12 439 U.S. 357 (1979). 439 U.S. 357 (1979).

13 Caesar [Cesare] Lombroso and William [Guglielmo] Ferrero, Caesar [Cesare] Lombroso and William [Guglielmo] Ferrero, The The Female Offender Female Offender (1958; originally published in 1894), p. 109. (1958; originally published in 1894), p. 109.

14 Ibid., pp. 15051; Joy Pollock, "Early Theories of Female Criminality," in Lee H. Bowker, Ibid., pp. 15051; Joy Pollock, "Early Theories of Female Criminality," in Lee H. Bowker, Women, Crime Women, Crime, and and the Criminal Justice System the Criminal Justice System (1978), pp. 25, 29. (1978), pp. 25, 29.

15 Los Angeles Times, July 2, 1992, Part A, p. 5. Los Angeles Times, July 2, 1992, Part A, p. 5.

16 Bowker, Bowker, Women, Crime, and the Criminal Justice System Women, Crime, and the Criminal Justice System, pp. 225-26.

17 Annual Report, Police Department of the City of New York, year ending Dec. 31, 1905 (1906), pp. 43-48. Annual Report, Police Department of the City of New York, year ending Dec. 31, 1905 (1906), pp. 43-48.

18 T. Earl Sullenger, "Female Criminality in Omaha," T. Earl Sullenger, "Female Criminality in Omaha," Joumal Joumal of the of the American Inst.i.tute of Criminal Law and Criminology American Inst.i.tute of Criminal Law and Criminology 27:706 (1937). 27:706 (1937).

19 Bowker, Bowker, Women, Crime, and the Criminal Justice System Women, Crime, and the Criminal Justice System (1978), p. 5. (1978), p. 5.

20 See Dorothy Zietz, See Dorothy Zietz, Women Who Embezzle or Defraud: A Study of Convicted Felons Women Who Embezzle or Defraud: A Study of Convicted Felons (1981), which also contains interesting observations on differences between male and female embezzlers. (1981), which also contains interesting observations on differences between male and female embezzlers.

21 Rita J. Simon and Jean Landis, Rita J. Simon and Jean Landis, The Crimes Women Commit, the The Crimes Women Commit, the Punishments They Receive Punishments They Receive (1991), p. 103. (1991), p. 103.

22 Coramae Richey Mann, Coramae Richey Mann, Female Crime Female Crime and and Delinquency Delinquency (1984), p. 196. (1984), p. 196.

23 See the discussion in Mann, See the discussion in Mann, Female Crime and Delinquency Female Crime and Delinquency, pp. 262-71.

24 Ind. Rev. Stats. 1914 (sec. 2372, p. 1180). Ind. Rev. Stats. 1914 (sec. 2372, p. 1180).

25 George E. Worthington and Ruth Topping, "The Women's Day Court of Manhattan and the Bronx, New York City," George E. Worthington and Ruth Topping, "The Women's Day Court of Manhattan and the Bronx, New York City," Journal of Social Hygiene Journal of Social Hygiene 8:393, 42021 (1922). Laws N.Y. 1965, chap. 1030, made it a specific crime to patronize a prost.i.tute. 8:393, 42021 (1922). Laws N.Y. 1965, chap. 1030, made it a specific crime to patronize a prost.i.tute.

26 George E. Worthington and Ruth Topping, "The Misdemeanants' Division of the Philadelphia Munic.i.p.al Court," George E. Worthington and Ruth Topping, "The Misdemeanants' Division of the Philadelphia Munic.i.p.al Court," Journal of Social Hygiene Journal of Social Hygiene 8:23, 33 (1922). 8:23, 33 (1922).

27 See, in general, Ruth Rosen, See, in general, Ruth Rosen, The Lost Sisterhood: Prost.i.tution in America, 1900-1918 The Lost Sisterhood: Prost.i.tution in America, 1900-1918 (1982). (1982).

28 Worthington and Topping, "Women's Day Court," pp. 418, 428-29; Laws N.Y. 1918, chap. 419, p. 1268. Worthington and Topping, "Women's Day Court," pp. 418, 428-29; Laws N.Y. 1918, chap. 419, p. 1268.

29 Laws Cal. 1919, chap. 165, p. 246, sec. 2. Laws Cal. 1919, chap. 165, p. 246, sec. 2.

30 In re Betty Carey, 57 Cal. App. 297, 207 P. 271 (1922). In re Betty Carey, 57 Cal. App. 297, 207 P. 271 (1922).

31 Deborah Rhode, Deborah Rhode, Justice and Gender Justice and Gender, p. 258.

32 Nev. Rev. Stats. (1986) sec. 244.345(8). Nev. Rev. Stats. (1986) sec. 244.345(8).

33 It was removed in the course of a general revision of the penal code Laws Tex. 1973, chap. 399. It was removed in the course of a general revision of the penal code Laws Tex. 1973, chap. 399.

34 Rev. Code Del. 1915, sec. 4701, p. 2059. Rev. Code Del. 1915, sec. 4701, p. 2059.

35 Paul W. Tappan, Paul W. Tappan, Delinquent Girls in Court: A Study of the Wayward Minor Court of New York Delinquent Girls in Court: A Study of the Wayward Minor Court of New York (1947), pp. 35, 117. (1947), pp. 35, 117.

36 Mary Ellen Odem, Mary Ellen Odem, Delinquent Daughters Delinquent Daughters (1992), pp. 228, 234, 244, 250. (1992), pp. 228, 234, 244, 250.

37 Simon and Landis, Simon and Landis, Crimes Women Commit, Crimes Women Commit, pp. 6061, 62, 104. pp. 6061, 62, 104.

38 105 Kans. 139, 181 P. 630 (1919). 105 Kans. 139, 181 P. 630 (1919).

39 Sh.e.l.ly Bookspan, Sh.e.l.ly Bookspan, A Germ of Goodness: The California State Prison System A Germ of Goodness: The California State Prison System, 18511944 (1991), pp. 7592.

40 Mary B. Harris, Mary B. Harris, I Knew Them in Prison I Knew Them in Prison (1936), pp. 245381, describes her experience as director. (1936), pp. 245381, describes her experience as director.

41 Ibid., pp. 29091. Ibid., pp. 29091.

42 Estelle Freedman, Estelle Freedman, Their Sisters' Keepers Their Sisters' Keepers (1981), p. 146. (1981), p. 146.

43 Ibid., p. 150; Harris, Ibid., p. 150; Harris, I Knew Them in Prison, I Knew Them in Prison, pp. 339, 359. pp. 339, 359.

44 Freedman, Freedman, Their Sisters' Keepers, Their Sisters' Keepers, pp. 131-32; for a firsthand account of one woman's experiences in Bedford Prison (New York), see Edna V. O'Brien, pp. 131-32; for a firsthand account of one woman's experiences in Bedford Prison (New York), see Edna V. O'Brien, So I Went to Prison So I Went to Prison (1938). (1938).

45 Harris, Harris, I Knew Them in Prison, I Knew Them in Prison, p. 260. p. 260.

46 Del Martin, " Del Martin, "The Historical Roots of Domestic Violence," in Daniel Jay Sonkin, ed., Domestic Violence on Trial: Psychological and Legal Dimensions of Family Violence Domestic Violence on Trial: Psychological and Legal Dimensions of Family Violence ( 1987), pp. 3, 67. ( 1987), pp. 3, 67.

47 Ann. Code Md. (ed. Bagby, 1924) Vol. 1, pp. 973-74. The guilty party could be sentenced to prison for up to one year, but could (theoretically) also be "whipped, not exceeding forty lashes," the act to be carried out "within the walls of the city or county jail." This is a very late, rather surprising survival (see chapter 10). Ann. Code Md. (ed. Bagby, 1924) Vol. 1, pp. 973-74. The guilty party could be sentenced to prison for up to one year, but could (theoretically) also be "whipped, not exceeding forty lashes," the act to be carried out "within the walls of the city or county jail." This is a very late, rather surprising survival (see chapter 10).

48 Linda Gordon, Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence: Boston, 1880-1960 Heroes of Their Own Lives: The Politics and History of Family Violence: Boston, 1880-1960 (1988). (1988).

49 Gordon, Gordon, Heroes, Heroes, at 251. at 251.

50 State v. Lynch, 436 So. 2d 567 (La., 1983). State v. Lynch, 436 So. 2d 567 (La., 1983).

51 The case is discussed in Lenore E. Walker, Roberta K. Thyfault, and Angela Browne, " The case is discussed in Lenore E. Walker, Roberta K. Thyfault, and Angela Browne, "Beyond the Juror's Ken: Battered Women," Vermont Law Review 7:1, 4 ( 1982). 7:1, 4 ( 1982).

52 Angela Browne, Angela Browne, When Battered Women Kill When Battered Women Kill (1987), p. 10. (1987), p. 10.

53 Ibid., p. 12. Governor Celeste of Ohio pardoned a group of such women when he left office. Ibid., p. 12. Governor Celeste of Ohio pardoned a group of such women when he left office. New York Times New York Times, Dec. 22, 1990, p. 1.

54 Susan Estrich, "s.e.x at Work," Susan Estrich, "s.e.x at Work," Stanford Law Review Stanford Law Review 43:813, 815 (1991). The point is a good one, although rape is not the only example of a crime where the defense strategy is to "try the victim." It is more or less true for many cases of aggravated a.s.sault and murder, where the defense tries to show, if not self-defense, at least some sort of moral justification. 43:813, 815 (1991). The point is a good one, although rape is not the only example of a crime where the defense strategy is to "try the victim." It is more or less true for many cases of aggravated a.s.sault and murder, where the defense tries to show, if not self-defense, at least some sort of moral justification.

55 Harry Kalven, Jr., and Hans Zeisel, Harry Kalven, Jr., and Hans Zeisel, The American Jury The American Jury (1966), pp. 250-52. (1966), pp. 250-52.

56 Rhode, Rhode, Justice and Gender, Justice and Gender, pp. 24849. pp. 24849.

57 The case, Commonwealth v. Pugh (unreported), is discussed in H. Lane Kneedler, "s.e.xual a.s.sault Law Reform in Virginia-A Legislative History," The case, Commonwealth v. Pugh (unreported), is discussed in H. Lane Kneedler, "s.e.xual a.s.sault Law Reform in Virginia-A Legislative History," Virginia Law Review 6 Virginia Law Review 68:459-82 ( 1982).

58 Susan Estrich, Susan Estrich, Real Real Rape Rape (1987), p. 11. (1987), p. 11.

59 Annual Report, Annual Report, Police Department of the City of Chicago, year ending Dec. 31, 1926, p. 18; Police Department of the City of Chicago, year ending Dec. 31, 1926, p. 18; Annual Report, Police Department of the City and County of Honolulu, Terr. of Hawaii, 1935, Annual Report, Police Department of the City and County of Honolulu, Terr. of Hawaii, 1935, p. 24. p. 24.

60 Rhode, Rhode, Justice and Gender Justice and Gender, p. 246.

61 Laws Mich. 1974, no. 266, p. 1025. Laws Mich. 1974, no. 266, p. 1025.

62 Laws Mich. 1974, no. 266, at 1028-29. Laws Mich. 1974, no. 266, at 1028-29.

63 Rhode, Rhode, Justice Justice and and Gender Gender, p. 250.

64 Diana E. H. Russell, Diana E. H. Russell, Rape in Marriage Rape in Marriage (rev. ed., 1990), pp. 17-23. The Oregon statute which abolished spousal immunity was Laws Ore. 1977, chap. 844. (rev. ed., 1990), pp. 17-23. The Oregon statute which abolished spousal immunity was Laws Ore. 1977, chap. 844.

65 Russell, Russell, Rape in Marriage Rape in Marriage, pp. 24-25.

66 See New York Times, April 5, 1991, p. A13; the acquittal was noted in See New York Times, April 5, 1991, p. A13; the acquittal was noted in New York Times New York Times, Dec. 11, 1991, p. Al.

67 Julie Homey and Ca.s.sia Spohn, "Rape Law Reform and Instrumental Change in Six Urban Jurisdictions, Julie Homey and Ca.s.sia Spohn, "Rape Law Reform and Instrumental Change in Six Urban Jurisdictions," Law and Society Review 15:117 (1991). For a before-and-after study in Washington State, see Wallace D. Loh, "The Impact of Common Law and Reform Rape Statutes on Prosecution: An Empirical Study," 15:117 (1991). For a before-and-after study in Washington State, see Wallace D. Loh, "The Impact of Common Law and Reform Rape Statutes on Prosecution: An Empirical Study," Washington Law Review Washington Law Review 55:543 (1980). 55:543 (1980).

68 Estrich, Estrich, Real Rape Real Rape, p. 102.

CHAPTER 19. CRIMES OF THE SELF: TWENTIETH-CENTURY LEGAL CULTURE.

1 People v. Miller, 169 N.Y. 339, 62 N.E. 418 ( 1902). People v. Miller, 169 N.Y. 339, 62 N.E. 418 ( 1902).

2 Ibid., at 346, 347. Ibid., at 346, 347.

3 Ibid., at 356. Ibid., at 356.

4 Ibid., at 349. Ibid., at 349.

5 See Lawrence M. Friedman, See Lawrence M. Friedman, The Republic of Choice: Law, Authority, and Culture The Republic of Choice: Law, Authority, and Culture (1990); on expressive individualism, see Robert Bellah et al., (1990); on expressive individualism, see Robert Bellah et al., Habits of the Heart: Individualism and Commitment in American Life ( Habits of the Heart: Individualism and Commitment in American Life (1985).

6 Roger M. Olien and Diana Davids Olien, Easy Money: Roger M. Olien and Diana Davids Olien, Easy Money: Oil Promoters and Investors in the Jazz Age Oil Promoters and Investors in the Jazz Age (1990), pp. 2-3. (1990), pp. 2-3.

7 On this point, see the interesting book by Jack Katz, On this point, see the interesting book by Jack Katz, Seductions of Crime: Moral and Sensual Attractions in Doing Evil Seductions of Crime: Moral and Sensual Attractions in Doing Evil (1988). (1988).

8 Warren I. Susman, Warren I. Susman, Culture as History: The Transformation of American Society in the Twentieth Century Culture as History: The Transformation of American Society in the Twentieth Century ( 1985), chap. 14. ( 1985), chap. 14.

9 Daniel Bell, Daniel Bell, The Cultural Contradictions of Capitalism The Cultural Contradictions of Capitalism (1976), p. 37. (1976), p. 37.

10 For an account of the crime and the trial, see Hal Higdon, For an account of the crime and the trial, see Hal Higdon, The Crime of the Century: The Crime of the Century: The Leopold and Loeb Case The Leopold and Loeb Case (1975). (1975).

11 New York Times New York Times, Nov. 27, 1991 (national ed.), p. A6.

12 Mercer L. Sullivan, " Mercer L. Sullivan, "Getting Paid," Youth Crime and Work in the Inner City ( Youth Crime and Work in the Inner City (1989), pp. 247, 249; Michael R. Gottfredson and Travis Hirschi, in A General Theory of Crime A General Theory of Crime (1990), put lack of self-control and desire for easy gratification at the center of their theory. (1990), put lack of self-control and desire for easy gratification at the center of their theory.

13 New York Times, New York Times, Sept. 4, 1990, p. B7; Sept. 5, p. Al; Sept. 7, p. B4. Sept. 4, 1990, p. B7; Sept. 5, p. Al; Sept. 7, p. B4.

14 Friedman, Friedman, Republic of Choice Republic of Choice, p. 135.

15 Ibid., pp. 126-30. Ibid., pp. 126-30.

16 Sheldon Glueck and Eleanor T. Glueck, Sheldon Glueck and Eleanor T. Glueck, Five Hundred Criminal Careers Five Hundred Criminal Careers (1930), p. 152. (1930), p. 152.

17 Frederick M. Thrasher, Frederick M. Thrasher, The Gang: A Study of 1,313 Gangs in Chicago The Gang: A Study of 1,313 Gangs in Chicago (2d ed., 1936), p. 37. (2d ed., 1936), p. 37.

18 Katz, Katz, Seductions of Crime Seductions of Crime, pp. 312, 321.

19 Friedman, Republic of Choice Friedman, Republic of Choice, p. 128.

20 Quoted in Joseph L. Holmes, "Crime and the Press," Quoted in Joseph L. Holmes, "Crime and the Press," Journal of the American Inst.i.tute of Criminal Law and Criminology Journal of the American Inst.i.tute of Criminal Law and Criminology 20:246, 254 (1929). 20:246, 254 (1929).

21 See, for example, Paul Kovistra, See, for example, Paul Kovistra, Criminals as Criminals as Heroes: Structure, Power and Ident.i.ty Heroes: Structure, Power and Ident.i.ty (1989). (1989).

22 Quoted in Richard O'Connor, Courtroom Quoted in Richard O'Connor, Courtroom Warrior: The Combative Warrior: The Combative Career of William Career of William Travers Jerome Travers Jerome (1963), p. 295. (1963), p. 295.

23 Lewis E. Lawes, Lewis E. Lawes, Twenty Thousand Years in Sing Sing Twenty Thousand Years in Sing Sing (1932), p. 312. (1932), p. 312.

24 Friedman, Friedman, Republic of Choice, Republic of Choice, p. 115. p. 115.

CHAPTER 20. A NATION BESIEGED.

1 James Gilbert, James Gilbert, A Cycle of Outrage: America's Reaction to the Juvenile Delinquent in the 1950s A Cycle of Outrage: America's Reaction to the Juvenile Delinquent in the 1950s (1986), p. 14. (1986), p. 14.

2 George Gallup, Jr., George Gallup, Jr., The Gallup Poll: Public Opinion, 1990 The Gallup Poll: Public Opinion, 1990 (1991), pp. 122-23. (1991), pp. 122-23.

3 President's Commission on Law Enforcement and the Administration of Justice, President's Commission on Law Enforcement and the Administration of Justice, The Challenge of Crime in a Free Society The Challenge of Crime in a Free Society (1967), p. 166. (1967), p. 166.

4 Ibid., pp. 102-4, p. 110; see James Q. Wilson and Richard J. Hermstein, Ibid., pp. 102-4, p. 110; see James Q. Wilson and Richard J. Hermstein, Crime and Human Nature Crime and Human Nature (1985), pp. 4089, 41617. (1985), pp. 4089, 41617.

5 New York Times New York Times, March 25, 1991, p. A15.

6 New York Times, New York Times, June 27, 1990 (national ed.), p. A12. June 27, 1990 (national ed.), p. A12.

7 Wesley G. Skogan and Michael G. Maxfield, Wesley G. Skogan and Michael G. Maxfield, Coping with Crime: Individual and Neighborhood Reactions Coping with Crime: Individual and Neighborhood Reactions (1981), p. 189. (1981), p. 189.

8 Barry Meier, "Reality and Anxiety; Lives Changed Not Just by Crime but by Fear," Barry Meier, "Reality and Anxiety; Lives Changed Not Just by Crime but by Fear," New York Times New York Times, February 18, 1993, p. A8. The consequences of this great fear, of course, reverberate through society in large and small ways. On the very same page of the Times Times, there is a tragic story about seven children, left alone in a frame house in Detroit, who died in a fire: "anti-burglar bars on the windows kept them from escaping."

9 See, in general, Herbert Jacob, See, in general, Herbert Jacob, The Frustration of Policy: Responses to Crime by American Cities The Frustration of Policy: Responses to Crime by American Cities (1984); Stuart A. Scheingold, (1984); Stuart A. Scheingold, The Politics of Law and Order: Street Crime and Public Policy The Politics of Law and Order: Street Crime and Public Policy (1984). (1984).

10 Franklin E. Zimring and Gordon Hawkins, Franklin E. Zimring and Gordon Hawkins, Capital Punishment and the American Agenda ( Capital Punishment and the American Agenda (1986), p. 150.

11 See, in general, Franklin E. Zimring and Gordon Hawkins, See, in general, Franklin E. Zimring and Gordon Hawkins, The Scale of Imprisonment The Scale of Imprisonment (1991). (1991).

12 Roger D. McGrath, Roger D. McGrath, Gunfighters, Highwaymen, and Vigilantes: Violence on the Frontier Gunfighters, Highwaymen, and Vigilantes: Violence on the Frontier (1984), pp. 253, 255. (1984), pp. 253, 255.

13 Marvin E. Wolfgang, Marvin E. Wolfgang, Patterns in Criminal Homicide Patterns in Criminal Homicide (1958), p. 207. (1958), p. 207.