97 Cal. Penal Code, sec. 190.2. Cal. Penal Code, sec. 190.2.

98 31 Cal. 3d 797, 647 Pac. 2d 76 (1982). 31 Cal. 3d 797, 647 Pac. 2d 76 (1982).

99 U.S. Department of Justice, U.S. Department of Justice, Sourcebook of Criminal Justice Statistics, 1989, Sourcebook of Criminal Justice Statistics, 1989, pp. 168-69. pp. 168-69.

100 433 U.S. 584 (1977). 433 U.S. 584 (1977).

101 Ibid., at 592. Ibid., at 592.

102 481 U.S. 281 (1987). 481 U.S. 281 (1987).

103 Ibid., at 312. Ibid., at 312.

104 More appeals were brought on behalf of McCleskey, all of which failed. On September 25, 1991, he was put to death. More appeals were brought on behalf of McCleskey, all of which failed. On September 25, 1991, he was put to death.

105 109 S. Ct. 2969 (1989). 109 S. Ct. 2969 (1989).

106 So, for example, the Supreme Court in the Bush years tried to cut back on the writ of habeas corpus in death cases. See McCleskey v. Zant, 111 S. Ct. 1454 (1991), (Warren McClesky again); Coleman v. Thomas, 111 S. Ct. 2546 (1991). So, for example, the Supreme Court in the Bush years tried to cut back on the writ of habeas corpus in death cases. See McCleskey v. Zant, 111 S. Ct. 1454 (1991), (Warren McClesky again); Coleman v. Thomas, 111 S. Ct. 2546 (1991).

107 Discussed in Charles F. Bostwick, "Proposed Reforms in Criminal Procedure," Discussed in Charles F. Bostwick, "Proposed Reforms in Criminal Procedure," Journal of Criminal Law Journal of Criminal Law 2:216, 227 (1911). The writer contrasted this case with the contemporary English case of Dr. Crippen, who was executed five weeks after his trial began. 2:216, 227 (1911). The writer contrasted this case with the contemporary English case of Dr. Crippen, who was executed five weeks after his trial began.

108 New York Times, New York Times, Feb. 16, 1933, p. 1; March 21, 1933, p. 1. Feb. 16, 1933, p. 1; March 21, 1933, p. 1.

109 New York Times, New York Times, June 18, 1991 (national ed.), p. A10. For a graphic account (as of 1990) of two men on death row for crimes committed sixteen years earlier, see June 18, 1991 (national ed.), p. A10. For a graphic account (as of 1990) of two men on death row for crimes committed sixteen years earlier, see New York Times, New York Times, July 23, 1990, p. A1: "Two Lives Ended, but Two Convicts Survive." As of this writing (February 1993), both convicts were still alive. July 23, 1990, p. A1: "Two Lives Ended, but Two Convicts Survive." As of this writing (February 1993), both convicts were still alive.

110 New York Times, New York Times, April 22, 1992 (national ed.), pp. Al, C23. April 22, 1992 (national ed.), pp. Al, C23.

111 New York Times, New York Times, April 21, 1992 (national ed.), p. A7. April 21, 1992 (national ed.), p. A7.

112 New York Times, New York Times, Aug. 9, 1991 (national ed.), p. A10. Aug. 9, 1991 (national ed.), p. A10.

113 New York Times, New York Times, Jan. 16, 1992 (national ed.), p. A12. Jan. 16, 1992 (national ed.), p. A12.

114 See District Attorney of Suffolk v. Watson, 381 Ma.s.s. 648, 411 N.E. 2d 1274 (1980); Commonwealth v. O'Neal, 369 Ma.s.s. 242, 339 N.E. 2d 676 (1975); Opinion of the Justices, 372 Ma.s.s. 912, 364 N.E. 2d 1984 (1977). See District Attorney of Suffolk v. Watson, 381 Ma.s.s. 648, 411 N.E. 2d 1274 (1980); Commonwealth v. O'Neal, 369 Ma.s.s. 242, 339 N.E. 2d 676 (1975); Opinion of the Justices, 372 Ma.s.s. 912, 364 N.E. 2d 1984 (1977).

115 The case was Commonwealth v. Colon-Cruz, 393 Ma.s.s. 150, 470 N.E. 2d 116 (1984). The case was Commonwealth v. Colon-Cruz, 393 Ma.s.s. 150, 470 N.E. 2d 116 (1984).

116 Robert Weisberg, "Deregulating Death," p. 386. Robert Weisberg, "Deregulating Death," p. 386.

117 New York Times, New York Times, March 27, 1992, p. B16; for Arizona's execution, see March 27, 1992, p. B16; for Arizona's execution, see New York Times, New York Times, April 7, 1992, p. A25. The execution took place on April 6, 1992. April 7, 1992, p. A25. The execution took place on April 6, 1992.

CHAPTER 15. LAW, MORALS, AND VICTIMLESS CRIME.

1 San Diego Union, San Diego Union, Nov. 22, 1908, p. 16; Nov. 25, 1908, p. 8. Nov. 22, 1908, p. 16; Nov. 25, 1908, p. 8.

2 Lawrence M. Friedman and Robert V. Percival, Lawrence M. Friedman and Robert V. Percival, The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910 The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910 (1981), p. 93. (1981), p. 93.

3 Ibid. Ibid.

4 36 Stats. 825 (act of June 25, 1910). A major study of the background, meaning, and effect of this law is David Langum, 36 Stats. 825 (act of June 25, 1910). A major study of the background, meaning, and effect of this law is David Langum, Crossing Over the Line: Interstate Immorality and the Mann Act, 1901-1986 Crossing Over the Line: Interstate Immorality and the Mann Act, 1901-1986 (forthcoming). (forthcoming).

5 Quoted in Frederick K. Grittner, Quoted in Frederick K. Grittner, White Slavery: Myth, Ideology and American Law White Slavery: Myth, Ideology and American Law (1990), p. 91. (1990), p. 91.

6 18 Stats. 477 (act of March 3,1875). 18 Stats. 477 (act of March 3,1875).

7 36 Stats. 825 (act of June 25, 1910), sec. 6. 36 Stats. 825 (act of June 25, 1910), sec. 6.

8 Grittner, Grittner, White Slavery, White Slavery, p. 96. p. 96.

9 Sally Stanford, Sally Stanford, The Lady of the House The Lady of the House (1966), p. 95. (1966), p. 95.

10 See Ruth Rosen, See Ruth Rosen, The Lost Sisterhood: Prost.i.tution in America, 1900-1918 The Lost Sisterhood: Prost.i.tution in America, 1900-1918 (1982), pp. 112-35. (1982), pp. 112-35.

11 Maude E. Miner, Maude E. Miner, Slavery of Prost.i.tution: A Plea for Emanc.i.p.ation Slavery of Prost.i.tution: A Plea for Emanc.i.p.ation (1916; reprint ed., 1987), pp. 88-89. (1916; reprint ed., 1987), pp. 88-89.

12 242 U.S. 470 (1917). The full story of this case is told in Robert L. Anderson, 242 U.S. 470 (1917). The full story of this case is told in Robert L. Anderson, The The Diggs-Caminetti Case, 1913-1917 Diggs-Caminetti Case, 1913-1917 (2 vols., 1990). (2 vols., 1990).

13 Marlene D. Beckman, "The White Slave Traffic Act: The Historical Impact of a Criminal Law Policy on Women," Marlene D. Beckman, "The White Slave Traffic Act: The Historical Impact of a Criminal Law Policy on Women," Georgetown Law Journal Georgetown Law Journal 72:1111, 1119 (1984). 72:1111, 1119 (1984).

14 State v. Reed, 53 Mont. 292, 163 P. 477 (1917); the statute was Laws Mont. 1911, chap 1. State v. Reed, 53 Mont. 292, 163 P. 477 (1917); the statute was Laws Mont. 1911, chap 1.

15 James Wunsch, James Wunsch, Prost.i.tution and Public Policy: From Regulation to Suppression, 1858-1920 Prost.i.tution and Public Policy: From Regulation to Suppression, 1858-1920 (Ph.D. thesis, University of Chicago, 1976), p. 136. (Ph.D. thesis, University of Chicago, 1976), p. 136.

16 Rosen, Rosen, Lost Sisterhood, Lost Sisterhood, p. 118. p. 118.

17 Beckman, "White Slave Traffic Act," pp. 1124-33. Beckman, "White Slave Traffic Act," pp. 1124-33.

18 The survey is described in The survey is described in Vigilance Vigilance 24:5 (May 1911). 24:5 (May 1911).

19 Vigilance Vigilance 23:13 (Oct. 1910), p. 9. 23:13 (Oct. 1910), p. 9.

20 Walter C. Reckless, Walter C. Reckless, Vice in Chicago Vice in Chicago (1933; reprint ed., 1969), pp. 1-3; Herbert Asbury, (1933; reprint ed., 1969), pp. 1-3; Herbert Asbury, Gem of the Prairie: An Informal History of the Chicago Underworld Gem of the Prairie: An Informal History of the Chicago Underworld (1940), pp. 281-308. (1940), pp. 281-308.

21 Rosen, Rosen, Lost Sisterhood, Lost Sisterhood, pp. 14-15. pp. 14-15.

22 Vice Commission of Chicago, Vice Commission of Chicago, The Social Evil in Chicago: A Study of Existing Conditions The Social Evil in Chicago: A Study of Existing Conditions (1911), p. 25. (1911), p. 25.

23 Edward R. A. Seligman, ed., Edward R. A. Seligman, ed., The Social Evil, with Special Reference to Conditions Existing in the City of New York The Social Evil, with Special Reference to Conditions Existing in the City of New York (2d ed., 1912), pp. 72-74; this is a revision of a report originally published by the "Committee of Fifteen" in 1902. In a speech Seligman gave in 1910 he said: "Anything that tends to render vice innocuous tends to incite to debauch"; and if the state "whitewashes" the situation, "it tends to augment the . . . demand" (p. 250). (2d ed., 1912), pp. 72-74; this is a revision of a report originally published by the "Committee of Fifteen" in 1902. In a speech Seligman gave in 1910 he said: "Anything that tends to render vice innocuous tends to incite to debauch"; and if the state "whitewashes" the situation, "it tends to augment the . . . demand" (p. 250).

24 Rosen, Rosen, Lost Sisterhood, Lost Sisterhood, pp. 28-29. pp. 28-29.

25 Laws. Mich. 1915, No. 272, p. 481. Laws. Mich. 1915, No. 272, p. 481.

26 Clare V. McKanna, Jr., "Prost.i.tutes, Progressives, and Police: The Viability of Vice in San Diego, 1900-1930," Clare V. McKanna, Jr., "Prost.i.tutes, Progressives, and Police: The Viability of Vice in San Diego, 1900-1930," Journal of San Diego History Journal of San Diego History 35:44 (1989). 35:44 (1989).

27 Described in Thomas C. Mackey, Described in Thomas C. Mackey, Red Lights Out: A Legal History of Prost.i.tution, Disorderly Houses, and Vice Districts, 1870-1917 Red Lights Out: A Legal History of Prost.i.tution, Disorderly Houses, and Vice Districts, 1870-1917 (1877). (1877).

28 Illinois Crime Survey Illinois Crime Survey (1929), p. 852. (1929), p. 852.

29 McKanna, "Prost.i.tutes," p. 59. McKanna, "Prost.i.tutes," p. 59.

30 Rosen, Rosen, Lost Sisterhood, Lost Sisterhood, p. 33. p. 33.

31 Annual Report, Police Commissioner of the City of New York, year Annual Report, Police Commissioner of the City of New York, year ending Dec. 31, 1910 (1911), pp. 12, 14. ending Dec. 31, 1910 (1911), pp. 12, 14.

32 Annual Report, Police Department of the City of Chicago, year ending Dec. 31, 1926, Annual Report, Police Department of the City of Chicago, year ending Dec. 31, 1926, p. 19. p. 19.

33 George E. Worthington and Ruth Topping, "The Second Sessions of the Munic.i.p.al Court of the City of Boston," George E. Worthington and Ruth Topping, "The Second Sessions of the Munic.i.p.al Court of the City of Boston," Journal of Social Hygiene Journal of Social Hygiene 8:191, 200, 222 (1922). 8:191, 200, 222 (1922).

34 Second Annual Report, Munic.i.p.al Court of Philadelphia (1915), Second Annual Report, Munic.i.p.al Court of Philadelphia (1915), pp. 54, 72. pp. 54, 72.

35 Laws. Ind. 1907, chap. 60. On the role of women's movements in the campaign to raise the age of consent, see Rosen, Laws. Ind. 1907, chap. 60. On the role of women's movements in the campaign to raise the age of consent, see Rosen, Lost Sisterhood, Lost Sisterhood, p. 55. p. 55.

36 Laws Cal. 1913, chap. 122, p. 212 (amending Section 261 of the Penal Code). Laws Cal. 1913, chap. 122, p. 212 (amending Section 261 of the Penal Code).

37 See the table of ages in Mary Ellen Odem, "Delinquent Daughters: The s.e.xual Regulation of Female Minors in the United States, 1880-1920" (Ph.D. thesis, Department of History, University of California, Berkeley, 1989), pp. 73-74. See the table of ages in Mary Ellen Odem, "Delinquent Daughters: The s.e.xual Regulation of Female Minors in the United States, 1880-1920" (Ph.D. thesis, Department of History, University of California, Berkeley, 1989), pp. 73-74.

38 Friedman and Percival, Friedman and Percival, Roots of Justice, Roots of Justice, p. 140. p. 140.

39 Columbus Dispatch, Columbus Dispatch, June 17, 1891, p. 7. June 17, 1891, p. 7.

40 Superior Court Records, Santa Clara County, California, Case No. 18661.5, June 5, 1925. Superior Court Records, Santa Clara County, California, Case No. 18661.5, June 5, 1925.

41 Odem, "Delinquent Daughters," pp. 87-88. Odem, "Delinquent Daughters," pp. 87-88.

42 Jacob A. Goldberg and Rosamond W. Goldberg, Jacob A. Goldberg and Rosamond W. Goldberg, Girls on City Streets: A Study of 1,400 Cases of Rape Girls on City Streets: A Study of 1,400 Cases of Rape (1935; reprint ed., 1974), p. 300. (1935; reprint ed., 1974), p. 300.

43 William J. Blackburn, William J. Blackburn, The Administration of Criminal Justice in Franklin County, Ohio The Administration of Criminal Justice in Franklin County, Ohio (1935), pp. 152-53. (1935), pp. 152-53.

44 Henry Herbert G.o.ddard, Henry Herbert G.o.ddard, The Kallikak Family: A Study in the Heredity of Feeble-Mindedness The Kallikak Family: A Study in the Heredity of Feeble-Mindedness (1925). (1925).

45 Ibid., pp. 18-19, 110. Ibid., pp. 18-19, 110.

46 Ibid., p. 108. Ibid., p. 108.

47 Laws Ind. 1907, chap. 215. See also, in general, J. H. Landman, "The History of Human Sterilization in the United States-Theory, Statute, Adjudication," Laws Ind. 1907, chap. 215. See also, in general, J. H. Landman, "The History of Human Sterilization in the United States-Theory, Statute, Adjudication," Illinois Law Review Illinois Law Review 23:463 (1929); Philip R. Reilly, 23:463 (1929); Philip R. Reilly, The Surgical Solution: A History of Involuntary Sterilization in the United States The Surgical Solution: A History of Involuntary Sterilization in the United States (1991). (1991).

48 Laws Cal. 1909, chap. 720, p. 1093. Laws Cal. 1909, chap. 720, p. 1093.

49 Mark H. Haller, Mark H. Haller, Eugenics: Hereditarian Att.i.tudes in American Thought Eugenics: Hereditarian Att.i.tudes in American Thought (1963), pp. 49, 136. (1963), pp. 49, 136.

50 Ibid., p. 123. Ibid., p. 123.

51 Quoted in Donald K. Pickens, Quoted in Donald K. Pickens, Eugenics and the Progressives Eugenics and the Progressives (1968), p. 90. (1968), p. 90.

52 W. D. Funkhouser, "Eugenical Sterilization," W. D. Funkhouser, "Eugenical Sterilization," Kentucky Law Journal Kentucky Law Journal 23:511, 513 (1935). 23:511, 513 (1935).

53 See Pickens, See Pickens, Eugenics and the Progressives, Eugenics and the Progressives, (1968), p. 90. (1968), p. 90.

54 Rev. Stats. Nev. 1912, sec. 6293, Vol. 2, p. 1812. Rev. Stats. Nev. 1912, sec. 6293, Vol. 2, p. 1812.

55 Mickle v. Henrichs, 262 Fed. 687 (D.C. Nev., 1918). Mickle v. Henrichs, 262 Fed. 687 (D.C. Nev., 1918).

56 Williams et al. v. Smith, 190 Ind. 526, 131 N.E. 2 (1921). Williams et al. v. Smith, 190 Ind. 526, 131 N.E. 2 (1921).

57 Acts Ind. 1927, chap. 50, p. 116; Acts Ind. 1931, chap. 241, p. 713. Acts Ind. 1927, chap. 50, p. 116; Acts Ind. 1931, chap. 241, p. 713.

58 274 U.S. 200 (1927). 274 U.S. 200 (1927).

59 New York Times New York Times, Feb. 23, 1980, p. 6; March 7, 1980, p. A16. See also Paul A Lombardo, "Three Generations, No Imbeciles: New Light on Buck v Buck v. Bell," New York University Law Review Bell," New York University Law Review 60:30 (1985). 60:30 (1985).

60 Leo Stanley, Leo Stanley, Men at Their Worst Men at Their Worst (1940), pp. 113-14. (1940), pp. 113-14.

61 Stanley, Stanley, Men at Their Worst, Men at Their Worst, pp. 157, 162-63. pp. 157, 162-63.

62 Quoted in a review by Robert H. Gault, in Quoted in a review by Robert H. Gault, in Journal of Criminal Law Journal of Criminal Law 2:648 (1912). There were other anomalies, for example, the "thickness of the skull . . . the fusion of the two parietal bones in the sagittal line of the skull," and so on. Junkins had been a "tin-can tramp. His early habitat was as undesirable as could be imagined." He was hung for a brutal murder in 1910. 2:648 (1912). There were other anomalies, for example, the "thickness of the skull . . . the fusion of the two parietal bones in the sagittal line of the skull," and so on. Junkins had been a "tin-can tramp. His early habitat was as undesirable as could be imagined." He was hung for a brutal murder in 1910.

63 Earnest A. Hooton, Earnest A. Hooton, Crime and the Man Crime and the Man (1939), pp. 124, 367. (1939), pp. 124, 367.

64 316 U.S. 535 (1942). 316 U.S. 535 (1942).

65 Ibid., at 541. Ibid., at 541.

66 Wash. Rev. Code Ann. sec. 9.92-100 (1961). The statute is apparently rarely, if ever, used. Wash. Rev. Code Ann. sec. 9.92-100 (1961). The statute is apparently rarely, if ever, used.

67 The Volstead Act was established in 41 Stats. 305 (act of October 28, 1919), and the Wright Act in Laws Cal. 1921, p. 79. The Volstead Act was established in 41 Stats. 305 (act of October 28, 1919), and the Wright Act in Laws Cal. 1921, p. 79.

68 45 Stats. 1446 (act of March 2, 1929). The act recited the "intent of Congress" that courts should "discriminate between casual or slight violations and habitual sales of intoxicating liquor, or attempts to commercialize violations of the law." 45 Stats. 1446 (act of March 2, 1929). The act recited the "intent of Congress" that courts should "discriminate between casual or slight violations and habitual sales of intoxicating liquor, or attempts to commercialize violations of the law."

69 William J. Blackburn, William J. Blackburn, The Administration of Criminal Justice in Franklin County, Ohio The Administration of Criminal Justice in Franklin County, Ohio (1935), p. 237. In that year, there were also 4,285 arrests for drunkenness, and 166 arrests for "driving while intoxicated," which are, in a way, measures of the obvious fact that Prohibition, whatever the enforcement level, did not stamp out drinking or drunkenness. (1935), p. 237. In that year, there were also 4,285 arrests for drunkenness, and 166 arrests for "driving while intoxicated," which are, in a way, measures of the obvious fact that Prohibition, whatever the enforcement level, did not stamp out drinking or drunkenness.

70 Hugh N. Fuller, Hugh N. Fuller, Criminal Justice in Virginia Criminal Justice in Virginia (1931), p. 66. (1931), p. 66.

71 Quoted in Fuller, Quoted in Fuller, Criminal Justice in Virginia, Criminal Justice in Virginia, p. 136. p. 136.

72 Illinois Crime Survey Illinois Crime Survey (1929), p. 1099. (1929), p. 1099.

73 Samuel Walker, Samuel Walker, Popular Justice: A History of American Criminal Justice Popular Justice: A History of American Criminal Justice (1980), p. 182. (1980), p. 182.

74 Gilman M. Ostrander used this term in his book Gilman M. Ostrander used this term in his book Nevada: The Great Rotten Borough, 1859-1964 Nevada: The Great Rotten Borough, 1859-1964 (1966). (1966).

75 Laws Nev. 1909, chap. 210. Laws Nev. 1909, chap. 210.