14 Marc Riedel and Margaret A. Zahn, Marc Riedel and Margaret A. Zahn, The Nature and Patterns of American Homicide The Nature and Patterns of American Homicide (1985), table 2.2, p. 13. (1985), table 2.2, p. 13.

15 Wolfgang, Wolfgang, Patterns in Homicide Patterns in Homicide, pp. 84, 86.

16 Riedel and Zahn, Riedel and Zahn, American Homicide American Homicide, p. 51.

17 Lawrence M. Friedman, Lawrence M. Friedman, The Republic of Choice The Republic of Choice (1990), p. 134. (1990), p. 134.

18 James Q. Wilson and Richard Hermstein, James Q. Wilson and Richard Hermstein, Crime and Human Nature Crime and Human Nature (1985), pp. 420, 435; see also Warren Susman, (1985), pp. 420, 435; see also Warren Susman, Culture as History Culture as History (1984), chaps. 13 and 14. (1984), chaps. 13 and 14.

19 See Elliott Currie, See Elliott Currie, Confronting Crime Confronting Crime (1985), pp. 186-210. (1985), pp. 186-210.

20 On this theme, see Friedman, On this theme, see Friedman, Republic of Choice Republic of Choice (1990). (1990).

21 Doris A. Graber, Doris A. Graber, Crime News and the Public Crime News and the Public (1980), pp. 70-71, 80-81. (1980), pp. 70-71, 80-81.

22 See, very notably, Hans Zeisel, See, very notably, Hans Zeisel, The Limits of Law Enforcement The Limits of Law Enforcement (1982); Samuel Walker, (1982); Samuel Walker, Sense and Nonsense About Crime: A Policy Guide Sense and Nonsense About Crime: A Policy Guide (2d. ed., 1989). (2d. ed., 1989).

23 There is a large literature on the theory of deterrence. See, for example, Jack Gibbs, There is a large literature on the theory of deterrence. See, for example, Jack Gibbs, Crime, Punishment, and Deterrence Crime, Punishment, and Deterrence (1975); Franklin E. Zimring, (1975); Franklin E. Zimring, Deterrence: The Legal Threat in Crime Control Deterrence: The Legal Threat in Crime Control (1973). On incapacitation, see Zimring and Hawkins, (1973). On incapacitation, see Zimring and Hawkins, Scale of Imprisonment Scale of Imprisonment, pp. 104-10.

24 Zeisel, Zeisel, Limits of Law Enforcement Limits of Law Enforcement, p. 18.

25 This point is emphasized in Walker, This point is emphasized in Walker, Sense and Nonsense About Crime Sense and Nonsense About Crime, pp. 27-28.

26 See, on this point, Lawrence M. Friedman, See, on this point, Lawrence M. Friedman, The Legal System: A Social Science Perspective The Legal System: A Social Science Perspective (1975), pp. 75-76. (1975), pp. 75-76.

27 State Court Caseload Statistics: Annual Report State Court Caseload Statistics: Annual Report 1989, pp. 3941. 1989, pp. 3941.

28 Margaret Wemer Cahalan, Margaret Wemer Cahalan, Historical Corrections Statistics in the United States, Historical Corrections Statistics in the United States, 1850-1984 (1986), p. 34. 1850-1984 (1986), p. 34.

29 Zimring and Hawkins, Zimring and Hawkins, Scale of Imprisonment Scale of Imprisonment, p. 38.

30 Department of Corrections, State of California, Department of Corrections, State of California, California Prisoners, California Prisoners, 1952, p. 3; 1952, p. 3; California Prisoners and Parolees California Prisoners and Parolees, 1990 (1991), p. 11.

31 Jacob, Jacob, Frustration of Policy Frustration of Policy, pp. 16667.

32 On the national level, there are "structural capabilities," but few "incentives to act structurally." Locally, "there is more inclination to seek structural solutions, but there are virtually no capabilities to do so." Stuart A. Scheingold, On the national level, there are "structural capabilities," but few "incentives to act structurally." Locally, "there is more inclination to seek structural solutions, but there are virtually no capabilities to do so." Stuart A. Scheingold, The Politics of Street Crime: Criminal Process and Cultural Obsession The Politics of Street Crime: Criminal Process and Cultural Obsession (1991), p. 182. (1991), p. 182.

33 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. 324. (1981), p. 324.

34 Malcolm M. Feeley, Malcolm M. Feeley, Court Reform on Trial: Why Simple Solutions Fail Court Reform on Trial: Why Simple Solutions Fail (1983), p. 205. Feeley's book contains many vivid examples of the process of failure and its causes. (1983), p. 205. Feeley's book contains many vivid examples of the process of failure and its causes.

35 Mirjan R. Damaska, Mirjan R. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986), pp. 17, 25. (1986), pp. 17, 25.

36 Of course, the U.S. Supreme Court, at this writing (1993), seems in the mood to speed up the process (see chap. 14). But we do not know how far they are likely to go, and there is a limit to the control they have over the process. Of course, the U.S. Supreme Court, at this writing (1993), seems in the mood to speed up the process (see chap. 14). But we do not know how far they are likely to go, and there is a limit to the control they have over the process.

37 Gallup, Gallup, Gallup Gallup Poll Poll: 1990, 1990, p. 123. Only 6 percent thought "breakdown of family, social values" was the main factor; and "courts too lenient" was selected by only 2 percent. p. 123. Only 6 percent thought "breakdown of family, social values" was the main factor; and "courts too lenient" was selected by only 2 percent.

a It should be pointed out, however, that the further back in history one goes, the more this pat distinction between "civil" and "criminal" tends to blur. In some older cultures, the line between private vengeance and public prosecution was indistinct or completely absent. Even in our own history, we shall see some evidence that the cleavage between "public" and "private" enforcement was not always deep and pervasive : see, for example, the discussion of the vigilante movements of the Old West in chapter 8.

b n.o.body knows how how effective these controls are. There have been, however, a few natural experiments-situations in which the law takes a holiday. Police strikes are one example. Another took place in Denmark, in 1944, when the Germans, who had occupied the country, arrested the entire police force. Generally speaking, crime rates go up during such episodes, but not through the roof. effective these controls are. There have been, however, a few natural experiments-situations in which the law takes a holiday. Police strikes are one example. Another took place in Denmark, in 1944, when the Germans, who had occupied the country, arrested the entire police force. Generally speaking, crime rates go up during such episodes, but not through the roof.6 c Public, of course, did not mean "professional." It did not mean that the district attomey worked full-time at this job and did nothing else.

d The Puritan colonies usually applied the term sodomy sodomy to h.o.m.os.e.xual behavior, and b.u.g.g.e.ry to b.e.s.t.i.a.lity. to h.o.m.os.e.xual behavior, and b.u.g.g.e.ry to b.e.s.t.i.a.lity.14 e The offending animal was a "deodand," that is, a chattel that caused a human death, and could be punished or forfeited along with the offending human. Under a law of New Hampshire, for example, the death penalty was prescribed for every man or woman "that shall have Camal Copulation with any Beast or brute Creature," and the "Beast shall be slain and b.u.med."16 f Under a Rhode Island statute of 1749, a person convicted of adultery would be "set publickly on the Gallows in the Day-time, with a rope about his or her Neck, for the s.p.a.ce of one Hour; and then be whipped. "45 g The English, too, used banishment ("transportation") as a pumshment; and here the colonies were on the receiving end: thousands of felons were shipped to the colomes in the eighteenth century. The colomsts did not always greet them with open arms. In 1670, Virginia, for example, tried to prevent the landing of "jaile birds. "48 h A burglar who did his dirty work on the sabbath was dealt with more harshly; in addition to the punishment listed, a first offender would lose an ear; a second offender lost his second ear. 74 74 i "Oyer and terminer" means, literally, "hear and determine." The phrase was used in some places as an ordinary name for certain criminal courts; but the phrase has sometimes been applied to a court specially commissioned to hear criminal cases arising out of some incident or disorder.

j At a session of July 29, 1707, the General Court of the colony fined Gabriel Newby for burying John Deal, "an Orphant Boy" who belonged to Newby, in violation of the statute. The punishment was hardly severe: six shillings, eight pence, and costs.

k The statute actually says that what is not presumed is "prepensed malice," that is, malice aforethought, or, in plain English, a plan to kill; only with this sort of "malice" does a killing amount to the felony called murder.110 l Guns were not authorized for the Boston force until 1884; in that year, the City Council voted to provide arms, at public expense, and each patrolman got a Smith & Wesson .38-caliber revolver. Before that, in the period after the Civil War, most policemen carried guns, even though these were, strictly speaking, unauthorized.33 m New York's law directed the sheriff or under sheriff to be present at the execution and to invite in addition the judges, district attorney, clerk, and surrogate of the county, "together with two physicians and twelve reputable citizens," whom the sheriff or under sheriff would choose. There could also be up to two "ministers of the gospel," chosen by the condemned, and "any of the immediate relatives of the criminal" who wished, plus whatever prison officials the sheriff should think "expedient" to be present. But no one else would be permitted to come; and no person under age.

n Of course, a prison was itself a small, closed community; and whipping survived as a punishment within the prison itself. Sometimes this was explicitly recognized. Virginia's penitentiary law prescribed that convicts guilty of "profanity, indecent behavior, idleness, neglect ... of work, insubordination, ... a.s.sault," or violation of rules "prescribed by the governor could, "under orders of the superintendent," be punished by "lower and coa.r.s.er diet, the iron mask or gag, solitary confinement in a cell or the dungeon, or ... stripes."64 o Adam Hirsch argues that the penitentiary was neither so novel nor so American as some scholars, notably David J. Rothman, suggest; that the invention of the penitentiary was more evolution than revolution, and that the "new schemes of prison discipline ... reflected no ideological break with previous strains of carceral theory." The house of correction is central to Hirsch's arguement.66 p The clauses about what to wear and to eat, and the clause about "servile" labor, were repealed in April 1795.71 q South Carolina kept, indeed, the old colonial system of "prison bounds." Some prisoners were allowed to leave the jail, provided they did not go too far, and provided they came back to their cells at night. Most misdemeanor convicts had this privilege by the 1830s; hence, a worker could keep his job, despite trouble with the law. A statute of 1828 extended the "Gaol bounds" for Charleston: on the west, the river at low-water mark; on the south, the south line of Broad Street; on the east, the east line of Meeting Street; on the north, the north line of Wentworth Street. A law of 1831 for the "Judicial District of Georgetown" extended the "prison bounds to the corporate limits of the town."86 r For this reason, too, the law discouraged slave-owners from setting free their slaves and hedged manumission with all sorts of restrictions.8 s On the work of the Klan, see chapter 8.

t An interesting aspect of the case was Plessy's claim that he was not really black; that he was in fact an "octoroon," and the "mixture of colored blood" was "not discernible" in him. The Supreme Court, on this issue, said it would simply defer to state law.

u See chapter 8.

v The Chinese wore their hair in braided queues, and the mayor and other San Franciscans believed that this custom had some sort of religious significance. Forcing Chinese prisoners to cut their hair, then, would be a terrific insult, and humiliate them before their countrymen. Whether this was actually so is not at all clear.66 t This refers to the old nickname for China, the Celestial Empire. t This refers to the old nickname for China, the Celestial Empire.

w A penalty can be stiffened in two ways: by adding severity severity, which means jacking up a fine, say, from $100 to $200; or increasing the jail sentence for some act; or by adding certainty certainty, that is, catching a higher percentage of violators, perhaps through putting more muscle into the enforcement effort.

x See chapter 14, below.

y There are other categories as well, which we often find in cla.s.sifications of crime; for example, regulatory crimes and crimes against public order.

z A few statutes were a bit more explicit. In late nineteenth-century Ohio, the crime of sodomy was defined as "carnal copulation in any opening of the body, except s.e.xual parts, with another human being, or with a beast." The punishment was confinement in the penitentiary, for not more than twenty years.4 aa Anthony Comstock, the famous bluenose, who campaigned tirelessly against obscenity, waged war on "the undraped female figure" in art. He explained his point of view as follows: "No one reveres the female form more than I do. In my opinion there is nothing else in the world so beautiful as the form of a beautiful maiden.... But the place for a woman's body to be-denuded-is in the privacy of her own apartment with the blinds drawn."15 ab See chapter 15.

ac Yet surprisingly few prisoners went to jail because of gambling or lottery offenses-at least according to the 1880 census. The figures are fifty and ten, respectively.44 ad See chapter 15.

ae Thus, in the trial of one Lawrence Pienovi, "for biting off his wife's nose," in New York, 1818, the mayor of New York told the jury that the law does not regard "every slight degree of insanity-every trivial aberration from reason ... as a defence." rather, the defense must be based on a "deep and total dementation ... such as involves an inability to discriminate between right and wrong."78 af A minor incident, reported in San Diego in 1896, is suggestive. A young man, John B. Postema, was indicted for grand larceny: he stole a team of horses and a carriage. Postema's behavior was extremely peculiar. He could not stop laughing. He laughed "when he got up," and also "when he lay down to sleep-laugh, laugh, laugh." Sometimes, he even laughed in his sleep, in "one of the gloomy steel cells of the county jail." Finally, the sheriff called the county physician, Dr. Gochenauer, to examine the hysterical prisoner. Postema kept right on laughing. The doctor decided he was "an imbecile" who could not "distinguish right from wrong." The district attorney moved in court to set the indictment aside; this was done, and "the happy young fellow left the court room laughing."80 ag Another example was the trial of Clara Fallmer, in Alameda County, California, in 1897. Clara was fifteen years old and pregnant; she shot her lover, Charles LaDue, who refused to marry her. The defense was that she shot her lover "during a state of emotional insanity." The jury acquitted her.91 ah In Wisconsin, the state at first could afford only a log structure at Waupun (1851); but it was equipped with individual cells, each with an iron door that could be transferred to a stone prison when such a prison might be built.28 ai In County of Cook v. Chicago Industrial School for Girls County of Cook v. Chicago Industrial School for Girls (1888), the Illinois Supreme Court dealt the system a serious blow. The Chicago Industrial School, which had no building of its own, had been placing girls in inst.i.tutions run by the Roman Catholic church; this, the court said, was a violation of the const.i.tution of Illinois, which did not allow public money to go to "sectarian" inst.i.tutions. After this, the system more or less collapsed. The juvenile court act was pa.s.sed, as we will see, in 1899. (1888), the Illinois Supreme Court dealt the system a serious blow. The Chicago Industrial School, which had no building of its own, had been placing girls in inst.i.tutions run by the Roman Catholic church; this, the court said, was a violation of the const.i.tution of Illinois, which did not allow public money to go to "sectarian" inst.i.tutions. After this, the system more or less collapsed. The juvenile court act was pa.s.sed, as we will see, in 1899.83 aj Sometimes the transition from ma.s.s to elite movement was fairly obvious. In Montana, in 1863, a cool customer named George Ives had a number of killings to his credit; he was captured, and brought to Alder Gulch, where a crowd decided that his trial "should take place before the miners of the Gulch en ma.s.se." The trial was real enough-Ives even had a defense lawyer-but the upshot was conviction, and a hanging. It was after this event that a group of leading citizens decided to form a vigilance committee, to carry on the "heady struggle between order and crime."45 ak One rusty area, however, was enforcing the laws against gambling and vice. Here, then we do do find lay enforcement b.u.t.ting in and something like a "posse" appearing. For example, in the 1880s, Anthony Comstock, fighting the good fight against Satan, and with good reason not to trust the regular law-enforcers, raided gambling establishments in Long Island City with his own men, who had been appointed deputy sheriffs or peace officers for his specific purpose. find lay enforcement b.u.t.ting in and something like a "posse" appearing. For example, in the 1880s, Anthony Comstock, fighting the good fight against Satan, and with good reason not to trust the regular law-enforcers, raided gambling establishments in Long Island City with his own men, who had been appointed deputy sheriffs or peace officers for his specific purpose.46 al One check-raising scam was practiced mostly on small-town undertakers. The con man told the undertaker his dear brother had just pa.s.sed on; he needed a cheap coffin. He paid the undertaker in cash with a large banknote but insisted on a check for his change, so that it could be sent by mail to the grieving family. The con man raised the amount on the (genuine) check, cashed it, and immediately moved on.13 In another scam aimed mainly at lawyers, a young man who pa.s.sed himself off as the nephew of a prominent lawyer and an agent for the Minneapolis journal Minneapolis journal "victimized practically all the lawyers in Watertown, S.D., and a number in Brookings, S.D." He claimed to be tubercular and in need of money to travel to Arizona for his health. "victimized practically all the lawyers in Watertown, S.D., and a number in Brookings, S.D." He claimed to be tubercular and in need of money to travel to Arizona for his health.14 am Courts and legal scholars were unclear whether a person accused of bigamy could use good-faith belief as a defense.27 an It goes without saying that these statements refer primarily to white white men and women; the law paid little respect to chast.i.ty, respectability, and choice of ident.i.ty among blacks; and, especially in the South, the law positively hindered black mobility. men and women; the law paid little respect to chast.i.ty, respectability, and choice of ident.i.ty among blacks; and, especially in the South, the law positively hindered black mobility. Within Within black society, however, many of the same social norms that ruled white society applied as well. black society, however, many of the same social norms that ruled white society applied as well.

ao Besides public detectives, there were also private detectives. The most successful and famous of these in the nineteenth century was Allan Pinkerton, who founded the detective agency whose logo was an open staring eye. The private detectives worked for private companies (sometimes providing them with strikebreakers) as well as for individuals, investigating crimes (such as embezzlement) or grubbing about in the muck of divorce and infidelity.43 ap New York did not get around to this reform until 1915; and Milwaukee, Wisconsin got a medical examiner in 1942. As of 1942, however, the seventy other counties of Wisconsin still had coroners, thirty-three of them "persons directly engaged in the undertaking and funeral business." Only twenty were doctors.54 aq There were, of course, exceptions, such as Mabel Keating, the "pickpocket queen," the "most adept and dangerous of all the women in her cla.s.s." This striking woman with hazel eyes was twenty-six years old when scooped up by the police in San Francisco in 1896.5 ar Mrs. b.u.mble had admitted stealing a locket and a ring. Mr. b.u.mble said "It was all Mrs. b.u.mble. She would do it"; only to be told that "the law supposes that your wife acts under your direction." This was the statement that evoked b.u.mble's famous reply. He continued by saying, "If that's the eye of the law, the law's a bachelor; and the worst I wish the law is, that his eye may be opened by experience."11 as In a Ma.s.sachusetts case of 1873, the defendant, Jason Reynolds, was charged with "illegal sale of intoxicating liquor." The evidence was this: two men twice went to Reynolds's house and bought whiskey from his wife in the kitchen. The defendant was not "present" but came in "while the witnesses were there," and said nothing to them at all about the liquor. Was Reynolds guilty of a crime? The judge instructed the jury that he was, if if his wife was acting as "his agent or servant." It was legally significant that they were together in the house, "in the usual relations of marriage." The jury convicted, and a higher court affirmed. The case, obviously, rested on an idea his wife was acting as "his agent or servant." It was legally significant that they were together in the house, "in the usual relations of marriage." The jury convicted, and a higher court affirmed. The case, obviously, rested on an idea like like coverture: the subordination of wives to their husbands. coverture: the subordination of wives to their husbands.17 at Of course, the societies that burnt women at the stake and nailed men to the pillory considered themselves Christian civilizations, too-indeed, very Christian and very civilized. But legal memories are short.

au On penetration, see, for example, Davis v. State. Davis v. State.24 The victim's mother found the victim, a white child, on the ground with defendant, a black adult male, "in the act of copulation." The victim had red, swollen "private parts," but no blood or lacerations. A doctor, testifying for defendant, claimed that a "man of his dimensions" could not have penetrated without lacerations. The appeals court reversed because there was insufficient evidence of penetration. The victim's mother found the victim, a white child, on the ground with defendant, a black adult male, "in the act of copulation." The victim had red, swollen "private parts," but no blood or lacerations. A doctor, testifying for defendant, claimed that a "man of his dimensions" could not have penetrated without lacerations. The appeals court reversed because there was insufficient evidence of penetration.

av Despite this language, the court affirmed Dohring's conviction, saying that, while the victim "may or may not have done all that she could do," it was for the jury to judge.

A few courts seemed to allow women to be a bit less heroic in their resistance and still claim rape; one such was State v. Shields State v. Shields.29 This case was also unusual in that the victim, who suffered a gang rape, was not exactly a pillar of the community; in fact, there was testimony she had once lived in a "house of ill-fame." Presumably, as a married woman, she had mended her ways. This case was also unusual in that the victim, who suffered a gang rape, was not exactly a pillar of the community; in fact, there was testimony she had once lived in a "house of ill-fame." Presumably, as a married woman, she had mended her ways.

aw Male fear that women might blackmail them or accuse them falsely of rape was an important factor in shaping the working law of rape. No doubt there were were some instances of blackmail. And certainly the accusations were false in some of the southern cases where white women accused blacks of rape or attempted rape. some instances of blackmail. And certainly the accusations were false in some of the southern cases where white women accused blacks of rape or attempted rape.

ax Of course, the court admitted, a woman could repent and reform, and presumably become (more or less) chaste again; but there was such a short interval here between "illicit" acts that this theory did not hold water.

ay This ordinance so outraged a certain L'Hote, of New Orleans, that he fought it all the way to the U.S. Supreme Court. L'Hote's problem was that his home was perilously close to the edge of the district. His His neighborhood (he said) was made up of "moral, virtuous, sober, law abiding and peaceable" citizens. The ordinance, he felt, would attract "lewd and abandoned women," and people coming to the area "to gratify their depraved appet.i.tes." The ordinance thus amounted to a "taking" of his property, for which he demanded compensation. But the Supreme Court brushed his objections aside. neighborhood (he said) was made up of "moral, virtuous, sober, law abiding and peaceable" citizens. The ordinance, he felt, would attract "lewd and abandoned women," and people coming to the area "to gratify their depraved appet.i.tes." The ordinance thus amounted to a "taking" of his property, for which he demanded compensation. But the Supreme Court brushed his objections aside.74 az Thus, to take one of, no doubt, many countless examples, a Brooklyn newspaper reported in December of 1918 that the "body of an unknown infant about four weeks old" was found "wrapped in a newspaper" in a lot at the rear of a cemetery.85 ba The homicide rate for children less than one year old, according to a study published in 1983, was 5.3 per 100,000 live births in the United States-slightly below England and Wales (5.5), much below j.a.pan (8.6), but much higher than most other countries in a group of developed countries (for example, the rate in Israel was 1.4, in France 1.9, in Norway and Sweden 0). But there is no indication that these killings were infanticide in the sense used here: killed by a mother at birth. Most were probably cases of child abuse. And there is absolutely no way of knowing whether this is more or less than the rates in the nineteenth century.86 bb The Ma.s.sachusetts law on rogues, vagabonds, idlers, "night-walkers," and the like, included "stubborn children" in the list of ne'er-do-wells.102 When Ma.s.sachusetts authorized a woman's reformatory prison, the statute was amended to allow a judge, at his discretion, to send a female offender to the "reformatory prison for women for not more than two years." When Ma.s.sachusetts authorized a woman's reformatory prison, the statute was amended to allow a judge, at his discretion, to send a female offender to the "reformatory prison for women for not more than two years."103 There were some men, too, in the men's reformatory whose crime was "stubbornness." There were some men, too, in the men's reformatory whose crime was "stubbornness."

bc Thus, in Ma.s.sachusetts, police courts and justices of the peace could hear, in addition to the petty cases that were the staple of such courts, all other criminal cases except the most serious felonies. These crimes could also be tried in the Court of Common Pleas (after 1859, the Superior Court). And the highest court, the Supreme Judicial Court, sat as a trial court in capital cases. For the organization of Ma.s.sachusetts courts, see Laws of Ma.s.sachusetts 1859, chapter 196, page 339.

bd In Rhode Island, it was "local legal tradition" to ask prospective jurors in a capital case three questions: Was the juror a relative of one of the princ.i.p.als in the case? Did he have "scruples about convicting a man of a capital crime"? And: "Had he already formed an opinion of the merits of the case?"4 be A khadi khadi is a Moslem judge; Weber used the expression "khadi justice" to describe a system in which the judge decides cases not according to formal doctrines but on the basis of ethical ideas, common sense, or religious notions. is a Moslem judge; Weber used the expression "khadi justice" to describe a system in which the judge decides cases not according to formal doctrines but on the basis of ethical ideas, common sense, or religious notions.9 bf In Hurtado v. California Hurtado v. California (1884), the U.S. Supreme Court upheld this change in California law; the due-process clause of the Fourteenth Amendment did not force states to stick to the method of indictment by grand jury. (1884), the U.S. Supreme Court upheld this change in California law; the due-process clause of the Fourteenth Amendment did not force states to stick to the method of indictment by grand jury.23 bg Nor could the state state call him to the stand against his will. This was because of the privilege against incrimination guaranteed by the Fifth Amendment and its state counterparts. call him to the stand against his will. This was because of the privilege against incrimination guaranteed by the Fifth Amendment and its state counterparts.

bh Between 1880 and 1899, at least one-quarter of the defendants in felony cases in Alameda County, California, had appointed counsel. These lawyers received no money for their pains; many of them were apparently young lawyers who were hanging around the courtroom anyway, hoping to pick up a crumb or two of business.38 bi In a later case in Tennessee, whose facts were amazingly similar, a juror said, inside the jury room, that "he had been on criminal juries before, and it was usual and the custom" to do it that way and to "return the result" of this adding and dividing as the "verdict of the jury." The appeals court reversed the conviction.49 bj In theory, this was supposed to be entirely for the defendant's benefit. As Francis Wharton put it, "in a criminal prosecution, the State is arrayed against the subject; it enters the contest with a prior inculpatory finding of a grand jury in its hands; with unlimited command of means; with counsel usually of authority and capacity, who are regarded as public officers, and therefore as speaking semi-judicially; and with an att.i.tude of tranquil majesty, often in striking contrast to that of a defendant engaged in a perturbed and distracting struggle for liberty if not for life."51 Of course, like so much else in criminal law and procedure, the full beauty of the law of evidence was only unfurled in big trials, felony trials, trials in which lawyers took part. Of course, like so much else in criminal law and procedure, the full beauty of the law of evidence was only unfurled in big trials, felony trials, trials in which lawyers took part.

bk In a Georgia case, decided in 1892, the jury reached a verdict at night and sealed it up. To escape the sweltering Georgia heat, jurymen went out on the veranda, where some of them ate watermelon-guarded by two strict bailiffs who "prevented all intercourse by others ... during the night." The defendant, who was convicted, appealed on the point (among others) that the jury had left its isolation-chamber; but to no avail. What saved the day, of course, was the lack of "intercourse" with the outside world.56 bl Mark Twain said, on this subject, "I do not know what a palladium is, having never seen a palladium, but it is a good thing no doubt at any rate."61 bm There is some evidence for the earlier part of the century, too. Theodore Ferdinand's data for Boston's police court show a rise in guilty pleas between 1826 and 1850 from 9.3 to 51.3 percent in public drunkenness cases; in larceny cases, from 10 to 22.2 percent; in violations of city ordinances from 20 to 65.6 percent. Ferdinand argues that in some cla.s.ses of cases, plea bargaining accounts for the swelling rate of guilty pleas.64 bn Historically, neither side had the right to appeal. The modem system developed in a piecemeal, ragged way. But, in essence, one way of looking at the way appeal developed is simply to say that states started to give defendants the right to have review in appeals court, but left the prosecution essentially where it was before.74 bo Exactly what const.i.tuted double jeopardy was an issue the courts wrestled with occasionally. In one interesting Ma.s.sachusetts case, a man named Hodgdon delivered cloth, velvet, flannel, and other materials to the defendant; the defendant was supposed to make overcoats out of these materials. Hodgdon returned the first few coats as unsatisfactory. Then defendant supposedly made off with the materials and the coats. He was tried for embezzling the cloth, the velvet, and so on, and was acquitted. Then he was indicted for embezzling the coats. The Supreme Judicial Court allowed the second trial; it represented a distinct, separate offense,.75 bp Originally, the word appeal appeal referred to certain kinds of civil appeals, in cases of equity. But it is the common word for the process of taking a case to a higher court; and by now it is technically quite correct to use the term for all such cases. referred to certain kinds of civil appeals, in cases of equity. But it is the common word for the process of taking a case to a higher court; and by now it is technically quite correct to use the term for all such cases.

bq Most cases were decided on technical points of procedure: ninety-seven cases turned on procedural points and only seventy-nine on matters of substance (although the line between these two is not always clear).

br In Olmstead v. United States Olmstead v. United States,14 the defendants were a big-time operation, with about fifty employees, including salesmen, bookkeepers, an attorney, and a fleet of boats to bring liquor from Canada to Washington. Yearly sales were on the order of $2 million. The government used wiretapping to smash this nefarious ring. The issue before the Supreme Court was whether the government could use this evidence to convict; the Taft Court said yes. Wiretapping did not "amount to a search or seizure within the meaning of the Fourth Amendment." Four justices dissented, including Oliver Wendell Holmes, Jr., who said he felt that it was "less evil that some criminals should escape than that the Government should play an ign.o.ble part." the defendants were a big-time operation, with about fifty employees, including salesmen, bookkeepers, an attorney, and a fleet of boats to bring liquor from Canada to Washington. Yearly sales were on the order of $2 million. The government used wiretapping to smash this nefarious ring. The issue before the Supreme Court was whether the government could use this evidence to convict; the Taft Court said yes. Wiretapping did not "amount to a search or seizure within the meaning of the Fourth Amendment." Four justices dissented, including Oliver Wendell Holmes, Jr., who said he felt that it was "less evil that some criminals should escape than that the Government should play an ign.o.ble part."15 bs This was a sizable jump for civil rights; in 1961, there had been only eight cases. There were 3,043 cases under the Selective Service Act in 1973, although this was a declining category.26 bt Harding's Secretary of the Interior Albert Fall, was charged with conspiracy to defraud the United States and with bribery. He was convicted of bribery in 1929. Harry Sinclair and Edward Doheny, oil executives who were involved in the scandal, were never convicted for their part in this sordid affair.

bu The Const.i.tution might well be contrasted with the state state const.i.tutions, which have been, on the whole, considerably less stable, and certainly less sacrosanct. Many states have gone through three, four, or even more const.i.tutions. Louisiana seems to be the champion, with nine or ten, depending on how one figures. const.i.tutions, which have been, on the whole, considerably less stable, and certainly less sacrosanct. Many states have gone through three, four, or even more const.i.tutions. Louisiana seems to be the champion, with nine or ten, depending on how one figures.

bv Bram v. v. United States United States (1897) arose out of a trial for murder on the high seas. Bram was a ship's officer accused of killing the captain, the captain's wife, and the second mate. Bram was in custody in Halifax, Nova Scotia; he was stripped, searched, then questioned by detectives. They told him that another suspect, Brown, had seen him do the killings. Bram's reaction was to say that Brown "could not see me" from where he was-a statement that was at least (1897) arose out of a trial for murder on the high seas. Bram was a ship's officer accused of killing the captain, the captain's wife, and the second mate. Bram was in custody in Halifax, Nova Scotia; he was stripped, searched, then questioned by detectives. They told him that another suspect, Brown, had seen him do the killings. Bram's reaction was to say that Brown "could not see me" from where he was-a statement that was at least somewhat somewhat incriminating. At the trial, Bram's lawyer struggled to keep this statement out of evidence but failed, and Bram was convicted. Bram appealed, and the Supreme Court reversed the conviction. The statement was tainted. If a person confessed, or made an incriminating statement, it had to be "wholly voluntary and in no manner influenced by the force of hope or fear." Bram's words did not meet this test. incriminating. At the trial, Bram's lawyer struggled to keep this statement out of evidence but failed, and Bram was convicted. Bram appealed, and the Supreme Court reversed the conviction. The statement was tainted. If a person confessed, or made an incriminating statement, it had to be "wholly voluntary and in no manner influenced by the force of hope or fear." Bram's words did not meet this test.10 bw The Supreme Court decision did not end the matter, which dragged on for over a decade-the local officials stonewalled and kept retrying the defendants; the Alabama Supreme Court invariably affirmed the convictions.17 bx Miranda's life ended with irony. In 1976, when he was thirty-four, Miranda got into a fight with two illegal immigrants. One of them stabbed him twice, and he died on the way to the hospital. The killer escaped, but the other man was caught. The Phoenix police, as they arrested this man, dutifully read him the Miranda warning, in both Spanish and English: "You have the right to remain silent.... You have the right to the presence of an attorney. . . . Do you understand these rights?"25 by Most who were returned to prison for parole violations were in fact accused of crime, suspected of crime, or arrested of a crime, rather than one of the minor offenses. And no doubt many of them were guilty of the crime they were charged with. But the process was quick and summary, lacking in due process.

bz The Court also felt that the punishment not only failed to fit the crime, but failed to "fit the criminal." Lynch was not "an exhibitionist" who "forced himself on large numbers of the public by cavorting naked on a busy street at high noon." The violation was fairly technical; it was not 100 percent clear that Lynch actually intended intended to expose himself to the carhop. to expose himself to the carhop.42 ca For example, in 1957, Robert Nathan Foss was convicted of possession of heroin.43 Fourteen years later, he was convicted again, this time of selling heroin. For a second conviction in a narcotics case, Foss received a punishment of ten years to life; that is, he was not eligible for parole until ten years were up. This, too, was declared cruel and unusual. Fourteen years later, he was convicted again, this time of selling heroin. For a second conviction in a narcotics case, Foss received a punishment of ten years to life; that is, he was not eligible for parole until ten years were up. This, too, was declared cruel and unusual.

cb In some states, too, legislatures created modest programs of compensation for victims. California pa.s.sed a law in 1965 providing for aid, in case of "need," to "the family of any person killed" or to the victim and his family if "incapacitated as the result of a crime of violence."50 The statute also provided that the defendant could be ordered to pay a fine "commensurate in amount with the offense committed," to go into the state's fund for aid payments. But no fine was to be imposed if "such action will cause the family of the defendant to be dependent on public welfare." In the following years, almost every state pa.s.sed some sort of compensation law, almost always similarly modest. The federal government established its own program for federal crimes in 1984. The statute also provided that the defendant could be ordered to pay a fine "commensurate in amount with the offense committed," to go into the state's fund for aid payments. But no fine was to be imposed if "such action will cause the family of the defendant to be dependent on public welfare." In the following years, almost every state pa.s.sed some sort of compensation law, almost always similarly modest. The federal government established its own program for federal crimes in 1984.51 These programs rested, of course, on a much different cultural base than the "victims' rights" laws. They were part of the general expectation of justice so pervasive in contemporary American law, to the effect that compensation ought to be forthcoming from some source for every calamity. These programs rested, of course, on a much different cultural base than the "victims' rights" laws. They were part of the general expectation of justice so pervasive in contemporary American law, to the effect that compensation ought to be forthcoming from some source for every calamity.52 cc In Johnson v. Johnson v. Avery, Avery,78 the Court voided a prison regulation that did not allow prisoners to help each other prepare writs of habeas corpus and other legal doc.u.ments. the Court voided a prison regulation that did not allow prisoners to help each other prepare writs of habeas corpus and other legal doc.u.ments.

cd Anarchy probably had been the rule in some local jails for a considerable period. Fishman, writing in 1923, reports on the "kangaroo courts" in the jails of Kentucky (the inst.i.tution was, in fact, much older). A kangaroo court was an organization run by the prisoners, who "make the rules and enforce them, and . . . in the majority of cases . . . do not temper justice with mercy." In most jails, "the kangaroo court itself is composed of the lowest cla.s.s of prisoners," and they tyrannize outsiders "with brutality and callous indifference."81 ce A "jack-roller" was a man "who robs his fellows, while they are drunk or asleep."82 cf There were six of these: murder, kidnapping for ransom or where the victim was harmed, armed robbery, rape, treason, and aircraft hijacking.

cg Also on the list: multiple murder, or a previous conviction for murder; and situations in which the murder was "especially heinous, atrocious, or cruel, manifesting exceptional depravity." In People v. Superior Court of Santa Clara County, People v. Superior Court of Santa Clara County,98 the California Supreme Court declared this particular clause unconst.i.tutional. It was too vague; its terms did not meet "the standards of precision and certainty required" for a death-penalty statute. the California Supreme Court declared this particular clause unconst.i.tutional. It was too vague; its terms did not meet "the standards of precision and certainty required" for a death-penalty statute.

ch In California, Supreme Court judges run for office unopposed; the issue for voters is yes or no for continuing them in their positions. When the voters did say no, vacancies were created that the governor could fill by appointment.

ci Some states pa.s.sed their own versions of the white slave laws. In Montana, there was the so-called Donlan White Slave Act which prohibited the "importation" of women into Montana, or their "exportation," for "immoral purposes." In 1915, the Donlan act snared one J. E. Reed, who ran an employment agency in b.u.t.te, Montana. He had offered Dorothy Burger, aged seventeen, a job as a waitress in a hotel in Diamondville, Wyoming, for thirty dollars a month, plus room and board. Diamondville, according to the court, was a "mining camp consisting largely of Italians and Austrians." Reed bought a ticket for Dorothy, and told her "the place was a sporting-house, and that her duties would be to dance, play cards, drink beer, and entertain men." She told this to a woman friend, who went right to the chief of police. At the trial, there was evidence that "the place was not one where a girl could live for any length of time and be respectable." The defendant knew that the "chief desideratum" at the hotel was "good-lookers" rather than "efficient cooks and waitresses." Reed was convicted, but the conviction was reversed because the judge had given the jury too broad a definition of "immoral"14 cj Note that this is a civil civil rather than a rather than a criminal criminal statute. Its goal, of course, was punitive; and since the whole area of vice regulation and suppression has historically been within the domain of criminal justice, the statute must be mentioned here. statute. Its goal, of course, was punitive; and since the whole area of vice regulation and suppression has historically been within the domain of criminal justice, the statute must be mentioned here.

ck In Philadelphia, in 1915, the Munic.i.p.al Court heard 640 complaints concerning fornication and b.a.s.t.a.r.dy. But there was a simple reason for this: in order to get child support, an "unmarried mother" had to bring a criminal suit against the father, "and establish his legal ident.i.ty as a violator of the law against fornication and b.a.s.t.a.r.dy." If the father was a married man, the charge was adultery. But the men were, in fact, almost never prosecuted for this offense. The penalty for adultery was imprisonment, which "would defeat the purpose of the b.a.s.t.a.r.dy proceedings."34 cl Jennie's mother first claimed Jennie had been raped while unconscious; this charge was groundless, and she shifted to the a.s.sertion that Jennie was "weak-minded." Di Santos went free, but only after a long and costly ordeal.

cm In 1922, Mrs. Nellie Stermer-Koulik was indicted for ma.s.s poisoning in Chicago. Justice Harry Olson of the Munic.i.p.al Court was horrified to read a report that her "mental age" was eleven, that she had a feebleminded son, and two other sons in jail. If a "eugenics expert" had found out the "history of this whole family at the time one moron was discovered," said Judge Olson, it would have been possible to keep an eye on this woman, and perhaps avert the tragedy that occurred.53 cn In the event, Carrie Buck's child, a girl who later died of measles, was not r.e.t.a.r.ded at all but "bright." Whether Carrie herself was r.e.t.a.r.ded is also open to doubt. Her sister, who was also sterilized (without her knowledge), was apparently not.59 co Stanley also felt that sterilization would "do much to stamp out crime. The right to bear children" should be "reserved to the fit." But he also reported that the California statute on sterilization of criminals had not been enforced, and that he knew of no such operations "as punishment" in all the many years he had served. Stanley did report, however, that there were many voluntary vasectomies; over six hundred prisoners asked for and got a vasectomy, including "Bluebeard" Watson, who "had murdered many of his twenty-two wives."61 cp There are, to this day, a handful of survivors: for example, Washington, which permits a court to order sterilization for anyone "adjudged guilty of carnal abuse of a female person under the age of ten, or of rape," or who was "adjudged to be an habitual criminal."66 cq The defendant and a friend had been arrested for rape, after an incident in a deserted parking lot in Newark. The state's case was weak; the men denied using force, and the women were perhaps prost.i.tutes. The judge then told counsel he intended to charge the jury that fornication was a "lesser included offense of rape." Defense counsel objected, "pointing out that the statute was in 'disrepute' and rarely applied."104 cr The same general att.i.tude cropped up in laws and cases that seem to have as their goal hiding s.e.x, banishing it to the periphery, forcing it indoors and underground. There was, for example, the celebrated case of Jo Carol LaFleur, a junior-high teacher in Cleveland, Ohio. She successfully challenged a rule that prevented women from teaching after their fourth month of pregnancy; the school board gave a lot of reasons for the rule, but surely one of them was that it was indecent for students to see a swollen belly.120 There were also rules in many high schools (later challenged) that excluded married students, perhaps because they knew too much about s.e.x or were having too much of it legitimately. There were also rules in many high schools (later challenged) that excluded married students, perhaps because they knew too much about s.e.x or were having too much of it legitimately.121 cs Self-censorship was a powerful force, even when no police or court were involved. In 1913, Lee Schubert reluctantly withdrew a play, The Lure, The Lure, from Broadway; it dealt with white slavery. He acted under the shadow of a grand jury investigation. Schubert felt the play belonged on Broadway; that it performed an "important public purpose"; but he refused, in his words, "to be placed in the position of offending the sense of propriety of even a small minority of serious people who take a different view." After he acted, the grand jury dropped its inquiry, and public morality (but not the play) was saved. from Broadway; it dealt with white slavery. He acted under the shadow of a grand jury investigation. Schubert felt the play belonged on Broadway; that it performed an "important public purpose"; but he refused, in his words, "to be placed in the position of offending the sense of propriety of even a small minority of serious people who take a different view." After he acted, the grand jury dropped its inquiry, and public morality (but not the play) was saved.123 ct Woolsey's opinion was United States United States v. v. One Book Called One Book Called " "Ulysses," 5 F. Supp. 182 (S.D. N.Y., 1933). The dirty words, said Woolsey, were "old Saxon words known to almost all men and, I venture, to many women." True, the book paid a great deal of attention to the "theme of s.e.x," but "it must always be remembered that his locale was Celtic and his season spring." The Court of Appeals' decision was United States v. United States v. One Book One Book Ent.i.tled Ulysses by James Joyce, Ent.i.tled Ulysses by James Joyce, 72 Fed. 2d 705 (C.A. 2, 1934). Augustus Hand, who wrote the decision, praised the book; at times, it was "coa.r.s.e, blasphemous, and obscene," but it did not "tend to promote l.u.s.t." 72 Fed. 2d 705 (C.A. 2, 1934). Augustus Hand, who wrote the decision, praised the book; at times, it was "coa.r.s.e, blasphemous, and obscene," but it did not "tend to promote l.u.s.t."

cu The First Amendment as such applies only to the federal government; the Supreme Court has decided that the Fourteenth Amendment has "incorporated" it, thus making it applicable to the states as well. Also, each state has its own bill of rights and its own clause about freedom of speech.

cv The first case to come before the Supreme Court was Doubleday & Doubleday & Co. v. New Co. v. New York York.129 The book was Memoirs of Hecate County, written by Edmund Wilson, the famous critic and writer. The state's sensibilities were offended by this novel, a judgment that, needless to say, would seem ludicrous today. The Supreme Court, however, divided four to four on the issue, and when that occurs, the lower court decision stands and the Supreme Court does not publish an opinion of its own. The book was Memoirs of Hecate County, written by Edmund Wilson, the famous critic and writer. The state's sensibilities were offended by this novel, a judgment that, needless to say, would seem ludicrous today. The Supreme Court, however, divided four to four on the issue, and when that occurs, the lower court decision stands and the Supreme Court does not publish an opinion of its own.

cw Public funding, however, is quite another matter, as the fuss over grants from the National Endowment for the Arts to "obscene" and "blasphemous" artists and works shows quite graphically.

cx Between 1947 and 1950, an average of 115 prisoners entered California prisons annually on drug charges; the figure for 1985 was 3,609; for 1990, 13,741.147 cy Lynne Henderson suggested this very apt metaphor to me.

cz The statute interfered with freedom of speech, among other things. As construed, it was a "dragnet which may enmesh anyone who agitates for a change of government"; and it was too "vague and indeterminate" in setting boundaries to freedom of speech.46 da This was, of course, the celebrated case that tore France apart politically at the end of the nineteenth century. Dreyfus was an army officer, and a Jew; he was (falsely) accused of treason, convicted, and eventually exonerated.

db The police officers were unaware that someone in the neighborhood happened to catch the incident on his home video recorder.

dc Even the notorious Tawana Brawley episode, in 1987, underscores the point. Tawana Brawley, a young black woman, claimed she was the victim of white violence in Wappingers Falls, New York. She was almost certainly lying, but many blacks were ready to believe her because she told a story that could well have been true and all too often was was true. On the case, see Robert B. McFadden et al., true. On the case, see Robert B. McFadden et al., Outrage: The Story Behind Outrage: The Story Behind the the Tawana Brawley Hoax Tawana Brawley Hoax (1990). (1990).

dd The intended targets were members of another gang, eating in the same restaurant.

de These people, "burned out with drugs and liquor,... friendless and homeless and hopeless," are sent to the Bridewell "because we have no other place to send them." They are not "criminal" by nature; but few of them "can ever be regenerated or restored, for no foundation is left upon which to build."1 df The Chief Jailer was in charge. In its first year, the Sunrise Court processed 15,797 men; about two-thirds of them were released. The procedure was simple: each man was "given a cup of black coffee and made to sign a book which [was] kept as a record." "Repeaters" and parole violators were kept in jail until the regular police court opened. Cases of "Mexicans" were "disposed of by officers who [spoke] their language." The "Sunrise Court" was in fact not a court at all; it was an inst.i.tution run by Tom Murphy "of the Murphy family of temperance fame." Murphy, at his own expense, installed two "distinct features" in "Sunrise Court." One was a "sanitary fountain, that the men may reach immediately upon their release in the morning." The other was "hot black coffee," served up just before release.2 dg Vagrants included people "wandering or strolling about in idleness," and people who led "an idle, immoral or profligate life, who have no property to support them and who are able to work and do not work."

dh Many of the cases involved confessions: defendants wanted to know exactly what they had confessed to or admitted doing. This was certainly the thrust of the 1950s version of Rule 16. In a leading California case, John Dyson Powell, who had been accused of embezzling public funds, wanted copies of a signed statement he had made in the office of a chief of police, as well as a transcript of a tape recording made in that same office.9 di In the actual case, the defendants had been tried for "conspiring to bribe a federal prohibition agent." The trial began with a jury, but a juror became ill. All hands agreed to proceed with eleven jurors. These eleven found the defendants guilty. The Supreme Court held that a "const.i.tutional jury" meant twelve twelve not eleven, and went on to discuss the case as if a jury had been completely waived. not eleven, and went on to discuss the case as if a jury had been completely waived.17 dj Of course, it is hard to psyche out these matters in advance; but Kalven and Zeisel's figures do suggest that defendants are roughly on target. They rarely waived a jury in a murder case, where juries seemed to acquit more often than judges did; in certain other cases-drug-law violations (this was the 1960s) or auto theft-where there was not much difference between judge and jury, they waived quite often.22 dk Out of 678 cases tried in Multnomah County, Oregon, for 1927-28, about one-quarter of the defendants (166) changed their plea from not guilty to guilty of the offense charged-many of these were surely the result of a plea bargain; and 12.4 percent (84) changed their plea from not guilty to guilty of a lesser offense, an almost invariable sign of a plea bargain.25 dl In the District of Columbia in 1966, the guilty plea accounted for nearly 80 percent of the convictions for serious crime in the General Sessions Court.31 dm Santobello thought he had a deal with the prosecutor, but at the sentencing stage, a new prosecutor recommended the maximum sentence. The judge threw the book at Santobello (claiming, however, that he was not influenced by the prosecutor's recommendation). Santobello, naturally, tried to withdraw his guilty plea, but was told it was too late. On appeal, the Supreme Court insisted that the prosecution had to stick to its bargain. The Court vacated the judgment against Santobello and sent it back for "further consideration." What that consideration would be, the Court did not specify; but Chief Justice Burger, who wrote the majority opinion, did say that "when a plea rests in any significant degree on a promise or agreement of the prosecutor ... such promise must be fulfilled."

dn Since Gideon Gideon (see chapter 14) all states are obliged to do this, in felony cases at least; but most states had much earlier moved to this position as we saw. (see chapter 14) all states are obliged to do this, in felony cases at least; but most states had much earlier moved to this position as we saw.

do In the 1927 trial of Harry Sinclair, which arose out of the famous Teapot Dome scandal, Sinclair hired detectives to shadow the members of the jury-to find out what they did between the time the trial let out until they were safely in bed. The point was to gather material for a possible mistrial. But one of the detectives snitched; the plan became public knowledge, and Sinclair faced a sentence for contempt of court.45 dp This fell on deaf ears; the southern states continued to exclude blacks from their juries, although they were careful to repeal any actual laws laws that said so. that said so.

dq In 1968 the Supreme Court put an end to what had been called the "death qualified" jury, which was standard practice before. The prosecution could not systematically exclude, "for cause," jurors who were against the death penalty. This would produce a jury "uncommonly willing to condemn a man to die." Justice Stewart referred to those who favored capital punishment as a "dwindling minority," words that seem ironic today.47 dr In recent years, a "science" of jury selection has developed. The jury is sifted through the use of the most modem tools of demography and psychology. The object is not to ensure fairness, but to replace lawyers' hunches and rules of thumb about good jurors and bad jurors (from the defense or prosecution points of view), with something more solidly grounded. The process is extremely expensive; consequently, it is used only in very special cases. Whether it works or not has never satisfactorily been proven.49 ds The case came up on a writ of habeas corpus. The Supreme Court remanded the case to the District Court, "with instructions to issue the writ and order that Sheppard be released from custody unless the State puts him to its charges again within a reasonable time."64 dt Darrow argued, as we saw, for a kind kind of "diminished responsibility" in the Leopold-Loeb case. of "diminished responsibility" in the Leopold-Loeb case.

du Judge Lewis remarked, in court, that "state prisons are not suitable places for the reformation of young men" who go wrong. This was true enough; but the system's sympathies were heavily influenced by cla.s.s considerations: Banks's father was a "prominent contractor of San Francisco," and he came from a good family. This surely was a factor in his lenient disposition.

dv Interestingly, 47 percent of the women convicted of felonies in state courts were put on probation and 50 percent sent to prison or jail.

dw Defendants did do somewhat better in some states. In Missouri, in the decade 1915-1924, the supreme court decided 745 criminal cases. Of these, 420 were affirmed, 279 reversed and remanded, and 46 reversed outright. (The affirmance rate was 56.4 percent.) It should be noted, though, that another 342 appeals by defendants during this decade were simply dismissed by the Missouri court because the defendant had "failed to take the steps necessary to perfect his appeal.117 dx On rehearing, the court stuck to its decision, though it did backtrack a bit. The problem (the court now said) was that the indictment did not say how how Flora was drowned-did he push her into the water, or hold her head under, or what? There "should be an averment of some overt act of the accused which brought about the drowning of his wife, if such act is known." Flora was drowned-did he push her into the water, or hold her head under, or what? There "should be an averment of some overt act of the accused which brought about the drowning of his wife, if such act is known."120 dy In 1892 a convicted defendant (male) tried out an argument that was novel for its day. His jury was invalid, he claimed, because it was "exclusively composed of male persons." The state high court declared flatly that no man man had the right to raise this point, to begin with, and the custom in Wyoming was against using women on juries anyway. had the right to raise this point, to begin with, and the custom in Wyoming was against using women on juries anyway.1 dz The Oregon statute also provided, however, that in criminal cases "in which a minor under the age of eighteen years is involved," as defendant or complaining witness, "at least one-half the jury shall be women."

ea The Supreme Court had earlier ordered federal federal courts to avoid systematically excluding women in courts to avoid systematically excluding women in Ballard v. United States. Ballard v. United States.11 In In Duren v. Missouri Duren v. Missouri the issue was a Missouri statute that made it extremely easy for women to avoid jury duty. As a result, only 15 percent of the panels were composed of women. This, said the Court, violated the principle of a fair cross section. the issue was a Missouri statute that made it extremely easy for women to avoid jury duty. As a result, only 15 percent of the panels were composed of women. This, said the Court, violated the principle of a fair cross section.12 eb As of July 1992, there were 315 men and 5 women on death row in Florida. Nationally, there were 40 women condemned to die. One woman, Velma Barfield, has been executed since 1976 (she died in North Carolina in 1984), as against 175 men.15 ec The Indiana law defined a prost.i.tute as a female who "commits adultery or fornication for hire." Interestingly, a "female" was also declared a prost.i.tute if she lived in a "house ... of ill-fame" or "a.s.sociated" with women of "bad character for chast.i.ty, either in public or at a house which men of bad character frequent or visit."

ed Curiously enough, prost.i.tution is not legal in Las Vegas and its county; under the statute, a county license board cannot grant any license "for the purpose of operating a house of ill fame or repute" in any county "whose population is 400,000 or more."32 There is only one such county in the state-Clark County, in which Las Vegas is located. Is Las Vegas worried that men will wander too far from the slot machines? There is only one such county in the state-Clark County, in which Las Vegas is located. Is Las Vegas worried that men will wander too far from the slot machines?