36 See the report of the Alaska Judicial Council, See the report of the Alaska Judicial Council, Alaska's Plea Bargaining Ban Re-evaluated Alaska's Plea Bargaining Ban Re-evaluated (January 1991). The verdict is: the reform is not perfect, there is slippage, but it has had a definite and long-term impact. (January 1991). The verdict is: the reform is not perfect, there is slippage, but it has had a definite and long-term impact.

37 See Raymond Moley, See Raymond Moley, Tribunes of the People: The Past and Future of the New York Magistrates' Courts Tribunes of the People: The Past and Future of the New York Magistrates' Courts ( 1932), pp. 178-85. ( 1932), pp. 178-85.

38 Lisa J. McIntyre, Lisa J. McIntyre, The Public Defender: The Practice of Law in the Shadows of Repute The Public Defender: The Practice of Law in the Shadows of Repute (1987), p. 41. (1987), p. 41.

39 Ibid., p. 162. Ibid., p. 162.

40 Ibid., p. 87. Ibid., p. 87.

41 Casper, Casper, American Criminal Justice, American Criminal Justice, p. 101. p. 101.

42 Paul M. Angle, b.l.o.o.d.y Paul M. Angle, b.l.o.o.d.y Williamson: A Chapter in American Lawlessness Williamson: A Chapter in American Lawlessness (1952), p. 45. The eight defendants were acquitted. (1952), p. 45. The eight defendants were acquitted.

43 Sam Ba.s.s Warner and Henry B. Cabot, Sam Ba.s.s Warner and Henry B. Cabot, Judges and Law Reform Judges and Law Reform (1936), p. 133. (1936), p. 133.

44 Illinois Crime Survey, Illinois Crime Survey, 1929, pp. 234-35. 1929, pp. 234-35.

45 M. R. Wemer and John Starr, M. R. Wemer and John Starr, Teapot Dome Teapot Dome (1959), pp. 225-27. (1959), pp. 225-27.

46 Wamer and Cabot, Wamer and Cabot, Judges, Judges, pp. 125-26. pp. 125-26.

47 Witherspoon v. Illinois, 391 U.S. 510, 520 (1968). Witherspoon v. Illinois, 391 U.S. 510, 520 (1968).

48 43 Cal. App. 3d 627, 117 Cal. Rptr. 913 (1975). 43 Cal. App. 3d 627, 117 Cal. Rptr. 913 (1975).

49 See See Washington Post, Washington Post, Jan. 5, 1987, p. B1; Jan. 5, 1987, p. B1; Los Angeles Times Los Angeles Times, Aug. 27, 1986, Part 1, p. 1.

50 On this case, see Richard O'Connor, On this case, see Richard O'Connor, Courtroom Warrior: The Combative Career of William Travers Jerome ( Courtroom Warrior: The Combative Career of William Travers Jerome (1963), chaps. 7 and 8.

51 Irvin S. Cobb, Irvin S. Cobb, Exit Laughing Exit Laughing (1942), pp. 198-99. (1942), pp. 198-99.

52 O'Connor, O'Connor, Courtroom Warrior Courtroom Warrior, p. 301.

53 Hal Higdon, Hal Higdon, The Crime of the Century: The Leopold and Loeb Case The Crime of the Century: The Leopold and Loeb Case (1975), p. 169. (1975), p. 169.

54 Kevin Tierney, Kevin Tierney, Darrow: A Biography ( Darrow: A Biography (1979), pp. 338-39.

55 The account here is taken from William M. Kunstler, The Minister The account here is taken from William M. Kunstler, The Minister and the Choir Singer: The Hall-Mills Murder Case and the Choir Singer: The Hall-Mills Murder Case (1964). (1964).

56 William Kunstler ( William Kunstler (The Minister and the Choir Singer [1964]) feels that the defendants were, in fact, innocent and that the killings were carried out by the Ku Klux Klan, as a kind of vigilante action against adulterers. This guess seems to be as good as any; but it is, of course, purely a guess. [1964]) feels that the defendants were, in fact, innocent and that the killings were carried out by the Ku Klux Klan, as a kind of vigilante action against adulterers. This guess seems to be as good as any; but it is, of course, purely a guess.

57 Quoted in M. K. Wisehart, "Newspapers and Criminal Justice," in Quoted in M. K. Wisehart, "Newspapers and Criminal Justice," in Criminal Justice in Cleveland Criminal Justice in Cleveland (1922), pp. 533-36. (1922), pp. 533-36.

58 Cleveland Plain Dealer, Cleveland Plain Dealer, March 8, 1918, p. 1. March 8, 1918, p. 1.

59 John Kobler, ed., John Kobler, ed., The Trial of Ruth Snyder and Judd Gray The Trial of Ruth Snyder and Judd Gray (1938), pp. 302-3. (1938), pp. 302-3.

60 On the Lindbergh case, see, for example, Ludovic Kennedy, On the Lindbergh case, see, for example, Ludovic Kennedy, The Airman and the Carpenter: The Lindbergh Kidnapping and the Framing of Richard Hauptmann The Airman and the Carpenter: The Lindbergh Kidnapping and the Framing of Richard Hauptmann (1985), pp. 255-56. As the t.i.tle suggests, Kennedy is convinced that Bruno Richard Hauptmann was innocent, but this is decidedly a minority view. For another account, see Jim Fisher, (1985), pp. 255-56. As the t.i.tle suggests, Kennedy is convinced that Bruno Richard Hauptmann was innocent, but this is decidedly a minority view. For another account, see Jim Fisher, The Lindbergh Case The Lindbergh Case (1987). The Mencken reference is Kennedy, p. 255. On the television ban, see Ann. (1987). The Mencken reference is Kennedy, p. 255. On the television ban, see Ann. Rpt., American Bar a.s.sociation Rpt., American Bar a.s.sociation 62:1134 (1937); 77:110 (1952); 104:297 (1979). 62:1134 (1937); 77:110 (1952); 104:297 (1979).

61 381 U.S. 532 (1965). The flamboyant career of Billie Sol Estes, the pious, churchgoing, Texas swindler whose misdoings were the subject of this case, is recounted in 381 U.S. 532 (1965). The flamboyant career of Billie Sol Estes, the pious, churchgoing, Texas swindler whose misdoings were the subject of this case, is recounted in Time Time, May 11, 1962, p. 22; May 25, 1962, p. 24. I am indebted to David Himelfarb for these references.

62 381 U.S. 532, 536 (1965). 381 U.S. 532, 536 (1965).

63 384 U.S. 333 (1966/. 384 U.S. 333 (1966/.

64 Sheppard v. Maxwell, 384 U.S. 333, 363 (1966). Sheppard v. Maxwell, 384 U.S. 333, 363 (1966).

65 449 U.S. 560 (1981). 449 U.S. 560 (1981).

66 Ibid., at 575. Ibid., at 575.

67 People v. Moran, 249 N.Y. 179, 163 N.E. 553 (1928). People v. Moran, 249 N.Y. 179, 163 N.E. 553 (1928).

68 H. Douglas Singer, "The Deranged and Defective Delinquent," in H. Douglas Singer, "The Deranged and Defective Delinquent," in Illinois Crime Survey Illinois Crime Survey (1929), pp. 737, 757, 759. (1929), pp. 737, 757, 759.

69 66 N.M. 289, 347 Pac. 2d 312 ( 1959). 66 N.M. 289, 347 Pac. 2d 312 ( 1959).

70 Durham v. United States, 214 Fed. 2d 862 (D.C., 1954). Durham v. United States, 214 Fed. 2d 862 (D.C., 1954).

71 Thomas Maeder, Thomas Maeder, Crime and Madness, the Origins and Evolution of the Insanity Defense Crime and Madness, the Origins and Evolution of the Insanity Defense (1985), p. 92. (1985), p. 92.

72 Maeder, Maeder, Crime and Madness, Crime and Madness, pp. 92-93. pp. 92-93.

73 United States v. Brawner, 471 Fed. 2d 969 (D.C. Cir., 1972). United States v. Brawner, 471 Fed. 2d 969 (D.C. Cir., 1972).

74 Laws Cal. 1981, chap. 404, p. 1592; Penal Code section 28(b). White was paroled after five years, and then committed suicide; see Laws Cal. 1981, chap. 404, p. 1592; Penal Code section 28(b). White was paroled after five years, and then committed suicide; see Los Angeles Daily Journal, Los Angeles Daily Journal, Nov. 5, 1985, p. 4. Nov. 5, 1985, p. 4.

75 William F. Lewis, "Power, Knowledge, and Insanity: The Trial of John W. Hinckley, Jr.," in Robert Hariman, ed., William F. Lewis, "Power, Knowledge, and Insanity: The Trial of John W. Hinckley, Jr.," in Robert Hariman, ed., Popular Trials: Rhetoric, Ma.s.s Media, and the Law Popular Trials: Rhetoric, Ma.s.s Media, and the Law (1990), pp. 114, 117, 127. (1990), pp. 114, 117, 127.

76 98 Stats. 2057 (act of Oct. 12, 1984); 18 U.S.C.A. sec. 17. 98 Stats. 2057 (act of Oct. 12, 1984); 18 U.S.C.A. sec. 17.

77 See General Laws Idaho (1979), sec. 18-207; also, Mont. Rev. Stats. (1991), sec. 46-14-102, which makes evidence of mental disease or defect admissable, however, to prove "state of mind" if this is an "element of the offense." Interestingly, there were a few precursors to these statutes. Laws Miss. 1928, chap. 75, p. 92, provided that "the insanity of the defendant" was not to be "a defense against indictments for murder See General Laws Idaho (1979), sec. 18-207; also, Mont. Rev. Stats. (1991), sec. 46-14-102, which makes evidence of mental disease or defect admissable, however, to prove "state of mind" if this is an "element of the offense." Interestingly, there were a few precursors to these statutes. Laws Miss. 1928, chap. 75, p. 92, provided that "the insanity of the defendant" was not to be "a defense against indictments for murder " "; but "evidence" of insanity could be offered "in mitigation of the crime." If the jury found the defendant guilty but insane, they were to say so, and the penalty would be life imprisonment. The trial judge had discretion to "certify to the governor" his view that "the mental condition of the prisoner is such that he should not be confined in the penitentiary," and the governor could then set a process in motion which might end with the prisoner's hospitalization.

78 66 N.M. 289, 347 Pac. 2d 312 (1959). 66 N.M. 289, 347 Pac. 2d 312 (1959).

79 Laws N.J. 1900, chap. 102, p. 289; Laws N.Y. 1901, chap. 372, p. 1029; Laws Cal. 1903, chap. 34, p. 34. Laws N.J. 1900, chap. 102, p. 289; Laws N.Y. 1901, chap. 372, p. 1029; Laws Cal. 1903, chap. 34, p. 34.

80 Charles L. Chute, "The Development of Probation in the United States," in Sheldon Glueck, ed., Charles L. Chute, "The Development of Probation in the United States," in Sheldon Glueck, ed., Probation and Criminal Justice Probation and Criminal Justice (1933), pp. 225-35. (1933), pp. 225-35.

81 Laws N.Y. 1928, chap. 460, sec. 928, p. 1014. Laws N.Y. 1928, chap. 460, sec. 928, p. 1014.

82 Friedman and Percival, Friedman and Percival, Roots of Justice Roots of Justice, p. 233.

83 Criminal Court of Cook County, Case No. 59452, Jan. 13, 1931; Adult Probation Office, Investigation Report. Despite the tone of the report, the court put Emil on twelve months' probation. Criminal Court of Cook County, Case No. 59452, Jan. 13, 1931; Adult Probation Office, Investigation Report. Despite the tone of the report, the court put Emil on twelve months' probation.

84 San Diego Union San Diego Union, Sept. 3, 1908, p. 12.

85 Charles c.o.o.ns, Superior Court of Santa Clara County, Calif., Criminal Case No. 18597.5 (1925). Charles c.o.o.ns, Superior Court of Santa Clara County, Calif., Criminal Case No. 18597.5 (1925).

86 Lawrence Narvaez, Superior Court of Santa Clara County, Criminal Case No. 17894.5 (Feb. 14, 1922). Lawrence Narvaez, Superior Court of Santa Clara County, Criminal Case No. 17894.5 (Feb. 14, 1922).

87 Criminal Justice in Cleveland Criminal Justice in Cleveland ( 1922), pp. 323, 324, 330. ( 1922), pp. 323, 324, 330.

88 Michael J. Hindelang et. al., Michael J. Hindelang et. al., Sourcebook of Criminal Justice Statistics-1973 Sourcebook of Criminal Justice Statistics-1973 (1973), p. 297. (1973), p. 297.

89 Timothy J. Flanagan and Kathleen Maguire, eds., Timothy J. Flanagan and Kathleen Maguire, eds., Sourcebook of Criminal Justice Statistics-1989 Sourcebook of Criminal Justice Statistics-1989 (1990), pp. 5067, 513. (1990), pp. 5067, 513.

90 William McAlpin, Superior Court of Santa Clara County, Criminal Case No. 17893.5 (Feb. 3, 1922). William McAlpin, Superior Court of Santa Clara County, Criminal Case No. 17893.5 (Feb. 3, 1922).

91 Superior Court of Santa Clara County, Criminal Case No. 17835.5 (Oct.28, 1921). Superior Court of Santa Clara County, Criminal Case No. 17835.5 (Oct.28, 1921).

92 Laws N.Y. 1926, chap. 457, p. 805, amending penal code section 1941. Laws N.Y. 1926, chap. 457, p. 805, amending penal code section 1941.

93 254 N.Y. 249, 172 N.E. 487 (1930). 254 N.Y. 249, 172 N.E. 487 (1930).

94 Malcolm M. Feeley, Malcolm M. Feeley, Court Reform on Trial: Why Simple Solutions Fail Court Reform on Trial: Why Simple Solutions Fail (1983), pp. 118-28; the statutes in question were Laws N.Y. 1973, chap. 278, p. 402; Laws N.Y. 1979, chap. 410, p. 905. (1983), pp. 118-28; the statutes in question were Laws N.Y. 1973, chap. 278, p. 402; Laws N.Y. 1979, chap. 410, p. 905.

95 Marvin E. Frankel, Marvin E. Frankel, Criminal Sentences Criminal Sentences: Law Without Order Law Without Order (1973), pp. 7, 9, 69. (1973), pp. 7, 9, 69.

96 Stephen J. Schulhofer and Ilene H. Nagel, "Negotiated Pleas under the Federal Sentencing Guidelines: The First Fifteen Months," Stephen J. Schulhofer and Ilene H. Nagel, "Negotiated Pleas under the Federal Sentencing Guidelines: The First Fifteen Months," American Criminal Law Review American Criminal Law Review 27:231, 238 (1989). 27:231, 238 (1989).

97 Laws Minn. 1978, chap. 723, p. 761. Laws Minn. 1978, chap. 723, p. 761.

98 Lynne Goodstein and John Hepburn, Lynne Goodstein and John Hepburn, Determinate Sentencing and Imprisonment: A Failure of Reform Determinate Sentencing and Imprisonment: A Failure of Reform (1985), pp. 7680. (1985), pp. 7680.

99 New York Times New York Times, April 12, 1992 (national ed.), p. 20.

100 New York Times New York Times, April 12, 1992 (national ed.), pp. 1, 20.

101 Laws Colo. 1903, chap. 85, p. 178. Laws Colo. 1903, chap. 85, p. 178.

102 Steven L. Schlossman, Steven L. Schlossman, Love and the American Delinquent: The Theory and Practice of "Progressive" Juvenile Justice, Love and the American Delinquent: The Theory and Practice of "Progressive" Juvenile Justice, 18251920 (1977), p. 56. 18251920 (1977), p. 56.

103 Anthony M. Platt, Anthony M. Platt, The Child Savers: The Invention of Delinquency The Child Savers: The Invention of Delinquency (1969), p. 77; on the rise of juvenile justice, see also John R. Sutton, (1969), p. 77; on the rise of juvenile justice, see also John R. Sutton, Stubbom Children: Controlling Delinquency in the United States, 1640- Stubbom Children: Controlling Delinquency in the United States, 1640-1981 (1988); Thomas J. Bernard, The Cycles of Juvenile Justice The Cycles of Juvenile Justice (1992). (1992).

104 At the same time they created juvenile courts, states often put a new crime on the statute books: "contributing to the delinquency" of a child; see Laws. Colo. 1903, chap. 94, p. 198, which may be the first of these. Such a law, of course, could be used against parents whose parenting did not meet middle-cla.s.s standards. At the same time they created juvenile courts, states often put a new crime on the statute books: "contributing to the delinquency" of a child; see Laws. Colo. 1903, chap. 94, p. 198, which may be the first of these. Such a law, of course, could be used against parents whose parenting did not meet middle-cla.s.s standards.

105 Judge Ben B. Lindsey, introduction to Thomas Travis, Judge Ben B. Lindsey, introduction to Thomas Travis, The Young Malefactor The Young Malefactor (1908), p. x. (1908), p. x.

106 Travis, The Young Malefactor, Travis, The Young Malefactor, pp. 16062. pp. 16062.

107 Ben B. Lindsey and Wainwright Evans, Ben B. Lindsey and Wainwright Evans, The Revolt of Modern Youth The Revolt of Modern Youth (1925), pp. 159, 160, 162. (1925), pp. 159, 160, 162.

108 For example, Katharine F. Lenroot and Emma O. Lundberg, For example, Katharine F. Lenroot and Emma O. Lundberg, Juvenile Courts at Work: A Study of the Organization and Methods of Ten Courts Juvenile Courts at Work: A Study of the Organization and Methods of Ten Courts (1925). (1925).

109 Friedman and Percival, Friedman and Percival, Roots of Justice Roots of Justice, pp. 22324.

110 Criminal Justice in Cleveland Criminal Justice in Cleveland (1922), p. 329. (1922), p. 329.

111 Lenroot and Lundberg, Lenroot and Lundberg, Juvenile Courts at Work Juvenile Courts at Work, p. 40.

112 387 U.S. 1(1967). 387 U.S. 1(1967).

113 Edmund F. McGarrell, Edmund F. McGarrell, Juvenile Correctional Reform: Two Decades of Policy and Procedural Change Juvenile Correctional Reform: Two Decades of Policy and Procedural Change (1988), pp. 110-11. The statute was Laws N.Y. 1978, chap. 481. (1988), pp. 110-11. The statute was Laws N.Y. 1978, chap. 481.

114 Lester Orfield, Lester Orfield, Criminal Appeals in America Criminal Appeals in America (1939), pp. 22527. (1939), pp. 22527.

115 Ibid. Ibid.

116 C. G. Vernier and Philip Selig, Jr., "The Reversal of Criminal Cases in the Supreme Court of California," C. G. Vernier and Philip Selig, Jr., "The Reversal of Criminal Cases in the Supreme Court of California," Southern California Law Review Southern California Law Review 2:21, 24-25 (1928). 2:21, 24-25 (1928).

117 J. Hugo Grimm, "Ten Years of Supreme Court Decisions," in J. Hugo Grimm, "Ten Years of Supreme Court Decisions," in Missouri Crime Survey Missouri Crime Survey (1926), p. 221 (1926), p. 221 118 186 S.W. 2d 243 (Tex. Crim. App., 1945). 186 S.W. 2d 243 (Tex. Crim. App., 1945).

119 Quoted in A. R. Stout, "Criminal Procedure in Texas Should Be Revised : An Address," Quoted in A. R. Stout, "Criminal Procedure in Texas Should Be Revised : An Address," Texas Law Review Texas Law Review 25:613, 618 (1947). 25:613, 618 (1947).

120 186 S.W. 2d at 247. 186 S.W. 2d at 247.

121 So, for example, under the Utah Rules of Criminal Procedure, So, for example, under the Utah Rules of Criminal Procedure, Utah Court Rules, 1992 Utah Court Rules, 1992, p. 411, Rule 26, section 10, a death penalty case will be "automatically reviewed by the Supreme Court," even if the "defendant has chosen not to pursue this appeal."

CHAPTER 18. GENDER AND JUSTICE.

1 McKinney v. State 3 Wyo. 719 (1892). McKinney v. State 3 Wyo. 719 (1892).

2 Deborah Rhode, Deborah Rhode, Justice and Gender Justice and Gender (1989), p. 49. (1989), p. 49.

3 Laws Ore. 1921, chap. 273, pp. 513, 514; R. Justin Miller, "The Woman Juror, Laws Ore. 1921, chap. 273, pp. 513, 514; R. Justin Miller, "The Woman Juror," Oregon Law Review 2:30 (1922). 2:30 (1922).

4 Commonwealth v. Garletts, 81 Pa. Super Ct. 271 (1923). Commonwealth v. Garletts, 81 Pa. Super Ct. 271 (1923).

5 R. Justin Miller, "The Woman Juror"; at 42. R. Justin Miller, "The Woman Juror"; at 42.

6 People v. Manuel, 41 Cal. App. 153, 182 P. 306 (1919). The appellate court affirmed Ms. Manuel's conviction; the all-woman jury was in no way prejudicial, the court thought. People v. Manuel, 41 Cal. App. 153, 182 P. 306 (1919). The appellate court affirmed Ms. Manuel's conviction; the all-woman jury was in no way prejudicial, the court thought.

7 State ex rel. Pa.s.ser v. County Board, 171 Minn. 177, 213 N.W. 545 (1927). State ex rel. Pa.s.ser v. County Board, 171 Minn. 177, 213 N.W. 545 (1927).

8 Acts. So. Car. 1921, No. 184, pp. 26970. Acts. So. Car. 1921, No. 184, pp. 26970.

9 La. Const. 1921, Art. 7, sec. 41. La. Const. 1921, Art. 7, sec. 41.

10 Taylor v. Louisiana, 419 U.S. 522 [1975]. Taylor v. Louisiana, 419 U.S. 522 [1975].

11 329 U.S. 187 (1946). 329 U.S. 187 (1946).