crack prosecutions brought against blacks
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