KIM WOODS Assignment 2A: Research Paper Topic

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P A R T I

Introduction to the Courts

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Step 1

A Society Designs Laws

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The judge’s powerful shouts of “Order in the court!” combine with the pounding of his gavel, but these sounds are easily overpowered by the clamor of the courtroom spectators, many of whom are eyewitnesses in the murder trial. As usual, the court- room is packed with people of all ages, shapes, and sizes. The prosecutor and defense attorney, both well-prepared adversaries, have butted heads throughout the trial, but now defense attorney Perry Mason has gained the upper hand by skillfully maneuvering the prosecution’s star witness into confessing on the stand. The courtroom murmur is slow to subside as the poor fool continues to provide all the sordid details of the infamous crime, while the court stenographer records every word he says and all the other eyewitnesses and the prosecution look on in utter disbelief. Justice triumphs again as the former witness trades places with the inno- cent accused as the focus of inquiry.

This courtroom scene is familiar to most Americans and may form the basis of their information about the courts. Unfortunately, legal docudramas like Perry Mason are best viewed as entertainment rather than education. This is not to downplay the value of Perry Mason and his fellow television attorneys. Together, they generate and maintain interest in the courts, and it may be shows like Law & Order, or The Prac- tice, or Judge Judy that sparked your interest in knowing more about the courts. How- ever, these programs should not be seen as examples of real courtroom activity.

This book will take you on a tour of America’s courts from the design of laws to the trial and beyond. You will learn about those who make the courts work, from the judges and attorneys to the citizens who might serve as witnesses, jurors, vic- tims, or defendants. When you have completed this book, you will be familiar with numerous court processes and will be able to point out the factual errors in your favorite (or least favorite) legal docudrama. Let the tour begin!

This first step will introduce you to the courts and the role they play in soci- ety. It will also present a brief discussion of our legal heritage and the nature of criminal law. We will also discuss some case studies that help explain courts and the law, then finish up with some justice themes for you to consider.

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THE CREATION OF LAWS

Any welcome to the courts would have to begin with how laws come to be and the rules for lawmaking. In democracies like ours, laws are bodies of rules enacted by public officials. The legislative branch of government (state or federal legislators) enacts laws. Once enacted, laws are then enforced by the executive branch, which controls law enforcement agencies. The judicial branch acts as more of a referee by applying laws and making sure laws are valid when compared to the principles in the United States Constitution and other important American legal documents, including prior court decisions. Because we have a system of checks and balances, no single branch is free to act without some oversight from the other two branches.

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4 A Society Designs Laws

The Capitol in Washington, D.C., is the premier site of federal lawmaking in this country. The building houses the meeting chambers for Congress, which includes the Senate and House of Representatives. Citizens (such as the group on the steps holding banners) sometimes try to drum up support for laws in order to get them sponsored by a legislative representative. Though most of Congress’s work is done in committees, the public is invited to observe them at work in the chambers. After discussions, some- times brief, but often protracted, votes are cast by the lawmakers. If you want to see lawmaking in progress, you could also visit your local town or city hall, or travel to your state’s capital and view the state legislature, which is empowered to create laws that apply to a whole state rather than one jurisdic- tion. Federal laws are the purview of Congress in Washington, D.C., and federal executive agencies such as the Environmental Protection Agency. SOURCE: Courtesy of Jon’a Meyer. IS

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Neonaticide As a Case Study

Let us consider neonaticide as a case study to illustrate how laws come to be. Neonaticide, the killing of a newborn within the first twenty-four hours of life, has become a common topic of discussion in the past few years, in part because of the intense media coverage of Amy Grossberg and Brian Peterson, whose newborn son was discovered in a garbage bin in Delaware in November 1996. Because of this coverage, the public became immediately convinced that the incidence of neonati- cide is increasing and demanded penalties to deter the crime in the future.

Actually, neonaticide has been around since ancient times. The early Greeks left unwanted newborns on hillsides to die of exposure. Tribal societies around the world practiced neonaticide to regulate births when resources were scarce or the number of children grew too large for the community to support. These early soci- eties considered neonaticide to be an acceptable form of postpartum birth control.1

Neonaticide was tolerated in early and medieval England, but it began to attract the public’s attention and condemnation during the sixteenth and seven- teenth centuries in Europe. Citizens began to question the morals of young women who engaged in extramarital sexual intercourse and, after skillfully concealing their pregnancies, disposed of the evidence of the disgraceful liaisons. To compli- cate matters, women who were formally charged with murdering their illegitimate newborns often claimed that the children had been born dead and then disposed of by the distraught mothers. The lack of available medical knowledge made it diffi- cult to prove otherwise.

The topic continued to gather more and more interest and generated increas- ing concern about the actions until finally Britain’s parliament passed the 1624 Act to Prevent the Destroying and Murdering of Bastard Children, which doomed any woman who concealed the death of her illegitimate child. The 1624 Act held that mothers who could not produce at least one witness to corroborate their claims of stillborn children would be put to death as in other murder cases. As a side note, one way to escape the death penalty was to claim the “benefit of linen.” Women who had taken concrete steps to prepare for the birth of their children, including the manufacture of the child’s linen birth goods (blankets, clothing, etc.), were considered to have planned for a live birth and were eligible for acquittal.

Curiously, the Act applied only to illegitimate children born to unmarried women (Ledwon, 1996, p. 5). The first part of the 1680 version of the Act is pre- sented in Box 1.1. (NOTE: Numbered boxes appear throughout the text to provide you with additional material to help you understand how courts and law operate; they contain in-depth quotes or excerpts from court cases, summaries of actual cases, tables, graphs, and other important material.) As you read the Act, consider the motivations behind the law (i.e., what the lawmakers envisioned was causing neonaticides). What can we say about the society in which this law was written?

The disapproval of neonaticide was by no means limited to England, as Scot- land passed similar legislation in 1690. Once the laws were in place, women could

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be, and were, hung for the deaths of their newborns, regardless of whether they had actually killed the children. Deterrence was definitely in the air, as judges handed down harsh penalties. One midwife who had allowed pregnant girls to live in her house and had then helped them kill and dispose of their unwanted infants was roasted alive in a cage with sixteen wildcats for her crimes (Unknown, 1673).

Reading the Act illuminates a great deal about lawmaking. First, the Act describes the problem at hand. Policymakers perceived an increase in sexually active unmarried women (i.e., “lewd women”) killing their newborns following concealed pregnancies. The policymakers attribute this to the shame associated with illegitimate children and also to a fear of punishment (it is important for us to remember that nonmarital sexual relations and illegitimate births at that time in history subjected women to whippings, incarceration, and other punishments [Hof- fer and Hull, 1981, pp. 13–14]). Community leaders also saw this law as a way to get around the difficulty of establishing proof in cases that might be otherwise impossible to prove (absent marks of violence on the victim’s body, scholars in the early 1600s had no forensic tests to ascertain whether a child had been born alive). Indeed, it was hoped that this law would eliminate, through deterrence, the prob- lem of discarded newborns, especially as denouncing the crime in church had not achieved that goal.

One of the most interesting features of this law is that it departs from the Anglo-Saxon legal maxim “innocent until proven guilty.” The Act was atypical in this regard. The rationale for England’s Parliament to eliminate the burden of proof

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6 A Society Designs Laws

BOX 1.1

The Text of the 1680 Act to Prevent the Destroying and Murdering of Bastard Children

Whereas many Lewd Women that have been delivered of Bastard Children, to avoid their shame and to escape punishment do secretly bury or conceal the Death of their Children; and after, if the Child be found dead, the said Women do alledge that the said Child was born dead, whereas it falleth out some times (although hardly it is to be proved), that the said Child or Children were Murthered by the said Women, their lewd Mothers, or by their assent or procurement.

For the preventing therefore of this great mischief, Be it Enacted by the Authority of this present Parliament, that if any Women after one month next ensuing the end of this next Session of Parliament, be delivered of any Issue of her body, Male or Female, which being born alive, should by the Laws of this Realm be a bastard, and that the endeavour privately either by drown- ing or secret burying thereof, or any other way, either by her self or the procuring of others, so to conceal the death thereof, as that it may not come to light, whether it were born alive or not, but be concealed; In every such case, the said Mother so offending shall suffer Death, as in case of murther, except such Mother can make proof by one Witness at the least, that the Child (whose death by her so intended to be concealed) was born dead (Vvagstaffe, 1680).

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for neonaticide lies in the pressure on legislators to reduce the incidence of new- born murders, which were attributed to poor servants whose sexual liaisons had been condemned by policymakers for some time. What was society to do when prosecutors could not prove that newborn after newborn was being delivered alive and then murdered? The Act against neonaticide shows how desperate the courts and legal system must have been. Of interest, it was not until 1803 that the law was changed to require the prosecution to prove the victim was born alive, making the burden of proof similar to other murder cases (Rose, 1986, p. 70).

Note also that the law spells out clearly the evidence required for a woman to avoid conviction and execution if her newborn was found dead after a concealed pregnancy (i.e., having “one Witness at the least” who could testify that the child was stillborn). Although most modern laws are the opposite because they provide the requirements for conviction (e.g., a person who “threatens another with” bodily harm during the course of a theft is guilty of robbery in New Jersey, Penal Code 2C:15–1), some do provide circumstances that point to a defendant’s innocence. Married individuals who marry a second spouse can be convicted of bigamy in New Jersey, for example, “unless at the time of the subsequent marriage” one of four spe- cial circumstances is present, such as believing one’s first spouse is dead or “reason- ably” believing one is “legally eligible to remarry” (NJ Penal Code 2C:24–1). Still, the law against neonaticide is unique in that it automatically promoted to capital murder the concealment of any dead newborn’s body, making it an early example of a felony murder law (you will learn about felony murder laws in Step 2).

Another very important concept is illustrated by the Act against neonaticide. Note that the law applied only to births that occurred after a future date (i.e., those occurring “after one month next ensuing the end of this next Session of Parliament”). This meant that women who had concealed the births of bastard newborns before that time could not be prosecuted under this law. It appears that long before the United States and our Constitution, the idea of ex post facto laws was already consid- ered repugnant. You will learn more about ex post facto laws later in this chapter.

Unfortunately for the legal system, the Act did not eliminate neonaticide and the law fell out of favor with the public, who felt it was too harsh. During periods of economic difficulties, juries began to acquit maids and household servants whose homicidal actions appeared to be based on desperation rather than deprav- ity. During the height of the Victorian era and the Industrial Revolution, deaths of children rose. During 1863–1887, infanticides comprised more than 60 percent of all recorded homicides in England (Rose, 1986). Child deaths were also common in nineteenth-century Ireland where, between 1866 and 1892, women killed their infants nearly 100 times more often than they killed older children or husbands (Conley, 1995). Despite the fact that the rate of infanticides remained high (Langer, 1974, p. 359), the rate of convictions by jury declined (Conley, 1995, p. 801; Jones, 1980, p. 62). Neonaticide, although still illegal and still occurring at high rates, seemed to go unpunished.

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Some questions for you to consider are:

• What was going on that first attracted attention from the public and from lawmakers?

• Why were the laws written the way they were? • Why did juries begin acquitting women, even after clamoring for harsher

sentences? • Why did the sentences return to being harsh? • What lessons can we learn from this case study that could help contempo-

rary lawmakers, who have recently been asked to craft new legislation to deal with the problem of women who kill their newborns?

Lessons Learned from the Neonaticide Case Study

The preceding case study illustrates several points about lawmaking. First, an action must attract condemnation before laws are designed to eliminate it. In the case of neonaticide, the killing of newborns progressed from being socially accepted to socially condemned (although different segments of society reacted differently to the problem). If you look at the history of other laws, you will often see a similar pattern. Megan’s Law (which requires sexual offenders to register with authorities so their neighbors will know there is a sex offender living in their communities), for example, followed public outcry during the 1990s about pedophiles who continued to victimize children even after treatment and/or punishment in the criminal justice system. The law was named for Megan Kanka, a seven-year-old who in 1994 was murdered in New Jersey by a twice-convicted child sex offender. All fifty states now have some version of Megan’s Law, and federal law mandates that states create and maintain Megan’s Law databases, or they lose part of their federal funding for law enforcement (Koenig, 1998, pp. 725, 729).

The neonaticide case study also illustrates the flexibility of the law in terms of reducing an individual’s ability to avoid prosecution through creative excuses or defenses. In the case of neonaticide, public disapproval became so high that law- makers made any woman who concealed her pregnancy liable for the death penalty if her child was found dead, even if she claimed the child had been stillborn. In many respects, contemporary mandatory sentences reflect the ability of the law to ensure that criminals receive the punishments that the public (through their legisla- tors) feel are appropriate for their crimes.

The third point illustrated by this case study is that jurors who feel the penalties for a given crime are too harsh may ignore the law. When jurors began acquitting women in large numbers for committing neonaticide, the laws were, in fact, rewrit- ten. In 1866, England’s legislative body reacted to the softened public sentiment by considering a bill that would regard infanticide as a less serious form of homicide than other killings; the bill did not get enough support to make it law but demon-

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strates that the legislature was aware of the change in attitude toward neonaticide. Then, in 1922, England’s lawmaking body passed a new law that made those who committed infanticide eligible for treatment rather than punishment. Contemporary jurors continue to acquit those they feel may be guilty but undeserving of poten- tially harsh punishments called for by law, or guilty parties they feel were unfairly treated by the justice system (e.g., criminals who were discriminatorily selected for arrest or who were mistreated by police). In refusing to convict, the juries send a message to the justice system that the public does not agree with the laws as written or that they disapprove of actions taken by the justice system.

Finally, this case study shows how societal sentiments are reflected in the laws generated by that society. Apathy was originally followed by ire, which was followed by sympathy for the women who killed their newborns. Ironically, this situation is now being repeated. Public sentiment is now calling for renewed atten- tion to the problem of neonaticide. Right after Amy Grossberg and Brian Peterson were charged, most people demanded increased penalties, but after a few years, some people began to prefer social programs such as places where women can leave unwanted newborns without fear of prosecution. As you can see, the issue of neonaticide illustrates how law reflects societal norms and how laws can change over time to reflect new social thought.

THE COMMON LAW HERITAGE OF THE AMERICAN LEGAL SYSTEM

The American common law system derives from medieval England, when criminal and civil laws were defined by judges on the basis of the individual cases over which they presided. Laws were based on existing customs as interpreted by judges because there were few if any written statutes except for the most serious crimes (and those were typically copied from the Bible). Historical common laws are sometimes called “judge made” laws for this reason. Two concepts are very impor- tant in the development of our current legal system from its common law roots.

The first important concept is precedent, or stare decisis. Precedent means that a judge must decide a case by applying the rules of law found in earlier cases, provided that the facts in the current case are similar. If they did not rely on prece- dent, judges would have to decide each case as though it were totally new. By employing stare decisis (literally, “let the decision stand”), however, a certain con- sistency develops in law. The doctrine of stare decisis does not apply when com- pelling reasons exist to modify or overturn prior decisions, such as when the notions of justice and fairness necessitate change. In those rare cases, prior decisions may be overturned in total or in part. For example, although the U.S. Supreme Court upheld the idea of “separate but equal” facilities for blacks and whites in their 1896 Plessy v. Ferguson decision, that case was overturned by Brown v. Board of Education in 1954. That prior cases are sometimes overturned should not be viewed as a weakness

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The Common Law Heritage of the American Legal System 9

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in our legal system; instead, this phenomenon shows how the laws can change to fit new circumstances and social definitions of fairness.

The second important concept when discussing our common law roots is codification. Common law is uncodified; that is, it is not written down in any one central place like a legal register.2 Codified law, on the other hand, is based on written codes (statutes) that are maintained by the government (e.g., the monarch or legislature). Many early codes, like those written by the Anglo–Saxons around 600 A.D., appear to be a simple “recording of pre-existing custom” (Kempin, 1990, pp. 109–110). Later codes were enacted in a process closer to that now used in this country, where statutes came out of meetings of those individuals who were empow- ered to create law (e.g., legislators).

However, the American legal system is based on laws originally developed as part of common law. During the first half of the 1800s, legislatures started codifying the offenses defined under common law (Kempin, 1990, p. 113). By the early 1900s, most state legislatures had their own set of codified laws. When crafting those laws, legislatures had to keep two important concepts in mind: a requirement of fair notice and a ban on ex post facto laws. However, just because codified law is based in com- mon law does not mean that it is static or unchanging, as we will see below.

Fair Notice and Ex Post Facto Laws

The first important concept that must be considered by lawmakers is that of fair notice. Even today, those who read constitutional cases will observe that the notion of fair notice is mentioned repeatedly. Basically, fair notice means citizens must be forewarned that actions they are planning will be treated as illegal and that indi- viduals cannot be tried for acts that do not involve such warnings. Fair notice can be achieved through codification of laws against an activity or it can be derived from prior rulings by a state’s supreme court that an activity is punishable. Either way, citizens are alerted to the potential punishment that might follow actions they are contemplating. In 1926, the U.S. Supreme Court ruled that the Fourteenth Amendment’s guarantee to due process meant that individuals could not be prose- cuted for statutes that were incomprehensible by the public due to being written in vague terms, because such laws did not provide fair notice (Connally v. General Construction Company, 1926), and several laws have been invalidated for violating this important ban. Even common law jurisdictions have to provide fair notice to their citizens that certain acts will be treated as crimes, but this may be achieved either through legislation or through state supreme court rulings that particular acts will be considered illegal if committed in the future.

The second important concept that legislators must consider is the ban on ex post facto laws (i.e., laws that are retroactively applied to actions that took place before the law was enacted). Ex post facto laws are forbidden by the U.S. Constitu- tion (art. 1, secs. 9 and 10), and were defined comprehensively by the U.S. Supreme Court in 1798 to include the enactment of new laws, modifications to existing laws,

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changes to the punishments associated with existing laws, and changes to existing evidentiary concerns (Calder v. Bull, 1798, p. 390). Taken together, these bans pro- hibit legislatures from holding defendants accountable for actions for which they had no prior knowledge. Whereas it is permissible and proper to update legal codes, indi- viduals cannot be held responsible for actions they did before the changes took effect. Box 1.2 presents excerpts from the U.S. Supreme Court cases on fair notice and ex post facto laws. As you read them, consider how the concepts are similar, how they differ, and how they are related to American concepts of justice and fairness.

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The Common Law Heritage of the American Legal System 11

BOX 1.2

Excerpts from U.S. Supreme Court Cases on Fair Notice and Ex Post Facto Laws

The excerpts below illustrate the U.S. Supreme Court’s thinking in two cases that helped define the rules that must be followed by legislatures when writing statutes. As you read them, con- sider how the concepts discussed are similar and how they differ. What is the overarching goal of both concepts?

The U.S. Supreme Court defined and clarified ex post facto laws in the 1798 case, Calder v. Bull (p. 390):

The prohibition, “that no state shall pass any ex post facto law,” necessarily requires some explanation; for, naked and without explanation, it is unintelligible, and means nothing. Literally, it is only, that a law shall not be passed concerning, and after the fact, or thing done, or action committed. . . . I will state what laws I con- sider ex post facto laws, within the words and the intent of the prohibition.

1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action.

2nd. Every law that aggravates a crime, or makes it greater than it was, when committed.

3rd. Every law that changes the punishment, and inflicts a greater punish- ment, than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence, and receives less, or dif- ferent, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

In 1926, the U.S. Supreme Court ruled in Connally v. General Construction Company (p. 391) that due process requires that laws must not be vague:

That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordi- nary notions of fair play and the settled rules of law; and a statute which either for- bids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

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THE CONSTANT METAMORPHOSIS OF AMERICAN LAW

The American legal system undergoes constant metamorphosis. Every year, new laws are enacted to deal with current situations, old laws are modified in order to keep them up-to-date, and a few laws are removed from the codes. Many of these changes are rather minor, such as updating the amounts that qualify for grand theft, as inflation makes existing values appear outdated. At times, however, a state supreme court or the U.S. Supreme Court invalidates a law, and so it must be removed from future editions of the penal code. Sometimes new laws that reflect public sentiment against crime (e.g., “three strikes and you’re out” laws) are enacted and take their place in the penal codes.

Sometimes new crimes are defined as people find new ways to harm others or offend society’s principles. New laws often result from unsuccessful attempts to utilize existing laws to prosecute new forms of questionable behavior. After its surge in popularity as a tool to incapacitate rape and robbery victims, for example, the sale and distribution of the powerful tranquilizer Rohypnol (aka “roofies”) was outlawed in 1997 by the California legislature (Leiser, 1997). The same legislature also made it illegal to recruit members into a gang. Both of these examples show how new laws may be enacted when previously existing statutes are inadequate to prosecute new forms of deviance.

Developing new laws is not always easy. As criminals have infiltrated the technological world, for example, legislatures have had a difficult time defining laws relating to computer crime. At first, prosecutors attempted to use existing common theft statutes to prosecute computer crimes, but judges sometimes dis- missed the charges, saying the alleged actions were not prohibited by statute (Meyer and Short, 1998). In response to those dismissals, legislatures have attempted to fashion usable computer laws that define computer crimes and make it clear that they will be punished (Nugent, 1991).

Laws are not simply the inventions of a few legislators who hope laws will be named after them. Someone, or some group, influences legislators to write and sponsor laws. Child advocacy groups, for example, have been successful in modi- fying the statute of limitations for prosecution of child abuse; in some jurisdic- tions, this important clock begins ticking only after the victim knows about the abuse, even if it is “discovered” through therapy many years after the abusive actions (e.g., the state of Washington’s “special” statute of limitations allows vic- tims to bring claims against alleged child molesters within three years of the abu- sive act or within three years of discovering that it happened). A Michigan appellate court recently allowed a civil suit by a woman whose flashbacks, which occurred forty-nine years after the abuse she endured as a child, alerted her to the injuries she had suffered at the hands of her family (Memory of Abuse, 1993). Similarly, tort reform groups have successfully lobbied to limit punitive damages in many states and anti-drunk-driving groups have fought for legislation favorable to their

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agendas. Even well-known laws such as Megan’s Law (which allows notification of the public regarding the presence of sexual offenders in their neighborhoods) and the hotly debated “three strikes and you’re out” laws were sponsored by citi- zen’s groups who argued their cause, gathered support, and lobbied for the law’s passage. Without the support of many citizens, most laws in our society would never make it to the books. In this way, the citizens in democratic legal systems have some influence on the laws by which they are governed.

Occasionally, laws are passed that have the support of a vocal minority, but not necessarily the population as a whole. Laws such as Prohibition (which out- lawed the manufacture, sale, or distribution of alcoholic beverages in the United States from 1920 until it was repealed in 1933) and 55-miles-per-hour speed limit laws are but two examples of laws that somehow obtained enough support from

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The Constant Metamorphosis of American Law 13

Though alcohol had been a concern for many years, the move toward Prohibition became national in the late 1800s when the Anti-Saloon League was founded. This pamphlet was created by the State Anti-Saloon League of Southern California and shows one way that groups wishing to outlaw the manufacture, distribution, and sales of alcohol gained support among the voting public. In 1918, due in part to the success of pamphlets like this one in attracting support, the Eighteenth Amendment was passed, which effectively outlawed alcohol in the United States. Due to public dissatisfaction with the law, the Eighteenth Amendment was finally repealed in 1933. Now, scholars use Prohibition as an example to show that laws cannot be successful without public support. SOURCE: 1906 Prohibition pamphlet, personal collection of Jon’a Meyer.

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lawmakers to get passed despite a lack of support from the majority of Americans. The process of lawmaking, then, is not purely democratic in the sense that only bills that are widely supported become laws. Sometimes, laws are imposed “from the top down,” meaning that powerful elites pass laws that interest or benefit them, but do not appear to serve the rest of society. Many conflict theorists, for example, point to the weak enforcement and penalties attached to white-collar crimes, com- pared to low-level criminal offenses, as proof that laws can sometimes be imposed on the masses from those socially higher up. Consider the uproar over laws that mandate more severe penalties for possession of “crack” cocaine than for powder cocaine; many argue that these laws reflect the fact that inner-city blacks are more likely to be caught with crack whereas powder cocaine is more often used by upper-class whites (e.g., Mann, 1995). That the lawmaking process sometimes fails to reflect what the majority wants does not mean our system is irreparable. Instead, it points to an area where reform may be needed.

ODDBALL CODES OF ANTIQUITY

In 1973, Federal judge Marvin Frankel decried the illogical hodgepodge of laws that existed in many states. He noted, for example, that a California statute pun- ished breaking into a car to steal from its glove compartment with up to fifteen years in prison, whereas stealing the entire car carried a maximum of only ten years. Similarly, stealing a dog in Colorado could result in ten years in prison, whereas killing the same dog could result in only six months in jail and a fine. One compendium of humorous laws (Hyman, 1971) alerts readers that it is illegal to hunt camels in Arizona or to lasso fish in Knoxville, Tennessee. Similarly, those who tickle girls under the chin with a feather duster in Portland, Maine, face crimi- nal prosecution. Obsolete codes sometimes remain on the books for years in a sort of legal limbo: not actively prosecuted, nor actually deleted. Most of these appar- ently bizarre codes would be stricken down by appellate courts as vague, discrimi- natory, or unrelated to public welfare. Until they are challenged, however, nothing prevents them from being reprinted each year as part of the codes.

These inconsistencies usually arise from knee-jerk reactions to a situation that attracts more than its fair share of media attention. California’s specific atten- tion to thefts from automobile glove compartments likely resulted from attempts to deter criminals from breaking into cars to rifle through their contents. When the legislature decided on a penalty, however, it forgot to scale it according to those of related crimes. In this manner, less serious offenses may be punished more harshly than more egregious acts.

Some of the ambiguities in law are discovered only after a statute has been enacted and the justice system has tried to apply it to an offense. The courts may discover that the ambiguities are so great that they prevent the statute from being

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used as law. This fate befell Jacksonville’s municipal “prowling by auto” ordi- nance; it was held to be so vague that a reasonable person could not ascertain whether his or her intended activities would be illegal, so it had to be rejected as law by the court (Papachristou v. City of Jacksonville, 1972). Appellate courts may also rule that a statute is unacceptable as worded or “void for vagueness” (i.e., it did not provide “fair notice” about what actions were prohibited).

Sometimes there is an interesting interplay between legislators and judges as the judges attempt to circumvent the legislature’s intent by employing “creative interpretation” of certain statutes, especially those requiring mandatory penalties (Meyer and Jesilow, 1997, pp. 54–57; Peyser and Foote, 1994, p. 53). In a few cases, legislatures intentionally leave the courts some discretion in interpreting statutes that are still undergoing what could be called a “fine-tuning process”; allow- ing judges to dismiss charges “in the interests of justice” is one way to acknowledge that statutes cannot be written to address every individual case.

At times the differences in statutes make plea bargains very attractive to defendants. If a similar criminal act could result in a much lower penalty, defense attorneys will try to establish bargains where their clients plea guilty to the related offense. In California, for example, attorneys for drunk drivers were successful at getting charges reduced to reckless driving and other lesser offenses for several years before the legislature took notice of the practice and passed a new law that forced prosecutors to justify such bargains in writing (CA Penal Code, sec. 23635).

If there is one thing history has clearly demonstrated, it is that merely draft- ing and enacting laws does not mean they will be logical. Nor must they be fair. Although the inconsistencies in laws can usually be traced to knee-jerk reactions, oddball codes still make for fascinating study. The next time you encounter a law you think is peculiar, stop and think about how it came to be. Think also about the historical time and situations under which the law might have been drafted and what the law meant to those who created it.

THE EFFECTS OF CRIMINAL LAW ON THE COURTS

Criminal law affects the courts in several ways. First, it delineates the offenses that form the basis for criminal justice intervention. If no laws have been broken, there cannot be a criminal trial. When there are multiple elements to a crime, the courts must ensure that each element is proven; one cannot be convicted of grand theft, for example, unless she or he has been shown to have (1) stolen something that was (2) worth a certain amount. If one or more elements cannot be shown to be true in a particular case, the defendant is not guilty of that particular charge.

The penal codes also define the penalties that accompany each code violation, and courts then determine what penalty will apply in a particular case. Penal codes specify the types of punishment that may be imposed on offenders. Speeding, for

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example, is usually punished by a fine or community service term. Theft can be punished by fines, community service, or other sanctions, including jail time. Penal codes also specify the severity of the penalties allowed under law. For example, those convicted of first degree murder may be executed in jurisdictions that allow that penalty, but petty thieves cannot. Some statutes specify mandatory penalties that judges must impose on those found guilty of certain offenses. This is especially true of drunk drivers; many states now have mandatory penalties for those con- victed of driving under the influence of alcohol.

Finally, criminal law affects the courts by specifying the processes by which trials are conducted. Appellate courts, including the U.S. Supreme Court, hand down rulings about what is and what is not acceptable criminal court procedure. Rulings based on the constitutionality of certain statutory provisions, for example, can have profound effects on final trial outcomes.

TWO MODELS FOR HOW CASES PROGRESS THROUGH THE COURTS

In 1968, noted scholar Herbert Packer argued that the effects of criminal law on the courts are mediated somewhat by whether emphasis is placed on defendants’ due process rights or whether the primary goal of a legal system is to curb crime.

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Laws are not actually “made” here, but the U.S. Supreme Court still has a strong influence on law- making because it serves as the final authority on whether laws are constitutional. Even if a law was enacted with huge public support, it could be ruled invalid by the U.S. Supreme Court. SOURCE: Cour- tesy of Jon’a Meyer.

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Packer created two primary models to explain how the criminal justice system operates: the Crime Control Model and the Due Process Model. He did not intend for people to use his models as “rigid” categories (meaning that every element of the model must be satisfied to earn a classification as Crime Control versus Due Process); instead, he felt that the models represent extreme values between which the criminal justice system and its workers may lie (1968, pp. 153–54). With this in mind, let us discuss the differences between the two models. The following sum- mary presents only some of the differences between Packer’s two models; the interested student is referred to his book to learn more about his models and how they work.

The first approach is the Crime Control Model, which views the purpose of the court as punishing guilty parties promptly and efficiently in an attempt to reduce crime. Under this model, trained law enforcement officials and prosecutors are entrusted with protecting society. There are, of course, some trade-offs for a safe society, one of which is the relinquishment by members of society of some of their rights.

Those who support the Crime Control Model feel that the vast majority of defendants are guilty of some crime or they would not have been arrested in the first place. Because of this belief, the Crime Control Model sometimes tolerates punishment of otherwise “innocent” defendants. In the end, truly innocent parties need not fear punishment because diligent work by police and prosecutors will eliminate their cases from the court docket prior to trial. Legal safeguards such as strict search and seizure rules are used by guilty defendants to circumvent justice and escape punishment, so they should be abolished or minimized. Plea bargains are desirable because they provide punishment to guilty parties while simultane- ously ensuring that the system is not bogged down in cases. Crime Control Model advocates favor punishment that deters offenders and others from committing crimes because deterrence reduces the incidence of crime.

The second approach discussed by Packer is the Due Process Model, which views the purpose of courts as more of a forum in which judges and other justice workers must protect defendants’ rights to due process from overzealous police and/or prosecutors. With this model, the police and prosecutors cannot be trusted to select only guilty parties for criminal justice processing, because, for example, sci- ence is not yet advanced enough to guarantee accurate classification in every case.

The Due Process Model considers all defendants to be innocent until proven guilty, so many safeguards (e.g., strict search and seizure rules and the absolute right to legal counsel) are necessary to protect defendants at all stages of the justice system. Plea bargains must be eschewed as cheap imitations of justice that encour- age innocent parties to relinquish their rights to a full trial during which mistakes by police and prosecutors could be uncovered. Due Process Model advocates favor treatment programs that effectively help offenders avoid future criminality, thus reducing the incidence of crime.

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As should be evident by now, the Crime Control Model “de-emphasizes [the] adversary aspect of the process; the Due Process Model tends to make it central” (Packer, 1968, p. 157). Stop and think for a moment about which model you most support. You may identify strongly with one of the models or you may simply sup- port one more than the other. Either position is fine, because very few people com- pletely assign themselves to one of the two models. Write down your rationale for why you identify with the model you selected, because you may wish to compare your current beliefs to the ones you will have after reading this book or when you graduate from college. Packer noted that people move back and forth on his contin- uum over time, so you may find yourself moving away from your current beliefs, or you may move closer to the extreme to which you now ascribe.

The importance of Packer’s two models for the courts is that they help explain how individual workers and agencies in the criminal justice system inter- act. It should come as no surprise, for example, that judges who lean toward the Due Process Model are more likely to throw out evidence obtained by the police under questionable circumstances (e.g., without a warrant), whereas judges who lean toward the Crime Control Model may be more likely to view certain evidence as important in showing whether a given defendant is guilty (Packer, 1968, pp. 198–201). Of course, the labels we place on those judges (as leaning toward one of the models), or even the labels they use to describe themselves, cannot pre- dict their behavior on every decision they make because we must acknowledge that the models are but general classification schemes and do not apply to individual decisions. In fact, a person may lean toward the Due Process Model on some issues (e.g., she or he might insist that all defendants have access to free, quality attorneys at all stages of the system) and yet support the Crime Control Model for other issues (e.g., the same person may feel that search and seizure rules are too restric- tive to allow the police to effectively investigate crimes). As you read this book, consider which models the players in the system seem to support and how their beliefs may affect justice outcomes.

SOME IMPORTANT THEMES TO CONSIDER WHEN READING THIS BOOK

No examination of American courts would be complete without some important social considerations. First is the expectation that courts dispense justice fairly. When the public expects fairness but instead sees corruption and discrimination, people might lose their faith in the courts. Unfortunately, corruption and discrimi- nation sometimes do occur in our court system, despite the presence of safeguards against these negative outcomes. Although it may be argued that racial biases are less prevalent than before the civil rights movement, for example, such biases con- tinue to be alleged on a regular basis. One goal of the courts is to dispense justice whenever it is needed, but some critics have noted that access to the courts is cur-

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tailed for the poor and/or uneducated. As you are reading this text, consider the sit- uations under which corruption and discrimination have occurred in the past and how those two issues are relevant in today’s courts. Also consider how the identity of the groups that most feel the brunt of discrimination have changed over time.

The second important consideration is the difference between “law on the books” and “law in action.” Just because a law is written (i.e., “on the books”) does not mean it is enforced as it was intended. Instead, how the law is enforced may depend on the characteristics of those who enforce it or those against whom it is enforced. While we all agree that violent crimes should be illegal, we also acknowl- edge that all violence is not treated as equal by the courts. Consider, for example, the difference in priority assigned to violent acts committed by strangers versus those that occur between intimates or acquaintances. Similarly, are there differences in priority assigned to embezzlement perpetuated by white-collar criminals versus thefts committed by burglars?

A third issue you should watch for are examples of how the law is both a cat- alyst for and a reflection of social change. In some cases, a law creates social change (e.g., affirmative actions laws attempt to create a workplace that is race- and gender-neutral). At the same time, however, laws may reflect social changes (e.g., extending pornography laws into the cyber-realm through laws against cyberporn). In many cases, a law can serve both functions, reflecting the social val- ues held by a majority who hope that the law will produce a value change in those who do not yet share their views (e.g., laws against hate crimes attempt to educate the public that hateful actions are undesirable and may be punished). The role of law as a catalyst for and reflection of social change is an important one, and recog- nizing this role will help you understand how American courts and law function.

Finally, there is the reality of the courts and how it differs from how the courts “are supposed to” operate. Pay attention to the theoretical goals of the courts, how the courts theoretically function, and how the laws are theoretically carried out. How do the theoretical workings differ from what really happens in the courts? The- oretically, the courts devote as much time to a case as is necessary to fully explore the legal issues involved, but the reality is that courtroom workers are more likely to be hurried through much of the work they do. Theoretically, only legal factors, such as offense severity, play a role in sentencing, but the reality is that many extra-legal factors, such as whether one pleads guilty, play a large role in sentencing. The examples are endless, as you will see as you read and reflect on the text.

CONCLUSION

In this chapter, we did a lot of things. First, we looked at how laws are created, and studied some historical laws against neonaticide as a case study to understand how laws come to exist. Then, we looked at how American law is always changing and will continue to change. We also explored how criminal law affects the courts and

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learned about Packer’s models as to how the courts operate. Finally, we considered some themes that are important in criminal justice and that you should be on the lookout for as you read this text. This introductory chapter served to alert you to a number of issues and to set the stage for the rest of this book.

In the next chapter, we will get into the study of courts themselves. We will learn about the three elements of every crime and about some of the defenses raised by defendants in court to excuse their actions. We will also learn what hap- pens after a crime has been committed, but before a trial takes place. Do not worry, we will learn about trial processes, too, but that topic is saved for a future chapter.

Future chapters in this section of the book discuss defendants’ rights in the criminal justice system, how the adversarial system works (or is supposed to work), the history of federal and state courts, and how the courts operate. The next section of the book is devoted to the players in the justice drama, including the “big three” (i.e., prosecutors, defense attorneys, and judges), and other important people in the system such as victims, defendants, jurors, witnesses, and others who inter- act with the courts. The third section of the book will expose you to courtroom processes, including pre-trial screening by prosecutors and other justice decision- makers, how the bail system works, pre-trial motions, plea bargaining, and the trial

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BOX 1.3

Accounts Written by Three Students About Their First Encounter with American Courts

Shannon L. Williams was amazed at how “calm” everyone was: The defendant, the plaintiff, the prosecution, the defense, the jury, and the audience for both sides were in a calm and very cool manner throughout the entire case. I guess I’m used to seeing a little tension between the people involved in the case like one would normally see in television shows like Judge Judy or Matlock. That was practically my first time ever being in a courtroom and I guess I was expecting to see some clashing in the courtroom and the judge ordering the bailiff to remove somebody from the courtroom. As stated before, it was a little different than what I had expected.

Kathleen Garrity noticed that lower courts were very busy: I found the whole court scene very disruptive and was waiting for the judge to call out, “ORDER IN THE COURT,” however, he never did.

Shauna Y. Creek noted the same about another city court: The courtroom waiting area was chaotic, crowded, and tension filled. Observing the waiting area was very emotional. There were mothers who wept for their sons’ free- dom, victims who were leaving the courtroom with complacent smiles, and counselor/ accused interactions all going on as court was in session.

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itself. The final section will expose you to post-conviction processes, such as how punishment is decided and how appeals work, and will discuss the special court processes used when the accused is a juvenile.

Do not worry if all you know about courts is from television and media accounts, because you are not alone. This book will help you learn about courts and their inner workings. Box 1.3 contains excerpts written by students like you about their first experience with the courts, and you will notice that all three were surprised at what they saw. You will hear from these and other students later in the book wherever their observations are pertinent. Now, let us begin our journey through the American courts system!

D I S C U S S I O N Q U E S T I O N S

1. Laws are everywhere I look and I haven’t gotten out of bed yet! Laws regulate the manufacture of the mattress on which I sleep and the packaging of the milk I drink with my breakfast. Think of all the laws that have affected you in the last twenty-four hours (e.g., manufacturing/packaging laws, road laws, criminal laws, etc.). Why were these laws passed? How are they enforced? Do you feel they are a good idea?

2. Think of a social problem that interests you (e.g., racial discrimination). How have laws dealt with that problem in the past (this might require some library research)? What laws do you feel are nec- essary to alleviate the social problem? Do you feel that new laws are the best solution, or would another plan of action be better? Why do you feel this way?

3. Think of your favorite character in a courtroom docudrama. To which of Packer’s models does she or he lean? What about the character you dislike most? How close are these two characters to your own leanings? Are you closest to your favorite or least favorite character’s leanings?

4. What is a new form of deviance that is attracting attention and against which the public (or certain interest groups) wants a law to be enacted? Why haven’t existing laws been adequate?

5. Think of five court-related questions that you want answers to this term. During the course of the term, try to find the answers (e.g., in the class text or a library resource or by asking your instruc- tor). At the end of this term, you will re-read your list to see if you have learned the answers.

N O T E S

1. And, anthropological data suggests that some societies still believe that neonaticide is an accept- able practice (e.g., Jones, 1980).

2. Note that contemporary jurisdictions that use common law rely on both codification and rulings by their state’s supreme court to arrive at an enforceable body of law. This stands in contrast to his- torical common law, which was not typically written down and kept in a central location.

R E F E R E N C E S

Brown v. Board of Education, 347 U.S. 483 (1954).

Calder v. Bull, 3 U.S. 386 (1798).

California Penal Code. (2001). West’s California Codes: Penal Code. St. Paul, MN: West.

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Connally v. General Construction Company, 269 U.S. 385 (1926).

Conley, C. (1995). No pedestals: Women and violence in late nineteenth-century Ireland. Journal of Social History, 28: 801–819.

Frankel, M. (1973). Criminal Sentences: Law without Order. New York: Hill and Wang.

Hoffer, P.C., and Hull, N.E.H. (1981). Murdering Mothers: Infanticide in England and New England, 1558–1803. New York: New York University Press.

Hyman, D. (1971). It’s Against the Law. Pleasantville, NY: Reader’s Digest Association.

Jones, A. (1980). Women Who Kill. New York: Holt, Rinehart and Winston.

Kempin, F.G. (1990). Historical Introduction to Anglo-American Law (3rd ed.). St. Paul, MN: West.

Koenig, W. P. (1998). Does Congress abuse its spending clause power by attaching conditions on the receipt of federal law enforcement funds to a state’s compliance with “Megan’s Law”? Journal of Criminal Law and Criminology, 88, 721–765.

Langer, W.L. (1974). Infanticide: A historical survey. History of Childhood Quarterly, 1: 353–365.

Ledwon, L. (1996). Maternity as a legal fiction: Infanticide and Sir Walter Scott’s The Heart of Mid- lothian. Women’s Rights Law Reporter, 18: 1–16.

Leiser, K. (1997, Jan. 1). New year, new California laws: Here’s a look at laws taking effect this year. San Diego Union–Tribune, p. A3.

Mann, C.R. (1995). The contribution of institutionalized racism to minority crime. In D.F. Hawkins (Ed.), Ethnicity, Race and Crime: Perspectives Across Time and Place. New York: State Univer- sity of New York Press.

Memory of abuse: OK to sue 50 years later. (1993, December). ABA Journal, 78.

Meyer, J.F., and Jesilow, P. (1997). “Doing Justice” in the People’s Court: Sentencing by Municipal Court Judges. New York: State University of New York Press.

Meyer, J., and Short, C. (1998). Investigating computer crime: Concerns voiced by local law enforce- ment agencies. Police Chief, 65(5): 28–35.

New Jersey Statutes Annotated § 2C. (2001). St. Paul, MN: West Group.

Nugent, H. (1991). State Computer Crime Statutes. Washington, DC: National Institute of Justice.

Packer, H. (1968). The Limits of Criminal Sanction. Stanford, CA: Stanford University Press.

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).

Peyser, M., and Foote, D. (1994, August 29). Strike three, you’re not out. Newsweek, p. 53.

Plessy v. Ferguson, 163 U.S. 537 (1896).

Rose, L. (1986). Massacre of the Innocents: Infanticide in Great Britain 1800–1939. London: Rout- ledge and Kegan Paul.

Unknown. (1673). The Murderous Midwife, with her Roasted Punishment: Being a True and Full Relation of a Midwife that was Put into an Iron Cage with Sixteen Wild-cats, and so Roasted to Death, by Hanging over a Fire, for Having Found in her House-of-Office no Less than Sixty Two Children, at Paris in France. London, England: Private printing.

Vvagstaffe, V. (1680). An Act to Prevent the Deftroying and Murthering of Baftard Children. London, England: Samual Roycroft.

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