In steamy, difficult, or sensational cases, choosing a jury could be a protracted struggle; and literally hundreds of prospects might be sifted before the two sides settled down to a panel of twelve. In Williamson County, Illinois, in 1922, eight union men were put on trial for their part in the "Herrin ma.s.sacre," in which sixteen scabs were murdered. It took a full month to pick a jury.42 The juror's lot in major cases is not a happy one; weeks or months of sitting in the courtroom listening to evidence (not always fascinating). Worst of all is sequestration-locking the jury up and treating jurors as virtual prisoners. This happens, on the whole, only in murder or capital cases. In one case in 1934, in Dedham, Ma.s.sachusetts, an "unused courtroom was converted into a dormitory, and meals were eaten in a nearby restaurant." Jurors took a bath once a week at the YMCA. Deputy sheriffs guarded them constantly, and no one was allowed to see or communicate with them. The juror's lot in major cases is not a happy one; weeks or months of sitting in the courtroom listening to evidence (not always fascinating). Worst of all is sequestration-locking the jury up and treating jurors as virtual prisoners. This happens, on the whole, only in murder or capital cases. In one case in 1934, in Dedham, Ma.s.sachusetts, an "unused courtroom was converted into a dormitory, and meals were eaten in a nearby restaurant." Jurors took a bath once a week at the YMCA. Deputy sheriffs guarded them constantly, and no one was allowed to see or communicate with them.43 Once in a while, jury duty was worse than unpleasant; it was downright dangerous. Not many people have ever been happy to serve as jurors in trials of well-connected gangsters. In 1927, Harry J. ("Lefty") Lewis was charged with murder in Cook County, Illinois. He was allegedly one of a group of union thugs who beat and choked junk men who refused to join the union. One of the junk men died after a bout of persuasion.

The trial was a sensation, not least because witnesses were told they might not live to tell the tale; the home of one witness was bombed. This was certainly not encouraging to jurors. In September 1926, over a thousand jurymen were summoned; 646 were questioned before twelve were actually selected. It took four weeks to pick the jury. Most of the men were excused because they claimed they had a fixed opinion about guilt or innocence; 163 claimed scruples against the death penalty. There were also thirty-two peremptory challenges, sixteen on each side. The trial lasted until November 18, 1927. At the trial, eight eyewitnesses testified that Lewis shot the junk man in the back while he was running away. Yet the jury, after six hours of deliberations, set Lefty Lewis free. The verdict produced "general indignation." The jury, it was said, was not at all representative; it was the dregs left over after the long, wearying process of selection. Perhaps the jury was simply too frightened to convict.44do Who served on juries? Sam B. Warner and Henry Cabot of Harvard Law School, writing in 1936, complained about the quality of Boston jurors. Jurors came out of lists of voters. But many professionals were excused, and others wormed their way out of duty. In federal court there seemed to be a higher cla.s.s of juror; they were "more skilled occupationally than those in the state court."46 Obviously, for Warner and Cabot, the jury did not have to be "representative" in any Obviously, for Warner and Cabot, the jury did not have to be "representative" in any literal literal sense (when they wrote, for example, women were still excluded in Ma.s.sachusetts). Jurors, ideally, were of the better sort: high-cla.s.s men. sense (when they wrote, for example, women were still excluded in Ma.s.sachusetts). Jurors, ideally, were of the better sort: high-cla.s.s men.

But as the years pa.s.sed, there was a subtle, unconscious change in att.i.tude. The legal culture in America in the late twentieth century was, as we have argued, strongly influenced by a form of expressive individualism. This meant, among other things, a commitment to shapes of pluralism beyond anything earlier periods had been willing to recognize. A jury of one's "peers," then, in the view of many people-and some judges-had to be be a jury of peers-of people a jury of peers-of people like like the defendant, rather than the results of a lottery, randomly pulled from the general community; least of all a "blue ribbon" panel, a panel of elites. the defendant, rather than the results of a lottery, randomly pulled from the general community; least of all a "blue ribbon" panel, a panel of elites.

Already, in the nineteenth century, the Supreme Court told the states they could not exclude blacks from the jury.dp Now, in the late twentieth century, came attacks on other kinds of exclusion, and demands for new forms of Now, in the late twentieth century, came attacks on other kinds of exclusion, and demands for new forms of inclusion. inclusion.dq Modem pluralism involves, among other things, a rejection of the idea that there is a single moral norm, a single hierarchy of values, a single standard-just as there is no longer a single race, religion, s.e.x, or group that can claim Modem pluralism involves, among other things, a rejection of the idea that there is a single moral norm, a single hierarchy of values, a single standard-just as there is no longer a single race, religion, s.e.x, or group that can claim official official status (actual dominance is another story). Hence it is not surprising to hear demands for a jury that is "representative" in some deeper sense than the law has required. In a few cases, defendants have attacked juries because not enough young people, or poor people, or blue-collar workers, or the like, were among the jurors. A jury must represent a "fair" cross section of the community; isn't that the law? status (actual dominance is another story). Hence it is not surprising to hear demands for a jury that is "representative" in some deeper sense than the law has required. In a few cases, defendants have attacked juries because not enough young people, or poor people, or blue-collar workers, or the like, were among the jurors. A jury must represent a "fair" cross section of the community; isn't that the law?

Most of these challenges have failed, but it is significant that they were made at all. In People v. Pinnell People v. Pinnell (1975), a group of defendants, indicted for very serious crimes, argued that the grand jury that indicted them was "improperly chosen." (1975), a group of defendants, indicted for very serious crimes, argued that the grand jury that indicted them was "improperly chosen."48 The pool from which these jurors was picked, they argued, was not a good cross section; there was no "fair" sample of the "group" to which defendants said they belonged: black, Latin American, "blue collar working cla.s.s and ... young." The Court turned down the claim, but only because the selectors had made "substantial efforts to secure larger numbers of both youth and labor groups," and because the Court found no evidence of race discrimination. The pool from which these jurors was picked, they argued, was not a good cross section; there was no "fair" sample of the "group" to which defendants said they belonged: black, Latin American, "blue collar working cla.s.s and ... young." The Court turned down the claim, but only because the selectors had made "substantial efforts to secure larger numbers of both youth and labor groups," and because the Court found no evidence of race discrimination.dr The Big Show: Major Trials and Their Discontents Who were the men and women who pa.s.sed up plea bargaining and went to trial? All kinds; but, as before, among them were defendants in a few great show trials-cases that stood out from the thousands of instances of aggravated a.s.sault, burglary, arson, rape, and manslaughter. Statistically, these trials were insignificant; but they made a deep impression on the public mind, they sold tons of newsprint, and occasionally they shaped the course of the law.

There was a sensation of sorts, probably, in every city, in every year. A few cases were super-sensations. In 1907, for example, there was the trial of Harry K. Thaw, charged with the murder of Stanford White the year before.50 White came from an old, distinguished family; he mingled with the rich and famous of New York; he was a leading architect of the firm McKim, Mead and White. Thaw was the somewhat degenerate offspring of an old and extremely wealthy family. He had married a ravishing young beauty, Evelyn Nesbit Thaw, one of the famous "Floradora girls" of the Broadway stage. Harry Thaw shot White to death in front of thousands of horrified spectators in Madison Square Garden. As the journalist Irvin S. Cobb, who covered the trial, put it, this was White came from an old, distinguished family; he mingled with the rich and famous of New York; he was a leading architect of the firm McKim, Mead and White. Thaw was the somewhat degenerate offspring of an old and extremely wealthy family. He had married a ravishing young beauty, Evelyn Nesbit Thaw, one of the famous "Floradora girls" of the Broadway stage. Harry Thaw shot White to death in front of thousands of horrified spectators in Madison Square Garden. As the journalist Irvin S. Cobb, who covered the trial, put it, this was the most spectacular criminal case ... that ever sucked dry the descriptive reservoirs of the American press. You see, it had in it wealth, degeneracy, rich old wasters; delectable young chorus girls and adolescent artists' models; the behind-the-scenes of Theaterdom and the Underworld, and the Great White Way ... the abnormal pastimes and weird orgies of overly aesthetic artists and jaded debauchees. In the cast of the motley show were Bowery toughs, Harlem gangsters, Tenderloin panders, Broadway leading men, Fifth Avenue clubmen, Wall Street manipulators, uptown voluptuaries and downtown thugs.

And it had Evelyn Nesbit Thaw-"the most exquisitely lovely human being I ever looked at-the slim, quick grace of a fawn, a head that sat on her flawless throat as a lily on its stem ... a mouth made of rumpled rose petals."51 Since Thaw could hardly claim somebody else shot White, he had to dream up some other defense. He claimed "temporary insanity," but the real defense was something quite different. White, he claimed, was a cad who had defiled his wife (long before Thaw met her, by the way). The trial was a carnival of scandal mixed with psychiatric mumbo jumbo. It was interrupted while a "lunacy commission," on the prosecution's motion, debated whether Thaw was mentally fit to stand trial. In hindsight, Thaw seems clearly deranged, and not only temporarily. But the commission said yes, he was fit; and the trial went on. It lasted three months. The jury spent forty-seven hours wrangling fruitlessly over the verdict. At a second trial, the jury found Thaw not guilty by reason of insanity. Thaw was shipped off to the State Asylum for the Criminal Insane, at Matteawan, in New York State. (In 1913, after some judicious bribery by the Thaw family, the defendant escaped from Matteawan and fled to Canada. He was extradited and returned to his asylum; in 1915, he was declared sane and released from prison.)52 The Thaw-White case gave the public a vicarious thrill: a glimpse at the lifestyles of the rich and famous. Unlike Lizzie Borden's case, and all the other nineteenth-century cases of repressed anger and s.e.xual frustration, this was a case of wild celebrities and their unbridled l.u.s.ts. The man in the dock, and his victim, were both more or less celebrities. In other instances, the crimes were so lurid or extreme, that the criminals criminals became celebrities. The 1924 murder of Bobby Franks, in Chicago, by Richard Loeb and Nathan Leopold-the "crime of the century"-presented just such a case: two rich, brilliant young men, who killed a young boy in cold blood, just for the thrill of it. Oddly enough, this "trial" was not a trial at all. Loeb and Leopold had confessed; the sole issue was punishment. Would they live or die? Clarence Darrow, the most famous lawyer of the day, argued for the defense. There was, of course, no jury. The courtroom, where the judge sat, had room for three hundred people; the judge issued "200 pink tickets to local newsmen and correspondents for news agencies and out-of-town papers." became celebrities. The 1924 murder of Bobby Franks, in Chicago, by Richard Loeb and Nathan Leopold-the "crime of the century"-presented just such a case: two rich, brilliant young men, who killed a young boy in cold blood, just for the thrill of it. Oddly enough, this "trial" was not a trial at all. Loeb and Leopold had confessed; the sole issue was punishment. Would they live or die? Clarence Darrow, the most famous lawyer of the day, argued for the defense. There was, of course, no jury. The courtroom, where the judge sat, had room for three hundred people; the judge issued "200 pink tickets to local newsmen and correspondents for news agencies and out-of-town papers."53 Darrow argued brilliantly that the boys were not normal; they were emotionally immature, poisoned by reading Nietzsche, prisoners of forces beyond their control. Darrow argued brilliantly that the boys were not normal; they were emotionally immature, poisoned by reading Nietzsche, prisoners of forces beyond their control.54 Whether the speech had an impact on the judge is, of course, unknown; but Leopold and Loeb did not get the death penalty; the judge sent them instead to prison for life. Loeb was stabbed to death in prison; Leopold was eventually released, a middle-aged man. Whether the speech had an impact on the judge is, of course, unknown; but Leopold and Loeb did not get the death penalty; the judge sent them instead to prison for life. Loeb was stabbed to death in prison; Leopold was eventually released, a middle-aged man.

Another case that attracted swarms of reporters was the sensational Hall-Mills case of the twenties.55 It began with the discovery, in September 1922, of the bodies of a man and a woman in a field, near a crab apple tree, in the vicinity of New Brunswick, New Jersey. The man, who had been shot, was the Reverend Edward W. Hall, pastor of an Episcopal church in New Brunswick. The dead woman, whose throat had been slashed, and her tongue cut out, was Mrs. Eleanor Mills, a choir singer active in the church, and the minister's lover. It began with the discovery, in September 1922, of the bodies of a man and a woman in a field, near a crab apple tree, in the vicinity of New Brunswick, New Jersey. The man, who had been shot, was the Reverend Edward W. Hall, pastor of an Episcopal church in New Brunswick. The dead woman, whose throat had been slashed, and her tongue cut out, was Mrs. Eleanor Mills, a choir singer active in the church, and the minister's lover.

For four years, the investigation simmered; then, in 1926, came a break. A certain Mrs. Jane Gibson, a farmer and local character (the "pig woman") came forward and claimed she had witnessed the murder. Partly on the basis of what the "pig woman" said, the minister's wife, Frances Hall, and two of her brothers, were put on trial for the murders. The trial was headline news, day in and day out. At the end, the defendants were acquitted. The mystery of the "minister and the choir singer" has never been resolved.56 s.e.xual misconduct and jealousy were at the root of Hall-Mills, or seemed to be; thus, like so many of the show cases, the trial was a kind of morality play. The audience was the courtroom public and the wider world of newspaper readers. In such cases, the great trial lawyers pulled out all the stops, as they had in earlier times. In 1918, Elmer Hupp of Cleveland shot Charles Joyce, a salesman, in Hupp's home. This was a "love triangle." Hupp supposedly shot Joyce, his wife's lover, in a "red rage" to protect the sanct.i.ty of his home. The Hupps had a daughter, Consuelo, a "winsome, cream and pink blonde girl," fourteen years old. When the attorneys made their "impa.s.sioned plea" to the jury, Consuelo "sobbed convulsively," her "arms about the neck of her father." The lawyers begged the jury to put "sunshine in the little girl's heart." One of the lawyers cried out, "We can't have people ask this little girl, 'Where is your Daddy?' and have her answer 'He's in the penitentiary. '"57 The jury acquitted Hupp on March 7, 1918, after two hours and two ballots. The jury acquitted Hupp on March 7, 1918, after two hours and two ballots.58 The most sensational trial of 1927 was the trial of Ruth Snyder and Judd Gray for the murder of Ruth's husband, Albert. The two defendants, who seemed obviously guilty, were tried together. The only hope for Ruth was to put all the blame on Judd, while the only hope for Judd was to do likewise to Ruth. Judd's lawyer called Ruth "a poisonous snake," a "serpent" who "drew Judd Gray into her glistening coils.... This woman ... was abnormal; possessed of an all-consuming, all-absorbing s.e.xual pa.s.sion, animal l.u.s.t, which seemingly was never satisfied." Poor Judd was "enslaved ... like a human mannikin, like a human dummy. Whatever she wanted he did."59 Ruth Snyder's lawyer paid him back in kind, and the jury convicted both of them. They went to the chair in 1928. Ruth Snyder's lawyer paid him back in kind, and the jury convicted both of them. They went to the chair in 1928.

But hardly any case of the century could match, for sheer notoriety, the kidnap-murder of Charles Lindbergh's baby, and the trial of Bruno Hauptmann for this crime in 1935. Lindbergh was a national hero; and to steal and kill a baby was a crime guaranteed to horrify every parent in the country. The trial was a media circus. It hit Flemington, New Jersey, like a "tomado." There was an "avalanche" of spectators, who tried to squeeze in to see a trial that was, according to H. L. Mencken, the greatest story since the Resurrection. There were over three hundred news-people and more than one hundred cameramen; a tangle of forty-five direct lines carried the news to places as far off as Sydney, Australia, and Buenos Aires. At a local airstrip, a dozen planes a day brought film to New York to feed the insatiable appet.i.tes of the press. Hauptmann was convicted, and died in the electric chair. The media tumult at the trial was such that, in 1937, two years after it was over, the American Bar a.s.sociation (ABA) adopted a judicial "canon" (ethical rule) that banned courtroom photography or radio coverage of trials. In 1952, the ABA amended the ban to include television. (The ban disintegrated in the 1970s, when over twenty states came to allow cameras in the courtroom.) 60 60 Could a trial be so sensational, the publicity so inflated, that the defendant's rights were compromised? The issue came to a head in two Supreme Court cases. In Estes v. Texas (1965),61 Billie Sol Estes had been convicted of swindling in a federal court in Texas. He was accused of a scam involving the sale of fertilizer tanks and equipment to farmers. The case gained intense national attention, and it was standing-room-only in the courtroom. Initial hearings were carried live on radio and television. There were more than a dozen cameramen in the courtroom: "Cables and wires were snaked across the courtroom floor, three microphones were on the judge's bench and others were beamed at the jury box and the counsel table." Billie Sol Estes had been convicted of swindling in a federal court in Texas. He was accused of a scam involving the sale of fertilizer tanks and equipment to farmers. The case gained intense national attention, and it was standing-room-only in the courtroom. Initial hearings were carried live on radio and television. There were more than a dozen cameramen in the courtroom: "Cables and wires were snaked across the courtroom floor, three microphones were on the judge's bench and others were beamed at the jury box and the counsel table."62 At the trial itself, the cameramen were more restrained: they worked out of a booth at the back of the courtroom. But the Supreme Court reversed the conviction. In its opinion, this kind of media carnival deprived Estes of his right to a fair trial. At the trial itself, the cameramen were more restrained: they worked out of a booth at the back of the courtroom. But the Supreme Court reversed the conviction. In its opinion, this kind of media carnival deprived Estes of his right to a fair trial.

Sheppard v. Maxwell (1966) (1966)63 arose out of a notorious murder case. Marilyn Sheppard, the pregnant wife of Dr. Sam Sheppard, was beaten to death on July 4, 1954, in her home in suburban Cleveland. Dr. Sam claimed a bushy-haired stranger had done the foul deed; but the police never bought his story. They suspected Dr. Sheppard himself, who had been carrying on a love affair with a woman named Susan Hayes. The case had what it takes to match Thaw, Hall-Mills, Leopold and Loeb, and the other great lip-smacking scandal cases of the century. Representatives of the news media jammed the courtroom. n.o.body except a cloistered nun could have escaped hearing about the case; certainly no juror or potential juror. The trial was not televised; but the Supreme Court found, nonetheless, that "bedlam reigned at the courthouse"; newsmen "took over practically the entire courtroom, hounding most of the partic.i.p.ants." The news media "inflamed and prejudiced the public." One Ohio judge referred to the "atmosphere of a 'Roman holiday.'" On top of everything else, the jury was not sequestered. The Court felt that under these circ.u.mstances, Sheppard had not received a fair trial. Sheppard's conviction was vacated. arose out of a notorious murder case. Marilyn Sheppard, the pregnant wife of Dr. Sam Sheppard, was beaten to death on July 4, 1954, in her home in suburban Cleveland. Dr. Sam claimed a bushy-haired stranger had done the foul deed; but the police never bought his story. They suspected Dr. Sheppard himself, who had been carrying on a love affair with a woman named Susan Hayes. The case had what it takes to match Thaw, Hall-Mills, Leopold and Loeb, and the other great lip-smacking scandal cases of the century. Representatives of the news media jammed the courtroom. n.o.body except a cloistered nun could have escaped hearing about the case; certainly no juror or potential juror. The trial was not televised; but the Supreme Court found, nonetheless, that "bedlam reigned at the courthouse"; newsmen "took over practically the entire courtroom, hounding most of the partic.i.p.ants." The news media "inflamed and prejudiced the public." One Ohio judge referred to the "atmosphere of a 'Roman holiday.'" On top of everything else, the jury was not sequestered. The Court felt that under these circ.u.mstances, Sheppard had not received a fair trial. Sheppard's conviction was vacated.ds The issue in these two cases was whether television and the feeding frenzy of reporters can make a trial inherently unfair; the Supreme Court clearly answered yes. The legal issues are complex and remain highly controverted. The root question, in a sense, is an old one. The press-television news most especially-has vastly increased the sensation-power of these cases. Moreover, as we have seen, the theory of jury function too has changed; while the media now reach into every home, legal theory has refined the concept of a virginal jury to its its highest point. These two social facts, quite obviously, can collide; and in cases like Sam Sheppard's, they did. In 1981, in highest point. These two social facts, quite obviously, can collide; and in cases like Sam Sheppard's, they did. In 1981, in Chandler v. Florida Chandler v. Florida,65 the Supreme Court put a fence around the Supreme Court put a fence around Estes Estes and similar cases: The "risk of juror prejudice in some cases does not justify an absolute ban on news coverage of trials," including coverage by the "broadcast" media. and similar cases: The "risk of juror prejudice in some cases does not justify an absolute ban on news coverage of trials," including coverage by the "broadcast" media.66 Thus television won a place, even though a bit grudgingly, in the courtroom; and there it remains, feeding on celebrity trials (and trials it makes into celebrity trials), to this day. Thus television won a place, even though a bit grudgingly, in the courtroom; and there it remains, feeding on celebrity trials (and trials it makes into celebrity trials), to this day.

The Insanity Defense In the twentieth century, the insanity defense underwent important changes. Throughout the first half of the century, psychiatrists and jurists kept up a drumbeat of criticism against the standard "tests," especially the McNaghten rules. These rules, it was said, were narrow and unscientific; they ignored the progress of psychiatric medicine. In New York, where the McNaghten rules were embalmed in statute, the court of appeals, in 1928, affirmed the conviction of Moran, a cop-killer, even though he was a "psychopathic inferior," a "man of low and unstable mentality, and, in all probability, a sufferer from epilepsy." After all, he "knew the nature and quality of the act, and knew that the act was wrong"; that was all that the law of New York required.67 The insanity defense is and has been controversial. The noise of the arguments would lead one to think that the defense was an everyday affair, that shocking numbers of dangerous psychopaths were let loose on the street, or put in hospitals, instead of jails (where they presumably belonged). In fact, the defense was rarely used, and was rarely successful. In Illinois, in the years 1924 through 1927, there were forty findings of insanity among 14,690 defendants accused of murder, a.s.sault with intent to murder, rape, a.s.sault with intent to rape, and other crimes. In three additional cases, the defendant was insane at the time of the crime, sane at the time of trial. In only four four of these forty-three cases did the prosecution oppose the verdict of insanity; presumably the other thirty-nine defendants were so obviously crazy that the prosecution saw no point in arguing. of these forty-three cases did the prosecution oppose the verdict of insanity; presumably the other thirty-nine defendants were so obviously crazy that the prosecution saw no point in arguing.68 In some states, courts (as they often do) simply nibbled away at the rules, changing them without admitting change. A number of halfway measures emerged; one was the concept of diminished capacity or diminished responsibility. It emerged gradually; in some ways, the old cases on drunkenness were its intellectual ancestors; but it crystallized, perhaps, in the 1950s. dt dt There was certainly a sensible idea behind the concept. The law seemed to a.s.sume insanity was something either/or, black or white: you are or you are not. But this seems wrong, both logically and as a matter of experience. There are all sorts of shades of gray between normal (whatever that means) and a state of complete, hopeless, obvious insanity. A defendant, of course, ends up either guilty or not guilty, a kind of all-or-nothing fate. But, in fact, there are are all sorts of way stations between the two poles: conviction on a lesser charge, for example. Murder is murder and not manslaughter because, among other things, the murderer has a certain frame of mind-"malice aforethought" is the technical phrase. It is certainly possible for a person to have some weakness or defect of mind that affects his ability to all sorts of way stations between the two poles: conviction on a lesser charge, for example. Murder is murder and not manslaughter because, among other things, the murderer has a certain frame of mind-"malice aforethought" is the technical phrase. It is certainly possible for a person to have some weakness or defect of mind that affects his ability to form form that intent, even if he is not actually "insane" in the clinical sense. that intent, even if he is not actually "insane" in the clinical sense.

In State v. Padilla, State v. Padilla, a New Mexico case of 1959, a New Mexico case of 1959,69 the charge was first-degree murder. Padilla's lawyer tried to get the trial judge to instruct the jury on diminished capacity. He wanted the judge to tell the jury that they might consider second-degree murder (instead of first-degree) if the defendant was "incapable of thinking over the fatal act beforehand with a calm and reflective mind (or with a fixed and settled deliberation and coolness of mind)" because of a "disease or defect of the mind," even if he was not technically insane. The judge refused, and the jury convicted. the charge was first-degree murder. Padilla's lawyer tried to get the trial judge to instruct the jury on diminished capacity. He wanted the judge to tell the jury that they might consider second-degree murder (instead of first-degree) if the defendant was "incapable of thinking over the fatal act beforehand with a calm and reflective mind (or with a fixed and settled deliberation and coolness of mind)" because of a "disease or defect of the mind," even if he was not technically insane. The judge refused, and the jury convicted.

The Supreme Court of New Mexico reversed the trial court decision. The judge should have given the instruction. Under New Mexico law, a defendant could be so drunk or so befuddled with drugs as to be unable to "premeditate" a first-degree murder (this was a familiar doctrine; see Chapter 6). If so, said the Court, why not provide the same rule for "mental disorders"? A substantial number of courts agreed. A rule of this type, however, was a kind of back-door attack on the "right or wrong" test.

A frontal attack came in 1954, in the District of Columbia. Judge David Bazelon, dissatisfied with the state of the law, boldly struck out in a new direction. The case concerned a certain Monte Durham, convicted of housebreaking. Durham had a long history of instability; in fact, he spent his whole adult life in and out of jails and mental hospitals-a revolving-door life of "lunacy inquiries," suicide attempts, convictions for crime, commitments to St. Elizabeth's Hospital, releases. The trial judge, sitting without a jury, had applied the standard "right or wrong" test and convicted Durham. The circuit court, speaking through Bazelon, reversed. Bazelon had harsh words for the McNaghten rules, which did not "take sufficient account of psychic realities and scientific knowledge." His opinion in Durham Durham was peppered with citations to psychiatric literature. Bazelon laid down a new "test" for insanity cases, presumably more scientific and enlightened than the older ones: "an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect." was peppered with citations to psychiatric literature. Bazelon laid down a new "test" for insanity cases, presumably more scientific and enlightened than the older ones: "an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect."70 The Durham Durham rule was controversial from the day it was born. It was supposed to be clearer, more modern, more scientific than what preceded it. But in practice it proved troublesome and confusing. Its critics also blasted it because it put too much power in the hands of psychiatrists; it turned a moral and legal judgment into what seemed to be a medical judgment. Perhaps this was unfair to the impulses behind the rule was controversial from the day it was born. It was supposed to be clearer, more modern, more scientific than what preceded it. But in practice it proved troublesome and confusing. Its critics also blasted it because it put too much power in the hands of psychiatrists; it turned a moral and legal judgment into what seemed to be a medical judgment. Perhaps this was unfair to the impulses behind the Durham Durham case, but history and evolution have nothing to do with fairness. Many judges became convinced that the "insanity defense was going haywire" and was leading to a "psychiatric dictatorship combined with procedural anarchy." case, but history and evolution have nothing to do with fairness. Many judges became convinced that the "insanity defense was going haywire" and was leading to a "psychiatric dictatorship combined with procedural anarchy."71 Statistical evidence does suggest that something was going awry. In 1954, the year of Durham, Durham, verdicts of "not guilty by reason of insanity" were rare in the District of Columbia-0.4 percent of all cases tried resulted in that verdict, a pretty standard percentage. This figure mushroomed to 3.3 percent in 1958, to 6.1 percent in 1960, and in 1961, to 14.4 percent-a staggering figure. verdicts of "not guilty by reason of insanity" were rare in the District of Columbia-0.4 percent of all cases tried resulted in that verdict, a pretty standard percentage. This figure mushroomed to 3.3 percent in 1958, to 6.1 percent in 1960, and in 1961, to 14.4 percent-a staggering figure.72 The D.C. Circuit Court of Appeals was itself alarmed and began to backtrack; finally, in 1972, this court junked the The D.C. Circuit Court of Appeals was itself alarmed and began to backtrack; finally, in 1972, this court junked the Durham Durham rule, only eighteen years after it had so hopefully adopted it. rule, only eighteen years after it had so hopefully adopted it.73 The new rule was based on language drafted by the American Law Inst.i.tute as part of a proposed Model Penal Code. Under this rule, a person "is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law." The new rule was based on language drafted by the American Law Inst.i.tute as part of a proposed Model Penal Code. Under this rule, a person "is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."

Whether this rule actually says says anything meaningful about what const.i.tutes insanity (or anything much different from the anything meaningful about what const.i.tutes insanity (or anything much different from the Durham Durham rule, and other "tests"), it has a curiously soothing effect on conservatives, who despise the insanity defense, and anything that smacks of "excuses" for criminals. A large segment of the population positively l.u.s.ts to believe that criminality is raw, naked evil, the devil in human form; that criminals are people who have sold their souls, who have brazenly, openly broken the rules we live by. At the same time, millions of people also seem to think that criminals are perhaps born that way; crime is in the blood, the genes, the bones. These two beliefs are, in several ways, inconsistent. They do have a common core. In both cases, rehabilitation, coddling, excuses, psychiatric treatment, and the like seem like a dangerous waste of time. The insanity defense, it would follow, is a trick to get people off the hook, a way to make mincemeat of morality and society's working norms. rule, and other "tests"), it has a curiously soothing effect on conservatives, who despise the insanity defense, and anything that smacks of "excuses" for criminals. A large segment of the population positively l.u.s.ts to believe that criminality is raw, naked evil, the devil in human form; that criminals are people who have sold their souls, who have brazenly, openly broken the rules we live by. At the same time, millions of people also seem to think that criminals are perhaps born that way; crime is in the blood, the genes, the bones. These two beliefs are, in several ways, inconsistent. They do have a common core. In both cases, rehabilitation, coddling, excuses, psychiatric treatment, and the like seem like a dangerous waste of time. The insanity defense, it would follow, is a trick to get people off the hook, a way to make mincemeat of morality and society's working norms.

The Age of Backlash In retrospect, the 1950s and 1960s represented a peak or high point in the movement to make criminal justice more humane, and to tilt the balance away from the police and prosecution. A backlash or reaction then set in. A wave of conservatism swept over the country. It had its roots in the great fear: the fear and hatred of crime. This wave led to the collapse of the campaign against the death penalty; it brought about a reaction against parole and the indeterminate sentence; it engulfed the Durham Durham rule, and put an end to "progress" in the insanity defense. rule, and put an end to "progress" in the insanity defense.

In November 1978, Dan White, a former member of the Board of Supervisors of San Francisco, ran amok in City Hall. He shot the mayor, George Moscone, to death, along with Supervisor Harvey Milk, a leader of the gay community. White was arrested and charged, and his trial took place, quite naturally, under the klieg lights of publicity. White's basic defense was diminished capacity; after all, White could hardly deny that he pulled the trigger. A straight-out insanity plea also seemed quite out of the question. The trial was notorious for what came to be known as the "Twinkie defense." There was testimony that White sometimes stuffed himself with junk food, and this kind of diet tended to unbalance him mentally. (Twinkies were mentioned at the trial, as one of the junk foods White ate when under stress.) The press went to town on this very minor point in the case, blowing it up out of all proportion. The "Twinkie defense" probably played little or no role in the actual result.

In any event, the jury found White guilty, but of voluntary manslaughter, not murder. The verdict, as we mentioned (in chapter 16, above), touched off riots in San Francisco. Howls of outrage were heard in Sacramento and reverberated all over the state. California then simply abolished the defenses of diminished capacity and irresistible impulse. 74 74 The voters of California liked the time-tested words of the McNaghten rule better than more modern alternatives. The voters of California liked the time-tested words of the McNaghten rule better than more modern alternatives.

On March 30, 1981, John Hinckley, Jr., stood outside the Hilton Hotel, in Washington, D.C., and shot six bullets at the president, Ronald Reagan, as the president was leaving the hotel for his limousine. The president was seriously wounded, and his press secretary, James Brady, struck by one of the bullets, suffered severe brain damage. Hinckley was peculiar and unbalanced, to say the least; he had shot the president not, apparently, for any political reason, but to impress a young movie star, Jodie Foster, whom he had never met. At the trial in federal district court, his defense (of course) was insanity. This was the only real issue, and consequently, the whole affair became a battle between psychiatric witnesses. The trial lasted eight weeks; the jury deliberated for three and a half days, and then returned with a verdict: not guilty by reason of insanity.

It was a plausible outcome, but it, too, evoked a storm of protest. A news poll the very next day found that three-fourths of the public disapproved of the verdict; 70 percent wanted to get rid of the insanity plea. In a Delaware poll a week later, 80 percent of the sample considered the insanity defense a "loophole." The president himself complained that the defense was "used more and more in murder trials." These people are "found innocent by reason of insanity," are put in a mental hospital, later to be "turned loose" as "cured"; then "they go right out in the street and commit the same crime over again."75 All this was nonsense, of course, but Congress heard the thunder and saw the lightning very clearly. In 1984, Congress reconst.i.tuted the insanity defense for federal cases; the new rules harked back to the old McNaghten rules, with changes. A defendant can use the defense only if "at the time of the commission of the act" he or she, "as a result of a severe mental disease or defect," is "unable to appreciate the nature and quality or the wrongfulness of the act."76 "Insanity" does not include psychopathic and sociopathic behavior. A few states have gone so far as to abolish, or try to abolish, the insanity defense altogether. "Insanity" does not include psychopathic and sociopathic behavior. A few states have gone so far as to abolish, or try to abolish, the insanity defense altogether.77 This legislative activity, to be sure, is based on half-facts, non-facts, or on plain prejudice. But the underlying rage is also, in a way, understandable. We have discussed the 1959 New Mexico case of State v. Padilla State v. Padilla (see above, this chapter). (see above, this chapter).78 Here are the facts of the case, as set out rather drily by the Supreme Court of New Mexico. Padilla was a Mexican-American, twenty-five years old when the crime was committed. He had a second-grade education and worked "as an itinerant farm laborer all of his life." His intelligence rating was "dull normal." Here are the facts of the case, as set out rather drily by the Supreme Court of New Mexico. Padilla was a Mexican-American, twenty-five years old when the crime was committed. He had a second-grade education and worked "as an itinerant farm laborer all of his life." His intelligence rating was "dull normal."

On October 5, 1957, Padilla drank beer in a bar in Roswell, New Mexico, from noon until midnight and smoked at least two marijuana cigarettes. He left the bar with a half-case of beer, went to the home of the victim, a five-year-old child, and "took her into his car. He then drove approximately fourteen miles.... [Then] he raped the child and thereafter killed her by stabbing her with a screwdriver." He took a seat cover from the car, put it over her body, and covered it with sand. Then he fled to Mexico. He was arrested and returned to New Mexico on October 12, 1957. He confessed soon afterwards. Padilla was, of course, convicted; his appeal turned on the question of diminished responsibility. As we have seen, he won the case.

There is a lot to be said for the court's decision in the light of Padilla's background and his mental profile. There is a lot to be said-that is, if if you believe that a trial is for weighing and judging the fate of this particular person. But the crime itself was cruel, wanton, pointless. Padilla brutally snuffed out the life of a little child. He plunged her family into the darkest pool of grief. A crime so horrible evokes rage, not understanding; it is the kind of crime that gives the system its sorest, most difficult test. It does not always pa.s.s the test. you believe that a trial is for weighing and judging the fate of this particular person. But the crime itself was cruel, wanton, pointless. Padilla brutally snuffed out the life of a little child. He plunged her family into the darkest pool of grief. A crime so horrible evokes rage, not understanding; it is the kind of crime that gives the system its sorest, most difficult test. It does not always pa.s.s the test.

In the years after 1950, there seemed to be no end of senseless, vicious, wanton crimes; and the media played them for all they were worth. Public opinion froze solid. The wheel turned, and criminal justice became, relatively speaking, offense offense-minded; it focused more on the acts themselves, less on the actor. But in an offense-minded system, there is not much room for a doctrine of diminished capacity, and even the insanity defense itself moved into the danger zone.

After the Verdict: Probation A jury's verdict of guilty, or a guilty plea, or a judge's decision, is not the end of the trial. The sentencing stage remains. And this is crucial. Here life or death may weigh in the balance; or, for far greater numbers, a prison term, or jail-or another chance. This "other chance" is probation.

Adult probation entered the system, for the most part, in the early years of the twentieth century. New Jersey enacted a probation law in 1900, New York in 1901, California in 1903.79 If the defendant asked for probation and seemed to have a reasonable shot, the judge would turn the case over to a probation officer. The probation officer would investigate the prisoner, then file a report, either recommending probation or not. Usually, the judge did what the report recommended, though he had the discretion to ignore it. If the defendant asked for probation and seemed to have a reasonable shot, the judge would turn the case over to a probation officer. The probation officer would investigate the prisoner, then file a report, either recommending probation or not. Usually, the judge did what the report recommended, though he had the discretion to ignore it.

Probation was another step toward a more professional system of criminal justice. Not that early probation officers had any special training; they learned on the job. As late as 1932, Charles Chute wrote that the states had no prerequisites at all.80 Some did-in a minimal way. New York pa.s.sed a law in 1928 saying that probation officers should be mentally, physically, and morally fit; over twenty-one; and have at least a high school education. Some did-in a minimal way. New York pa.s.sed a law in 1928 saying that probation officers should be mentally, physically, and morally fit; over twenty-one; and have at least a high school education.81 Probation at least gave the judge the help of a person whose specific job it was to look into the defendant's situation and character. Probation was also a move toward a more humane system of criminal justice. A poor wretch, a first offender caught in the tangles of justice, had a chance to escape the horrors of Sing Sing or San Quentin. But the probation system also gave probation officers and judges vast power, and vast discretion. They used this power to bend the system-consciously or otherwise. Probation at least gave the judge the help of a person whose specific job it was to look into the defendant's situation and character. Probation was also a move toward a more humane system of criminal justice. A poor wretch, a first offender caught in the tangles of justice, had a chance to escape the horrors of Sing Sing or San Quentin. But the probation system also gave probation officers and judges vast power, and vast discretion. They used this power to bend the system-consciously or otherwise.

The price of probation, to begin with, was a guilty plea and a humble att.i.tude. Judges in many places demanded true confession and true atonement. Probation was the power to separate good people from bad. The good were more moral, moderate in habit, attached to work, family, and church-people who had slipped a bit but deserved another chance. The bad were the opposite of all this.

Early probation reports in California reveal a jumble of popular theories about crime and criminal personalities, and a jumble of popular prejudices about the morals of men (few women appeared in the records). The reports favored married men or men with family support. Jobs were a plus. And men who did not m.a.s.t.u.r.b.a.t.e or go to brothels, and who stayed away from liquor and tobacco, were prime candidates. Drifters, the unattached, the vice-ridden, drug addicts-these never had a chance. Probation officers poked and rummaged in family histories. They examined character, habits, inheritance; they listened to gossip, they talked to neighbors. We read of one offender who had "m.a.s.t.u.r.b.a.t.ed since about fourteen" and was still (in 1914) not in full control of himself. He had gone to brothels ("three times") and was "fond of theatre." He had "no library card"-a sign, no doubt, of unregenerate ignorance. Probation was, of course, denied.82 In Chicago, in 1931, eighteen-year-old Emil C. was arrested for burglary. The probation office wrote a d.a.m.ning report. Emil's brother Albert had been "Delinquent from the age of 8 years. Mother could do nothing with him. Loafed and stole at night." Albert himself had a criminal record: "I simply mention this to show a family trait." Emil's parents lived above the "cheap little store" that they ran. It was just "a very poor little home, scantily furnished, and the neighborhood is as poor as the home." In Chicago, in 1931, eighteen-year-old Emil C. was arrested for burglary. The probation office wrote a d.a.m.ning report. Emil's brother Albert had been "Delinquent from the age of 8 years. Mother could do nothing with him. Loafed and stole at night." Albert himself had a criminal record: "I simply mention this to show a family trait." Emil's parents lived above the "cheap little store" that they ran. It was just "a very poor little home, scantily furnished, and the neighborhood is as poor as the home."83 Those who won probation were expected to toe the line. Young Albert Banks, of San Diego, who had written a bad check for $16.50 and defrauded a Mrs. Del Rey in 1908, pleaded guilty. Judge Lewis of Superior Court sentenced him to three years in prison, but Banks was spared this fate-on condition. "I think cigarette smoking is a bad habit," said the judge; so, of course, Banks was not to smoke. He was also supposed to avoid "all places of evil repute," which included saloons. He was to "shun all evil a.s.sociates," pay back the woman he defrauded, and to send his earnings to his mother "to support his wife and two children." Lastly, he was to "abstain from liquor altogether."84du Charles c.o.o.ns of Santa Clara County, California, convicted of selling intoxicating liquor in 1925, was also lucky. But for him, too, probation was not exactly freedom. Six standard conditions were printed on the probation form the county used. The probationer had to "accept the first honorable employment" offered; he had to get written consent from the probation officer if he moved or changed jobs; he had to report to the probation office once a month; "in all respects" he had to "conduct himself honestly, avoid all evil a.s.sociations, obey the law, and abstain from the use of all intoxicating liquors, opium in any form, cocaine or other noxious drugs"; under no circ.u.mstances was he to "enter a saloon, where liquor is either sold or given away." Judges could, and often did, add other conditions. c.o.o.ns, for example, was not to "visit ... pool rooms, or prize fights, or other improper places."85 A young offender in 1922, Lawrence Narvaez, was to "remain at home at night for a term of six months; except when accompanied by his father he cannot go down town. At all times during his probation he shall obey his father and be under his control." A young offender in 1922, Lawrence Narvaez, was to "remain at home at night for a term of six months; except when accompanied by his father he cannot go down town. At all times during his probation he shall obey his father and be under his control."86 Still, probation was a good deal; defendants were certainly more than willing to take it, whatever the conditions; and many judges made free use of it. In January of 1917 in the Common Pleas Court of Cleveland, 135 men out of 254 found guilty of felony got probation (which in Cleveland was called, somewhat confusingly, "parole"). Not everyone approved. Reginald Heber Smith and Herbert B. Ehrmann, who partic.i.p.ated in the Cleveland crime survey, were bitterly critical. These defendants, they wrote, "were a selected bad lot," the dregs of the process; those who had "anything in their favor" had been filtered out before before trial, or by pleading down to a misdemeanor. Yet this "dangerous group went practically unpunished." They compared the judge's behavior to the "old game of 'Donkey'" where the "blindfolded player often relies upon the cheers of the onlookers to guide him to the spot where he can pin the animal's tail in its proper place." The judges "follow the clamor of the press and public." The fault also lay, in part, in the weak, understaffed probation department. Defendants were paroled to "relatives, detectives, clerks, and even stenographers in the prosecutors office." As a result, probation was a "joke." trial, or by pleading down to a misdemeanor. Yet this "dangerous group went practically unpunished." They compared the judge's behavior to the "old game of 'Donkey'" where the "blindfolded player often relies upon the cheers of the onlookers to guide him to the spot where he can pin the animal's tail in its proper place." The judges "follow the clamor of the press and public." The fault also lay, in part, in the weak, understaffed probation department. Defendants were paroled to "relatives, detectives, clerks, and even stenographers in the prosecutors office." As a result, probation was a "joke."87 Probation survived such critiques, and flourished. In fiscal year 1970, in the federal district courts, 28,178 defendants were convicted; of these, 12,771 were put on probation, slightly more than the 11,071 who were imprisoned.88 The backlash and cries for toughness that followed in the seventies, however, were bound to have an impact on probation. In 1988, in the federal district courts, imprisonment now outweighed probation, 22,473 to 16,057. And in the state courts in 1986, it was estimated that 28 percent of the male felony defendants got probation, while 70 percent went to prison or jail. The backlash and cries for toughness that followed in the seventies, however, were bound to have an impact on probation. In 1988, in the federal district courts, imprisonment now outweighed probation, 22,473 to 16,057. And in the state courts in 1986, it was estimated that 28 percent of the male felony defendants got probation, while 70 percent went to prison or jail.89dv Perhaps if the prison crush were not so great, probation would have shown even more signs of shriveling. Perhaps if the prison crush were not so great, probation would have shown even more signs of shriveling.

The Sentencing Process Probation involved (ideally, at least) an individualizing process-weigh-ing the man or woman in the balance to see what he or she deserved. This was at the heart, too, of the indeterminate sentence (see chapter 7). And it was at the heart of the whole sentencing process, which vested vast discretion in the judge.

In California, for example, in the first part of the century, "proceedings upon sentence" took place after conviction. Judge and district attorney would ask questions to find out if the defendant had remorse, whether he or she was human rubbish or was worth a crack at salvation. They asked about the crime, about the defendant's att.i.tudes, family background, health, habits, and history. William McAlpin was convicted of bigamy in Santa Clara County, in 1922: Do you use liquor? he was asked. The answer was no. Drugs? No. Do you ever gamble? He said: "I never had time, and it takes too much money to gamble." Do you "play any musical instruments?" It seems he did: "Piano, violin and cornet. I play all by ear. I have had no lessons."90 This last strikes us as a bizarre question, but it was standard in the county. Sometimes the district attorney wanted to know if the defendant could sing. What he was really looking for were clues to middle-cla.s.s respectability. These proceedings were little morality dramas. They tended to become routine, stereotyped, but not, of course, to the poor soul whose fate hung in the balance. The judge, after all, was going to recommend to the prison authority how to handle prisoner X; and that was of vast importance to his fate, and to the length of his term. But all the judge had to go on were bits and fragments of data that the two sides served up, and the pieces of conventional morality that rattled about in his head. Somehow, these produced decisions.

A case from 1921, in the same county, neatly ill.u.s.trates the process. The defendant, Andrew Clark, was young, poor, and black. He pleaded guilty to robbery but begged the judge for another chance. The a.s.sistant district attorney, a Mr. Bridges, came down hard on Clark: he "is a wanderer upon the earth and tramps all over. You have got no ties on him, no strings on him and he simply leaves here and what is the result"; he will simply prey "upon some other community." The judge, at first, felt some sympathy: Clark was black and the judge knew all about "the characteristics of his race.... I know their disposition-they go and commit a crime and they are the first always to acknowledge it." But Bridges demurred: in fact, Clark was the "last one to acknowledge it. He has always denied it until he pleaded guilty here. He claimed that he bought the [stolen] watches from the other fellows." This obstinacy turned the tide. The judge sent Clark to San Quentin.91 Clark was a loner, a rolling stone, without social connections; his repentance and confession came too late; and he was black. All this doomed him to a tough sentence. The search for good eggs and bad eggs pervaded the system. It affected sentencing to the core. It also led to more and more savage statutes on habitual criminals, since these were, of course, the worst of the worst, the incorrigibles. New York's law, the so-called "Baumes law" (1926) was absolutely draconian. It called for life imprisonment after a fourth conviction for a felony.92 The law showed the good citizens that New York could be, when it wished, exceedingly tough on crime. The law showed the good citizens that New York could be, when it wished, exceedingly tough on crime.

The vice of such laws came out clearly in People ex rel. Marcley v. Lawes, People ex rel. Marcley v. Lawes, decided by the New York Court of Appeals in 1930. decided by the New York Court of Appeals in 1930.93 The The Marcley Marcley case also shows, in a particularly vivid way, how the court's power to "interpret" law can mean the power to twist law like taffy. Marcley was a fourth offender. On June 27, 1921, he pleaded guilty to a felony: attempted theft of a motorcycle. Sentence was suspended. A year later, he pleaded guilty to burglary in the third degree: he broke into a chicken house and stole some chickens. Another suspended sentence. On the same day, he pleaded guilty to a third crime: burglarizing a garage and stealing "automobile accessories." This got him three years and six months in Sing Sing. The fourth offense was stealing an automobile; Marcley pleaded guilty and was sentenced to life imprisonment in Sing Sing. case also shows, in a particularly vivid way, how the court's power to "interpret" law can mean the power to twist law like taffy. Marcley was a fourth offender. On June 27, 1921, he pleaded guilty to a felony: attempted theft of a motorcycle. Sentence was suspended. A year later, he pleaded guilty to burglary in the third degree: he broke into a chicken house and stole some chickens. Another suspended sentence. On the same day, he pleaded guilty to a third crime: burglarizing a garage and stealing "automobile accessories." This got him three years and six months in Sing Sing. The fourth offense was stealing an automobile; Marcley pleaded guilty and was sentenced to life imprisonment in Sing Sing.

A bare majority of the court (four judges) set the sentence aside. These judges were clearly horrified at the thought that a man of twenty-five, "because he had previously stolen chickens, certain automobile parts, and a motorcycle, must spend the remainder of his days in a state's prison." To avoid this dreadful result, the court decided that a suspended sentence should not count as a conviction. This was almost certainly not what the legislature intended. But then, too, the legislature had not had poor Marcley in mind.

The case also ill.u.s.trates how dangerous it is to remove remove discretion from sentencing. After 1950, as the crime rate escalated and fear of crime became the dominant force pushing policy in criminal justice, there were many attempts to impose stiff, mandatory sentences: use a gun, go to jail; sell a drug, go to jail, and so on. The most extreme, perhaps, was the New York drug law, which Governor Nelson Rockefeller pushed through in 1973. It called for very stiff, and mandatory, minimum sentences for drug offenses; the maximum was life imprisonment. Some restrictions on plea bargaining were built into the law. It was so harsh that even prosecutors and the police were aghast and opposed the bill; but to no avail. In practice, the law was an expensive and dismal failure. It did not solve the drug problem; it led to major injustices (extreme sentences imposed on small fry); and it nearly wrecked the system of criminal justice-or would have, if it had been carried out as designed. The law turned into an embarra.s.sment, and the legislature, in essence, got rid of it in 1979. discretion from sentencing. After 1950, as the crime rate escalated and fear of crime became the dominant force pushing policy in criminal justice, there were many attempts to impose stiff, mandatory sentences: use a gun, go to jail; sell a drug, go to jail, and so on. The most extreme, perhaps, was the New York drug law, which Governor Nelson Rockefeller pushed through in 1973. It called for very stiff, and mandatory, minimum sentences for drug offenses; the maximum was life imprisonment. Some restrictions on plea bargaining were built into the law. It was so harsh that even prosecutors and the police were aghast and opposed the bill; but to no avail. In practice, the law was an expensive and dismal failure. It did not solve the drug problem; it led to major injustices (extreme sentences imposed on small fry); and it nearly wrecked the system of criminal justice-or would have, if it had been carried out as designed. The law turned into an embarra.s.sment, and the legislature, in essence, got rid of it in 1979.94 But the very fact that such a law could be pa.s.sed, and touted as a cure of the ills of the system, was a definite sign of the times. But the very fact that such a law could be pa.s.sed, and touted as a cure of the ills of the system, was a definite sign of the times.

The movement to reform sentencing was connected, politically and ideologically, with the movement that blasted away at indeterminate sentencing and parole. n.o.body seemed to like the American sentencing system. It was, on the one hand, too flabby, and on the other hand, awfully unjust. Sentencing seemed to be totally irrational. It depended on the whims of the judge. Two people who had committed the "same crime" could receive wildly different sentences. The judge had "blank-check powers"; these powers, according to Judge Marvin Frankel, formed the "central evil" of the system-a "wild array of sentencing judgments without any semblance of the consistency demanded by the ideal of equal justice."95 Some felt that this situation "fostered undue optimism among offenders who hoped to 'beat the rap,'" or that it "undermined deterrence and crime control objectives." Meanwhile, the "disparities fed prisoner resentment and impeded rehabilitation." Some felt that this situation "fostered undue optimism among offenders who hoped to 'beat the rap,'" or that it "undermined deterrence and crime control objectives." Meanwhile, the "disparities fed prisoner resentment and impeded rehabilitation."96 Evidence could be mustered to support some of these propositions, but it was hardly overwhelming. Evidence could be mustered to support some of these propositions, but it was hardly overwhelming.

Certainly, sentencing reform did not respond to any deep public public yearning for justice; there was no outcry from the ma.s.ses against disparities in sentencing; no major interest group stood foursquare for the principle that like must be treated like. The precise reforms came out of the academy and the profession. A good deal of the academic impulse was benign-part of the search for fairness, for due process. But it seems clear that the success of the academic efforts depended on something deeper, more subterranean. General dismay over crime, and the (apparent) failure of criminal justice, lent force to any change that promised to toughen up the system. In any event, firm, immovable sentences yearning for justice; there was no outcry from the ma.s.ses against disparities in sentencing; no major interest group stood foursquare for the principle that like must be treated like. The precise reforms came out of the academy and the profession. A good deal of the academic impulse was benign-part of the search for fairness, for due process. But it seems clear that the success of the academic efforts depended on something deeper, more subterranean. General dismay over crime, and the (apparent) failure of criminal justice, lent force to any change that promised to toughen up the system. In any event, firm, immovable sentences seemed seemed like a step in the direction of "law and order," as well as a step toward justice. This was a potent politica