MAGILL’S C H O I C E
Edited by
Phyllis B. Gerstenfeld California State University, Stanislaus Department of Criminal Justice
Salem Press, Inc. Pasadena, California
Hackensack, New Jersey
Cover image: Joseppi/Dreamstime.com
Copyright © 2008, by Salem Press, Inc. All rights in this book are reserved. No part of this work may be used or reproduced in any manner whatsoever or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without written permission from the copyright owner except in the case of brief quotations embodied in critical articles and reviews. For information address the publisher, Salem Press, Inc., P.O. Box 50062, Pasadena, California 91115. ∞ The paper used in these volumes conforms to the American National Standard for Permanence of Paper for Printed Library Materials, Z39.48-1992 (R1997) Some essays originally appeared in: Criminal Justice (2005). New material has been added.
Library of Congress Cataloging-in-Publication Data Crime and punishment in the United States / editor, Phyllis B. Gerstenfeld. p. cm. Includes bibliographical references and index. ISBN 978-1-58765-427-5 (set : alk. paper) ISBN 978-1-58765-428-2 (vol. 1 : alk. paper) ISBN 978-1-58765-429-9 (vol. 2 : alk. paper) ISBN 978-1-58765-430-5 (vol. 3 : alk. paper) 1. Crime—United States—Case studies. 2. Punishment—United States—Case studies. 3. Criminal justice, Administration of—United States—History. 4. Criminals—United States—Biography. I. Gerstenfeld, Phyllis B. HV6779.C74 2008 364.973—dc22 2008017121 First Printing
printed in canada
Contents Publisher’s Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii Accomplices and accessories. . . . . . . . . . . . . . . . . . . . . . . . . 1 Acquittal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Adultery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Animal abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Appellate process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Arraignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Arrest warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Arson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Assault and battery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Attempt to commit a crime. . . . . . . . . . . . . . . . . . . . . . . . . 37 Automobile searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Bail system. . . . . . . . . . . . . . . . . . . . . . . . Bank robbery . . . . . . . . . . . . . . . . . . . . . . Bigamy and polygamy. . . . . . . . . . . . . . . . . . Blackmail and extortion . . . . . . . . . . . . . . . . Booking . . . . . . . . . . . . . . . . . . . . . . . . . Boot camps . . . . . . . . . . . . . . . . . . . . . . . Border patrols. . . . . . . . . . . . . . . . . . . . . . Breach of the peace. . . . . . . . . . . . . . . . . . . Bribery. . . . . . . . . . . . . . . . . . . . . . . . . . Bureau of Alcohol, Tobacco, Firearms and Explosives Bureau of Prisons . . . . . . . . . . . . . . . . . . . . Burglary . . . . . . . . . . . . . . . . . . . . . . . . .
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42 48 55 57 62 63 67 70 71 76 80 83
Cable and satellite television signal theft . . . . . . . . . . . . . . . . . 88 Capital punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Carjacking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Cease-and-desist orders . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Child abduction by parents . . . . . . . . . . . . . . . . . . . . . . . . 101 Child abuse and molestation . . . . . . . . . . . . . . . . . . . . . . . 103 Citizen’s arrests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Civil disobedience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Coast Guard, U.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Commercialized vice . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 v
Crime & Punishment in the United States Community-based corrections . . . . . Community service . . . . . . . . . . . Computer crime . . . . . . . . . . . . . Confessions . . . . . . . . . . . . . . . Conspiracy . . . . . . . . . . . . . . . . Consumer fraud . . . . . . . . . . . . . Contempt of court. . . . . . . . . . . . Contributing to delinquency of minors Convictions . . . . . . . . . . . . . . . Coroners . . . . . . . . . . . . . . . . . Corporal punishment . . . . . . . . . . Counterfeiting . . . . . . . . . . . . . . Court types . . . . . . . . . . . . . . . . Crime. . . . . . . . . . . . . . . . . . . Crime labs . . . . . . . . . . . . . . . . Crime scene investigation . . . . . . . . Crimes of passion . . . . . . . . . . . . Criminal intent . . . . . . . . . . . . . Criminal justice system . . . . . . . . . Criminal law . . . . . . . . . . . . . . . Criminal liability . . . . . . . . . . . . . Criminal procedure . . . . . . . . . . . Criminal prosecution . . . . . . . . . . Criminal records. . . . . . . . . . . . . Criminals . . . . . . . . . . . . . . . . . Cross-examination . . . . . . . . . . . . Cruel and unusual punishment. . . . . Cybercrime. . . . . . . . . . . . . . . .
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130 134 136 143 147 150 154 156 158 162 164 168 174 180 188 191 195 197 198 208 215 216 224 229 233 240 242 249
Date rape. . . . . . . . . . . . Defendant self-representation Defendants . . . . . . . . . . . Defense attorneys . . . . . . . Defenses to crime . . . . . . . Deportation . . . . . . . . . . Depositions . . . . . . . . . . Deterrence . . . . . . . . . . . Discovery . . . . . . . . . . . . Dismissals . . . . . . . . . . . Disorderly conduct . . . . . . District attorneys. . . . . . . . Domestic violence . . . . . . . Drive-by shootings . . . . . . .
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257 259 262 264 266 272 276 277 280 283 285 287 290 297
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Contents Drug courts . . . . . . . . . . . . . Drug Enforcement Administration . Drug testing . . . . . . . . . . . . . Drugs and law enforcement. . . . . Drunk driving . . . . . . . . . . . .
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299 303 305 310 317
Electronic surveillance Embezzlement . . . . . Entrapment . . . . . . Environmental crimes . Espionage . . . . . . . Evidence, rules of . . . Exclusionary rule . . . Execution, forms of . . Expert witnesses . . . . Extradition . . . . . . . Eyewitness testimony .
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324 326 330 332 336 343 348 353 357 359 364
False convictions . . . . . . . . . Federal Bureau of Investigation Felonies . . . . . . . . . . . . . Fines . . . . . . . . . . . . . . . Forensics . . . . . . . . . . . . . Forgery . . . . . . . . . . . . . . Fraud . . . . . . . . . . . . . . .
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368 374 382 384 386 392 394
Gambling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Graffiti . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406 Grand juries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409 Halfway houses. . . . . . . . . . Hate crime . . . . . . . . . . . . Highway patrols . . . . . . . . . Hit-and-run accidents . . . . . . Homeland Security Department House arrest . . . . . . . . . . .
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413 415 421 423 425 430
Identity theft . . . . . . . . . . . . . . . . Ignorance of the law. . . . . . . . . . . . Immigration and Naturalization Service . Indecent exposure. . . . . . . . . . . . . Indeterminate sentencing. . . . . . . . . Indictment . . . . . . . . . . . . . . . . .
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432 439 441 445 446 448
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Crime & Punishment in the United States Indictment . . . . . . . . Insanity defense . . . . . Insider trading . . . . . . Insurance fraud . . . . . Internal Revenue Service
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448 450 453 457 460
Jaywalking . . . . . . Judges . . . . . . . . Judicial system, U.S. . Jurisdiction of courts Jury duty . . . . . . .
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462 464 468 474 477
Jury system . . . . . . . . . . . . Justice . . . . . . . . . . . . . . Justice Department, U.S. . . . . Juvenile courts . . . . . . . . . . Juvenile delinquency . . . . . . Juvenile justice system . . . . . . Juvenile waivers to adult courts .
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480 488 492 501 504 512 519
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Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521 Law enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527 Loitering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533 Mail fraud . . . . . . . . . . . Mandatory sentencing . . . . Manslaughter . . . . . . . . . Marshals Service, U.S. . . . . . Medical examiners. . . . . . . Miranda rights . . . . . . . . . Misdemeanors . . . . . . . . . Missing persons . . . . . . . . Mistrials . . . . . . . . . . . . Money laundering . . . . . . . Motor vehicle theft . . . . . . Multiple jurisdiction offenses . Murder and homicide . . . . . Murders, mass and serial . . .
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535 539 544 545 549 552 556 557 560 562 564 572 574 588
National Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596 Night courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 599 Nonviolent resistance . . . . . . . . . . . . . . . . . . . . . . . . . . . 600 Organized crime. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604 viii
Contents Pandering . . . Pardons . . . . Parole . . . . . Parole officers . Pedophilia . . . Perjury . . . . . Pickpocketing . Plea bargaining Pleas . . . . . .
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612 613 617 625 627 630 632 633 635
Police . . . . . . . . . . . . . Police brutality. . . . . . . . Police civil liability . . . . . . Police corruption . . . . . . Police detectives . . . . . . . Police dogs . . . . . . . . . . Police powers . . . . . . . . Pornography, child . . . . . Pornography and obscenity . Preventive detention . . . . Prison and jail systems. . . . Prison escapes . . . . . . . . Prison guards . . . . . . . . Prison violence. . . . . . . . Privacy rights . . . . . . . . . Private detectives . . . . . . Private police and guards . . Probable cause . . . . . . . . Probation, adult . . . . . . .
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637 645 654 658 666 670 671 676 680 687 689 698 702 703 707 711 713 716 719
Probation, juvenile . Public defenders . . . Public-order offenses Public prosecutors . . Punishment . . . . . Punitive damages . .
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725 730 735 737 743 752
Racial profiling . . . . . Rape and sex offenses . . Recidivism . . . . . . . . Reckless endangerment . Regulatory crime . . . . Rehabilitation . . . . . . Resisting arrest. . . . . . Restitution . . . . . . . .
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753 758 768 773 774 776 781 782
ix
Crime & Punishment in the United States Restorative justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 784 Restraining orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 787 Robbery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 788 School violence . . . . . . . . . . . Search and seizure. . . . . . . . . . Search warrants . . . . . . . . . . . Secret Service, U.S. . . . . . . . . . Self-defense . . . . . . . . . . . . . Self-incrimination, privilege against Sentencing . . . . . . . . . . . . . . Sex discrimination. . . . . . . . . . Sex offender registries. . . . . . . . Sexual harassment . . . . . . . . . . Shoplifting . . . . . . . . . . . . . . Skyjacking . . . . . . . . . . . . . . Sobriety testing . . . . . . . . . . . Solicitation to commit a crime . . . Solitary confinement . . . . . . . . Special weapons and tactics teams . Speeding detection . . . . . . . . . Sports and crime. . . . . . . . . . . Stakeouts . . . . . . . . . . . . . . . State police. . . . . . . . . . . . . . Statutes of limitations . . . . . . . . Statutory rape . . . . . . . . . . . . Sting operations . . . . . . . . . . . Stop and frisk . . . . . . . . . . . . Subpoena power . . . . . . . . . . . Suicide and euthanasia . . . . . . . Summonses . . . . . . . . . . . . . Supermax prisons . . . . . . . . . . Supreme Court, U.S. . . . . . . . . Suspects . . . . . . . . . . . . . . . Suspended sentences . . . . . . . .
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795 799 805 808 811 814 817 821 827 829 833 837 842 846 847 850 852 855 862 863 869 870 872 874 876 878 883 884 888 895 897
Tax evasion. . . . Telephone fraud . Terrorism . . . . Testimony . . . . Theft . . . . . . . Three-strikes laws Traffic courts. . . Traffic fines . . .
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Contents Traffic law . . Traffic schools Treason. . . . Trespass . . . Trials . . . . .
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933 939 940 946 952
Uniform Crime Reports . . . . . . . . . . . . . . . . . . . . . . . . . . 960 United States Parole Commission . . . . . . . . . . . . . . . . . . . . 961 United States Sentencing Commission . . . . . . . . . . . . . . . . . . 962 Vagrancy laws . . . . . . . Vandalism . . . . . . . . . Verdicts. . . . . . . . . . . Victim-offender mediation Victimless crimes . . . . . Vigilantism . . . . . . . . .
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965 967 971 973 975 978
White-collar crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983 Wiretaps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 992 Witness protection programs . . . . . . . . . . . . . . . . . . . . . . . 996 Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 999 Work camps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005 Work-release programs. . . . . . . . . . . . . . . . . . . . . . . . . . 1008 Youth authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010 Youth gangs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019 Subjects by Category . . . . . . . . . . . . . . . . . . . . . . . . . . . Subject Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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Publisher’s Note Crime and Punishment in the United States is the sixth reference set on legal issues in Salem Press’s Magill’s Choice series. It joins U.S. Court Cases (2 vols., 1999), The Bill of Rights (2 vols., 2002), U.S. Laws, Acts, and Treaties (3 vols., 2003), U.S. Legal System (2 vols., 2004), and U.S. Supreme Court (3 vols., 2007). In contrast to these earlier sets, which tend to focus on legal principles, civil rights and liberties, legislation, and court decisions, Crime and Punishment in the United States concentrates on hard topics relating to types of crimes; law-enforcement bodies; the apprehension, arrest, and arraignment of wrongdoers; criminal trial procedures; and types of punishment. The set’s goal is to provide clear, comprehensible, and authoritative essays that are both accessible and engaging to nonspecialist readers. The 257 essays in Crime and Punishment in the United States are drawn from Salem’s Criminal Justice (2005) and represent about half the content of that award-winning 3-volume set. In updating the articles for this new set, special attention has been paid to expanding the bibliographical citations in the Further Reading notes that appear in every essay. Nearly twothirds of the citations in Crime and Punishment in the United States are to books and articles published since 2000; more than one-half cite post-2002 publications; and nearly one-fifth cite titles published since 2005. Subject coverage Crime and Punishment in the United States is designed to meet the needs of lay readers and students from middle school level and up. Its 257 alphabetically arranged articles address the types of questions that readers are most likely to pose about specific crimes and how their perpetrators are apprehended, convicted, and punished. Core issues are approached through these perspectives: • Criminals: Who they are, what types of crimes they commit, what motivates them, the impact of their criminal activities on society, and the cost to them of their wrongdoing. Crime and Punishment in the United States includes 40 core articles on specific categories of crime—ranging from animal abuse and arson to vandalism and white-collar crime. Each article profiles typical perpetrators of the crimes and summarizes what generally becomes of them. Another 30 articles cover more general issues pertaining to criminal defendants, such as the appellate xiii
Crime & Punishment in the United States process, the bail system, criminal records, defense attorneys, and plea bargaining. • Law Enforcement: The varieties of municipal, state, and federal lawenforcement agencies and the relationships among them, as well as their investigative work, specific functions, and arrests and other procedures. Overall, more than 120 articles in the set pertain to policing, law-enforcement agencies, and such general aspects of law enforcement as arraignment, arrests, booking, crime scene investigation, electronic surveillance, forensics, and search warrants. • Prosecution and Trials: The structures of the federal and state court system; relationships among the courts, attorneys, judges, and officers of the courts; and trial procedures. About 50 articles cover such subjects as criminal procedure, cross-examination, grand juries, judges, jury system, mandatory sentencing, mistrials, perjury, subpoena power, summonses, testimony, and witnesses. • Punishment: Sentencing, capital and other punishments, prison systems, prison conditions, and parole and pardons are covered in more than 60 articles, including 5 on capital punishment and 11 on prisons and alternative forms of incarceration. Organization and Format The 257 articles in Crime and Punishment in the United States are arranged alphabetically to enable readers to go directly to the topics in which they are interested. Moreover, since readers often do not know which topics they should consult first, the set offers several other features to help readers find the information they need. Volume 3 contains a detailed general subject index and a list of essay topics under more than 60 different subject categories, ranging from “Appeals,” “Arrest and arraignment,” and “Attorneys” to “White-collar crime,” “Witnesses,” and “Women’s issues.” Finally, an average of more than 8 cross-references to other topics follows every essay to help guide readers to the most closely related articles. Individual articles offer helpful top matter that highlights the most important aspects of each topic. The top matter of all articles provides concise definitions, summaries of the subjects’ significance, and identification of key criminal justice issues. Top matter in articles on individual law-enforcement bodies also provides dates and places. Crime and Punishment in the United States is illustrated with 90 photographs, 7 maps, 28 graphs and charts, 16 tables, and 60 textual sidebars. Volume 3 also includes a Glossary with more than 530 definitions of important criminal justice terms. xiv
Publisher’s Note Acknowledgments Once again, the editors of Salem Press would like to thank the more than 150 scholars who wrote the essays in Crime and Punishment in the United States. They have brought a wide range of expertise from the academic world and the criminal justice professions. We also particularly wish to thank the project’s editor, Professor Phyllis B. Gerstenfeld of California State University, Stanislaus, for her many and varied contributions.
xv
Contributors Jennifer R. Albright Washington State University
David Blurton University of Alaska, Fairbanks
W. Dene Eddings Andrews Indiana State University
Steve D. Boilard Independent Scholar
Frank Andritzky Concordia University
Denise Paquette Boots University of South Florida
Michael L. Arter Indiana University of Pennsylvania
William Bourns California State University, Stanislaus
Mary Welek Atwell Radford University
Pauline K. Brennan University of Nebraska at Omaha
Thomas E. Baker University of Scranton
Thomas W. Buchanan Ancilla Domini College
Rachel Bandy University of Colorado at Boulder
Fred Buchstein John Carroll University
Michael L. Barrett Ashland University
Alison S. Burke Independent Scholar
Kimberly J. Belvedere Southwestern University School of Law
Ann Burnett North Dakota State University
Alvin K. Benson Utah Valley State College
Joel M. Caplan University of Pennsylvania
Milton Berman University of Rochester
Amy I. Cass University of Delaware
Joseph M. Bessette Claremont McKenna College
Tammy L. Castle Indiana University of Pennsylvania
William P. Bloss The Citadel
Gilbert T. Cave Lakeland Community College
xvii
Crime & Punishment in the United States Marcia R. Chaiken LINC David R. Champion Slippery Rock University Scot Clifford Jett & Laquer Douglas Clouatre Mid-Plains Community College Susan Coleman West Texas A&M University Allison M. Cotton Prairie View A&M University Michael J. Coyle Arizona State University Sara Criscitelli Independent Scholar Mark Anthony Cubillos Northeastern University
Donald R. Dixon California State University, Sacramento Mary Dodge University of Colorado at Denver Philip A. Dynia Loyola University, New Orleans C. Randall Eastep Brevard Community College Ayn Embar-Seddon Tiffin University Patricia E. Erickson Canisius College Erin J. Farley University of Delaware John W. Fiero University of Southwestern Louisiana
Elizabeth Quinn DeValve Fayetteville State University
Gerald P. Fisher Georgia College and State University
Michael J. DeValve University of North Carolina
David R. Forde University of Memphis
Thomas E. DeWolfe Hampden-Sydney College
Carl J. Franklin Southern Utah University
Gordon Neal Diem ADVANCE Education and Development Institute
Carol Franks Portland State University
Ronna F. Dillon Southern Illinois University
Phyllis B. Gerstenfeld California State University, Stanislaus
xviii
Contributors Jennifer C. Gibbs University of Maryland
Stuart Henry Wayne State University
Camille Gibson Prairie View A&M University
Christopher M. Hill Supreme Court of Florida
James N. Gilbert University of Nebraska at Kearney
Arthur D. Hlavaty Independent Scholar
Jen Girgen Florida State University
Kenneth M. Holland University of Memphis
Marc Goldstein Independent Scholar
Jerry W. Hollingsworth McMurry University
Kuroki M. Gonzalzles Independent Scholar
John C. Hughes St. Michael’s College
Peter Gregware New Mexico State University
Jenephyr James Indiana University of Pennsylvania
Timothy Griffin University of Nevada, Reno
Dwight Jensen Marshall University
Gwendolyn Griffith Willamette University College of Law
Charles L. Johnson Washington State University
Michael Haas University of Hawaii
Edward Johnson University of New Orleans
Timothy L. Hall Austin Peay State University
Scott P. Johnson Frostburg State University
Edgar J. Hartung Alvernia College
Charles L. Kammer College of Wooster
Michelle R. Hecht Indiana University
John C. Kilburn, Jr. Eastern Connecticut State University
Peter B. Heller Manhattan College
Paul M. Klenowski Indiana University of Pennsylvania
xix
Crime & Punishment in the United States Kim Kochanek University of Michigan, Ann Arbor
Eric W. Metchik Salem State College Mario F. Morelli Western Illinois University
David B. Kopel Independence Institute
Lisa Landis Murphy University of South Florida
Karen F. Lahm Capital University
Jerry Murtagh Fort Valley State College
Abraham D. Lavender Florida International University
Jerome L. Neapolitan Tennessee Technological University
Michele Leavitt North Shore Community College
Elizabeth M. McGhee Nelson Christian Brothers University
Jenifer A. Lee Indiana University of Pennsylvania
Jana Nestlerode West Chester University
Arthur J. Lurigio Loyola University
James J. Nolan III West Virginia University
Elizabeth H. McConnell Charleston Southern University
Charles H. O’Brien Western Illinois University
Jerome McKean Ball State University
Holona L. Ochs University of Kansas
Samuel C. McQuade III Rochester Institute of Technology
Emmanuel C. Onyeozili University of Maryland Eastern Shore
Stacy L. Mallicoat California State University, Fullerton
Sharon K. O’Roke Independent Scholar
Stephen L. Mallory University of Southern Mississippi
Carolyn Palmer-Johnson Southern Illinois University, Carbondale
Kevin Meehan California State University, Fullerton
Michael J. Palmiotto Wichita State University xx
Contributors Bernadette Jones Palombo Louisiana State University, Shreveport
Michael L. Rustad Suffolk University Law School
Gordon A. Parker University of Michigan, Dearborn
Frank A. Salamone Iona College
Allan D. Pass National Behavioral Science Consultants
Kurt M. Saunders California State University, Northridge Amie R. Scheidegger Charleston Southern University
Bruce G. Peabody University of Texas at Austin
Brion Sever Monmouth University
Christina Polsenberg Michigan State University Frank J. Prerost Midwestern University
Taylor Shaw ADVANCE Education and Development Institute
Robert J. Ramsey Indiana University East
Theodore Shields Charleston Southern University
Monica L. P. Robbers Marymount University
R. Baird Shuman University of Illinois at Urbana-Champaign
Cliff Roberson Washburn University
David M. Siegel New England School of Law
Gina M. Robertiello Seton Hall University
Donald C. Simmons, Jr. Mississippi Humanities Council
Robert Rogers Middle Tennessee State University
Vic Sims Southern Oregon University
Carol A. Rolf Rivier College
Sanford S. Singer Independent Scholar
Kelly Rothenberg Independent Scholar
Cary Stacy Smith Mississippi State University
Robert Rubinson University of Baltimore School of Law
Christopher E. Smith Michigan State University xxi
Crime & Punishment in the United States Nick Smith University of New Hampshire
Theodore M. Vestal Oklahoma State University
Raymond L. Sparks California State University, Bakersfield
Kathryn Vincent University of Maryland William L. Waugh, Jr. Georgia State University
Steven Stack Wayne State University
Marcia J. Weiss Point Park University
Barry M. Stentiford Grambling State University
Robert R. Wiggins Cedarville College
Robert Stewart California Maritime Academy
LaVerne McQuiller Williams Rochester Institute of Technology
Susan A. Stussy Independent Scholar
Lisa A. Williams John Jay College of Criminal Justice
Victoria M. Time Old Dominion University
Ryan K. Williams University of Illinois at Springfield
Leslie V. Tischauser Prairie State College
Tonya Y. Willingham Prairie View A&M University
Kimberly Tobin Westfield State College
Jay Zumbrun Baltimore City Community College
Holly E. Ventura University of South Carolina
xxii
Accomplices and accessories
Accomplices and accessories Definition: Any help, encouragement, or advice that facilitates the commission of crimes Criminal justice issues: Law codes; legal terms and principles Significance: The doctrine of complicity explains circumstances under which those who associate with criminal ventures incur liability for the wrongful acts of others before, during, and after crimes are committed. In common-law tradition, people who acted before crimes were committed were known as “accessories before the fact.” Those who acted during commission of the crimes were considered “principals in the second”; those who carried out the actual crimes were considered “principals in the first”; and those who aided after the crimes were committed were called “accessories after the fact.” Most modern U.S. statutes have merged these classifications into three categories: People who carry out the crimes are “principals”; those who act before and during the crimes are “accomplices”; and those who act after the fact are “accessories.” The actus reus of accomplices constitutes any acts that assist or encourage commission of crimes. In essence, any affirmative acts that enhance the commission of a crime constitute the guilty act in complicity. These acts may comprise, but are not limited to, serving as getaway drivers, acting as lookouts, providing weapons or know-how, and luring victims to the perpetrators. A person’s mere presence at a crime scene or flight from a crime scene does not in itself constitute accomplice liability unless there is a legal duty to act. Words that tacitly approve and reinforce the criminal venture may constitute the guilty act in complicity. Although there is some disagreement in the justice system as to whether the mens rea of accomplices constitute recklessness and negligence, there is consensus on the view that accomplices should possess the specific intent to commit acts that satisfy aiding and abetting someone to commit a crime. In United States v. Peoni (1938), U.S. circuit court judge Learned Hand noted that a person must associate with the criminal enterprise and actively “participate in it” in an effort to help “make it succeed.” Further, besides the intended crime, the guilty intent may be imputed as well for crimes that accomplices could have reasonably foreseen may result from their aiding and abetting one crime. For accessories to incur liability following crimes, most states require that they know that the crimes have been committed, that those persons whom 1
Accomplices and accessories
One of the most distinguished American jurists never to sit on the U.S. Supreme Court, Learned Hand served more than thirty years on federal appeals courts and wrote more than three thousand opinions. (Library of Congress)
accessories assist have committed the crimes, and that the accessories themselves have rendered aid so that the perpetrators could elude justice. Liability for accessories is usually less severe than that for accomplices, and it is based on acts such as providing safe haven, destroying evidence, or assisting in escape. Victoria M. Time Further Reading Dix, E. G., and M. M. Sharlot. Criminal Law: Cases and Materials. 5th ed. St. Paul, Minn.: West Group, 2002. Gardner, Thomas J., and Terry M. Anderson. Criminal Law. 8th ed. Belmont, Calif.: Wadsworth/Thomson Learning, 2003. Reid, Sue Titus. Criminal Justice. 8th ed. Masoni, Ohio: Thomson, 2008. Samaha, Joel. Criminal Law. 9th ed. Belmont, Calif.: Thomson/Wadsworth, 2008. Schmalleger, Frank. Criminal Law Today: An Introduction with Capstone Cases. 3d ed. Upper Saddle River, N.J.: Pearson/Prentice Hall, 2006. See also Conspiracy; Crime; Criminal law; Solicitation to commit a crime. 2
Acquittal
Acquittal Definition: Formal legal certification of the innocence of a defendant who has been charged with a crime Criminal justice issues: Convictions; trial procedures; verdicts Significance: Acquittals automatically follow determinations through legal processes that defendants are innocent of the crimes for which they are tried. An acquittal can result when the jury finds a defendant not guilty, when a judge determines that there is insufficient evidence in a case, or by dismissal of indictments by the court. Once an accused person has been acquitted of crimes, that person may not be lawfully prosecuted a second time for the same crime. If such prosecution were to take place, it would place the defendant in double jeopardy of losing life, liberty, or property, which is in violation of common law and of the U.S. Constitution and state constitutions. Typically, protection against double jeopardy extends to any prosecution associated with the same act or acts. For example, if an individual has been acquitted of a charge of using a weapon to commit murder, the defendant cannot be retried for any assault committed on the alleged victim. However, when a trial is terminated because of a procedural defect, the defendant is not protected by the rule against double jeopardy. Thus, the defendant can
The moment defendants are acquitted, they are cast free of the criminal justice system and cannot be tried again on the same criminal charges. (Brand-X Pictures) 3
Adultery be prosecuted again on the same charge or on related charges. In most states, no degree of procedural error on the part of the state can justify acquittal of a suspect whose conviction is solidly based on the evidence. In addition, no evidence can be excluded for reasons of procedural error provided that the procedural error does not affect the confidence that can be safely vested in the evidence. A motion for a judgment of acquittal can be made prior to submission of the case to the jury, at the close of all the evidence presented before the jury, or after the jury has been discharged. If the evidence is insufficient to produce a conviction, the defendant or the court may request a judgment for acquittal before the case is turned over to the jury. If a motion for judgment of acquittal is made at the close of all the evidence, the court can choose to reserve a decision on the motion, submit the case to the jury, and decide on the acquittal either before or after the jury returns a verdict. After the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within a specified time frame (usually fourteen days) after the jury is discharged. In order to make a motion for judgment of acquittal after the jury has rendered its verdict, it is not necessary that a motion was made prior to the submission of the case to the jury. Alvin K. Benson Further Reading Abramson, Jeffery. We, the Jury: The Jury System and the Ideal of Democracy. Cambridge, Mass.: Harvard University Press, 2000. Del Carmen, Rolando V. Criminal Procedure: Law and Practice. 7th ed. Belmont, Calif.: Thomson/Wadsworth, 2007. Emanuel, Steven. Criminal Procedure. 4th ed. New York: Aspen Publishers, 2005. See also Convictions; Criminal law; Dismissals; Exclusionary rule; Jury system; Trials; Verdicts.
Adultery Definition: Sexual relations between a married person and someone other than that person’s spouse Criminal justice issues: Morality and public order; sex offenses; women’s issues 4
Adultery Significance: Definitions, conditions, and penalties for adultery vary significantly from one state to another and frequently undergo modification. U.S. federal law has never defined adultery as criminal behavior. However, recognizing that adultery is common despite guilt, shame, and social pressures against it, thirty states and the District of Columbia provide for either criminal or civil penalties. Nineteen states and the District of Columbia treat it as a misdemeanor, five states treat it as a felony, and six states provide for forfeiture of property. If a married person has sexual relations with an unmarried person, some states apply the adultery law only to the married person, while other states also apply the law to the unmarried partner. Some states require that only one sexual act take place, while other states require habitual relations, cohabitation, or open adultery. In some states the government can bring charges, while in others charges can be brought only by the spouse of the married partner. In actuality, criminal charges are rarely applied. In ten states adultery is grounds only for divorce with no civil or criminal penalties. One state prohibits adultery but provides no penalties. Nine states have no adultery statutes. Despite the lack or diversity of criminal or civil penalties, adultery is almost universally recognized in the United States as grounds for divorce. Before the common acceptance of divorce in the United States and the expansion of legal grounds to obtain it, which began in the 1960’s, and especially before no-fault divorces were allowed, married couples sometimes faked extramarital affairs in order to establish grounds for divorce. Consequently, several states specifically ruled out extramarital sexual relations as grounds for divorce. Since the 1960’s, research has suggested that adultery might simply reflect diversity in values rather than a marital problem and that adultery is not a major factor causing divorce. Because of this view, less punitive actions have been taken against married people who engage in adultery. Proof of adultery frequently has been a factor in child-custody decisions and in property settlements, with the partner who engages in adultery usually being at a disadvantage in both cases. As divorce has become more common and as attitudes toward sexuality have become more flexible, the issue of adultery has become less important in child-custody and property-settlement decisions. Although it has continued to be important in some child-custody cases, there has been a trend toward emphasizing child welfare rather than parents’ adultery. Scientific and social changes have also affected attitudes to5
Animal abuse ward adultery. For example, while deoxyribonucleic acid (DNA) testing has been used by women to prove paternity in child-support cases, it has also become acceptable for husbands to test the paternity of their children when they suspect their wives of adultery. Incidences of adultery have increased among both husbands and wives, fostering less punitive legal and civil responses. Abraham D. Lavender Further Reading Boylan, Brian Richard. Infidelity. Englewood Cliffs, N.J.: Prentice-Hall, 1971. Brown, Emily M. Patterns of Infidelity and Their Treatment. 2d ed. Philadelphia: Brunner-Routledge, 2001. Caprio, Frank S. Marital Infidelity. New York: Citadel Press, 1953. Henslin, James M., ed. Marriage and Family in a Changing Society. 4th ed. New York: Free Press, 1992. Levitt, Shelley. “Why Men Cheat.” New Woman 20 (October, 1990): 74. See also Bigamy and polygamy; Crimes of passion; Domestic violence; Missing persons; Private detectives; Rape and sex offenses; Sexual harassment; Victimless crimes.
Animal abuse Definition: Socially unacceptable behavior that inflicts pain and suffering on animals Criminal justice issues: Deviancy; domestic violence; medical and health issues; vandalism Significance: Animal abuse is a common crime that causes its victims much suffering and death. Many offenders are at risk to commit violent acts against human beings. The crime of animal abuse presents a unique set of problems for criminal justice practitioners. Consequently, most animal abuse is not reported, investigated, prosecuted, or punished. Defining animal abuse, or cruelty to animals, is a challenge. Because laws protecting animals vary from state to state, no single legal definition of animal abuse exists. Generally, animal abuse is seen as acts or omissions that inflict unnecessary pain and suffering on animals and that occur outside the realm of socially acceptable behavior. Although animal research, certain animal agriculture practices, hunting, fishing, trapping, pest control, and the 6
Animal abuse
Indications That Animals Are Being Treated Cruelly • • • • • •
untreated tick or flea infestations body wounds patches of missing hair extreme thinness—a sign of starvation limping persons in the act of striking or otherwise physically abusing animals • dogs that are frequently left alone without food or water, often chained up in yards • dogs that are kept outside without shelter in extreme weather conditions • animals that cower in fear or behave aggressively when approached by their owners Source: American Society for the Prevention of Cruelty to Animals (http://www.aspca.org/site).
use of animals in rodeos, zoos, and circuses may cause animals to suffer, because these behaviors are generally socially condoned, they are not usually considered animal abuse. However, not all observers agree that these latter behaviors should be socially condoned. Intentional abuse occurs when a person knowingly tortures, maims, or kills an animal or knowingly deprives an animal of food, water, shelter, socialization, or veterinary care. Neglect—acts of omission—occurs when people who do not intend to cause harm fail to provide animals with proper food, water, shelter, attention, or veterinary care. Unique forms of animal abuse include animal fighting and “hoarding.” The latter practice is the accumulation of tens, or even hundreds, of animals within places such as human residences and usually the failure to provide adequate standards of nutrition, sanitation, and veterinary care. Attempts to Control Animal Abuse The first American law protecting animals was passed in 1641 by the Puritans of the Massachusetts Bay Colony. However, the first postcolonial anticruelty law was not enacted until 1821, when Maine’s state legislature made 7
Animal abuse it illegal to beat horses or cattle cruelly. By 1913, every state and the District of Columbia had enacted anticruelty statutes. However, these laws were rarely enforced until the formation of societies for the prevention of cruelty to animals. Such societies were often granted powers to enforce the anticruelty laws. The first such organization was the American Society for the Prevention of Cruelty to Animals, formed in New York in 1866 by Henry Bergh. The late twentieth century saw a new trend to strengthen laws making animal abuse a crime. In 1998, only twenty states had felony animal-cruelty laws. By 2004, that number had doubled. Prevalence Unlike other violent crimes, animal abuse is not tracked in centralized national crime reporting systems. It is thus impossible accurately to estimate the number of animals who are victims of abuse or the number of people who inflict such abuse. Estimates of the prevalence of animal cruelty are usually obtained from the data derived from studies done by researchers. In addition, several nonprofit organizations maintain databases of animal-abuse
Animal abuse became front-page news across the United States in 2007, when pro football star Michael Vick was convicted on federal dogfighting charges and sentenced to nearly two years in prison. With his playing career possibly ended, the Atlanta Falcons quarterback stood to lose over $100 million in salary and endorsements. (AP/Wide World Photos) 8
Animal abuse cases and compile statistics based on cases known to them. These sources suggest that animal abuse is an often occurring and widespread problem. However, more research is needed before the true incidence and prevalence of animal abuse can be known. However, it is known that the perpetrators of most types of animal abuse are more likely to be male than female. On the other hand, women appear to be more likely than men to commit hoarding-type abuses. Animal Abuse and Violence Against People Since the mid-1970’s, numerous studies in psychology, sociology, and criminology have demonstrated that persons who abuse animals are often— although not always—also dangerous to other people. Serial killers, mass murderers, sexual homicide perpetrators, serial rapists, and arsonists often have childhood histories of animal abuse. Perpetrators of more common forms of violence, such as child abuse, spouse abuse, and elder abuse, also tend to be abusive toward animals. Animal abuse has also been identified as a “red flag” that may help identify youthful offenders at risk for perpetrating violence against people. For example, in 1997, a sixteen-year-old boy in Mississippi killed his mother and then went on a shooting spree at his high school, where he killed two fellow students and wounded seven others. Several months earlier, a neighbor had witnessed the boy torture and kill his own pet dog. Animal abuse, like any other form of violence, may be prompted by a number of motives. One person may abuse an animal in the process of disciplining or training it. Other motives may include shocking or offending others; retaliating against animals or their owners for real or imagined offenses; expressing power through animals, such as by training them to be aggressive; and simply enjoying the suffering that the abused animals experience. Children who abuse animals may be succumbing to peer pressure, satisfying their curiosity, imitating cruelty they have seen others commit, or reacting to their own experiences of being abused. Investigation Investigating animal abuse can be difficult. Because the animal victims cannot speak for themselves, most animal abuse is not reported. To investigate animal-abuse crimes more efficiently, Florida’s Broward County Sheriff’s Office formed an Animal Cruelty Investigation Unit in 1982—the first such unit of its kind in a law-enforcement agency in the United States. In some states, investigation of animal abuse is the responsibility of regular law-enforcement agencies. In others, animal control agencies and hu9
Animal abuse mane societies may also investigate claims of abuse; they may also have the power to intervene, take custody of abused animals, make arrests, and even carry weapons. Investigation, prosecution, and punishment of animal abuse are regarded as low priorities in the U.S. criminal justice system. Laws penalizing animal abuse are often ambiguous or only misdemeanor-level offenses. Moreover, law-enforcement agencies may have limited resources to enforce animal-protection laws, and some law-enforcement officers, prosecutors, and judges may not regard animal abuse as a serious crime. Prosecutors may be reluctant to charge offenders with the commission of animal-abuse crimes, especially if the offenses are merely misdemeanors. For example, in 1996, prosecutors in one state filed criminal charges in only 2 percent of cases in which animal abuse was alleged. However, this situation may change as more states enact felony cruelty laws and more criminal justice practitioners become aware of connections between cruelty to animals and violence against people. Most anticruelty laws make animal abuse misdemeanor offenses, and most offenders who are convicted receive only light sentences. However, at least forty-one states and the District of Columbia have enacted statutes making certain forms of more serious animal abuse felony-level crimes with increased punishment. A notable example of changing state attitudes toward animal abuse occurred in Wisconsin in 1998, when a state court sentenced a convicted pedophile and prior animal abuser to ten years in prison for the torture and killing of five cats. This was the longest animal-cruelty sentence ever awarded in U.S. history. Like most crimes, animal abuse is often punished by periods of probation, restitution, community service, fines, and imprisonment. In addition, convicted offenders may be required to forfeit their own animals or reimburse expenses for the care of seized animals. They may also be prohibited from keeping animals in the future. In some jurisdictions, offenders may also be required to undergo counseling or other forms of intervention. Jen Girgen Further Reading Animals and Their Legal Rights: A Survey of American Laws from 1641 to 1990. 4th ed. Washington, D.C.: Animal Welfare Institute, 1990. Comprehensive examination of laws relating to animals. Includes discussions about the evolution of anticruelty laws, and animal protective organizations and law-enforcement agencies. Ascione, Frank R. Animal Abuse and Youth Violence. Washington, D.C.: U.S. 10
Animal abuse Department of Justice, 2001. Report on psychiatric, psychological, and criminological research linking animal abuse—especially that perpetrated by children and adolescents—to violence against people. Ascione, Frank R., and Phil Arkow, eds. Child Abuse, Domestic Violence, and Animal Abuse: Linking the Circles of Compassion for Prevention and Intervention. West Lafayette, Ind.: Purdue University Press, 1999. Essays based on the firsthand experience of professionals working to prevent, investigate, and prosecute the abuse of animals and vulnerable people. Ascione, Frank R., and Randall Lockwood. “Cruelty to Animals: Changing Psychological, Social, and Legislative Perspectives.” In State of the Animals 2001, edited by D. J. Salem and A. N. Rowan. Washington, D.C.: Humane Society Press, 2001. Thorough examination of what is currently known— and not known—about animal abuse. Emphasizes the need for more research. Lockwood, Randall, and Frank R. Ascione, eds. Cruelty to Animals and Interpersonal Violence: Readings in Research and Application. West Lafayette, Ind.: Purdue University Press, 1998. Interdisciplinary collection of historical, philosophical, and research articles exploring the relationship between violence against animals and violence against people. Merz-Perez, Linda, and Kathleen M. Heide. Animal Cruelty: Pathway to Violence Against People. Walnut Creek, Calif.: AltaMira Press, 2004. Study of the animal cruelty-human violence link. Includes a critical review of previous research and an examination of three theoretical explanations for the relationship. Mitchell, Angela. Animal FAQs: An Encyclopedia of Animal Abuse. Leicester, England: Troubadour Publishing, 2003. Reference guide with facts, figures, and more than three hundred definitions of terms related to the abuse of animals. Smith, Stephen A. “Falls from Grace: What Young Black Athletes Should Learn from the Michael Vick and Marion Jones Dramas.” Ebony, January 1, 2008. Editorial on the public disgrace of two formerly revered athletes, including football star Michael Vick, who was convicted in a federal court on charges of operating an illegal dogfighting operation. See also Child abuse and molestation; Community service; Domestic violence; Fines; Restitution.
11
Appellate process
Appellate process Definition: Process through which higher courts review the decisions of subordinate courts Criminal justice issues: Appeals; courts; defendants Significance: The appellate process provides checks on the criminal justice system by ensuring that errors do not adversely affect the fairness of trial processes and the rights of defendants. The United States has a dual court system, made up of state and federal courts. Each of these two systems encompasses two or three “tiers,” or levels, of courts. The lowest level is made up of trial courts, which hear evidence and reach decisions based on that evidence. The next tier, or tiers, is made up of appellate courts. These courts do not hear evidence but review the records of what has taken place in the trial courts. Some states have two appellate tiers, consisting of an intermediate appellate court and a court of “last resort.” In other states, there are only two tiers: the trial courts and the courts of last resort. The federal court system has three tiers, but few cases ever proceed to the highest federal court—the U.S. Supreme Court. There are also some situations in which the Supreme Court hears appeals from state courts of last resort. Appellate courts do not automatically review every case handled by trial courts and assume jurisdiction over only cases that are appealed to them by aggrieved parties. There are usually fairly stringent time limits for making appeals, and it is common for appellate courts to require that appeals be brought within thirty days of the decisions being appealed. However, after the appellate court is given notice that an appeal has been filed, it may take several months for the record to be assembled at the trial court level and forwarded to the appellate court for review. Assembling the record often requires that court reporters transcribe testimony taken at the trial, which can be time-consuming. After the records are delivered to the appellate court, the parties prepare briefs containing their arguments and the applicable law. Sometimes the parties are asked to argue their cases in person before the appellate court so that the court can ask questions about the issues. Unlike trial courts, which are usually presided over by lone judges, appellate courts usually have panels of judges. In court systems with two appellate levels, panels of the intermediate courts are small—usually only three or more judges—while the courts of last resort typically have nine members, as 12
Appellate process
Circuits of the Courts of Appeals Circuit
Covered areas
First
Maine, New Hampshire, Massachusetts, Rhode Island, Puerto Rico
Second
New York, Vermont, Connecticut
Third
Pennsylvania, New Jersey, Delaware, Virgin Islands
Fourth
West Virginia, Maryland, Virginia, North Carolina, South Carolina
Fifth
Texas, Louisiana, Mississippi
Sixth
Ohio, Michigan, Kentucky, Tennessee
Seventh
Wisconsin, Illinois, Indiana
Eighth
Minnesota, North Dakota, South Dakota, Nebraska, Iowa, Missouri, Arkansas
Ninth
Washington, Montana, Idaho, Oregon, Nevada, California, Arizona, Alaska, Hawaii, Northern Marianas, Guam
Tenth
Wyoming, Utah, Colorado, Kansas, Oklahoma, New Mexico
Eleventh
Florida, Georgia, Alabama
D.C.
District of Columbia
Fir
st
First Circuit also includes Puerto Rico
Ninth Se
Se
Third Circuit also includes Virgin Islands D.C.
Fo
ur
Si
th
xt
h
h
nt
Tenth
nd
Third
ve
Eighth
co
El
Fifth
ev
en
th
Ninth Circuit also includes Alaska Hawaii Northern Marianas Guam
13
Appellate process does the U.S. Supreme Court. Judges who serve on appellate courts of last resort are usually called “justices,” as are the members of the U.S. Supreme Court. After an appeal is heard, one member of a panel is usually assigned to write an opinion representing the majority position of the panel. Sometimes the panel cannot reach a unanimous decision, and members who disagree write opinions known as dissents. In reviewing lower-court decisions for error, appellate courts usually limit their reviews to errors that are brought to the attention of the trial courts, either through objections or some sorts of motions. This process is known as preserving an error, or making a record. If an error is not properly preserved, the appellate court reviews a case only if it raises a matter of fundamental importance or if it has actually caused prejudice to the complaining party. Appellate Court Decisions Appellate courts issue their decisions in documents called opinions or memorandum decisions. Written decisions of the courts include reasons for the decisions and the facts on which the decisions are based. At the conclusion of an opinion, the court explains whether it agrees with the trial court’s decision or believes that the trial court has made some type of error. When the court’s opinion agrees with that of the trial court, the opinion states, “affirmed.” If the opinion disagrees with that of the trial court, it may state, “reversed” or “reversed and remanded.” When a case is reversed or remanded, the court explains why it thinks the original decision was wrong and instructs the trial court to modify its result or rehear the case. Appellate courts follow a doctrine known as stare decisis, which requires courts to adhere to their own prior decisions and those of the courts above them. This principle lends certainty and predictability to the law and provides a framework for the decision-making processes of individual judges. Although judges may be otherwise swayed by the equities of particular cases, they are bound to follow prior law—or “precedent”—in reaching their decisions. Occasionally, courts decide to depart from their prior decisions and “overrule” them. From that moment, the new decisions govern. The U.S. Supreme Court is the highest court in the federal system but does not always hear appeals from the intermediate federal courts, known as courts of appeal. Only a small class of federal cases are automatically entitled to appeals to the Supreme Court. The remainder are only heard if they present particularly novel or important issues. This discretionary type of appeal is known as certiorari appeal. The Supreme Court also has the authority to 14
Arraignment hear certiorari appeals of state court decisions when they are state courts of last resort and they raise issues of federal constitutional law. It is estimated that the Supreme Court hears only about 3 percent of the cases for which certiorari appeals are sought. Sharon K. O’Roke Further Reading Chapper, Joy. Understanding Reversible Error in Criminal Appeals. Williamsburg, Va.: The Center, 1989. Primer written by the chief deputy clerk for the Court of Appeals for the District of Columbia. Coffin, Frank M. On Appeal: Courts, Lawyering, and Judging. New York: W. W. Norton, 1994. Judge’s inside view of the appellate process in the U.S. Court of Appeals for the First Circuit. Coffin tells exactly how his court processes appeals, from receipt of the briefs, through oral argument, and on to final decisions. Greenberg, Ellen. The Supreme Court Explained. New York: W. W. Norton, 1997. The basics of the Supreme Court, including the process and rules in clear terms. Tracks the flow of cases through the Court. Meador, Daniel John. Appellate Courts in the United States. 2d ed. St. Paul, Minn.: Thomson/West, 2006. Succinct and straightforward description of the American judicial process. Wasserman, David T. A Sword for the Convicted: Representing Indigent Defendants on Appeal. Westport, Conn.: Greenwood Press, 1990. Study of indigent criminal appellate representation in the United States, using New York City as a research model. See also Criminal justice system; Criminal procedure; False convictions; Judicial system, U.S.; Suspended sentences.
Arraignment Definition: First stage of the criminal trial process, when defendants are formally informed of the charges brought against them and are expected to respond by entering pleas Criminal justice issues: Arrest and arraignment; legal terms and principles; pleas Significance: To meet their Sixth Amendment burden of providing due process to defendants, courts are required formally to arraign defendants before trying them. 15
Arraignment
Wording of the Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
After criminal defendants are arrested, their first appearances in court are arraignments. The Federal Rules of Criminal Procedure specify that at the arraignment hearings, defendants are read in open court the formal criminal complaints against them. These complains should outline the crimes of which the defendants stand accused. Defendants are then required to enter a plea to the charges. If the defendants are without attorneys, they may request the opportunity to secure them. If they cannot afford attorneys, they may request that the court appoint attorneys for them. If the defendants wish to wait to enter pleas because they have not yet consulted with attorneys or if they refuse to enter pleas, the judges may enter pleas of “not guilty” on their behalf. Defendants may also enter preemptory pleas, which explain why the trials cannot legally go forward. When defendants plead not guilty, trial dates may be set at the arraignments. Defendants have the right to be present at their own arraignments. They also have the constitutional right to be arraigned within twenty-four to fortyeight hours after they are arrested. If they are arrested without previously issued warrants, they have the right to be arraigned within forty-eight hours to allow time for judicial determinations of probable cause for their arrests. Failures to follow any of these procedures or rules may be considered violations of the defendants’ Sixth Amendment rights under the U.S. Constitution. Rachel Bandy Further Reading Del Carmen, Rolando V. Criminal Procedure: Law and Practice. 7th ed. Belmont, Calif.: Thomson/Wadsworth, 2007. Federal Criminal Code and Rules. St. Paul, Minn.: West Publishing, 2003. Loewy, Arnold H., and Arthur B. LaFrance. Criminal Procedure: Arrest and Investigation. Cincinnati: Anderson Publishing, 1996. 16
Arrest Samaha, Joel. Criminal Procedure. 7th ed. Belmont, Calif.: Thomson/Wadsworth, 2008. See also Arrest; Bail system; Criminal procedure; Misdemeanors; Plea bargaining; Pleas; Resisting arrest.
Arrest Definition: Taking into custody of legal authority of persons who are to be charged with criminal offenses Criminal justice issues: Arrest and arraignment; confessions; defendants; interrogation Significance: The main process through which people enter the criminal justice system, arrests may be made by law-enforcement officers or private citizens who take other persons into custody in the manner authorized by law. The function of the administration of justice in the United States is to control crime, a process performed by agents and agencies of government with assigned jobs and territorial jurisdiction. The U.S. Constitution requires that every person be afforded due process of law through a program of judicial review that preserves the dignity of individuals and guards against the misuse of governmental power. Police officers have the basic obligation of apprehending criminals, and they share a role with prosecutors in investigating crime. The work of the police and prosecutors is reviewed by officers of the court, who judicially review the circumstances of arrests, the legality of evidence-gathering techniques, and the substance and form of the accusatory pleading. When a crime is committed, an investigation begins to focus on those suspected of involvement. If persons are caught in the act of committing crimes or if an accumulation of evidence leads the police to believe that probable cause exists that persons have been involved, they seek an arrest warrant and arrest, book, and detain (incarcerate) the suspects. Safeguards built into the Constitution guard the rights of accused persons throughout the judicial process. Administration of justice procedures must ensure these rights at each step of adjudication. Arrest does not mean guilt; a person is presumed innocent until proven guilty through a confession of guilt or a decision by a judge or jury based on the preponderance of evidence. 17
Arrest Types of Laws A crime is an act committed or omitted in violation of a law forbidding or commanding it and punishable, upon conviction, by death, imprisonment, fine, removal from office, or disqualification from holding any office of honor, trust, or profit. Crimes are divided into three groups: felonies, misdemeanors, and infractions. To guide police officers in the use of proper arrest techniques, the laws of each state specifically designate the more serious crimes as felonies (for example, murder, rape, assault, and fraud). Crimes not classified as felonies are either misdemeanors, which are punishable by imprisonment or fine (or both), or infractions, which are minor offenses not punishable by imprisonment. Law in the United States is wholly statutory—no act is unlawful unless at the time of its commission a valid written law (statute or ordinance) is in force that defines such an act as a crime and sets a penalty for its commission or omission. Civil (tort) law deals with noncriminal offenses that are handled by civil rather than criminal courts. Civil offenses are not considered to be offenses against the state or the general welfare of society at large, even though they may cause suffering, harm, or injury to a person or persons. Therefore, the civil courts do not defend the interests of society but rather function as arbitrators between particular individuals. Car accident cases and some childprotection cases are examples of civil court matters. Criminal law, by contrast, imposes punishments on persons on behalf of the state for acts deemed harmful to social interests. Some acts end up in both civil and criminal courts. For example, rape violates criminal law and constitutes a wrong done to an individual. A civil court can award damages (usually monetary) for injury, and criminal courts can impose punishments (such as prison or probation) for the same act. Arrest Statutes and Agencies An arrest is the process of taking an accused person into physical custody through booking and detention procedures. The prevention, detection, and suppression of crime; the arrest and prosecution of persons charged with offenses; and the imprisonment, supervision, and rehabilitation of convicted offenders are major concerns faced by federal, state, and local government. These public safety responsibilities are assigned to six primary functional areas within the criminal justice system: police protection, prosecution, criminal court systems, probation services, prisons and other institutions, and parole supervision. Each state has its own statutes delegating the power of arrest within its jurisdiction, with some variance in peripheral areas but with basic harmony in 18
Arrest core areas. California’s penal code clearly and concisely delineates the rights and limitations in this important area of criminal justice and is generally illustrative of the law of arrest in other states. Police officers, prosecutors, court personnel, and other agents of criminal justice, along with statute and case law, provide the raw material for law enforcement in the United States. Basic procedures are established by the separation-of-powers doctrine, which compartmentalizes the duties of the executive, legislative, and judicial branches of government. Other aspects of this compartmentalization are the dual system of federal and state courts and federalism. The police, prosecutors, and court magistrates form the main arresting team. The major role of the police is a dual one: law enforcement and the maintenance of order. Police departments are divided into two main groups: patrol and investigation. Part of the work of the police consists in arresting persons suspected of breaking laws. Prosecutors play the key role in law enforcement in the United States. Prosecutors decide whether to prosecute, to accept a plea of guilty to a lesser charge, or to drop a case for lack of evidence. Crime detection and the arrest of offenders by the police can be upgraded or downgraded by prosecutors and their staff. The authority of prosecutors to exercise discretion in the performance of their duties is traditionally recognized, whereas the authority of the police to use discretion exists but has been questioned. The public acceptance of prosecutors as decision makers in criminal justice probably derives from the general belief that they are ordinarily better educated than police officers, are more conscious of public response to their decisions inasmuch as they are elected officials directly responsible to the voters, and have broader perspectives on the allocation of available resources to achieve public order and safety. Arrest Procedures All modern police units offer training programs in the prompt recognition of suspicious places, people, and circumstances. If alleged perpetrators are not arrested at the time of criminal acts, police forces operate through established procedures to reconstruct criminal incidents and investigate the crimes. This involves working with victims to single out the persons legally responsible for contributing to the crimes. Generally, prior to an arrest, a judge issues a warrant. Once an arrest occurs, the incident is open to review by a judicial officer (judge), before whom the police are legally required to arraign prisoners promptly. Suspects can be questioned by investigators without being arrested. In 19
Arrest
Total Arrests in the United States in 2002 Arrests (thousands) Serious crimes
Male
Female
Total
Murder and nonnegligent manslaughter Forcible rape Robbery Aggravated assault Burglary Larceny/theft Motor vehicle theft Arson
9.6 21.2 75.3 285.0 189.5 563.3 95.6 10.7
1.2 0.3 8.5 72.6 28.8 329.2 18.8 1.9
10.8 21.5 83.8 357.6 218.3 892.5 114.4 12.6
Subtotals
250.2
461.3
1,711.5
749.3 53.2 140.7 79.4 114.7 21.8 65.4 977.1 76.9 881.6
235.9 35.3 117.5 17.3 10.1 41.3 5.9 214.3 25.3 185.6
985.2 88.5 258.2 96.7 124.8 63.1 71.3 1,191.4 102.2 1,067.2
Subtotals
3,160.1
888.5
4,048.6
Minor offenses
3,637.0 1,055.0
4,692.0
Totals
7,047.3 2,404.8 10,452.1
All other nonserious crimes Other assaults Forgery and counterfeiting Fraud Receiving stolen property Weapons possession Prostitution and commercialized vice Other sex offenses (not including rape) Drug-abuse violations Offenses against family and children Driving under the influence
Source: Federal Bureau of Investigation, Crime in the United States.
this case, suspects are free to discontinue the questioning and leave. Once the officers investigating a crime have enough physical or circumstantial evidence on a particular suspect and they or the prosecutor begin to question the suspect, questioning is no longer neutral. In Miranda v. Arizona (1966), the U.S. Supreme Court stated that an investigation is no longer neutral when custodial interrogation takes place—that is, when “questioning initiated by law-enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way” occurs. This transpires when suspects are no longer free to leave. At that point, suspects need the protection of legal counsel, friends, or relatives. 20
Arrest In most cases, a warrant for arrest must be obtained from a court officer, usually a magistrate (the judge or justice of a trial court, including inferior courts, but sometimes restricted to “courts of record”) who reviews the circumstances of the arrest prior to any summary action and either approves or disapproves the proposed arrest. A warrant of arrest may be issued when a complaint is filed with a magistrate and the magistrate, after a hearing, independently and on the basis of evidence is satisfied that the offense complained of has been committed, that the information given is from a reliable and credible source, and that there are reasonable grounds to believe that the person to be arrested has committed the specific offense. An arrest is made by arresting officers or other persons, who are supposed to give adequate notice to the persons to be arrested. Such notice should include the intention to arrest, the cause of the arrest, and the authority to make it, except when the arresting persons have reasonable cause to believe that the suspects are engaged in the criminal acts or they must pursue the suspects immediately after the commission of the crimes. Adequate notice also includes informing persons to be arrested of the charges against them whenever they request such information. If the offense for which an arrest is being made is a felony, the arrest may be made on any day and at any time of the day or night. If the offense is a misdemeanor, the arrest cannot be made at night unless it takes place under the direction of a magistrate and is authorized on the warrant or unless the offense is committed in the presence of the arresting officer. Private citizens may arrest others for public offenses committed or attempted in their presence, they may arrest a felon although the felony was not committed in their presence, and they may arrest a person when a felony has been committed and they have reasonable cause to believe that the person to be arrested has committed it. However, if a crime has not been committed, such arresting persons are subject to legal action for false arrest. Any person making an arrest may take from the arrested person all offensive weapons and deliver them to the arraigning magistrate. Breaking and entering a building to make an arrest may be necessary but is under the “reasonable and prudent man” purview (the test of whether a just, fair, sensible man with ordinary wisdom, carefulness, and sound judgment would do the same under similar circumstances). As a reasonable and prudent person, an officer acting in good faith may omit the demand for entrance and explanation of purpose if the delay would permit the destruction of evidence or its hiding, if the officer is threatened with attack by the person to be arrested, or if delay may allow the suspect to escape. Caution is necessary whenever 21
Arrest regular procedures are not used during an arrest, because any incriminating evidence discovered may be excluded from evidence at trial if the arrest is ruled unlawful. Booking and Detention In most jurisdictions the rules of police procedure require that peace officers bring arrested persons to a central point (usually a city or county jail) in order to search them, record the details of arrest (booking), and incarcerate them. The search must be conducted under the supervision of the law-enforcement officer assigned to the booking office, who is usually a superior officer, and involves a thorough bodily examination, including the removal of clothing and the possible examination of body crevices such as mouth, underarms, and anus. Male officers search men and female officers search women. A record is made of all evidence taken from prisoners, and the evidence itself is appropriately marked and safeguarded. Receipts are prepared of all articles of value taken from prisoners, and copies of these receipts are delivered to the prisoners by the booking officer at the time of booking. Booking procedures may vary slightly across the country, but certain rules are in general use by all police forces. The specific laws violated must be established and entered in the official arrest records. These records must include the names of victims, the times and places of the crimes charged and of the arrests, enough of the circumstances of the case to establish probable cause for the arrests, and the essential elements of the crimes charged. Prisoners’ fingerprints and photographs must be taken. When prisoners’ identities are established, checks are made with the records division to determine if they have outstanding warrants for other crimes and to establish if they have past criminal records. The arresting officers inform prisoners of their right to remain silent, warning them that anything they say is likely to be used in court against them, and tell them of their right to speak to an attorney prior to making any statements. This information is entered in the arrest records. Prisoners are informed of the approximate time and date of arraignment (a court appearance at which they are told of the charges against them and they enter a plea), the name of the court and its location, the law about bail, and the rules of the detention jail. Prisoners are then placed in cells, permitted release on bail (if applicable), sent to a hospital (if required), or released as otherwise provided by law.
22
Arrest Suspect Rights Prosecutors in California recommend that the police use a simple and uniform statement during the arrest process to warn prisoners of their rights when they face custodial interrogation, so that officers can testify on the witness stand about the advice they gave to arrested persons. In California arrested persons have the right (except where physically impossible) to make at least two telephone calls from the booking office during the period extending from immediately after booking to not more than three hours after arrest. However, the number of calls and the time frame vary from state to state. These calls are made at prisoners’ expense and in the presence of a public officer or employee. Any public officer or employee who deprives an arrested person of the right to such communications is guilty of a misdemeanor. After they are arrested, prisoners or their relatives may request to see an attorney entitled to practice in the courts of record. Any responsible officer who willfully refuses or neglects to allow such an attorney to visit a prisoner is guilty of a misdemeanor, and any responsible officer who refuses to allow an attorney to visit the prisoner when proper application is made is liable for a monetary fine. Peace officers in California may release from custody prisoners who are arrested without a warrant if they are satisfied that no grounds for making a criminal complaint exist. A record of such arrests must note that the prisoners have been released and that their arrests have been deemed to be detentions. Prisoners arrested without a warrant may also be released from custody if the offenses with which they are charged are not considered a threat to society or its members. If arrested persons are charged with misdemeanors only and have signed an agreement to appear in court or before a magistrate at a designated place and time, they may also be released. When prisoners are not subject to release in accordance with an established schedule of bail or they cannot post bail, they must be taken without unnecessary delay to the nearest or most accessible magistrate in the county in which the offense is triable if they are in a condition to make a court appearance—that is, if they are not drunk, unconscious, ill, or mentally incompetent. The stricture against unnecessary delay stipulates a period of no longer than two days after the arrest, excluding Sundays and holidays. However, when the two days prescribed expire at a time when the court in which the magistrate is sitting is not in session, the time for the original arraignment of the prisoner is extended to include the duration of the next regular court session on the judicial day immediately following. The period of permissible delay usually is described as two court (working) days. Upon prison23
Arrest warrants ers’ arraignment before examining magistrates and the filing of complaints, cases are placed before the court for review of police action since the time of the criminal act. Carolyn Palmer-Johnson Further Reading Del Carmen, Rolando V., and Jeffery T. Walker. Briefs of Leading Cases in Law Enforcement. 6th ed. Newark, N.J.: LexisNexis Matthew Bender, 2006. Examines legal issues surrounding the practice and structure of law enforcement. Friedman, Lawrence M. American Law: An Introduction. New York: W. W. Norton, 1988. Good general treatment of American law that discusses confessions and the Miranda rules. Geller, William, and Hans Toch, eds. Police Violence: Understanding and Controlling Police Abuse of Force. New Haven, Conn.: Yale University Press, 1996. Collection of fifteen substantial articles on the improper use of force by the police. Inbau, Fred, John Reid, Joseph Buckley, and Brian Jayne. Criminal Interrogations and Confessions. 4th ed. Boston: Jones and Bartlett, 2001. Long-standard textbook that remains useful in explaining the overall process of arrests. LaFave, Wayne R. Arrest: The Decision to Take a Suspect into Custody. Boston: Little, Brown, 1965. Explains differences in police and prosecutorial discretion. Walker, Samuel, and Charles M. Katz. The Police in America: An Introduction. 6th ed. Boston: McGraw-Hill, 2008. Weston, Paul B., and Kenneth M. Wells. The Administration of Justice. 5th ed. Englewood Cliffs, N.J.: Prentice-Hall, 1987. Covers the role of criminal justice officials. See also Arraignment; Arrest warrants; Bail system; Booking; Extradition; Jurisdiction of courts; Miranda rights; Nonviolent resistance; Preventive detention; Probable cause; Stop and frisk; Suspects.
Arrest warrants Definition: Official documents signed by judges or magistrates authorizing law-enforcement officers to arrest the persons whom the documents name Criminal justice issues: Arrest and arraignment; judges; probation and pretrial release 24
Arrest warrants
Text of the Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Significance: Arrest warrants authorize police officers to arrest named persons. To obtain warrants, police officers usually submit affidavits to the judges or magistrates in the appropriate jurisdictions. Arrest warrants typically specify the crimes that the arrestees are alleged to have committed and may direct the manner in which the arrests are to be made. Bail also may be specified. Bench warrants are arrest warrants for previous failures to appear in court. All lawful arrests comply with the Fourth Amendment to the U.S. Constitution. The amendment guarantees the right of people to be secure in their homes “against unreasonable searches and seizures” and states that warrants are not to be issued without “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Arrests are a form of seizure—a seizure of the body. Consequently, the Fourth Amendment applies both to searches and seizures of property, as well as to arrests of persons. In its 1980 Payton v. New York decision, the U.S. Supreme Court ruled that arresting officers must secure arrest warrants before entering dwellings to arrest suspects in nonemergency situations. In emergency situations, arrest warrants may not be necessary to enter suspects’ dwellings. No requirement derives from the Fourth Amendment that a warrantless arrest take place only upon probable cause. However, judges have applied the amendment’s requirement of probable cause to warrantless arrests as well as arrests under warrants, as a matter of interpretation. A warrantless arrest typically may be made when a crime is committed in a police officer’s presence or when an officer has probable cause to believe that a suspect has committed a felony and does not need to enter the suspect’s dwelling to execute the arrest. Probable cause is the key issue in the arrest process in both warrant and warrantless arrests. To establish probable cause, police officers must be able to delineate factual circumstances indi25
Arson cating that suspects have committed specified crimes. Although police officers provide information regarding the existence of probable cause, magistrates make the determination of probable cause. Whether an arrest is made with a warrant or is a warrantless arrest, it must always be reasonable. Ronna F. Dillon Further Reading Emanuel, Steven. Criminal Procedure. 4th ed. New York: Aspen Publishers, 2005. Ferdico, John N. Criminal Procedure for the Criminal Justice Professional. 9th ed. Belmont, Calif.: Thomson/Wadsworth, 2005. Langbein, J. H. The Origins of Adversary Criminal Trial. Oxford, England: Oxford University Press, 2003. Livingston, E. A System of Penal Law for the United States of America: Consisting of a Code of Crimes and Punishments, a Code of Procedure in Criminal Cases, a Code of Prison Discipline, and a Book of Definitions. New York: William S. Hein, 2000. See also Arrest; Criminal justice system; Criminal procedure; Marshals Service, U.S.; Probable cause; Resisting arrest; Special weapons and tactics teams; Summonses.
Arson Definition: Deliberate setting of fire to structures, vehicles, or personal property Criminal justice issues: Fraud; technology; vandalism Significance: The evolution of the concept of arson from its common-law origins of the burning of a dwelling of another to a crime involving burning of any person’s property reflects a change in public policy as a result of insurance fraud and the perceived need to protect all property from malicious destruction through burning and related activities. Before statutory law existed, courts defined arson at common law as a crime against habitation. For an act to be considered arson, five elements had to be present: intent or malice on the part of the arsonist; an actual burning; the burning had to be of a dwelling or surrounding structures; the burned property had to belong to someone other than the arsonist; and the action had to occur during nighttime. Under modern statutory law, which varies 26
Arson among state and federal jurisdictions, legislative bodies and courts have broadened the definition of arson to encompass all acts that result in the intentional burning of any person’s property at any time. Arson Definition Expanded Usually the mens rea or intent for arson is malicious and willful conduct, that is, the intentional desire to cause harm. Some jurisdictions require a specific intent to defraud by burning a structure, vehicle, or personal property. Others include in the definition of intent risky behavior that has a strong likelihood of leading to property destruction. Under early twentyfirst century law, not only intentionally set fires but also explosions or similar acts that destroy property—even when no fires are involved—may constitute the intent for arson. Reasons for committing arson are varied and include pyromaniacs, that is, vandals who set fires for emotional excitement; people who set fires for purposes of revenge or sabotage; people who hope to collect insurance settlements or commit tax fraud; and people who set fires to conceal other crimes, such as murder. At common law the definition of arson required the actual burning or charring of some part of a building or structure. Now, scorching, smoking, and discoloration are sufficient evidence to support arson convictions. Some state statutes even include criminal liability for impeding firefighting efforts or refusing to help extinguish fires. In addition, under modern statutes the properties that are burned are no longer limited to dwellings. They may also include structures, vehicles, other personal property, and other
Fire in Fiction Don Winslow’s California Fire and Life (1999) is a skillfully constructed novel about an insurance claims adjuster whose uncovering of an arson fire draws him into ever-deepening intrigue. Taking its title from a fictional insurance company, the story provides a fascinating inside look at arson investigation that draws on Winslow’s own long real-life experience in that field. Another novel by an experienced arson investigator is John L. Orr’s Points of Origin: Playing with Fire (2001). This story about a serial arsonist draws on the author’s experience as a city fire captain and arson investigator.
27
Arson
An arson investigator from the Bureau of Alcohol, Tobacco, Firearms and Explosives examines the ruins of a high school burned down in Needville, Texas, in April, 2007. A teenage boy later confessed to setting the fire. (AP Photo/The Houston Chronicle, Bob Levey)
real property—such as forests or agricultural crops—whether they belong to other people or to the arsonists. Because of the various degrees of arson found in most statutes, acts of arson may now take place at any time of the day or night. History Arson is an ancient property crime because it relates to one of the basic human needs—shelter or habitation. Arson was a crime in common law because it threatened the need of community members to feel secure in their homes and other buildings in communities. At common law arsonists had to burn dwellings in the possession of, or occupied by, others, as the belief was that people would not intentionally burn the houses in which they themselves lived. However, wives could be charged with arson for burning their husbands’ property. In two early English cases, a tenant was found guilty of arson for burning a house that he occupied but did not own and a prisoner was found guilty of arson for setting fire to the building in which he was confined so that he could escape. After homeowner insurance became available, arson laws began to change, and increasing numbers of people were charged with intentionally burning 28
Arson their own dwellings for purposes of defrauding insurers and collecting the insurance proceeds. Municipalities also became proactive by limiting the use of wood in construction of buildings to reduce the number of natural and deliberately set fires, which often destroyed entire blocks of buildings in overcrowded cities. In common law, arson was considered a felony, and it continues to be classified as a felony in most modern jurisdictions. However, many statutes provide several degrees of arson and malicious burning, some of which are classified as misdemeanors. Under old English common law, the penalty for arson was death. Today, no jurisdiction employs the penalty of death for arson, unless it is coupled with a homicide, which will bring a felony murder charge. Prevalence The Uniform Crime Reporting (UCR) Program of the Federal Bureau of Investigation (FBI) for 2003 showed a decline in the number of reported arson cases and arrests nationwide with a 28.5 percent drop in arson arrests from 1994 to 2003. Smaller cities of 10,000 or fewer inhabitants showed the greatest decrease in reported cases since 2002, although they still had the highest arson arrest rates. Based on data in the UCR, there was a nationwide average of 5.6 arson arrests per 100,000 persons in 2003. Single-family residential structures suffered the highest rate of arson in 2003, while average monetary damages were highest for industrial and manufacturing structures. The majority of arson offenses are committed by white boys and men, with an almost equal division of arrests between adults and juveniles under the age of majority, which usually is considered to be eighteen years. The National Fire Protection Association estimates that arson may actually be on the increase because statistics are based only on provable facts and not estimates. In addition, the UCR Program relies on only the data that are reported, and arson data are not reported uniformly by all law-enforcement agencies in the United States. In the future, the continuous improvement of forensic science, technology, and methods of investigating fire scenes should result in improved reporting of statistics related to the crime of arson. Investigation Many modern municipal fire departments include specially trained arson investigation units, which are typically made up of firefighters, expert fire examiners, forensic scientists, and law-enforcement officers. Members of such units act as detectives in investigating suspicious fires and gathering 29
Arson evidence that is used in prosecution of arson cases. To ensure that evidence is properly obtained and preserved, many prosecutors become involved in the early stages of such investigations. Technological advances and modern forensics enable investigators to solve past and present cases of suspicious fires more readily than in the past. Before investigation begins, however, the fire scenes must be made secure by ensuring that the fires are out and that no structures are likely to collapse during the investigations. However, arson investigation is often made more difficult by the fact that evidence is not always preserved by the first responders to fire scenes. Moreover, chemical evidence is not always readily detectable; it may also be volatile and evaporate quickly. Once fire scenes are secure, investigators conduct “cause and origin” investigations. First, they determine the seats of the fires; then, they look for evidence that the fires have been deliberately set. Investigators search through fire debris and use new technologies, such as those able to detect odorless accelerants, to determine the sources of the fires. The goal of arson investigators is to reconstruct fire scenes and provide adequate evidence to show that the fires are not accidental. Prosecution and Punishment Prosecutors in arson cases must prove that fires have been set deliberately. Much of the evidence to prove intent in arson cases is highly technical and thus not always understood by juries. If mistakes are made during a fire investigation and proper protocols are not followed, the prosecution may be unable to provide adequate scientific evidence to prove that the fire was arson. Many courts request evidence of motive, especially in cases involving insurance fraud or covering up other crimes. Eyewitnesses to arson are rare, so evidence in such cases is largely circumstantial. This fact makes it more difficult to prove that a fire has been set beyond a reasonable doubt—which is the standard for obtaining guilty verdicts. The forms of arson carrying the severest penalties are instances in which human life may be at stake—which is usually the case in arson fires set in inhabited dwellings at night. In addition, in any arson case in which a person is killed, the penalty is high in most jurisdictions. Moreover, such cases may lead to arrests and convictions for felony murder, or murder with aggravated circumstances, and result in death sentences. Carol A. Rolf
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Assault and battery Further Reading Cosgrove, Bill. Accident or Arson? Bethel, Conn.: Rutledge Books, 2001. Story of an actual fire scene through initial report to final investigation. DeHaan, John D., and Paul Leland Kirk. Kirk’s Fire Investigation. 6th ed. Upper Saddle River, N.J.: Pearson/Prentice Hall, 2007. Textbook that discusses various types of fires, new petroleum products, documentation, and case analyses. Faith, Nicholas. Blaze: The Forensics of Fire. New York: St. Martin’s Press, 2000. Useful information on modern improvements in forensic science, technology, and behavioral patterns in solving the crime of arson. Icove, David J., and John D. DeHaan. Combating Arson-For-Profit: Advanced Techniques for Investigators. Upper Saddle River, N.J.: Prentice Hall, 2003. Up-to-date text on the modern means employed to investigate arson. Micheels, Peter A., ed. Heat: Fire C.S.I. and the War on Arson and Murder. New York: Adrenaline Classics, 2003. Collection of first-person accounts of arson by professional fire marshals. Wambaugh, Joseph. Fire Lover: A True Story. New York: Avon Books, 2002. True story about the investigation and conviction of an arsonist by a bestselling novelist and former Los Angeles police officer. See also Attempt to commit a crime; Bureau of Alcohol, Tobacco, Firearms and Explosives; Crime scene investigation; Criminal law; Federal Bureau of Investigation; Felonies; Uniform Crime Reports.
Assault and battery Definition: Physically harming other persons or putting them in fear of being harmed Criminal justice issues: Domestic violence; violent crime Significance: Assault and battery are the most common violent crimes in the United States. In criminal law, assault and battery represent two separate actions that are more often referred to simply as assault. This general term includes simple and aggravated assault and can refer to offenses that are either attempted or completed. Assault and battery are generally used to refer to both threats and the actual carrying out of inflicting harm on other persons. The term “assault” applies to the act of threatening or intimidating others, while the term “battery” applies to the actual infliction of physical harm, through punches, slaps, kicks, 31
Assault and battery
Assault Rates, 1973-2003 35
assaults per 1,000 persons
30
simple assault
25 20 15
aggravated assault 10
1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003
5
Source: U.S. Bureau of Justice Statistics, 2005.
stabbings, or other contacts that are delivered with the intent of causing harm or death to the victims. Assaults are unlawful offers of violence against others, with the reasonable capability to carry out the acts. Battery is the actual and intentional infliction of the violence resulting in injury—regardless of the seriousness of the injury. “Assault and battery” therefore refers to the coupling of these two offenses: the threat and the delivery of unlawful force. The federal criminal justice system and many state systems use the general term “assault” to refer to both the unlawful offer or threat of harm and the actual delivery of illegal force against the victim. From the criminal law standpoint, then, no actual attack needs to occur for a charge of assault to be brought against a person. Assaults may be simple or aggravated, depending on the level of violence and other factors. Simple assault, as defined by the Federal Bureau of Investigation’s Uniform Crime Reports (UCR), refers to the offenses in which no weapons are used and the victims’ sustained injuries are comparatively minor. Examples of assault under this definition include slapping and punching in which no serious injury is sustained by the victim or shaking one’s fist at another person and placing that person in fear of being hurt. Aggravated assault, according to the UCR, is characterized by the inten32
Assault and battery tional attempted, threatened, or delivered infliction of serious harm upon another person. In addition, other federal reporting systems specify that the use of a dangerous weapon in an assault is sufficient to characterize an offense as aggravated, regardless of whether a victim sustains an injury. Therefore, the mere act of threatening a person with a gun constitutes aggravated assault. Unarmed attacks in which a victim sustains severe bodily injuries, such as broken bones or teeth or loss of consciousness, may also be categorized as aggravated assault. In addition, some states have declared that all assaults against persons of specified status, such as police or corrections officers, are to be considered aggravated, even if such attacks would otherwise be considered simple assaults. In both types of assault, victims need not be placed in actual peril for offenses to be committed. The key issue is whether the victims have a reasonable fear of being injured. Under this principle, pointing a toy gun that appears to be real at someone is aggravated assault, even though the victim is never in actual danger. History Statutes against unwarranted violence have existed in human societies as long as there has been written law. Recorded laws dating back earlier than 2000 b.c.e., such as the code of the Babylonian king Hammurabi, set limits on human actions and asserted the principle that the strong shall not injure the weak. Ancient Roman law described assault and other acts that modern societies would regard as criminal offenses as instead civil “wrongs,” or torts, and offenses were resolved by payments of monetary compensation to victims’ families. In early medieval England, self-governing tribes enforced their own laws and punishments for criminal activities, but in the twelfth century, crimes of violence were declared to be against the king’s peace and became punishable by the state. While this principle of the state assuming responsibility for the protection of its citizens against crimes of violence still exists today, it has only been fairly recently that some types of assault have been recognized as crimes and have been subject to punishment. For example, although rape has long been recognized as a crime, in early history the law ignored rape victims who lacked social status and tended to treat the husbands and fathers of female rape victims as the true victims of the crime. Similarly, acts that should have been prosecuted as criminal assaults committed against slaves in pre-Civil War America were ignored. The victims 33
Assault and battery were considered to be the property of their masters and therefore received negligible legal protection. The extent to which assault laws have protected people has thus varied over time. Prevalence The prevalence of assaults in the modern United States is difficult to estimate because of the many unreported offenses that occur, especially sexual and domestic assaults. However, studies have indicated that aggravated assault and simple assault rates have declined since 1994. Estimates of aggravated assault cases in the year 2002 range from 753,330 to 894,438 incidents. Aggravated assaults accounted for almost 63 percent of all violent crimes for that year. The National Crime Victimization Survey (NCVS) estimates that 2,456,660 simple assaults occurred in 2002; the figure is equivalent to 2.2 percent of U.S. households. Although the prevalence of assault and battery crimes still appears to be declining during the first years of the twenty-first century, protection of people from interpersonal violence remains a fundamental responsibility of the criminal justice system, especially when addressing emerging issues of social concern, such as intimate partner violence and sexual assault. Investigation The effective investigation, prosecution and punishment of assault and battery hinge upon establishment of the elements of the crime by investigators and upon the ability of prosecutors to demonstrate those elements in courts of law. Punishments can range from fines or probation for some types of simple assault to several years in prison for aggravated assault. In general, simple assaults refer to unlawful threatening behavior or to physical attacks that result in minor injuries, such as cuts and bruises. An important element of this crime in cases in which no actual physical attack occurs is that victims are placed in reasonable fear of being injured. Aggravated assault can be charged when offenders unlawfully use dangerous weapons, such as guns, to threaten or actually harm victims, or when victims sustain severe injuries, such as broken bones or teeth, deep lacerations, internal bleeding, maiming or other serious harm. Investigating assault requires careful documentation by law-enforcement officers to establish the elements of the crime. In general, when no physical attacks occur, prosecutors must prove that the victims have been placed in reasonable fear for their safety and that the offenders unlawfully and intentionally offered threats. In cases involving physical attacks, there must be careful recording of all 34
Assault and battery evidence that establishes intent and injury. For example, investigators photograph victims to record all sustained injuries and counsel the victims to seek medical treatment so that medical records documenting the extent of the injuries can be obtained. Suspects should also be photographed in order to record any injuries on the knuckles, hands, elbows, or any other body parts that may demonstrate that those parts were used in attacks. Investigators should also take detailed statements from the victims, witnesses, and suspects (if the Fifth Amendment is not invoked) that may provide evidence of the offenders’ threatening language and actions so that intent can be established. When victims resist their attackers, physical evidence that may help establishing the suspects’ identities may be collected from under the victims’ fingernails, from blood spatters at the scene, from the victims’ clothing, from bite marks on the victims, and from hair and fiber analysis. When weapons are used, every attempt must be made to locate them and subject them to analysis for fingerprints, DNA, and other trace evidence. Victims of sexual assault should always be counseled not to bathe, shower, douche, or discard any items of clothing until after investigators have inspected them for possible evidence. Rape victims should be urged to seek medical attention and to have rape examinations performed. Officers investigating assault cases should canvass the scenes for witnesses and record any evidence of intent and action. Prosecuting Assault and Battery Cases Successful prosecution of assault depends on how thoroughly the elements of assault are established by law enforcement. In cases involving attempted assault, prosecutors have to establish that the victims have been put in fear for their physical safety. That can usually be established by witness and victim statements, among other evidence. It does not matter whether the threats are real or not; it is only the reasonableness of the victims’ fear that matters. For example, if an offender points a realistic toy gun at the victim, then aggravated assault can be established, even if the offender cannot carry out the threat. Prosecutors must also establish intent. For example, if a defendant has harmed another person by accidentally tripping and colliding with someone who then banged his head into a wall, then no assault has been committed, despite the victim’s injury. Intent to threaten or harm is a key element in prosecuting assault cases. Prosecutors make important decisions in deciding whether to charge offenders with simple or aggravated assault. This is sometimes a clear choice 35
Assault and battery due to the nature of the injuries sustained by the victims or due to the use or nonuse of deadly weapons. However, the decision can also be difficult when it requires determining the degree of injuries. Prosecutors rely on medical documentation in making decisions of that nature. Punishment Depending upon the severity of the assault, sentences can range from fines to probation to several years in prison. There has been some recent controversy about the levels of punishment that are most appropriate for violent assaults. Some recent legislation has proposed stiffer sentences for aggravated assaults that result in permanent disfigurement or disability in victims. Federal assault guidelines provide for tougher penalties in cases in which the assaults involve more than minimal planning, when life-threatening or permanent bodily injuries occur, when deadly weapons are involved, when firearms are discharged, and other aggravating circumstances. David R. Champion Further Reading Ammerman, Robert T., and Michel Hersen, eds. Case Studies in Family Violence. New York: Plenum Press, 2000. Scholarly essays on legal, medical, social, and psychological issues involved in domestic violence. Brewer, James D. The Danger from Strangers: Confronting the Threat of Assault. New York: Insight Books, 1994. Guidebook by a personal-security expert offering advice on how to avoid and protect oneself from assault. Contains a wealth of anecdotal material collected from assault victims. Dalton, Clare, and Elizabeth M. Schneider. Battered Women and the Law. New York: Foundation Press, 2001. Casebook by two feminist law professors that examines violence against women in intimate relationships and how it shapes law. Harries, Keith D. Serious Violence: Patterns of Homicide and Assault in America. 2d ed. Springfield, Ill.: Charles C Thomas, 1997. Comprehensive study of violent crime in the United States, addressing the subject from a variety of perspectives. See also Criminal law; Felonies; Police brutality; Rape and sex offenses; School violence; Self-defense.
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Attempt to commit a crime
Attempt to commit a crime Definition: Act that includes the intent or purpose to commit a crime, overt acts in pursuit of that intent, and failure to complete the intended crime Criminal justice issues: Crime prevention; legal terms and principles Significance: Statutes banning attempted crimes are designed to deter dangerous behavior and potentially dangerous persons; however, criminal law consistently imposes lesser penalties on attempted crimes than on completed crimes. Criminal law punishes both complete and uncompleted crimes. Uncompleted crimes, also called inchoate crimes, include attempt, conspiracy, and solicitation. Of the three, those who attempt to commit crimes get punished most severely. As failures to achieve designated goals, attempts require specific intent and conscious efforts to achieve those goals that ultimately are not realized. Criminal law punishes those who attempt to commit crimes to deter persons who have manifested “dangerous conduct” from continuing with their criminal pursuits. The first component of an attempt to commit a crime is intent: One must purposely want to commit a crime. In People v. Terry (1984), the
“Attempts” vs. “Preparations” American courts generally apply four tests to establish that the actions of an accused person constitute an illegal attempt to commit a crime and are not merely preparations. No. Principle
Test
1
Substantial steps
Have sufficient measures been taken to confirm the intent of the accused?
2
Physical proximity doctrine
How close in time, space, and actions was the accused to completing the intended crime?
3
Equivocality approach
Do acts taken by the accused leave no doubt as to the crime the accused intended to commit?
4
Probable desistance How probable is it that the crime would have approach been committed, had the accused not been interrupted by an intervening person or event?
37
Attempt to commit a crime U.S. Supreme Court held that “one cannot attempt to commit a crime which one does not intend to commit.” The second component of an attempt to commit a crime is acts. An unlawful attempt requires its actor to take steps that exceed mere preparations to commit the crime. As people cannot be punished simply for harboring evil thoughts, the law requires that some significant steps be taken toward acting on the unlawful intent. State laws vary as to how many steps distinguish preparations from attempts. While the majority of states and the Model Penal Code require that “substantial steps” be taken toward completing the intended crime, some statutes specify merely “some steps.” Most states classify activities such as purchasing weapons to use in crimes as preparations, not attempts. However, if the weapons or other devices of crime are actually taken to crime scenes, those actions may fulfill the substantial steps requirement of attempt. A variety of defenses are used by people charged with attempting to commit crimes. For example, they may claim abandonment, arguing that they voluntarily renounced their intent to commit crimes. For such a defense to work, the accused persons must demonstrate that their abandonment was both voluntary and complete; it should not have been prompted by extraneous or outside factors, such as other persons walking in on the crime scenes. Postponing the intended crimes or transferring an intended crime to another target does not constitute abandonment. A second defense is impossibility. However, only legal, not factual, impossibilities constitute a defense to attempt a crime. An act constitutes a legal impossibility if it is not defined by law as a crime. Keeping with the principle of legality, there cannot be a punishment. Victoria M. Time Further Reading Dix, E. G., and M. M. Sharlot. Criminal Law: Cases and Materials. 5th ed. St. Paul, Minn.: West Group, 2002. Reid, Sue Titus. Criminal Justice. 8th ed. Masoni, Ohio: Thomson, 2008. Samaha, Joel. Criminal Law. 9th ed. Belmont, Calif.: Thomson/Wadsworth, 2008. Schmalleger, Frank. Criminal Law Today: An Introduction with Capstone Cases. 3d ed. Upper Saddle River, N.J.: Pearson/Prentice Hall, 2006. See also Arson; Conspiracy; Criminal intent; Criminal law; Criminal liability; Pickpocketing; Solicitation to commit a crime. 38
Automobile searches
Automobile searches Definition: Lawful searches by police of vehicles and seizure of evidence discovered therein Criminal justice issues: Police powers; search and seizure Significance: Police frequently have occasion to stop vehicles and conduct searches because automobiles are the most common form of conveyance in the United States. Because of the proliferation of vehicles on U.S. roads and highways, police often encounter situations in which they must conduct searches of automobiles for criminal evidence. Since 1925, the courts have permitted lawenforcement officers to search automobiles without search warrants. This practice is allowed as an “automobile exception” to the warrant requirement of the Fourth Amendment to the U.S. Constitution. In Carroll v. United States (1925), the U.S. Supreme Court ruled that because of the “mobility” of motor vehicles, police could conduct searches without search warrants. The Court established two requirements for conducting warrantless searches of automobiles. First, officers must have probable cause to believe that the vehicles contain evidence or contraband related to crimes. Second, the mobility of automobiles makes it impractical for police to hold them until they can obtain search warrants. Therefore, the Court permits police to search motor vehicles with or without search warrants if they have probable cause. Other rationales used by the courts to permit automobile searches include the reduced privacy expectation citizens have when traveling in cars, compared with when they are in their homes. Moreover, many of the articles subject to search in vehicles may be in plain view of the police. Warrantless automobile searches can be as extensive as those conducted with warrants, under the conditions established in the Carroll decision. Searches of Vehicle Contents Automobile searches fall into two categories—searches of vehicle contents and inventory searches of vehicles. The courts have expanded police automobile search authority to include motor vehicles, containers, and passengers. These rules enable the police to search passenger compartments of automobiles if they have legal reason to believe that they may contain evidence or illegal goods. Searches can be expanded to include entire vehicles and all accessible unlocked containers when probable cause is present. In 39
Automobile searches fact, if the police have probable cause to believe that a specific container in an automobile contains a weapon or evidence of crime, they are allowed to search it even when they lack probable cause to search the entire vehicle. Beyond the vehicle contents, the police may search the personal effects of the occupants if they believe weapons or evidence are present. Police are allowed to search passenger compartments and surrounding areas within the reach of occupants of the vehicles whom they arrest. Although police are permitted to conduct searches for weapons or evidence, such searches must be conducted at the same times as the arrests of the occupants. If police officers lawfully stop or approach a vehicle, they may peer inside it and seize any article they readily identify as illegal, so long as it is in their visual “plain view.” Automobile searches can also be conducted when the drivers or owners voluntarily give consent, verbally or in writing. Ordinarily, consent searches allow the police look in areas of the vehicle, including containers, that are accessible and unlocked. Other circumstances may permit limited searches of passenger compartments of vehicles and passengers within their immediate reach. To ensure the safety of the officers, the police may order occupants to exit vehicles so they can conduct limited outer clothing touch-searches of them and areas within their reach when reasonable suspicion exists that the occupants may be armed with weapons. If the officers have probable cause to believe that occupants may be hiding weapons or evidence, they may also search the occupants’ personal effects. Limited warrantless searches of vehicles may also be performed when vehicles have been involved in accidents or have been subjected to vandalism. Abandoned vehicles seized in public places that are believed to contain contraband can also be searched in a similar manner. Automobile Inventory Searches The second category of permissible automobile search is vehicle inventory searches. This type of search is designed to protect vehicle owners’ personal effects at the time the police impound their vehicles. Vehicles may be impounded for several reasons. For example, police may have towed automobiles involved in the commission of criminal offenses that may contain evidence. They may also have vehicles towed that impede traffic or that are abandoned. However, the courts have also stated that police officers should take care to reduce the chances of theft of personal articles within the towed vehicles. They should also take care to reduce reasons for suspecting that the police themselves have removed items from cars. Vehicle inventory 40
Automobile searches searches were devised to enable the police to document articles found in passenger compartments and trunks of automobiles. Another situation in which vehicle inventories are permissible arises when police arrest drivers for offenses and impound their vehicles. In South Dakota v. Opperman (1976), the Supreme Court established the automobile inventory search doctrine by ruling that police may inventory personal effects found in impounded automobiles, so long as the items are accessible without the use of force—such as might be required to open a locked storage box. The courts have also stated that valid inventory searches must follow established departmental procedures using standardized practices. The scope of inventory searches is restricted to documenting accessible items found in cars and cannot be used as a pretext to conduct extensive searches of vehicles. Although the U.S. Supreme Court has established many guidelines for automobile searches, state court rulings and individual department policies may affect the manner in which the police conduct vehicle searches. Indeed, local rules and policies in some jurisdictions may be even more restrictive than the practices allowed by the federal courts. William P. Bloss Further Reading Del Carmen, Rolando V. Criminal Procedure: Law and Practice. 7th ed. Belmont, Calif.: Thomson/Wadsworth, 2007. Comprehensive and readable review of criminal procedure, including constitutional rights, that covers each stage of criminal procedure, with special attention given to Supreme Court cases. Includes detailed discussions of search and seizure legal doctrines. Holtz, Larry E. Contemporary Criminal Procedure: Court Decisions for Law Enforcement. 9th ed. Charlottesville, Va: LexisNexis/Gould Publications, 2005. Comprehensive and up-to-date textbook on criminal procedures. LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment. 4th ed. St. Paul, Minn.: Thomson/West, 2004. Comprehensive overview of search and seizure. McWhirter, Darien A. Search, Seizure, and Privacy. Phoenix, Ariz.: Oryx Press, 1994. Written to make subjects such as search and seizure and the exclusionary rule interesting for high school and undergraduate college students. See also Drive-by shootings; Hit-and-run accidents; Probable cause; Search and seizure; Search warrants; Stop and frisk. 41
Bail system
Bail system Definition: System that allows individuals accused of criminal offenses to be released prior to their court appearances by securing funds to ensure their appearances in court Criminal justice issues: Arrest and arraignment; defendants; probation and pretrial release Significance: This highly debated practice has been criticized for discriminating against poor and minority arrestees; it has also been criticized for the practice of preventive detention, which uses exorbitant bail to keep accused offenders from committing crimes while awaiting trial. The United States bail system operates on the premise that some individuals can be released prior to their appointed court date by leaving an amount of money with the court. Individuals are expected to return for their subsequent court appearance to have the amount of bail returned to them. Many argue that this practice discriminates against poor arrestees who cannot afford a monetary bail and thus must remain incarcerated while awaiting trial. Tradition in English Law The bail system in the United States is rooted in the traditional court systems of England. In feudal England (prior to the Battle of Hastings in 1066), law was dispensed by judges who would travel from county to county. Sheriffs would typically keep accused offenders in local jails with the promise to turn in the offender when the judge returned. As the number of offenders increased and jail space became limited, offenders were occasionally entrusted to the custody of a friend or relative who would ensure their appearance. In some cases, these individuals were required to sign a bond promising a specific sum of money to the king if the accused failed to appear when the judge next visited the area. Over time (and eventually in the American colonies), the practice of having an individual step forward for an accused was replaced by the use of financial security, or monetary bail. In exchange for freedom prior to trial, the accused would deposit a certain amount of money with the court, which would be returned following appearance. Even before the colonization of America it was recognized that the practice discriminates against individuals who cannot afford to leave a monetary bail. Arrestees who could not afford to leave bail were frequently incarcerated until their appearance at trial, a time period that could encompass years. Thus, the first formal regulations gov42
Bail system erning the use of bail were written in England in the year 1275. These statutes set forth specific conditions under which bail could be imposed, defining which crimes were “bailable” and which were not. That is, they specified for which crimes bail must be denied and the accused must be incarcerated prior to trial. Laws forbidding excessive bail eventually appeared in England, but not until they were included in the English Bill of Rights in 1688. History of the American Bail System Like the English system, early Americans also protected against excessive bail. The Eighth Amendment to the U.S. Constitution begins with the phrase, “Excessive bail shall not be required.” The meaning of this phrase, however, has not been successfully decided by the U.S. Supreme Court. For example, does excessive bail refer to the defendant’s ability to pay, or does it relate to the seriousness of the crime committed? In addition, is there a constitutional right to bail? The Judiciary Act of 1789 gave offenders a right to bail unless arrested for a capital offense. For a capital offense, maximum penalties can consist of life imprisonment or death. Assuming that these offenders may be likely to flee, considering the severity of punishment, bail is typically denied. Thus, every defendant in a noncapital case was guaranteed to receive bail. The appropriate amount of bail was not discussed in the Judiciary Act of 1789. A recommended or appropriate amount of bail was not dealt with in the United States until 1951, when the Supreme Court, in Stack v. Boyle, decided that bail must be of sufficient amount to ensure the defendant’s appearance at trial. In other words, the amount of bail must be enough to assure the defendant’s appearance, but it cannot be more than that amount, or else it would be considered excessive. The vagueness of this decision has left many experts speculating about the appropriate amount of bail. Bail Reform During the 1960’s, it became apparent that the United States bail system was not operating as it was designed. Judges were accused of having an excessive amount of discretion in setting amounts for bail. In addition, judges were responsible for setting bail based on which defendants were at high risk for flight and which were not. These decisions were supposed to be based on criminal characteristics, such as the seriousness of the crime committed and prior appearance history. It became clear, however, that among the factors taken into account in the assessment of flight risk were race and sex. Thus, judges’ decisions were discriminatory against certain racial groups and against male offenders. 43
Bail system Another form of discrimination emerged in the practice of pretrial detention. Although the primary purpose of bail is to assure a defendant’s appearance at trial, there is another purpose. Preventive detention is the practice of holding arrestees prior to trial so that they cannot commit crimes during the time between their arrests and court appearances. If a defendant is deemed to be a danger to the community during the pretrial period, a high amount of bail might be set in order to keep the arrestee locked up. Judges are responsible for making the determination regarding the “dangerousness” of an offender. Again, it was found that these decisions were influenced by noncriminal characteristics such as sex and race. Thus, the type of discrimination that appeared when assessing risk of flight also occurred when judges attempted to assess how likely an offender was to commit a crime while awaiting trial. In the face of these problems, the first bail reform movement developed. Beginning during the early 1960’s, bail came to the forefront as a serious problem within the criminal justice system. The Bail Reform Act of 1966 was an attempt to limit judicial discretion and remove discrimination from the bail process. There were two important developments that came from the Bail Reform Act of 1966. First, judges were expected to release all defendants on their own recognizance unless the judge had some good reason to set bail. In other words, the judge had to have solid grounds for setting bail. Second, “pretrial service agencies” were created to collect information about defendants, thus allowing the judge to have more—and more correct—information about each defendant. Although preventive detention was a reality in the bail system, there were no laws in the United States stating that it was legal. The second bail reform movement occurred during the early 1970’s, and it focused on the issue of legalizing preventive detention. In 1970, the District of Columbia enacted a law that authorized the detention of arrestees without bail if they were deemed a danger to the community. This was the first statute to set standards for the detention of arrestees for preventive reasons. The issue of preventive detention was not a legal one until the year 1984. In this year, the United States bail system was a central focus of the Comprehensive Crime Control Act of 1984. The Bail Reform Act of 1984 legitimated two federal judicial practices that were informally used before 1984. First, this act gave judges the power to assess defendants on their level of “dangerousness” to the community if released. It gave federal judges the legal right to use preventive detention. While the District of Columbia had its own provisions for preventive detention in 1970, it was not until 1984 that federal judges were given that right. Second, judges were given the right to deny bail 44
Bail system in certain circumstances. Traditionally, bail was denied to offenders arrested for capital crimes; the Bail Reform Act of 1984 permitted judges to deny bail to those offenders who were judged to be at extremely high risk for nonappearance. Most notable in this group of offenders were drug traffickers, who were usually able to make extremely high bail and then flee the country. The Bail Reform Act of 1984 was challenged in 1987, when United States v. Salerno was heard before the Supreme Court. This case challenged the idea of preventive detention, arguing that incarcerating alleged offenders violates their right to due process of law. Opponents of preventive detention argue that incarcerating offenders because of potential threat violates the presumption of innocence to which every arrestee is entitled. The Supreme Court did not agree with Salerno and upheld the judicial right to preventive detention. As long as judges have convincing evidence that the offender is likely to commit a crime while awaiting trial, they may set bail at a level higher than the typical amount. Types of Bail Judges must make a decision for every offender regarding the likelihood that the offender will appear for trial. They take several factors into account in making this decision, usually including prior arrest record, whether the defendant has appeared at previous hearings, stable family ties, and steady employment. After judges weigh these factors, they make a determination about how likely the defendant is to appear at trial. If offenders are classified as good risks—that is, if they are likely to appear for trial—they are typically released on their own recognizance. Release on recognizance (ROR) allows offenders to remain free before trial with the expectation that they will appear at the appropriate time. Not all offenders are judged as good risks for appearance. For those expected to be bad risks, or those who are unlikely to appear at trial, some type of bail is usually required. While bail itself involves leaving some type of financial security with the court, the type of security can vary. The most obvious type of bail is typically called a cash bond, and this occurs when the defendant turns over money in the exact amount of bail to the court. Money is not the only type of bail that a defendant can leave with the court. In some cases, a defendant can post a property bond instead, which entails leaving property (personal possessions) with the court to ensure appearance. If the defendant does not appear for the next court appearance, all money and property are forfeited to the court. Courts are aware that not everyone has the financial ability to post the ex45
Bail system act amount of bail or to put up a substantial amount of property. For these individuals, a deposit bond is available. In a deposit bond, the accused offender deposits only a portion of the full bail amount to the court. If the defendant fails to appear, the deposit is kept by the court. If the defendant appears for trial, the majority of the bond is returned, with a small percentage kept by the court to cover court costs. Finally, the most common type of bail is a surety bond. In this arrangement, a third party (not the court nor defendant) promises the court that if the defendant does not appear, they will turn over the amount of bail to the court. In exchange for this service, the defendant pays a fee to the third party. Usually, this third party is a bailbondsman. Bailbondsmen When defendants are required to pay bail prior to release, they may enlist the aid of a bailbondsman in securing funds. Bondsmen are independent businessmen who loan bail money to defendants with only a small amount of cash used as a fee. Bondsmen typically require 10 percent of the amount of bail for the fee. They use part of this fee to purchase a surety bond from an insurance company, which actually pays the bail if the defendant does not appear. In addition, bondsmen usually require some collateral as assurance that the defendant will not default on the loan. Many bond businesses also serve as pawnshops in their spare time, selling the collateral left by those who jump bail. Not all defendants will qualify for a bondsman’s services. If defendants have a prior history of jumping bail, they will most likely be denied the bondsman’s service. Even those defendants judged as good risks for the bondsman’s service sometimes jump bail. When a defendant fails to appear for trial after securing a bondsman, the bailbondsman has legal authority to retrieve the defendant. The bondsman hires individuals referred to as “bounty hunters” or “skip tracers,” people who search for those who jump bail. These skip tracers have virtually unlimited discretion in apprehending the defendant. Unlike state and local police officers, skip tracers are allowed to cross state lines to retrieve individuals who jump bail and are allowed to enter a residence without an arrest warrant. A major criticism of the bailbondsman trade is the ease with which corruption can flourish. Officers of the court, for example, are sometimes paid by bondsmen to refer defendants to their offices. These officers are typically given kickbacks for each defendant referred to the bondsmen. Judges are not immune from inappropriate behavior—some judges may set unreasonably high bail so that defendants are forced to utilize the bondsman’s ser46
Bail system vices. In return for these “referrals,” judges are paid by the bondsman. Finally, the bondsman trade also discriminates against indigent offenders, as most poor people cannot afford the fees. Trends and Statistics Approximately half of all defendants are held prior to trial, according to 1991 statistics. This figure includes individuals who do not make bail (44 percent of all defendants) and those who are held without bail (9 percent of all defendants). Only about 18 percent are released on their own recognizance. The amount of bail also varies across individuals and is usually dependent on the seriousness of the crime committed and prior criminal record. Property offenders are likely to receive lower bail (under $2,500), while violent offenders are more likely to receive high bail (sometimes over $20,000). Of those who are released prior to trial, about one-fourth fail to appear for trial. Drug offenders are most likely to jump bail, and public-order offenders are most likely to appear for trial. There also appears to be a relationship between the type of bond and rates of appearance. For example, offenders who are released on their own recognizance and offenders who leave a deposit bond have the highest rates of failure to appear. Offenders who use a bondsman are most likely to appear at their appointed court date. Christina Polsenberg Further Reading Flemming, Roy B. Punishment Before Trial: An Organizational Perspective of Felony Bail Processes. New York: Longman, 1982. Summarizes the felony bail process. Goldfarb, Ronald. Ransom: A Critique of the American Bail System. New York: Harper & Row, 1965. Provides a general review and history of the American and English bail systems. Singer, Richard G. Criminal Procedure II: From Bail to Jail. New York: Aspen, 2005. Examination of each procedural step in the criminal justice system, from the time of arrest through incarceration of the convicted. Thomas, Wayne H., Jr. Bail Reform in America. Berkeley: University of California Press, 1976. Provides an overview of bail reform in the United States. Walker, Samuel. Taming the System: The Control of Discretion in Criminal Justice, 1950-1990. New York: Oxford University Press, 1993. Broad review of bail reform. See also Arraignment; Arrest; Booking; Criminal procedure; Criminal prosecution; Preventive detention; Suspects. 47
Bank robbery
Bank robbery Definition: Theft of money from banking institutions Criminal justice issues: Business and financial crime; media; robbery, theft, and burglary Significance: The crime of bank robbery and notorious bank robbers have often been glamorized in the media, but bank robbery is frequently violent, and most robbers are captured quickly. Of all the criminals who practice their craft in the United States, bank robbers have been the most glamorized. Books and movies have portrayed them as folk heroes. The public’s fascination with bank robberies has been linked to the negative view of banks and the robber’s arguments that they were only stealing from the rich. Despite the folk-hero status given to famous bank robbers, bank robbers are violent criminals who use threats or violence to steal money from banks and their customers. During the nineteenth century, some of the most famous bank-robbing gangs were also among the most murderous. These included the Dalton gang and Jesse James’s gang, who robbed banks in the Old West and were tracked down by locals. Twentieth Century Bank Robbers Some of the best-known bank robbers of the early twentieth century include Bonnie Parker and Clyde Barrow, who stole comparatively small sums of money and killed nearly a dozen people until they themselves were gunned down by law-enforcement officers in 1934. The popularity of bank robbers peaked during the Depression years of the 1930’s, when banks were known mainly for foreclosing on farmers and members of the middle class. For some people, bank robbers represented the oppressed striking back at the banks for taking people’s land. During that period, some of the most colorful bank robbers became heroes to the public but were nevertheless dangerous criminals. Their popularity can be seen in the catchy nicknames given to them, such as “Baby Face” Nelson, Charles “Pretty Boy” Floyd, and George “Machine Gun” Kelly. This was also the era of John Dillinger, whose violent death was romanticized by the media. During the 1940’s one of the most celebrated bank robbers was Willie Sutton, who is credited with the famous line that he robbed banks because “that was where the money was.” Sutton used his acting skills and ability to create disguises to gain entry into banks, usually before they opened. He 48
Bank robbery dressed as postal employees, government workers, and even a police officer. He also changed his hairstyle, facial appearance, and accent to confuse bank employees. Throughout his criminal career, Sutton held a regular job, under an assumed name. He was different from his 1930’s predecessors in that his robberies were nonviolent; no one was ever killed or injured during one of his heists. During the mid-twentieth century, bank robbers and their crimes became more notorious because of the role of the Federal Bureau of Investigation (FBI) in tracking and attempting to arrest them. J. Edgar Hoover, the head of the FBI, used his ten-most-wanted list to call attention to notorious bank robbers and get the public involved in their capture. Every famous bank robber of that era was eventually captured or killed. Their demise brought the end of what might be called the golden era of bank heists. Modern Bank Heists After the 1940’s, bank heists became more difficult as banks enhanced their security. The federal government’s involvement in tracking and arresting bank robbers made the crime ever more dangerous for robbers. Bank
Jesse James had a brief criminal career and was killed at the age of thirty-four but is still remembered as one of the most notorious bank robbers of the nineteenth century. (Library of Congress) 49
Bank robbery robbers responded by changing their tactics. Their new techniques included taking bank employees hostage in their own homes and then forcing them to open their banks during off-hours. In the late twentieth century, the advent of electronic banking over telephone lines and the Internet opened another avenue for heists. Instead of carrying guns or charging into banks and demanding money, the new breed of bank robbers resembled embezzlers, siphoning funds out of banks without anyone noticing the money was gone until it was too late. When the robbers hid their tracks, the banks might not even know they were robbed until after the robbers were safely away. However, after a series of such robberies, banks and law enforcement became wiser and started using computer technology against the robbers and making heists more difficult. Meanwhile, as the FBI improved at tracking down robbers and banks improved methods of preventing robberies, the number of bank robberies in the United States declined during the 1980’s and 1990’s. However, one of the most dangerous and daring heists occurred in February, 1997, when two men robbed a Bank of America branch in Southern California. When the robbers were confronted by dozens of police, they initiated what became a running gun battle. Outfitted with protective body armor, the robbers withstood direct hits while blasting away with even greater firepower than that used by the police. Both men were eventually killed, but the incident left law-enforcement officials across the nation afraid that future bank heists would be performed by similarly dangerous robbers who could outshoot police and thus escape with the money. Types of Banks Heists Bank robberies are committed by both amateur and professional criminals and came be either well-planned heists or spur-of-the-moment robberies. The motive behind virtually all bank heists is to obtain money; however, the uses to which the money is put differ from robbery to robbery. For example, amateurs sometimes rob banks to pay their outstanding household bills. Professionals may also rob banks to pay their bills, but many steal from banks in order to live luxurious lifestyles they could not otherwise afford. Some rob banks to advance political causes. Amateurs and professionals typically differ in their approaches to their heists. Many amateurs conduct their robberies peacefully, with the use of weapons; their crimes are usually isolated events, in which the robbers are concerned mostly with escaping with their money as quickly as possible. By contrast, professionals generally concentrate on obtaining as much money as possible, and their crimes are usually part of strings of heists using the 50
Bank robbery same methods. Bank heists conducted for political purposes tend to be the most violent, as they usually involve weapons and robbers who are willing to kill to get the money they seek. Robbers who work alone typically initiate their robberies by handing notes to tellers that demand money. This approach tends to be quick and nonviolent but yields small returns for the robbers. Professional robbers often seize control of the banks and use weapons to compel bank employees to hand over money. While this form of robbery generally produces larger takes, it is also more likely to end in violence, particularly when bank employees or customers do not follow the robbers’ instructions perfectly. Bank robbers sometimes employ diversions that help them to escape. For example, some robbers telephone police to report false bombs threats in other locations. As police rush to those locations to investigate the threats, the robbers complete their bank heists and escape before police can redirect their efforts from the fake crimes to the real ones. Some bank robbers take advantage of visits by high-ranking dignitaries to cities. Such visits often tie up the protective services of local police, giving bank robbers opportunities to commit their crimes when police response is likely to be delayed. Sometimes, however, the robbers outsmart themselves. For example, a gang of robbers once cleverly timed their heist to take advantage of a visit of the president of the United States to Chicago. However, they made the mistake of hitting a bank located next to the building in which the president was speaking, thus bringing down on themselves large numbers of both local police and Secret Service agents. Prevention and Investigation During the 1990’s, the FBI and other law-enforcement agencies were able to concentrate many of their resources on crimes such as bank robbery. However, after the terrorist attacks of September 11, 2001, many law-enforcement resources have been diverted to investigating suspected terrorists. Apparently, for this reason, after 2001, bank robberies were again on the rise. Banks and law enforcement work together to develop new techniques and technologies to prevent bank robberies or make it easier to capture and prosecute bank robbers. One of the first defenses against robberies was the development of armored bank vaults, which federal law now requires banks to use to prevent criminals who break into banks after hours from gaining access to the money and other valuables. Modern vaults are protected by several feet of concrete or steel. The difficulty of penetrating vaults moves most robbers to rob banks when they are open for business—which is a much more hazardous undertaking for the thieves. 51
Bank robbery
Films Glamorizing Bank Robbers The Internet Movie Database (IMDb.com) lists hundreds of films about bank robberies. The films listed below are comparatively wellknown titles that may be fairly said to glamorize bank robbers. 1961 1967 1968 1969 1969 1969 1969 1970 1972 1973 1973 1975 1975 1980 1986 1989 1991 1991 1994 1996 1997 1998 2001 2002 2004
One-Eyed Jacks Bonnie and Clyde The Thomas Crown Affair Butch Cassidy and the Sundance Kid One Hundred Rifles Take the Money and Run The Wild Bunch Bloody Mama The Getaway Dillinger Thieves Like Us Dog Day Afternoon W. W. and the Dixie Dancekings The Long Riders Wisdom Three Fugitives Harley Davidson and the Marlboro Man Point Break Lightning Jack Public Enemies The James Gang The Newton Boys Bandits Riders Catch That Kid
Another early defense against bank robberies was the use of armed guards; however, they generally proved ineffective, so banks shifted their protective efforts to improved technology. Bank-prevention devices include alarm systems, video cameras for surveillance, tracking devices, and automatically locking entry and exit doors. Some of these devices are used to prevent robberies, while others aid police in tracking down thieves who succeed in getting away with the banks’ money. Tellers at all banks have switches to silent alarm systems within their 52
Bank robbery reach. The alarms are hidden from bank robbers but can be easily activated by employees. Once activated, the alarms alert police that robberies are in progress and give them a head start in tracking robbers as the latter leave the scenes of their crimes. At the same time, trained tellers try to delay handing over money to give the police more time to arrive on the scene. When police do not arrive while robberies are in progress, banks have the means of identifying the robbers using security cameras. Such cameras take pictures of robbers’ faces, but professional thieves generally wear masks or widebrimmed hats to obscure their faces. Some banks have taken to using closedcircuit cameras that send their pictures directly to police stations, alerting them of robberies in progress and allowing trained police to witness the crimes and the robbers. Banks also use tracking devices, the best known of which are dye packs. When tellers load money into bags for robbers, they try to insert dye packs that are designed to explode after they leave the banks. The explosions spread brightly colored dyes over both the stolen money and the robbers, making apprehension and identification easier. Banks also try to insert sophisticated tracking devices among stolen money. These devices emit signals that police can use to track down the robbers. Part of the stolen money itself can also serve as a tracking device. Banks provide tellers with packs of marked money whose serial numbers are recorded. When thieves take the marked money, police distribute the serial numbers to local businesses, which contact the police when the stolen bills are used at the business. Some banks have special entrances with devices that detect firearms. When the devices sense guns, they automatically lock the banks’ inner doors, preventing persons with guns from entering. Most of these defenses require the quick thinking and action of bank employees. Banks utilize training sessions including fake robberies carried out by the police. These teach employees how to handle bank robberies without getting themselves killed or injured, while increasing the chances of catching the thieves. When robbers are not immediately captured, the police use wanted posters, television programs, and the Internet to solicit public help in identifying and locating the suspects. Bank robbers are occasionally successful at stealing large amounts of money and escaping. When that happens, law-enforcement agencies generally must wait for the robbers to perform additional crimes. The more robberies that criminals commit, the more likely it is that they will make mistakes and be captured.
53
Bank robbery Prosecution During the nineteenth century, bank robberies were purely local concerns, as no federal law-enforcement agencies were designed to combat such crimes. As the numbers of bank robberies increased, the federal government became involved indirectly. For example, a 1919 federal law made it a crime to drive getaway cars across state lines. When bank robbers broke this law during their escapes, the federal government was authorized to become involved. The rise in crime during the 1920’s and early 1930’s prompted Congress to consider making bank robbery a federal offense. Finally, in 1934, Congress enacted a law making bank robbery a federal crime, and it gave the FBI primary responsibility for tracking down bank robbers. While local police are the first on the scene at bank robberies and frequently capture bank robbers, the federal government is responsible for prosecuting them. Bank robbery is a serious felony under federal law. Robbers who perform heists at several banks, steal tens of thousands of dollars, or use or threaten to use weapons can be incarcerated for more than ten years. The more additions to the crime, the longer the punishment. Douglas Clouatre Further Reading De Simone, Donald. I Rob Banks: That’s Where the Money Is. New York: SPI Books, 1992. Describes the career of bank robber Willy Sutton, his various heists, and his escapes from prison. Kirchner, L. R. Robbing Banks: An American History, 1839-1999. New York: DeCapo Press, 2000. This book discusses bank robbery and how it differs from other types of crimes, while highlighting some of the best-known bank robbers in history. Newton, Michael. The Encyclopedia of Robberies, Heists and Capers. New York: Checkmark Books, 2002. Quick reference book describing some of the great bank robberies and other robberies that have occurred through history. Pinkerton, Allan. Banks: Robbers and the Detectives. New York: Fredonia Books, 2002. The autobiography of the founder of the Pinkerton Detective Agency, this book discusses how Pinkerton and his agency tracked down bank robbers when the federal government could not. Rehder, William J., and Gordon Dillow. Where the Money Is: True Tales from the Bank Robbery Capital of the World. New York: W. W. Norton, 2003. Written by a former FBI agent, this book details how he investigated bank robberies and includes stories about some modern heists and thieves. 54
Bigamy and polygamy Swierczynski, Duane. This Here’s a Stick Up: The Big Bad Book of American Bank Robbery. Indianapolis: Alpha Books, 2003. Fast-paced book that highlights some of the famous bank robbers and heists in U.S. history and discusses in detail how criminals rob banks and the investigation techniques and methods used by banks to prevent bank robberies or capture bank robbers. See also Bribery; Cybercrime; Embezzlement; Federal Bureau of Investigation; Motor vehicle theft; Robbery.
Bigamy and polygamy Definition: Condition of having more than one spouse at the same time Criminal justice issues: Sex offenses; victimless crimes Significance: Both bigamy and polygamy are illegal practices in the United States, but neither is regularly prosecuted. The legal ramifications of bigamy include possible felony convictions for fraud resulting in imprisonment for no less than two and no more than seven years. Both bigamy and polygamy are defined as having more than one spouse. Bigamy is the crime of one person’s knowingly taking a second spouse through a fraudulent marriage, while that person’s first marriage remains legally binding. By contrast, polygamy is the practice of having more than one spouse, or love partner, with the knowledge and consent of all the partners, even though only one marriage is legally binding. In legal terms, then, the key distinction between bigamy and polygamy is that the deceit inherent in the former is absent in the latter. Anyone who willfully and knowingly enters into a second marriage before a prior marriage has been legally terminated by divorce, annulment, or death of the first spouse commits the crime of bigamy. It is not bigamy, however, for people to remarry after their spouses have been missing for a specific number of years—usually seven—and are not known to be alive. If a first spouse reappears, proof must be offered that there was a false report of death or that there has been no knowledge of the first spouse’s existence for a specified period of time. When this proof is accepted, laws in most states do not consider such remarriages bigamous. In some states, a remarried person may choose between their two spouses, and one of the marriages must be annulled. During the mid- to late nineteenth century, polygamy was a commonly 55
Bigamy and polygamy
“Bigamy” vs. “Polygamy” Bigamy and polygamy are two of a variety of English terms for multiple marriage, and both words have ancient roots. Bigamy, which is generally understood to be the practice of having two (and only two) spouses, derives from Latin bi- for “two” and -gamia for “marriage.” Polygamy, which is the word generally used for plural marriages involving more than two spouses, incorporates the Greek poly for “many.” Other terms include “polygyny,” the condition of having multiple wives. It derives from Greek poly for “many” and gynT for “woman” (as in “gynecology”). By contrast, “polyandry,” the practice of having multiple husbands, is from a Greek—by way of Latin—word for “man.”
accepted and publicly taught practice among Mormons—members of the recently established Church of Jesus Christ of Latter-day Saints, who built their church in what was then the federal territory of Utah. In 1862, the U.S. Congress formally made polygamous marriages illegal in federal territories. Although Mormons believed that their religious-based practice of what they called “plural marriage” was protected under the U.S. Constitution, its practice was used to delay Utah’s admittance to the Union as a state until 1896. Because antipolygamy legislation stripped members of the church of their rights as citizens and permitted government seizure of church property, the church ordered the official discontinuance of this practice in 1890. In the early twenty-first century, many communities in the United States continue practicing polygamy, which they believe to be constitutionally protected under the principles of religious freedom, the right to privacy, and separation of church and state. These issues represent the focal point for legal challenges regarding polygamy, and since it also has been perceived as a victimless crime, courts have continued to look the other way. However, several recent incidents in Utah have brought polygamy back to the courts’ attention. In one, a sixteen-year-old girl was severely beaten by her father when she refused to marry her uncle. In another, a group of former polygamist wives formed the Tapestry Against Polygamy, and the Salt Lake Tribune ran a series of investigative exposés that documented reliance on welfare benefits, forced marriages, incest, pedophilia, and abuse. Bernadette Jones Palombo
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Blackmail and extortion Further Reading Harriss, John, ed. The Family: A Social History of the Twentieth Century. New York: Oxford University Press, 1991. Henslin, James M., ed. Marriage and Family in a Changing Society. 4th ed. New York: Free Press, 1992. Holmes, Stephen T., and Ronald M. Holmes. Sex Crimes: Patterns and Behavior. 2d ed. Thousand Oaks, Calif.: Sage Publications, 2002. Wietzman, Lenore J. The Marriage Contract: Spouses, Lovers, and the Law. New York: Free Press, 1981. Yalom, Marilyn. A History of the Wife. New York: HarperCollins, 2001. See also Adultery; Fraud; Multiple jurisdiction offenses.
Blackmail and extortion Definition: Crimes associated with the unlawful coercive extraction of money or other gain from victims by threatening harm or instilling fear Criminal justice issues: Business and financial crime; terrorism; whitecollar crime Significance: Blackmail and extortion are predatory and coercive criminal acts that take a variety of forms, all of which use coercion to extract money or property from their victims. The emergence of extortion and blackmail in related acts such as cybercrime and international terrorism represents ongoing threats to all levels of government and corporate entities, individual political or celebrity figures, as well as private citizens. Blackmail and extortion are both crimes in which offenders extract payments—in money or property—from their victims through some criminal means, such as threatening the victims with harm, harm to the their loved ones, damaging accusations, or revelations of detrimental information. A 1952 case involved a group of offenders who baited men into homosexual situations and actions and then coerced payments from their victims by threatening to expose them as homosexuals at a time when such revelations could have ruined the victims’ lives. Definitions Blackmail and extortion are usually regarded as felonies. Extortion is considered to be a more general crime than blackmail and includes the un57
Blackmail and extortion lawful demand for money that is not legitimately due, often by an officer or other persons in official capacities. Extortion can involve any type of intimidation or threat against victims or those close to the victims. Extortion that is based on direct threats of physical harm to victims is considered robbery. The threats of harm or violence can be either explicit or implicit. Extortion also refers to the abuse of official power, in which public officers misuse their official status or authority to take property or money unlawfully. The criminal means and the attainment of money or property are both elements of the crimes. Blackmail is regarded as a particular type of extortion, in which victims are threatened with the release of damaging or embarrassing revelations that are likely to harm the victims’ reputations. Ransom and bribery are also often considered to fall under the definition of extortion. The Federal Bureau of Investigation’s Uniform Crime Reports (UCR) do not include a specific category for extortion or blackmail. However, the National Incident-Based Reporting System defines these crimes as the unlawful attainment of “money, property, or any other thing of value, either tangible or intangible, through the use or threat of force, misuse of authority, threat of criminal prosecution, threat of destruction of reputation or social standing, or through other coercive means.” History and Prevalence Extortion and blackmail have probably been around as long as humans have lived together in societies. Because extortion and blackmail are driven by the abuse of authority, coercion, threats, and illicitly deriving material gain, some form of extortion or blackmail has most likely always attended human society. The books of Matthew and Corinthians in the Bible both allude to Pharisees and tax collectors who use their status to extort money from the people. During the Middle Ages, church officials were often charged with extortive acts. The Sicilian Mafia grew out of an organized extortion system that supported local chieftains, providing protection for and settling disputes for villagers in return for payments. Some Sicilian-Italian extortionists transferred their practices to the United States when they emigrated from the Old World. Known as the Black Hand, these loosely organized criminals threatened their fellow Italian immigrants with violence if the victims did not pay for protection. In the modern United States, extortion and blackmail continue to be linked with various forms of white-collar crimes, larceny, robbery, and other related offenses. Extortion and blackmail continue to play a part in orga58
Blackmail and extortion nized criminal activities as well as corporate, bureaucratic, and other whitecollar criminal actions. The reluctance of victims to report extortion attempts makes tracking extortion data difficult. Extortion and blackmail can take many forms: from local protection rackets to single blackmailers with damaging photos to organized rings of corrupt police officers. Extortion and blackmail represent crimes of opportunity and abuse of power or advantage. Victims of blackmail and extortion are sometimes forced to continue making payments well beyond the extortionists’ initial demands, as the offenders prey on their victims over the course of years. In addition to traditional extortion shakedowns, organized shake-down efforts, and official abuse, another emerging threat relates to cybercrime. Corporations and individuals whose vital and personal information is stolen by hackers represent a new direction for this age-old crime. Computer hackers who gain access to and then hold particular damaging or sensitive items of information for ransom are a recent type of criminal to engage in extortion and blackmail. Extortion and blackmail are also used as tools by terrorists who threaten violence and murder if their demands are not met. The use of videotaped and Internet-disseminated threats by terrorist factions represents a disturbing new trend for this venerable criminal activity. Because extortion and blackmail do not have their own UCR criteria, they are often layered into other white-collar crimes, as well as robbery and larceny. Reliable data for the national aggregate incidence of these crimes are scarce. However, sources indicate the rate of blackmail and extortion is growing, due to the growth of cybercrime. Extortion and blackmail are global threats, and governments, corporations, political figures, and private individuals are all potentially vulnerable. When these crimes are folded into other crimes, such as kidnapping, as-
The Sin of Extortion in the Bible Know ye not that the unrighteous shall not inherit the kingdom of God? Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, Nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God. 1 Corinthians 6:9-10
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Blackmail and extortion sault, and murder, it becomes easier to understand the threat that they pose—not only to individual citizens but also to national and international stability. Because these crimes are based on coercion and fear, as well as the use of damaging information, opportunities to engage in them are limited only by the imaginations of the offenders. Investigation The investigation, prosecution, and punishment of blackmail and extortion are hampered by the wide-ranging nature of these crimes. Investigation and prosecution of blackmailers and extorters can be hampered by the victims’ fears. Victims of these crimes may face violent retribution by the offenders, personal or professional embarrassment, or criminal prosecution for their own illicit activities. Furthermore, corporate victims of extortion may face having to make hard choices between giving in to extortionist demands and risking having proprietary or embarrassing information exposed, damaging their financial status and their public reputations. For all these reasons, victims tend to be reluctant to report the crimes and may not cooperate fully with the investigators. Extortion victims may range from the owners of neighborhood businesses forced to pay protection money to gangs to avoid having their businesses burned to the ground to international companies making hush payments to keep embarrassing or incriminating information from being made public. In both types of cases, the reluctance of victims to report the crimes or cooperate fully with law enforcement can obstruct the investigative process. When perpetrators are government officials who are committing extortion under color of authority—such as police officers or prosecutors who abuse their powers for financial gain—victims may be especially wary of pursuing criminal investigations. They may fear that they will not be believed or that their cases will be ignored by authorities. Prosecution As in any criminal investigation and prosecution, the elements of blackmail and extortion crimes must be substantiated and eventually proved. These elements include not only the forced payment of property or money but also proof that the offenders have used criminal means to collect the payments. In cases involving threatened violence, this element can be investigated and proved in a straightforward manner. A pizza shop owner who pays for protection to avoid being beaten or killed or to keep from having his store ransacked and burned is clearly being extorted. By contrast, a cor60
Blackmail and extortion poration that hides its extortion payments as “settlements” or as business expenses to avoid exposing sensitive or proprietary information represents a greater challenge for investigators. Because extortion and blackmail can take so many forms, from subtle and implicit to overtly threatening, investigators must demonstrate that offenders have indeed used criminal means to extract payments from their victims. Finally, the crimes of extortion and blackmail are often packaged into other criminal acts, such as robbery, bribery, assault, embezzlement, cybercrime, abuse of authority, and racketeering. Therefore, inquiries into one of these other related offenses may lead to charges of extortion and blackmail that might not be apparent at the beginning of an investigation. Conversely, officials investigating homicides or aggravated assaults must remain open to the possibility that the victims of these offenses might have been perpetrating blackmail or extortion themselves. Organized extortion, such as that traditionally practiced by the Mafia, can also fall under the Racketeer Influenced and Corrupt Organizations (RICO) Act (1970), introducing federal jurisdiction into cases that may originate in state or local investigations. Punishment Blackmail and extortion are considered either felonies or misdemeanors, depending upon whether violence is threatened or used in commission of the crimes, the amounts of payments sought, and other factors. Federal sentencing guidelines set forth criteria on the different types of extortion, including extortion by means of false accusation, by threats of kidnapping or murder, by sending threatening letters, or by verbal threats. Extortion attempts for payment amounts of five hundred dollars or less are considered to be misdemeanors under federal guidelines. Punishments under these statutes range from six months confinement for misdemeanor extortion by state or local officers (less than five hundred dollars) up to ten years for extortion offenses exceeding five hundred dollars that also involve written or verbal threats. When extortion is tied to other charges, such as assault, kidnapping, arson, bribery, or murder, the other offenses also carry their own punishments. Successful investigation and punishment of blackmail and extortion depend upon the ability of the investigator and the prosecution not only to establish the legal elements of those crimes but also to integrate other offenses that are packaged with them. David R. Champion 61
Booking Further Reading Chin, Ko-Lin. Chinatown Gangs: Extortion, Enterprise, and Ethnicity. New York: Oxford University Press, 1996. Study of extortion practiced by Chinese gangs in major cities. Friedrichs, David O. Trusted Criminals: White Collar Crime in Contemporary Society. 2d ed. Belmont, Calif.: Wadsworth, 2003. Comprehensive overview of ways to control white-collar crime. Katz, L. Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law. Chicago: University of Chicago Press, 1996. Broad study of extortion, fraud, and other related crimes. McChesney, F. S. Money for Nothing: Politicians, Rent Extraction, and Political Extortion. Cambridge, Mass.: Harvard University Press, 1997. Scholarly study that examines the role of extortion in political crimes. Verton, Dan. Black Ice: The Invisible Threat of Cyber-Terrorism. Emeryville, Calif.: McGraw-Hill, 2003. Examination of the dangers of cyberterrorist attacks on American computer networks. See also Criminal law; Federal Bureau of Investigation; Police corruption.
Booking Definition: Police administrative procedure following arrest, during which suspects are identified and official records of arrests are made Criminal justice issues: Arrest and arraignment; probation and pretrial release Significance: Booking records a suspect’s official entry (or reentry) into the criminal justice system and moves the suspect from the jurisdiction of the police department to that of the courts. Booking is one of many criminal procedures that suspects undergo following arrest. Police make an official record of arrest when a suspect is booked. This usually occurs at a police station or central booking facility and is managed by the arresting officer or booking personnel. Booking methods are guided by departmental “Standard Operating Procedures” and vary among law-enforcement agencies. During booking, all suspects are searched, fingerprinted, and photographed. Evidence is documented, and reports are begun. Positive identification is made by cross-checking the suspects’ Social Security numbers, driver’s license numbers, and dates of birth, and their photographs 62
Boot camps may also be checked against those stored in various databases. Other lawenforcement agencies are then contacted to determine whether the suspects have outstanding warrants, often using the National Crime Information Center (NCIC), a computerized database of criminal justice information. Arrest reports list this information as well as the dates, times, locations, and circumstances of arrests. Separate uniform incident reports contain narratives describing the arrests and information pertinent to the crimes committed and offenses charged. The entire booking process generally takes between one and two hours. If a maximum of forty-eight hours has elapsed, a person must either be charged with a crime or released. If charged, the defendant will be given a complaint summons. This document states the charges and the time and place to appear in court. Those arrested and booked for serious offenses or those eligible for bail but lacking financial resources must remain at a jail or holding facility until their initial appearance. People arrested for minor offenses are generally released on their own recognizance when booking is complete. The procedural treatment of defendants throughout the booking process is subject to judicial review. A suspect is booked pursuant to the commission of a crime, investigation, and arrest. Following booking, defendants move to the jurisdiction of the courts for their initial appearance before a magistrate. Joel M. Caplan Further Reading Cole, Simon A. Suspect Identities: A History of Fingerprinting and Criminal Identification. Cambridge, Mass.: Harvard University Press, 2001. Discusses human identification techniques since the seventeenth century. Feld, Barry C. Cases and Materials on Juvenile Justice Administration. 2d ed. St. Paul, Minn.: Thomson/West, 2004. Compilation of court cases, statutes, and articles on juvenile administrative procedures in the United States. See also Arrest; Bail system; Criminal procedure; Criminal records; Suspects.
Boot camps Definition: Alternative form of incarceration using rigid discipline modeled on military training camps Criminal justice issues: Juvenile justice; prisons; punishment 63
Boot camps Significance: The United States incarcerates a higher proportion of juveniles and young adults than most of the nations of the world. The resulting high costs and overcrowding, with few positive rehabilitation benefits, have created a need for more cost-effective programs that reduce recidivism rates. It was initially hoped that boot camps would meet these goals; however, they have failed to fulfill their promise. Boot camps—or, as they are also known, shock incarceration programs— were first established during the 1980’s in response to rising crime rates, overcrowding in prisons, and high recidivism rates. The camps were intended to be an intermediate sanction between long-term institutionalization and immediate supervised release. While boot camp programs were originally designed for adults, the juvenile justice system has also adopted them. Some boot camps are financed and run by state governments, while others are privately owned and operated. Private boot camps often operate with little regulation. The great majority of boot camps are for male prisoners only, but a few have included female prisoners, and some have been designed exclusively for female prisoners. Shock Incarceration The types of programs known as “boot camps” vary considerably. The military “basic training” aspect of boot camps is what distinguishes them from other correctional programs. These camps are referred as “shock incarceration” because they offer short, stressful experiences that are intended to encourage reform by the offenders. The first-generation boot camps emphasized military discipline, physical training, and hard physical work. Second-generation camps placed more emphasis on rehabilitation by adding such components as alcohol and drug treatment and social skills counseling. By the early twentieth century, some boot camps—particularly those for juveniles—were placing greater emphasis on educational and vocational skills than on military components, while still providing similar structure and discipline. Adult boot camp programs are primarily designed for younger, nonviolent offenders with first felony convictions. However, some camps have age limits as high as forty years. Juvenile boot camps are also restricted to nonviolent, first-time offenders. Lengths of stay are generally from three to six months in adult boot camps and from one to three months in juvenile camps. Adults are placed in boot camps through criminal courts. State courts also send juveniles to state-run boot camps, but juveniles are also sent to private boot camps by other courts and parents. 64
Boot camps Oklahoma and Georgia were the first states to implement boot camp programs during the early 1980’s. Other states followed in rapidly increasing numbers during the late 1980’s and early 1990’s. However, during the mid1990’s, both the numbers and daily populations of boot camps started decreasing, and that trend has continued through the first half decade of the twenty-first century. The state of Texas, formerly a leading state in boot camps, provides one example. By August, 2004, officials in Texas had shut down or converted six of the state’s seven boot camps that had been created during the 1990’s. Georgia, Colorado, North Dakota, and Arizona have all ended their programs, and both Florida and California have scaled back their programs. Decline of Boot Camp Programs The two most prominent reasons for the decline of boot camps are research findings indicating that the camps have failed to achieve their goals and widespread reports of abuses, deaths, and lawsuits. In 2003, the National Institute of Justice concluded a summary of research done on boot camps over a ten-year period. That study analysis found that while boot camps did have positive effects on the attitudes, perceptions, behaviors, and skills of inmates in the programs, the programs did not result in reduced recidivism, with limited exceptions. Similarly, a study in 2003 by the Texas Department of Criminal Justice found that people in drug treatment or employment-training programs were less likely to be recidivists than those who were sent to boot camps. The National Institute of Justice study, as well as other research, indicates that boot camps cost somewhat less than prison or juvenile training schools, resulting in modest reductions in correctional costs. They can also contribute to small reductions in prison and training school populations. Numerous reports of abuses, deaths, and suicides at both juvenile and adult boot camps across the country have also contributed to their decline, both because they have outraged people and because they have resulted in expensive lawsuits. Notorious examples include a 2000 case involving a fourteen-year-old girl who died from heat exhaustion in a South Dakota boot camp, where she was placed for shoplifting, after her drill instructors decided that her complaints were merely malingering. In 2001, a sixteenyear-old in Arizona died after being punished for discipline violations. By 2003, at least thirty-six juveniles had died in boot camps. Financial risks may have as much to do with the reduction in use of boot camps as abuses and deaths. Courts have ordered many states and private corrections corporations to pay large amounts in punitive damages. For 65
Boot camps example, a class-action suit in Maryland led to a court order for the state to pay $4 million to juveniles abused at its boot camps from 1996 to 1999. The largest such award was in Texas in 2003, when a Tarrant County jury ordered the Correctional Services Corporation to pay the parents of a juvenile named Bryan Alexander $5.1 million in punitive damages and $35 million in actual damages for their son’s death and suffering and their mental anguish. The boy had died at the Mansfield boot camp run by the Correctional Services Corporation, which is based in Florida. The Future of Boot Camps It is generally believed that if boot camps are to have a future in either the adult or juvenile justice system, they must be better regulated and be more successful in reducing recidivism. Moreover, the National Institute of Justice study and other smaller research studies indicate that if boot camps are to be more successful in the future there should be a standard boot camp model that includes therapeutic programs as well as discipline, with more emphasis on reentry into the community and post-release supervision and assistance. Jerome L. Neapolitan Further Reading Allen, Harry E., Clifford E. Simonsen, and Edward J. Latessa. Corrections in America: An Introduction. 11th ed. Upper Saddle River, N.J.: Pearson/ Prentice-Hall, 2007. An introductory discussion of the history of corrections, sentencing, incarceration, alternatives to confinement, types of offenders under correctional supervision, and reintegration. Champion, Dean John. The Juvenile Justice System: Delinquency, Processing, and the Law. 5th ed. Upper Saddle River, N.J.: Prentice-Hall, 2007. Broad overview of delinquency and the stages through which offenders are processed in the juvenile justice system. Kempinen, C., and M. Kurlychek. “An Outcome Evaluation of Pennsylvania’s Boot Camp: Does Rehabilitative Programming Within a Disciplinary Setting Reduce Recidivism?” Crime and Delinquency 49 (2003): 581602. Critical examination of the effects of one state’s boot camps on inmates. MacKenzie, D. L., and G. S. Armstrong. Correctional Boot Camps: Military Basic Training or a Model for Corrections? Thousand Oaks, Calif.: Sage Publications, 2004. Broad examination of the boot camp system. Parent, D. Correctional Boot Camps: Lessons from a Decade of Research. Washington, D.C.: U.S. Department of Justice, National Institute of Justice, 66
Border patrols 2003. Report from the National Institute of Justice’s ten-year study of boot camps. See also Juvenile justice system; Prison and jail systems; Recidivism; Rehabilitation; Sentencing; Work camps.
Border patrols Definition: Units of the federal agency that oversees the 8,000 miles of coastal and land boundaries of the United States Criminal justice issues: International law; law-enforcement organization; terrorism Significance: As a federal law-enforcement body under the aegis of the Department of Homeland Security, the U.S. Customs and Border Protection agency is responsible for controlling the entry of both people and substances into the United States. The U.S. Customs and Border Protection (CBP) is one of the busiest lawenforcement agencies in the United States. On March 1, 2003, the Department of Homeland Security unified border personnel working in the immigration, customs, agriculture, and border patrol divisions under one agency. Formerly known as the U.S. Border Patrol under the Immigration and Naturalization Service, the border patrol was originally founded in 1924 after Congress passed strict limitations on legal immigration. With only several hundred agents on horseback, there were challenges in patrolling all the areas between inspection stations in the United States. Over the next eighty years, the border patrols evolved into a technologically advanced and increasingly sophisticated workforce with nearly ten thousand uniformed agents. During the early twenty-first century, the CBP still maintained its primary mission to prevent the illegal entry of goods and immigrants into the United States. This duty, undertaken in cooperation with numerous other local and state law-enforcement agencies across the United States, resulted in approximately twelve million arrests between 1994 and 2004. This monumental task requires scrutiny from the land, air, and sea of more than 6,000 miles of international boundaries with Canada and Mexico and another 2,000 miles of coastal waters. Agents from twenty-one sectors across the United States work in all weather conditions and terrains, twenty-four hours a day, 365 days a year. 67
Border patrols Twenty-first Century Priorities During the 1980’s and 1990’s, Congress reacted to the increased flow of illegal immigrants and drugs across U.S. borders by providing for a significant increase in the number of agents and better technology to apprehend contraband and aliens. Drug seizures then became a major focus, with more than 18,500 pounds of cocaine and 1.1 million pounds of marijuana seized in 2001 alone by border patrol agents. Resources of equipment and personnel have typically been concentrated across the U.S.-Mexico border, where the majority of illegal entries have occurred. These initiatives in areas such as San Diego, California, resulted in illegal crossings decreasing by more than 70 percent during the late 1990’s. Similar strategic plans to concentrate resources have been implemented in Arizona, New Mexico, and Texas under the National Border Patrol Strategy. These activities have not occurred without controversy, as pro-immigration advocates and human-rights groups have protested the arrest and return of detainees to their home countries. In reaction to criticism of the border patrol’s inability to render aid to illegal aliens in remote and isolated areas, the CBP began the Border Safety Initiative in 1998, in joint cooperation with Mexican authorities. This plan seeks to reduce injuries and deaths along the border between the United
Selection and Training of Border Patrol Agents To become Customs and Border Protection agents, applicants must pass language and achievement tests, undergo federal background checks and thorough physical examinations, and complete personal interviews. Upon acceptance of their applications, agent trainees must successfully complete a rigorous nineteen-week program of study at a Federal Law Enforcement Training Center in Glynco, Georgia, or Charleston, South Carolina. Trainees must maintain 70 percent averages in their coursework, which involves physical training, firearms, driving, Spanish language, border patrol operations, immigration, criminal and statutory law, and other topics. They are also crosstrained in the areas of customs, money laundering, copyrights, patents, and smuggling of drugs and other contraband under various titles of the United States Code. After reporting to their assigned duty stations, trainees receive post-academy instruction and field training for an additional twelve months.
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Border patrols States and Mexico by sharing intelligence, conducting joint search-andrescue training, and posting signs that warn of the dangers of unauthorized border crossings. By reducing dangerous crossings, rescuing aliens in trouble, identifying casualties, and tracking and recording data collected from this initiative, the CBP aims to make national borders safer and to reduce fatalities. Immigration policies continue to be a considerable source of debate nationally, as some illegal immigrants are given asylum and others are deported back to their home countries. Laws passed by several presidential administrations have allowed for illegal immigrants to attain citizenship. These laws have been applauded by advocates of various immigrant populations and denounced by others who back strict enforcement of immigration laws across the United States. The most serious concern of the modern CBP since the terrorist attacks of September 11, 2001, involves intercepting terrorists who may be attempting to enter the United States, possibly with weapons of mass destruction. With the increased focus on homeland security, border defense and law enforcement have again become hot topics on Capitol Hill. The use of advanced military equipment such as the unmanned drone aircraft in mid2004 in the American Southwest and other developments offer the CBP new tools to stop the flow of illegal persons and goods into the United States. Denise Paquette Boots Further Reading Byrd, Bobby, and Susannah M. Byrd, eds. The Late Great Mexican Border: Reports from a Disappearing Line. El Paso, Tex.: Cinco Puntos Press, 1996. Sixteen essays that chronicle life on the U.S./Mexico border and the issues and influences that are part of this landscape. Crosthwaite, Luis Humberto, John William Byrd, and Bobby Byrd, eds. Puro Border: Dispatches, Snapshots and Graffiti from La Frontera. El Paso, Tex.: Cinco Puntos Press, 2003. This collage of illustrations and writings attempts to portray the various cultural and geographical considerations of those people who live on the line. Considers how the destitute of Mexico are ignored and forgotten. Krauss, Erich. On the Line: Inside the U.S. Border Patrol. New York: Kensington, 2004. A former border patrol agent details the five-month basic training regimen all agents must undergo and follows them into the field to give the reader a sense of how smugglers and drug dealers challenge these agents who work on the line every day. Moore, Alvin Edward. Border Patrol. Santa Fe, N.Mex.: Sunstone Press, 1991. 69
Breach of the peace Based on actual incidents, this fictional work describes a world of smugglers and illegal aliens and the dangerous nature of working on the U.S./ Mexico border. Nevin, Joseph. Operation Gatekeeper: The Rise of the “Illegal Alien” and the Making of the U.S.-Mexico Boundary. New York: Routledge, 2002. Details the federal government’s Operation Gatekeeper, which in the 1990’s targeted the San Diego-Tijuana border in efforts to stop illegal immigration. The author argues that this assault on immigration did not effectively reduce illegal immigration and served to inflame anti-Hispanic racism in the United States. Urrea, Luis Alberto. The Devil’s Highway: A True Story. New York: Little, Brown, 2004. Graphic, true story describes the harrowing journey of twenty-six Mexican men who attempted to enter the Arizona desert. The author argues that U.S. immigration policies are inhumane. Urrea, Luis Alberto, and John Lueders-Booth. Across the Wire: Life and Hard Times on the Mexican Border. New York: Doubleday, 1992. The author describes his interactions with Mexicans who live on the border and the deplorable living conditions that many of them endure. Williams, Mary E., ed. Immigration: Opposing Viewpoints. San Diego, Calif.: Greenhaven Press, 2004. Various social, political, and legal viewpoints are given by experts and observers familiar with immigration into the United States. See also Deportation; Drugs and law enforcement; Homeland Security Department; Immigration and Naturalization Service; Law enforcement.
Breach of the peace Definition: Disorderly behavior that disrupts the tranquillity or security of other individuals Criminal justice issues: Constitutional protections; morality and public order; punishment Significance: The preservation of public peace is a basic goal of the U.S. Constitution. Breach of the peace covers crimes that cause disruption of the peace or infringe on the security of individual citizens or communities. Other terms commonly associated with breach of the peace are disorderly conduct, disorderly behavior, and disturbance of the peace. Individuals can be arrested 70
Bribery for breach of the peace for a wide variety of reasons. Offenses classified as breach of the peace include riots, harassment, unlawful assembly, forcible entry, open obscenity, obstruction of the flow of traffic, unlawful discharge of firearms, public fighting, aggressive begging, use of abusive or threatening language, and public drunkenness. Since it is a rather flexible charge that is often implicit in the commission of most crimes, breach of the peace has sometimes been used as a catch-all offense when no alternative charge is available. Breach of the peace is punishable as a misdemeanor. Article I of the U.S. Constitution provides all members of the U.S. Congress with congressional immunity while Congress is in session, meaning that Congress members cannot be arrested for any unlawful offense while going to and from sessions or while in session, except for cases that involve breach of the peace, felony, or treason. In the case of Edwards v. South Carolina in 1963, the U.S. Supreme Court ruled that a subjective, unsupported fear of a breach of the peace was never grounds for suppressing any freedoms guaranteed by the First Amendment of the Constitution. Alvin K. Benson Further Reading Garner, Bryan A., ed. Black’s Law Dictionary. 8th ed. St. Paul, Minn.: Thomson/West, 2004. Garner, Bryan A., David W. Schultz, Lance A. Cooper, and Stephen W. Kotara, eds. A Handbook of Basic Law Terms. St. Paul, Minn.: West Publishing, 1999. Vile, John R. A Companion to the United States Constitution and Its Amendments. 4th ed. Westport, Conn.: Praeger Publishers, 2006. See also Citizen’s arrests; Disorderly conduct; Loitering; Misdemeanors; Public-order offenses; Resisting arrest; Vagrancy laws; Victimless crimes.
Bribery Definition: Illegal offering of money, goods, or favors, and acceptance of such offers—especially by public officials—for the purpose of influencing an official’s actions Criminal justice issues: Business and financial crime; government misconduct; morality and public order Significance: Bribery is a crime in which parties give and receive items or 71
Bribery services of value in exchange for favors, usually having to do with public administration. This crime leads to many forms of corporate and governmental corruption that erode public trust in business and government. Bribery dates back at least as far as biblical times, when it was regarded as a punishable offense to attempt to influence judges with gifts or promises of gifts. Because the judges were viewed as representing God, acts of bribery were considered to be sins against the divine. As society evolved through history, the crime of bribery was included in various European common-law doctrines. England, for example, included offenses such as bribery in its law to establish and maintain the integrity of acts conducted by public officials. Other acts that were made illegal in order to enhance the honesty of public officials included perjury, obstruction of justice, and resisting arrest. To understand bribery fully, the common-law definition adopted in England must be referenced to explain the crime in its original context. During medieval times, bribery was criminalized to punish only those persons whose actions were intended to influence wrongfully public officials who were part of the criminal justice system. During that period, bribery was deemed a misdemeanor offense. As common law evolved, the scope of bribery legislation changed to include anyone who either gave or received anything of value for the purpose of influencing any public official’s legal duty. Then, as now, both givers and receivers of bribes were regarded as equally guilty. Forms of Bribery Criminal acts of bribery can take place in many different ways. The common-law definition dealt specifically with those individuals who tried to bribe public officials. Today, the scope of bribery has widened to include not only public officials but also employees working in any capacity for these officials, as well as commercial acts of bribery and sports bribery. Examples of bribery include bribing legislators to vote particular ways on issues, bribing judges to make rulings in favor of known criminal offenders, and bribing members of government to secure business contracts for companies. Some forms of bribery may even take the form of charitable gifts or endowments in exchange for political or businesses favors. Commercial bribery encompasses illegal business practices in which purchasing agents are given bribes in return for guaranteeing business transactions. Money, services, and political favors are a few of the most common types of bribes offered in acts of commercial bribery. Sports bribery laws make it a criminal offense to offer anything of value to participants or offi72
Bribery cials in amateur and professional athletic events. The purpose of such bribes is to alter the athletes’ performances or to influence officials to alter their rulings. Bribes can take the form of either tangible or intangible items or promises. Examples of tangible bribes include money, secured contracts, sexual favors, and illegal use of government or company property. Intangible bribes mainly include future promises to complete certain predetermined tasks or duties that favor the parties who are acting in the capacity of the givers. Examples of intangible bribes include stock or bond options. Prevalence As with other types of white-collar crime, there is a paucity of statistics that can offer a true picture of the extent of bribery. The true prevalence and scope of the crime can only be estimated by using the Federal Bureau of Investigation’s National Incident-Based Reporting System (NIBRS). According to NIBRS officials, bribery as a white-collar offense has a higher proportion of individual victims than other property and white-collar offenses. Compared to other white-collar offenses, bribery tends to have the fewest reported incidents—an average of fewer than two hundred cases per year from the late 1990’s through 2004. However, this statistic may be misleading, as measurement and recording errors are always a possibility in quantitative research. It should also be noted that only about 4,000 of the 19,000 lawenforcement agencies in the United States report their crime statistics. Of the average two hundred yearly incidents reported in recent years, there has been a 94-percent success rate in prosecutions. However, this figure is only an estimate. To gauge the true prevalence of bribery more accurately, more research needs to be done. Investigation Bribery is an intricate and sometimes complicated crime to prove. It takes a concerted effort on the part of experienced investigators and prosecutors to mount strong cases against both givers and receivers of bribes. All parties are equally culpable; however, the mere offering of a bribe that is not accepted may also constitute a crime by itself. Investigating bribery takes many hours of evidence gathering, interviewing witnesses, and corroborating facts. Most local, state, and federal law-enforcement agencies are empowered to investigate and arrest parties involved in bribery. Investigators at all levels must work with prosecutors to ensure that the evidence of the crime is in order before arrests and convictions can be sought. This is difficult at local lev73
Bribery els because many departments’ resources are spread thin. To compound this problem, few local investigators are familiar with the techniques for investigating and establishing cases against white-collar offenders who engage in crimes such as bribery. Federal investigators, on the other hand, have more resources, including manpower, technical investigative skills, and finances to combat bribery. Prosecution The main component of bribery is the illegal offer or agreement to give or do something in exchange for favors. Prosecutors must not only prove that defendants have the criminal intent to carry out their bribes but also provide evidence regarding the actual offers, agreements, or requests and acceptances of things of value. The main obstacle for prosecution of most bribery cases is the matter of intent. This is the most difficult element of the crime to prove because there must be concrete evidence that the transactions or attempted transactions have in fact taken place. Savvy criminals who are familiar with bribery laws often make their bribes in the form of gifts or endowments to reduce the possibilities of being detected. Federal bribery statutes tend to focus on government officers and support employees, along with public witnesses and jurors who are testifying in federal cases. State bribery laws vary and usually offer only general definitions of the crime. However, many states are now broadening the parameters of their bribery laws to include new categories of perpetrators and illegal conduct. Punishment Under common law, punishments for bribery tended to be less harsh than they are today. In fact, bribery was considered merely a misdemeanor offense, so most punishments involved little or no time in prison. Now, however, bribery is considered a felony offense by both state and federal governments. Federal and state authorities offer stiff criminal penalties for engaging in bribery. Most states and the federal government offer either imprisonment, probation, fines, or combinations of all three sanctions. Depending on the size of their bribes, convicted felons generally receive prison sentences, hefty fines, and some form of supervised probation. Average prison sentences for persons convicted of bribery are sixteen to nineteen months, but federal and state sentences may be as high as ten years. Moreover, both givers and receivers of bribes may be found criminally liable, and both are likely to receive the same sentences. 74
Bribery The first years of the twenty-first century have seen increasing numbers of white-collar crimes in the United States. For some government officials, however, bribery is the price of doing business. The federal government and the governments of most states have prescribed stiff penalties for persons convicted of bribery. This notable increase in punishment offers a decisive indication that both state and federal authorities regard bribery as a serious crime, harmful to the integrity of society as a whole. Paul M. Klenowski Further Reading Blintliff, Russell L. Complete Manual of White Collar Crime Detection and Prevention. Englewood Cliffs, N.J.: Prentice-Hall, 1993. Offers a detailed look at the different forms of white-collar crimes including bribery. Detection, investigation, and prevention measures are outlined in great detail. Friedrichs, David O. Trusted Criminals: White Collar Crime in Contemporary Society. 2d ed. Belmont, Calif.: Wadsworth, 2003. Comprehensive overview of method for controlling white-collar crime. Heftel, Cecil. End Legalized Bribery: An Ex-Congressman’s Proposal to Clean Up Congress. Washington, D.C.: Seven Locks Press, 1998. Impassioned case by a former five-term congressman for eliminating the corruption of Congress by corporate influence buyers. Reiman, Jeffrey H. The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice. 8th ed. Boston: Pearson/Allyn & Bacon, 2007. Critical assessment of the failure to control white-collar crime. Scheb, John M., and John M. Scheb II. Criminal Law. 5th ed. Belmont, Calif.: Wadsworth/Cengage, 2008. General criminal law text that offers a fascinating historical examination of crimes such as bribery. Covers the evolution of English common law into today’s modern law. Simon, David R. Elite Deviance. 9th ed. Boston: Pearson/Allyn & Bacon, 2008. Penetrating and unbiased view of white-collar crime in general. Bribery is explained, and many real-life examples are offered throughout. Vincke, François, Fritz Heimann, and Ron Katz, eds. Fighting Bribery: A Corporate Practices Manual. Paris: ICC, 1999. Practical handbook for businesses published by the International Chamber of Commerce. See also Bank robbery; Blackmail and extortion; Police corruption; Whitecollar crime. 75
Bureau of Alcohol, Tobacco, Firearms and Explosives
Bureau of Alcohol, Tobacco, Firearms and Explosives Identification: Federal agency that enforces federal laws involving firearms, moonshine liquor, untaxed cigarettes, and explosives Date: Established as the Alcohol Prohibition Unit in 1919 Criminal justice issues: Federal law; law-enforcement organization; substance abuse Significance: Originally created to enforce the federal prohibition on alcohol, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has undergone many changes during its history and is now the main federal agency responsible for the enforcement of gun-control laws. It has many other responsibilities, but its involvement in gun-law enforcement has made it one of the most controversial federal law-enforcement agencies. The Bureau of Alcohol, Tobacco, Firearms and Explosives began in 1919 as the Alcohol Prohibition Unit in the Bureau of Internal Revenue (which later became the Internal Revenue Service). It was soon moved to the Department of Justice and was renamed the Bureau of Prohibition. Under that name, it enforced federal laws against the consumption or manufacture of alcohol. After Prohibition was repealed in 1933, the bureau was returned to the Treasury Department’s Bureau of Internal Revenue. At first called the Alcohol Tax Unit, it was renamed the Alcohol and Tobacco Tax Division (ATTD). Federal laws required that alcohol producers and tobacco sellers pay special excise taxes. Some citizens, particularly in the South, produced “moonshine” liquor without paying the necessary taxes and sold their homemade liquor in states or localities where alcohol was illegal. Through the 1960’s, the ATTD’s main law-enforcement responsibility was pursuit of illegal liquor stills, especially in southeastern states. The ATTD also regulated the lawful commerce of alcohol, acting as the administrative agency to enforce alcohol production and sales by legitimate companies, pursuant to the federal Alcohol Administration Act of 1935. The U.S. Constitution does not explicitly grant the federal government any law-enforcement powers, except in a few discrete areas, such as piracy and counterfeiting. That is why it was necessary to add the Eighteenth Amendment to the Constitution in 1919 to empower the federal government to enforce prohibition. In 1934, when Congress wanted to impose federal controls on the possession of machine guns, it used its taxing power. 76
Bureau of Alcohol, Tobacco, Firearms and Explosives The National Firearms Act that Congress passed that same year required that owners of machine guns—and certain other firearms—pay a federal tax and register their guns with the federal government. The latter requirement was ostensibly enacted for tax purposes but was actually a method by which the federal government gave itself control over firearms ownership. The ATTD was given responsibility for enforcing this new tax law. Expanding Jurisdiction As national crime rates rose during the 1960’s, Congress passed new federal crime laws. The U.S. Supreme Court’s increasingly expansive interpretations of Congress’s power to regulate interstate commerce provided the basis for new laws enacted on the theory that local crime affects interstate commerce. In 1968, Congress passed the Gun Control Act, which provided detailed regulations for the retail sale of firearms and prohibited large classes of people from buying guns. The following year, the ATTD was renamed the Alcohol, Tobacco and Firearms Division (ATFD) and given responsibility for enforcing the new Gun Control Act. In 1970, Congress passed the Explosives Control Act. The ATFD and the Federal Bureau of Investigation (FBI) shared responsibility for enforcing this law’s criminal law provisions, but the ATFD took sole responsibility for regulating the lawful production and sale of explosives. Two years later, the ATFD was removed from the Internal Revenue Service. Renamed the Bureau of Alcohol, Tobacco and Firearms (ATF), it became an autonomous law-enforcement agency within the Treasury Department, along with that department’s Secret Service and Bureau of Customs. Gun Enforcement Controversy The ATF’s enforcement of the new gun laws was controversial from the start. Many gun owners—as well as groups such as the National Rifle Association, Gun Owners of America, and Second Amendment Foundation— contended that ATF tactics were unconstitutional and illegitimate. They claimed that the agency often seized guns and refused to return them, even
Text of the Second Amendment A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
77
Bureau of Alcohol, Tobacco, Firearms and Explosives
The forerunner of the ATF was established in 1919 to enforce the new federal prohibition laws. Here agents are seen pouring confiscated alcoholic beverages down a sewer drain. (Library of Congress)
when there was no legal basis for doing so. Critics of the agency also charged that ATF agents entrapped many innocent people into committing technical violations of federal laws and that the agency frequently abused its search and seizure powers. The ATF denied the charges, but a unanimous 1982 report of the U.S. Senate Subcommittee on the Constitution provided a scathing denunciation of ATF tactics. In 1986, Congress passed, by large margins in both the House and the Senate, the Firearms Owners’ Protection Act (FOPA). This new law significantly revised the Gun Control Act of 1968, provided more precise definitions of what was covered by federal law, reduced some technical violations of gun laws to misdemeanors, and set limits on the ATF’s search and seizure powers. Expanding Operations In 1975, the ATF began to take on arson cases under the theory that the accelerants used by arsonists constituted explosives. Later, the federal explosives law was amended to encompass arson, thus making ATF’s jurisdiction over arson more legally secure. 78
Bureau of Alcohol, Tobacco, Firearms and Explosives During the late 1980’s and early 1990’s, as the federal war on drugs became a major national issue, the ATF created “Special Response Teams” to conduct violent and high-profile raids into homes that ATF alleged were occupied by drug dealers in possession of illegal firearms. During that period, the bureau began styling itself as “ATF,” rather than “BATF,” to mimic the three-letter acronyms of the Federal Bureau of Investigation (FBI) and the Drug Enforcement Agency (DEA). In early 1993, an ATF raid on the compound of the Branch Davidian religious cult outside Waco, Texas, went disastrously wrong. Four ATF agents and several civilians were killed, and the ATF’s decision making about the raid was widely criticized. The bureau’s image was further tarnished by a congressional investigation of the case of Randy Weaver. Weaver and his family were white separatists who lived in Ruby Ridge, Idaho. In 1989, an informant working for an ATF agent entrapped Randy Weaver into selling him two shotguns (a legal act) and then sawing off their barrels to shorten them (an illegal act). The case eventually led to an FBI siege of Weaver’s cabin in 1992 and the fatal shooting of Weaver’s wife. Weaver himself was tried and acquitted for the original firearms sale charge in 1993. The Waco and Weaver cases, allegations of racial and sex discrimination within the ATF, and other serious management problems appeared to put the bureau’s existence in jeopardy, especially when committees in both houses of Congress held hearings to investigate the bureau in 1995. However, the bureau survived and afterward avoided major negative publicity. The bureau continues to be criticized by gun-rights groups for its unduly severe enforcement of federal gun laws while simultaneously receiving criticism from anti-gun groups for excessive timidity in its enforcement of the same laws. Reorganization As part of a federal law-enforcement reorganization following the September 11, 2001, terrorist attacks on the United States, the ATF was renamed the Bureau of Alcohol, Tobacco, Firearms and Explosives and was transferred from the Treasury Department to the Justice Department— where, ironically, its Prohibition ancestor had been transferred decades before. Despite its name change, the bureau retained “ATF” as its official acronym. In 2004, Congress enacted legislation that restricted the release—except for law-enforcement purposes—of ATF records identifying lawful gun buyers. The new law also restricted the release of the “trace” records used by the 79
Bureau of Prisons ATF to track the sale and ownership of individual firearms. Requests for such information are usually made by local law-enforcement agencies that find guns that may have been used in crimes or guns that have been stolen. Supporters of the new federal legislation argued that law-abiding gun owners, as well as nonowners who may be mentioned in trace reports—such as witnesses to crimes—should have their privacy rights protected. Critics responded that the law interfered with the ability of the public to learn important information about gun ownership and gun-law enforcement. David B. Kopel Further Reading Hardy, David. The B.A.T.F.’s War on Civil Liberties. Bellevue, Wash.: Second Amendment Foundation, 1979. Collection and analysis of stories of alleged enforcement abuse by an attorney who played a major role in the drafting of the Firearms Owners’ Protection Act. Holmes, Bill. Entrapment: The BATF in Action. El Dorado, Ark.: Desert Publications, 1998. Another critical study of the ATF that covers more recent allegations of abuse. Moore, James A. Very Special Agents: The Inside Story of America’s Most Controversial Law Enforcement Agency—the Bureau of Alcohol, Tobacco, and Firearms. Champaign: University of Illinois Press, 2001. Vigorous defense of the bureau, written by a former special agent. United States Government. Twenty-first Century Guide to the U.S. Bureau of Alcohol, Tobacco, and Firearms. Washington, D.C.: Progressive Management, 2002. Compact disc containing more than 21,000 pages of ATF documents on every aspect of ATF work. Vizzard, William J. In the Cross Fire: A Political History of the Bureau of Alcohol, Tobacco and Firearms. Boulder, Colo.: Lynne Rienner, 1997. Wellinformed history by a retired ATF supervisor and agent. See also Arson; Contributing to delinquency of minors; Drunk driving; Entrapment; Justice Department, U.S.; Organized crime; Regulatory crime.
Bureau of Prisons Identification: Federal agency responsible for incarceration of prisoners convicted in federal courts Date: Created in 1930 Criminal justice issues: Federal law; prisons; punishment 80
Bureau of Prisons
Prisoners marching to dinner at the Leavenworth federal penitentiary during the early twentieth century. (Library of Congress)
Significance: The creation of the U.S. Bureau of Prisons to oversee the confining of criminals convicted in federal courts reflected the general expansion of federal criminal law and the growing role of federal lawenforcement agencies. The first two federal prisons were opened in Leavenworth, Kansas, and Atlanta, Georgia, in 1905. Before that time, persons convicted of federal crimes were confined either in a facility on a military reservation or in a state or local corrections facility. Prohibition and the expansion of federal powers to combat organized crime in the 1920’s and 1930’s increased federal responsibilities for law enforcement and created a need for a separate federal prison system. In 1930, the Bureau of Prisons was created to administer the expanding federal corrections programs and a growing network of prison facilities. High-profile federal law-enforcement agencies, particularly the Federal Bureau of Investigation (FBI) under J. Edgar Hoover’s leadership, focused attention on violent crime, and new prisons were built. Alcatraz, perhaps the best known of the maximum-security facilities, was opened in 1934 and held some of the most notorious U.S. criminals until its closing in 1963. The Bureau of Prisons, a unit of the U.S. Department of Justice, is divided into six geographical regions that have a significant amount of autonomy. The directors of the regions also serve on the executive staff of the bu81
Bureau of Prisons reau and provide national coordination of the agency’s programs. The organization of the bureau includes the executive office of the director, with a general counsel and an internal affairs section. There are also divisions for administration, correctional programs (with responsibility for managing the facilities), health services, human resource management, program review, community corrections and detention, and information, policy, and public affairs. The Bureau of Prisons is also responsible for UNICOR, a public corporation and the successor to Federal Prisons Industries, founded in 1934, which provides employment and training for inmates. It produces goods and services ranging from furniture to electronics to data entry. The Bureau of Prisons also operates the National Institute of Corrections, which supports state and local corrections agencies and operates the National Academy of Corrections, an information center, and the National Jail Center. The institute has a budget separate from that of the Bureau of Prisons. The Bureau of Prisons began to experience problems in the 1980’s and 1990’s because of the age of its facilities, the need for increased capacity, and the increasing costs of corrections programs. In particular, prison overcrowding, the need to accommodate a wide variety of inmate populations, and increasing costs of treating drug abuse problems and addressing health problems related to acquired immunodeficiency syndrome (AIDS) have taxed the agency. The lack of strong political constituencies in the corrections profession and the increasing unwillingness of Congress to expand funding for federal programs are making it difficult to address the growing problems, even though the need for additional resources and new programs has been noted in numerous U.S. General Accounting Office reports. The Bureau of Prisons is also facing challenges in the form of recommendations for privatization of its facilities, and it has been targeted periodically by Congress for elimination. William L. Waugh, Jr. Further Reading Alarid, Leanne, and Paul Cromwell. Correctional Perspectives: Views from Academics, Practitioners, and Prisoners. Los Angeles: Roxbury, 2002. Elsner, Alan. Gates of Injustice: The Crisis in America’s Prisons. Upper Saddle River, N.J.: Financial Times/Prentice-Hall, 2004. Herman, P. G., ed. The American Prison System. New York: H. W. Wilson, 2001. Johnson, Robert. Hard Time: Understanding and Reforming the Prison. 3d ed. Belmont, Calif.: Wadsworth, 2002. Santos, Michael. G. About Prison. Belmont, Calif.: Wadsworth, 2004. 82
Burglary See also Parole; Prison and jail systems; Prison escapes; Rehabilitation; Work camps.
Burglary Definition: Unlawful entry into a building with the intent to commit an underlying crime Criminal justice issues: Robbery, theft, and burglary; vandalism Significance: Burglary often involves the invasion of a person’s home and, as such, undermines the security a home is thought to provide. In the early English common law, the notion that one’s home is inviolate was established, and its unlawful invasion with the intent to commit further criminal acts is viewed as a particularly serious offense. Burglary is often characterized as a crime against habitation, and the essence of the crime, as it developed through the common law, is the violation of one’s security associated with the home. A home is expected to be a place in which the occupant can escape from the outside world and feel safe. The burglary of a home strips its occupants of that sense of security. Consistent with that concept, elements for the crime of burglary traditionally included breaking and entering into a dwelling, at night, with the intent to commit a felony crime once inside the home. Definitions Through History The concept of burglary in the United States has evolved over time into a broader definition that is no longer limited to the invasion of homes, having been expanded to encompass invasions of all buildings. In fact, in many jurisdictions a building is defined, for purposes of the burglary statute, as including motor vehicles or vessels. Additionally, modern burglary statutes have extended their reach by eliminating the common-law element that the invasion occur at night, and in many jurisdictions the intended underlying crime no longer need be a felony; the intent to commit malicious mischief or vandalism once inside the building will often suffice as the intent to commit an underlying crime. Similarly, the breaking and entering elements have been broadened generally to encompass any unlawful entry. Thus, it is not necessary for an offender to gain entrance through some means of force; a charge of burglary only requires that the offender entered the building without authorization 83
Burglary or license to do so. However, the conversion to “unlawful entering” does not allow for the burglary of commercial establishments during business hours, even if the offender surreptitiously enters the building. The offender, like the remainder of the public, has a license to enter the building during business hours. For the purposes of burglary statutes, the entire business establishment is characterized as one unit, and even rooms designated for “authorized personnel only” are considered open to the public during business hours. An exception to this general rule is when separate property interests are involved with the separate rooms of a commercial building (such as multiple lessees operating individual businesses within their respective rooms of a building). While the dwelling element of common-law burglary has been broadened to include buildings in general, the concern with the violation of the security provided by the home has been retained. The fact that a building is a dwelling is frequently considered an aggravating factor, raising the degree and seriousness of the crime. In determining if a building is a dwelling, a key factor is whether or not individuals routinely sleep in the building. Consistent with the treatment of an entire building as a unit, if the predominant characteristic of a building is that of a dwelling, then every component of the building assumes the dwelling classification. Consequently, attached garages are characterized as dwellings. The actual use of a building as a home is critical to a building being characterized as a dwelling. When a home is under construction, it is not considered a dwelling for burglary purposes. However, once the new home has been occupied, it retains its dwelling character even when subsequently vacant. Similar to the retention of the dwelling element as an aggravating factor, the nighttime element of common-law burglary has been retained in many jurisdictions as another aggravating factor. In such jurisdictions, nighttime is frequently defined not by the physical presence of the sun but rather by there not being sufficient light to recognize a person’s face—a definition emphasizing the feelings of vulnerability associated with the crime of burglary. Prevalence In 2000, crime statistics indicated that burglary was second in occurrence only to the crime of theft. In that year, more than 1.5 billion burglaries occurred in the United States. For the unlawful entry of a building to constitute a burglary, the offender must have committed the entry with the intent to commit a second or underlying crime. The most common underlying crime, indeed the crime most people associate with burglary, is theft. Also 84
Burglary closely associated with burglary is the crime of robbery. Whenever a burglary is committed while occupants are inside the building, there exists a fair potential for the burglary to evolve into a robbery when the occupants realize an intruder has entered the building. Criminologists studying the times and locations of burglary occurrences have found that burglaries tend to occur in clusters. British researchers have shown that residences within 400 meters of a burgled home (particularly those on the same side of the street) have an increased risk of being burgled for up to two months after the initial incident. Research in England has also documented a significant decrease in burglaries. Among other reasons posited for the decline is the demise of the professional burglar, leaving the field primarily to amateurs with no special expertise and often with drug addictions. Concurrently, the value of loot typically taken from homes (such as stereo systems and other electronics) has decreased significantly. While expensive television sets, traditionally popular targets for burglars, have retained their value, they have become physically so large that their removal is problematic. Consequently, it appears that economics, at least in England, partially determines the prevalence of burglary.
Burglary Rates in 2002 all burglaries forcible entry unlawful entry attempted forcible entry residential nonresidential nighttime daytime 200
400
600 800 1000 1200 1400 1600 1800 2000 2200 incidents per 100,000 inhabitants
Source: Federal Bureau of Investigation, Population-at-Risk and Selected Crime Indicators. Figures reflect aggregate statistics on reported burglaries in the United States in 2002. For example, in that year there were 1,346 forcibleentry offenses for every 100,000 people. Note that many categories overlap.
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Burglary
One of the key elements of a burglary is the use of force to gain entry to the place that is being robbed. (Brand-X Pictures)
Investigation The crime of burglary is unusual in that it requires that offenders possess intent to commit a second crime upon entering their targeted buildings. Consequently, investigators and prosecutors must be able to provide evidence of that secondary intent in order to convict a person of burglary. The tendency for burglaries to occur in time and space clusters results in law enforcement benefiting from thorough analysis of burglary scenes to reveal the modus operandi (repeated patterns of behavior exhibited in committing crimes) of the burglar. Such information enables better prediction of which nearby buildings will be victimized next, and if a professional burglar is involved, the information may lead authorities to a particular suspect. Prosecution In prosecuting burglaries, two issues appear to surface regularly. The first is whether the prosecution can establish that the defendant possessed the requisite intent to commit an underlying crime. When a burglary has been completed, the intent to commit an underlying crime at the time of entry 86
Burglary into the building is inferred from the commission of the underlying crime. However, when the burglary is interrupted prior to the commission of the underlying crime, the prosecution must be able to establish some evidence from which the defendant’s intent to commit an underlying crime can be inferred. With the broadening of burglary statutes to include crimes other than felonies, the task of prosecutors has been facilitated. Courts have allowed an inference to be drawn that defendants intend some kind of mischief when unlawfully entering a building; consequently, the offender intended to commit a malicious mischief or vandalism category of crime. If a burglary is interrupted, a second issue may be whether the defendant actually entered the building. For the purposes of burglary, offenders have entered a building when any parts of their bodies have passed into the building. Additionally, courts have concluded that the introduction into the building of tools associated with the commission of the underlying crime, not merely used to break into the building, satisfies the entry element for burglary. Punishment Burglary is considered a serious offense and is punished as a felony. The characterization as a serious crime is based on two factors. First is the notion that a burglary is an extreme violation of a person’s security. Second is the fact that burglaries have a significant potential for evolving into robberies, resulting in physical harm to people. With the broadening of the scope of burglary under modern criminal statutes, the violation of one’s security is not as significant when burglaries involve commercial buildings. However, the potential for a burglary to evolve into a robbery is not diminished. When a burglary has been committed, the offender may be prosecuted and punished for two crimes, the burglary and the underlying crime. This does not represent double jeopardy because the focus of burglary is distinct from the focus of the underlying crimes. David Blurton Further Reading “The Decline of the English Burglary.” The Economist, May 5, 2004. Discusses possible factors that have led to a decrease in the occurrence of burglaries in England. Dix, E. G., and M. M. Sharlot. Criminal Law: Cases and Materials. 5th ed. St. Paul, Minn.: West Group, 2002. A general text on substantive criminal law, including a segment on burglary. Rosenfield, Richard. “The Case of the Unsolved Crime Decline.” Scientific 87
Cable and satellite television signal theft American, February, 2004. Discusses theories set forth to explain unprecedented decline in the United States of homicides, robberies, and burglaries during the 1990’s. Samaha, Joel. Criminal Law. 9th ed. Belmont, Calif.: Thomson/Wadsworth, 2008. General and substantive criminal law text discussing burglary, among other topics. “Time Bandits.” The Economist, May 8, 2004. A discussion of the tendency of burglaries to occur in clusters and the development of a new crimemapping technique. Tseloni, Andromachi, K. Wittebrood, G. Farrell, and K. Pease. “Burglary Victimization in England and Wales, the United States, and the Netherlands: A Cross-National Comparative Test of Routine Activities and Lifestyle Theories.” British Journal of Criminology, Winter, 2004. Examines activities of burglary victims, seeking causal relationships. See also Criminal law; Criminal prosecution; Police corruption; Robbery; Theft; Trespass; Vandalism.
Cable and satellite television signal theft Definition: Pilfering of pay-television signals to obtain free programming Criminal justice issues: Fraud; robbery, theft, and burglary; technology Significance: In addition to harming paying customers by not sharing in the costs of pay-television services, using low-quality cable and satellite equipment contributes to electronic signal outflow that can disrupt emergency communication systems for firefighters, ambulances, and police. While many Americans consider telecommunication theft to be a victimless crime, the practice actually harms paying subscribers by driving up rates to generate the revenue needed to cover signal loss and disruption caused by the low-quality equipment used by signal thieves. A National Cable Television Association survey has shown that cable and satellite television companies lose approximately $5.1 billion annually to signal theft. There are three main types of signal theft: active, premium, and passive. Active theft takes place when people intentionally make illegal connections to receive cable or satellite signals. Premium theft occurs when subscribers to basic services use descramblers or black boxes to obtain premium or payper-view channels for free. The third type, passive theft, happens when peo88
Capital punishment ple not paying for service fail to notify the service providers that there are active connections in their homes and thereby receive programming free of charge. The Cable Communications Policy Act of 1984 originally prohibited the unauthorized use of cable and satellite signals. Persons who are aware of unauthorized use of the signals are considered guilty as well, unless they report perpetrators to the proper authorities. (Most companies have online forms for this purpose.) Sentences in cable theft cases have ranged from probation to sixteen years in prison, while fines have ranged from several hundred dollars to almost $3 million. Kathryn Vincent Further Reading Ciciora, Walter. Modern Cable Television Technology: Video, Voice and Data Communications. 2d ed. San Francisco: Morgan Kaufmann, 2004. Paglin, Max D. The Communications Act: A Legislative History of the Major Amendments, 1934-1996. Silver Spring, Md.: Pike & Fischer, 1999. Paradise, Paul R. Trademark Counterfeiting, Product Piracy, and the Billion Dollar Threat to the U.S. Economy. Westport, Conn.: Quorum Books, 1999. See also Consumer fraud; Cybercrime; Fraud; Telephone fraud; Theft.
Capital punishment Definition: Execution of defendants convicted of capital crimes Criminal justice issues: Capital punishment; punishment Significance: Capital punishment has been one of the most debated topics in criminal justice policy in the United States, which at the beginning of the twenty-first century was one of the few remaining Western democracies still to employ the death penalty. While the use of capital punishment as a criminal justice policy has been substantially reduced or eliminated in many countries around the world, the death penalty continues to be utilized as the ultimate punishment for criminal behavior. Between the years 1608 and 2004, the number of people legally executed in what is now the United States has been estimated to be between 20,000 and 22,500. From January, 1977, to July, 2004, alone, 921 executions were carried out in the United States. By the end of 2004, more than 3,400 con89
Capital punishment victed felons were being held on death rows across the United States. By that time, thirty-eight states, the federal government, and the U.S. military had laws permitting the use of capital punishment. Although a small portion of states account for the majority of executions, seven of the jurisdictions— including the U.S. military—conducted no executions at all between 1972 and 2003. Of the thirty-eight states with the death penalty, all but three also permit the sentencing of offenders to life in prison without the possibility of parole. Although the specific circumstances of death-eligible cases vary from jurisdiction to jurisdiction, few states now authorize the use of capital punishment for offenses other than murder. At the federal level, the death penalty can be sought in aggravated murder cases, as well as in four offenses that may not involve homicide: treason, espionage, large-scale drug trafficking, and attempted murder of officers, witnesses, or jurors in cases involving continuing criminal enterprises.
Executions in the United States, 1977-2003 WA 4 OR 2
ID 1 NV 9
ND 0
MT 0 WY 1 UT 6
CA 10 AZ 22
CO 0
NM 0
ME VT 0 0
MN 0
SD 0
WI 0
IA 0
NE 3 KS 0 OK 69 TX 313
IL 12
MO 61 AR 25 LA 27
IN 11
OH 0
KY 2 TN 1 MS 6
AL 28
NH 0 MA 0
NY 0
MI 0
GA 34
PA 3 WV 0 VA 89 NC 30 SC 28
RI 0 CT 0 NJ 0 DE 13 MD 3 M DC 0
FL 57 AK 0
HI 0
Jurisdictions without a death penalty
Source: Through 1978, U.S. Law Enforcement Assistance Administration; thereafter, U.S. Bureau of Justice Statistics, Capital Punishment, annual.
90
Capital punishment The majority of capital cases involve adult male offenders, but a small percentage involve women and juvenile offenders. Women represent a small percentage of death-row inmates and felons who are actually executed. Throughout the twentieth century and the first years of the twentyfirst century, women accounted for only forty-nine executions in the United States. Only eleven women were executed between 1976 and 2006, and forty-eight women awaited execution in 2006. Also representing a small proportion of the death-row population and number of executions are juvenile offenders. Twenty-two executions of offenders who committed their crimes when they were under the age of eighteen account for less than 2 percent of all executions carried out between 1976 and 2004. In 2004, seventy-two offenders on death rows in twelve states were considered juvenile offenders. Nineteen of the thirty-eight states with death-penalty laws permitted the execution of juvenile offenders, but only seven states carried out such sentences between 1976 and 2004. Capital Punishment in History The history of capital punishment in America dates back to early colonial times. Early settlers were influenced by their British counterparts, whose laws mandated the death penalty for more than 150 separate crimes. While the laws on death sentencing varied from colony to colony, its practice was dramatically reduced in comparison to Britain. Massachusetts had one of the strictest laws on the books, with twelve crimes that were considered “death-eligible.” In contrast, colonies dominated by Quakers were more lenient in their use of executions. They restricted the death penalty to cases of treason and murder. However, decisions to execute sparingly were not made solely for philosophical reasons, but because of the colonies’ need for able-bodied workers. The number of executions in the United States increased significantly during the nineteenth century. However, the rate of executions reached its peak during the 1930’s, when more than sixteen hundred people were put to death in the country. Methods of Execution Just as the policies on capital punishment have evolved from colonial times, so, too, have the methods by which executions are carried out. Early methods, such as burning at the stake and beheading, have since been ruled as unconstitutional on the grounds that they violate the Eighth Amendment’s protection against cruel and unusual punishment. Death by hanging 91
Capital punishment is the only early method that has stood the test of time; it has been responsible for the greatest number of executions. A few U.S. states still permit hanging, but methods such as electrocution, firing squads, and lethal gas are now either rarely used or have been declared unconstitutional. By the early twenty-first century, lethal injection had become the primary method of execution in most states with death penalties. It was created in an effort to provide a more humane and socially acceptable method of execution. Lethal injections generally use three drugs: sodium thiopental sedates the convicted felon; pancuronium bromide provides a total muscle relaxant; and potassium chloride induces cardiac arrest, which results in death. Opposition to Capital Punishment As executions surged during the nineteenth century, an anti-death-penalty movement also began to develop. During that period, several changes were made to the policies and practices of capital punishment that abolitionists viewed as progress toward its elimination in the United States. First, states began to change the processes by which death sentences were handed down. Up until that time, all the states utilized mandatory death sentencing for specific offenses. That practice changed in 1838, when Tennessee became the first state to change its capital sentencing policy to allow discretion in sentencing. The modern U.S. Supreme Court has declared mandatory death sentences as unconstitutional. The second nineteenth century change came when several states limited the number of offenses that were considered death-eligible. Southern states expanded the use of capital punishment for slaves, but the majority of states limited its use to crimes of murder and treason. In 1846, Michigan became the first state to abolish the death penalty for all crimes, with the exception of treason. A third change was the transformation of executions from public to private events. Previously, hangings had traditionally been held in public squares in order to deter criminal activity, and religious readings and prayers provided a foundation for the occasions. However, public executions often created public disorder as a result of public drunkenness, botched executions, and rioting. In 1834, Pennsylvania became the first state to remove executions from public view. The last public execution in the United States was conducted in 1937. Now, public attendance at executions is limited to small numbers of citizens. Access by journalists is also limited, and legal efforts to televise executions to the public have failed. In addition to policy changes that limited the use of capital punishment, several states began to abandon the practice in its entirety during the late 92
Capital punishment nineteenth and early twentieth centuries. In 1852, Rhode Island became the first state to eliminate the use of the death penalty for all crimes. Since then, several states have abolished the death penalty, only to reinstate it at later dates in response to political or public pressures. In 2005, twelve states, the District of Columbia, and Puerto Rico did not use capital punishment for any crimes. Supreme Court Decisions A primary legal issue relating to capital punishment is whether the death penalty violates the Eighth Amendment’s protection against cruel and unusual punishment. Before reviewing the constitutionality of the death penalty as a practice, the U.S. Supreme Court addressed the question of how to define cruel and unusual punishment. In 1878, the Court ruled specific forms of torture as unconstitutional in its Wilkerson v. Utah decision. That ruling was explicit in specifying what types of execution procedures were cruel and unusual, but the Court’s later rulings were less specific. In Weems v. United States (1910), the Court argued that decisions on what constitutes cruel and unusual punishment are not immutable and limited by the beliefs of the framers of the Bill of Rights. Rather, definitions should be subject to interpretation and change. The Court’s 1958 Trop v. Dulles ruling elaborated on this point, arguing that the definition of cruel and unusual should come from the evolving standards of decency as defined by modern society. After the Trop ruling, measuring the evolving standards of decency led to several changes in death-penalty policy. In 1972, in Furman v. Georgia, the Supreme Court overturned state statutes on capital punishment nationwide in a 5-4 vote. The Court found that then-current laws violated the cruel and unusual clause of the Eighth and Fourteenth Amendments. As other justices in the past had debated on the definition of cruel and unusual punishment, so, too, did the Furman Court. Justices William J. Brennan and Thurgood Marshall argued that the death penalty itself was inherently cruel and unusual, Justices William O. Douglas, Potter Stewart, and Byron R. White argued that the statutes themselves constituted cruel and unusual punishment as they were arbitrary and were implemented with wide degrees of discretion. With the Furman ruling, the death sentences of all the prisoners awaiting execution on death rows throughout the nation were invalidated. After the Supreme Court’s Furman decision, legislators looked for ways of ensuring that capital punishment could be administered fairly and equitably, so that the death penalty could be reinstated. Newly written state statutes passed constitutional muster in several 1976 Supreme Court decisions, the 93
Capital punishment most notable of which was Gregg v. Georgia. These new Court rulings reopened the floodgates for executions to continue. The new state laws were designed to set standards for judges and juries in capital cases. First, a bifurcated process was to be conducted for all deathpenalty trials, in which the guilt/innocence phases would be separated from the sentencing phases. Second, presentation of information on mitigating and aggravating factors was allowed during the sentencing phases, in which aggravating circumstances had to outweigh the mitigating circumstances before the death penalty could be awarded. Third, all death sentences became subject to automatic reviews by the states’ supreme courts. Finally, the states were required periodically to conduct studies of proportionality to determine whether disparities in sentencing were developing. The conditions outlined in Gregg passed the constitutional requirements of the Court in 1976, but the Court’s justices continue to argue whether capital punishment itself represents cruel and unusual punishment. Later Court decisions continued to apply the criteria of the evolving standards of decency to limit which offenders may be subjected to capital punishment. In Penry v. Lynaugh in 1989, the Court held that the execution of the mentally retarded did not constitute cruel and unusual punishment. However, the Court overturned this decision in Atkins v. Virginia (2002). In its latter decision, the Court found that a national consensus had developed against the practice of executing the mentally retarded and held that such a practice violates Eighth Amendment protections. The Atkins v. Virginia ruling opened the possibility of other challenges to capital punishment. One example is the execution of juvenile offenders. In 1988, the Court held in Thompson v. Oklahoma that offenders under the age of sixteen at the time they commit their crimes are not eligible to receive death sentences. In 2002, four justices voted to hear the case of Kevin Nigel Stanford, who was seventeen at the time of his crime. Their dissenting opinion indicated that not only did they wish to revisit the issue of the juvenile death penalty, but also they were prepared to declare it as an unconstitutional practice. The state of Kentucky granted clemency to Stanford and commuted his death sentence to life in prison without the possibility of parole, but the U.S. Supreme Court was still left with the issue of the juvenile death penalty. In 2003, Missouri’s supreme court, drawing largely on the rationale set forth in Atkins, declared juvenile executions unconstitutional. The Missouri court referenced public and professional opinion, as well as declining legislative support for capital punishment in its decision. On March 1, 2005, the U.S. Supreme Court upheld the Missouri court ruling in a 5-4 decision. Writ94
Capital punishment ing for the majority, Justice Anthony Kennedy stated that to extinguish a juvenile’s life before he attains the maturity to understand his own humanity would be cruel and unusual punishment. Arguments for and Against Capital Punishment Death-penalty supporters argue that capital punishment should be retained on the basis of retribution and deterrence. Most people who support the death penalty favor it because of the principle of retribution. Retribution is often described by the concept of lex talionis, or “an eye for an eye”—a principle holding that punishments must be proportionate responses to crimes. Lex talionis is also often associated with the concept of revenge. Retribution is also characterized as just deserts, holding that offenders deserve to be punished for their actions. Supporters of the death penalty argue that for justice to be served and for order to be restored to the community, society requires the execution of offenders as payment for their crimes. In contrast, death-penalty opponents argue that criminal justice policies should not be based on a retributive position because revenge is an emotional, rather than a reasonable, response. They further argue that the death penalty is a disproportionate response when compared to other sentencing philosophies, as the American system does not rape rapists or steal from thieves.
Changing Opinion on Capital Punishment, 1953-2006 100
percentage of respondents
90 80 70 60
favor capital punishment
50 40
oppose capital punishment
30 20
no opinion
1976 1978 1981 1985 1986 1988 1991 1994 1995 1999 2000 2001 2002 2003 2004 2006
1971 1972
1967 1969
1957 1960 1965 1966
1953 1956
10
Source: Gallup Polls, 2004. Polls were not taken in all years. In years in which more than one poll was taken, data are entered from the latest polls. Data for 2006 are from a nationwide USA Today/Gallup Poll taken in May, 2006.
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Capital punishment In contrast to the emotionally laden concept of retribution, deterrence is viewed as a more rational and scientific argument for capital punishment. Proponents are quick to argue that the death penalty provides for both specific and general deterrence. Not only do executions prevent convicted murderers from killing again, but the belief is that if murderers are executed, other potential murderers will think twice before committing murder, for fear of losing their own lives. However, deterrence theory assumes that offenders are thinking individuals who rationally consider the potential consequences of their actions before engaging in them. Opponents to the death penalty argue that deterrence can be achieved by incarcerating offenders for life without the possibility of parole. Additionally, they argue that if the death penalty were, in fact, an effective deterrent, murder rates would increase when it is abolished and decline when it is restored. However, little empirical research has been done to provide support for general deterrence theory. Proponents counteract this argument by stating that the death penalty as it is currently administered in the United States may not provide a deterrent effect because the average length of time that persons sentenced to death spend awaiting their executions is overly long. Wrongful Convictions Between 1973 and 2004, 114 inmates were released from death row after new evidence demonstrated that they had been wrongfully convicted. Their releases seemed to refute arguments presented by supporters of capital punishment that only the guilty are sentenced to death row. In the state of Illinois, thirteen death-row inmates were exonerated between 1977 and 2000, while twelve others were executed. Illinois’s Governor George Ryan, previously a strong supporter of the death penalty, expressed concern that the system of handing out death sentences in his state may have allowed executions of the innocent, so he declared a moratorium on executions in 2000. Following a two-year investigation by a commission appointed by Ryan to review capital sentencing procedures, the commission made eighty-five recommendations on the processing of capital cases to ensure a system of fair, equitable, and accurate sentencing. Illinois incorporated some of those recommendations, but many, such as the immediate appointment of counsel, remained to be implemented. Meanwhile, following reviews of Illinois’s death-row population, Governor Ryan commuted the sentences of 156 inmates awaiting execution to life in prison without parole. Proponents of capital punishment disagree with the argument that it is administered in a discriminatory fashion. In 2004, about 46 percent of the 96
Capital punishment prisoners held on death rows were classified as white and 42 percent were black. Similarly, 57 percent of post-Furman executions involved white offenders, while 34 percent of executions during the same time period involved black offenders. However, while the majority of inmates and executions have involved white offenders, such statistics do not take into account the proportion of population demographics. Opponents argue that the death penalty is disproportionately applied to African Americans, who constitute only 12 percent of the entire population. While the role of race in capital punishment sentences remains a subject of debate, a review of post-Furman executions provided additional evidence for opponents of capital punishment, as 80 percent of all execution cases involved white murder victims, even though white victims constitute only about 50 percent of all murder victims nationwide. Issues of discrimination are also raised on the variable of class, as poor defendants are unable to obtain the resources to provide an adequate defense. Some critics of capital punishment charge that the death penalty is applied randomly, without concern for legal criteria. While proponents contend that the death penalty is applied in an equitable fashion, opponents disagree. Because the death penalty is actually invoked in only a small number of death-eligible cases, two different offenders who commit similar crimes may receive dramatically different sentences: death versus life imprisonment. Additionally, evidence demonstrates that the death penalty is subject to significant jurisdictional differences, as the majority of postFurman executions have been carried out by southern states. Texas alone accounted for more than one third of all executions between 1972 and 2004. Conclusion Even as capital punishment remains a subject of debate, raising issues such as deterrence, retribution, innocence, and discrimination, it remains a component of the American criminal justice system. Questions of who should be executed, for what crimes, and by what methods have been addressed throughout American history and continue to be debated. Recent decisions to limit the application of the death penalty, to declare moratoriums against executions, and to declare the practice in itself as unconstitutional indicate that support for capital punishment may be fading. Regardless of the future of the death penalty, it has sealed its place in history as the ultimate punishment philosophy in criminal justice policy. Stacy L. Mallicoat
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Capital punishment Further Reading Banner, Stuart. The Death Penalty: An American History. Cambridge, Mass.: Harvard University Press, 2002. Scholarly history of capital punishment in the United States. Bedau, Hugo Adam, and Paul Cassell. Debating the Death Penalty: Should America Have Capital Punishment? The Experts on Both Sides Make Their Best Case. Oxford, England: Oxford University Press, 2003. Collection of essays on a variety of aspects of capital punishment by both supporters and opponents of the death penalty. Bohm, Robert M. Deathquest III: An Introduction to the Theory and Practice of Capital Punishment in the United States. 3d ed. LexisNexis/Anderson Publishing/Matthew Bender, 2007. Introductory text highlighting facts, figures, and arguments on capital punishment in the United States. Johnson, Robert. Death Work: A Study of the Modern Execution Process. 2d ed. Belmont, Calif.: West/Wadsworth, 1998. Details life on death row for both offenders and the guards who work with them. Prejean, Helen. Dead Man Walking: An Eyewitness Account to the Death Penalty in the United States. New York: Vintage Books, 1993. Narrative story detailing the experience of a Roman Catholic nun who served as a spiritual adviser for death-row inmates in Louisiana. Radelet, Michael L., Hugo A. Bedau, and Constance E. Putnam. In Spite of Innocence: Erroneous Convictions in Capital Cases. Boston: Northeastern University Press, 1994. Review of wrongful convictions in capital murder cases that discusses how issues in the criminal justice process have led to the incarceration of the innocent. State of Illinois. Report of the Former Governor Ryan’s Commission on Capital Punishment. April, 2002. Report issued by the Illinois Commission on Capital Punishment detailing recommendations for improvements to current death-penalty policy. The entire report can be found on the state’s official Web site. See also Corporal punishment; Cruel and unusual punishment; Deterrence; Execution, forms of; Murder and homicide; Murders, mass and serial; Preventive detention; Punishment; Sentencing; Supreme Court, U.S.; Treason.
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Carjacking
Carjacking Definition: Theft of vehicles that is committed while the vehicle owners are inside or near the vehicles Criminal justice issues: Robbery, theft, and burglary; violent crime Significance: Carjacking evokes a great deal of attention and emotion in people due to the violence or threatened violence that is typically associated with the crime. Carjackers often physically pull owners from their vehicles or force them to remain inside while they make their getaways. When victims of the crime are forced to remain in their vehicles, the crime of kidnapping also applies. The crime of carjacking involves an apparent paradox: The more advanced the antitheft technology is on expensive vehicles, the greater the chances are that the owners of those vehicles will become victims of carjacking. The reason is simple: It can be easier for a car thief to steal a vehicle if its owner is in it, or nearby, with the ignition keys that defeat the vehicle’s antitheft equipment. Drivers are especially vulnerable to carjacking when they are entering or exiting their vehicles. In the twenty-first century, personal vehicles are important parts of the lives of many American citizens. The thought that at any time armed criminals can approach drivers and take their vehicles, while pointing guns or other weapons at them, causes much concern and apprehension among the car owners and drivers. While committing their crimes, carjackers also take the opportunity to rob vehicle owners of such personal items as wallets, purses, pocketbooks, and other personal effects. Tracking the number of carjackings that take place in the United States each year is problematic. The Federal Bureau of Investigation’s Uniform Crime Reports (UCR) do not officially track reported carjackings, which are classified as robberies. However, the National Crime Victimization Survey (NCVS), which is compiled by the U.S. Bureau of Justice Statistics, estimated that approximately 49,000 attempted or completed carjackings per year occurred in the early to mid-1990’s. Carjacking obtained notoriety in the United States after media attention was given to a number of incidents in the late 1980’s and early 1990’s. In one case in Howard County, Maryland, in September of 1992, a mother was placing her small infant in the car seat when two criminals approached her and forcibly took possession of the car with the child in the backseat. Believing that her child was at great risk, the victim attempted to retrieve her child 99
Cease-and-desist orders from the car seat while the carjackers were preparing to speed away in her car. During this attempt to free her child, the victim’s arm was caught in the seat-belt mechanism and she was dragged several miles to her death. The media focus on this crime and similar violent car thefts resulted in national attention on this ever-increasing problem. Later that year, Congress passed a law making carjacking a federal crime. Jay Zumbrun Further Reading Bureau of Justice Statistics. Carjackings in the United States, 1992-1996. Washington, D.C.: U.S. Department of Justice, 1999. Rand, Michael R. Carjacking, National Crime Victimization Survey. Crime Data Brief: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 1994. Ratledge, Marcus Wayne. Hot Cars! An Inside Look at the Auto Theft Industry. Boulder, Colo.: Paladin Press, 1982. See also Kidnapping; Motor vehicle theft; Robbery; Skyjacking; Uniform Crime Reports.
Cease-and-desist orders Definition: Order from court or agencies prohibiting certain persons or entities from continuing certain conduct Criminal justice issues: Courts; judges Significance: A cease-and-desist order provides a nonstatutory legal remedy to a situation in which one is giving offense but not breaking any specific law. A cease-and-desist order is a judicial option used to prevent or halt behavior which may not, by itself, be illegal according to statutory law but which could lead to harm if not stopped. The order generally includes a notice of the right to a hearing, and usually there is at least an allegation of a statutory violation, with the appropriate law being cited. Law requires that the order be delivered either through the marshal’s office or via registered mail. Evidence of the order’s issuance must be stored by a third party, often an attorney. The issuance of a cease-and-desist order can be beneficial to individuals and to society as a whole. It puts an immediate halt to behavior or activity which could result in measurable harm if the slow-paced justice system were left to move at its usual speed. Such an order could prevent a wrong from oc100
Child abduction by parents curring for which there is no totally appropriate remedy and no way to satisfy the aggrieved party. Cease-and-desist orders may also have negative consequences. They have been used to stop reporters or whistle-blowers from exposing corporate wrongs. Issues of jurisdiction sometimes arise, as federal, state, and local judges are capable of issuing the orders. The clarity and uniformity of the various laws impacting the issuance are also questioned at times. Cease-anddesist orders undeniably give courts an effective tool for controlling individual behavior. Thomas W. Buchanan Further Reading Carp, Robert A., Ronald Stidham, and Kenneth L. Manning. Judicial Process in America. 7th ed. Washington, D.C.: CQ Press, 2007. Garner, Bryan A., ed. Black’s Law Dictionary. 8th ed. St. Paul, Minn.: Thomson/West, 2004. Janosik, Robert J., ed. Encyclopedia of the American Judicial System. New York: Scribner, 1987. See also Judges; Judicial system, U.S.; Jurisdiction of courts; Restraining orders; Trespass.
Child abduction by parents Definition: Removal from their homes of children under the age of seventeen by family members with the intent of depriving parental access Criminal justice issues: Domestic violence; kidnapping Significance: Heightened awareness of the problem of parental abduction of children helps to elicit intervention strategies that may lead to better allocation of law-enforcement resources. The terms “kidnapping” and “abduction” have caused Americans to envision the most heinous of crimes against innocent children. However, the most prevalent forms of child abduction are not the abductions by strangers that are sensationalized in the media but those committed by parents or family members. This latter type of abduction became a source of concern during the mid-1980’s, at a time when there was a marked increase in the national divorce rate. There is a scarcity of reliable statistical data on parental abduction, partly because definitions of the crime vary from state to state. 101
Child abduction by parents
Ages of Children Abducted by Parents 15-17 years 4%
12-14 years 17%
6-11 years 35%
0-3 years 21%
3-5 years 23%
Source: Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, 2002. Figures are based on 203,900 incidents of child abduction in the United States in 1999.
However, parental abduction is most often defined as the taking and concealment of children in violation of custody orders, with the intent of depriving access to the children by the custodial parents. Because this definition is broad and leaves room for interpretation, a more comprehensive delineation is essential to gain consistency and improve accuracy in reporting mechanisms. Another factor influencing the disparities in prevalence rates is that parental abduction is one of the most underreported crimes. Custodial parents often cite a variety of justifications for not reporting abductions. Among these justifications are claims that the situations have been resolved by the parents or their lawyers, claims that the parents have known their children’s whereabouts all the time and have been confident that their children would not be harmed, fears that harm would come to their children if police were contacted, and lack of confidence that police would intervene. Almost half of all parental abductions are of children six years old or younger who are abducted during the periods of separation prior to their 102
Child abuse and molestation parents’ divorces. The most typical abductors are current husbands or boyfriends in their thirties, who tend to keep the abducted children less than one week. These men usually either fear losing custody of their children prior to divorce decrees, fear that their children are being abused, or wish to use their children as mechanisms of retaliation against their former partners. Abduction incidents occur most commonly during school vacation periods, when the children are visiting their noncustodial parents. Lisa Landis Murphy Further Reading Fass, Paula S. Kidnapped: Child Abduction in America. Cambridge, Mass.: Harvard University Press, 1999. Gardner, Lloyd C. The Case That Never Dies: The Lindbergh Kidnapping. New Brunswick, N.J.: Rutgers University Press, 2004. Gunia, M., and J. Vankirk. No Place That Far: A Story of Parental Abduction. Philadelphia: Xlibris Corporation, 2001. Hutchinson, Anne-Marie, and Henry Setright. International Parental Child Abduction. 2d ed. Bristol, England: Family Law, 2003. Sutherland, Patricia. Perilous Journey: A Mother’s International Quest to Rescue Her Children—A True Story. Far Hills, N.J.: New Horizon Press, 2003. See also Child abuse and molestation; Kidnapping; Missing persons; Pornography, child.
Child abuse and molestation Definitions: Child abuse is the intentional infliction of physical, sexual, or emotional trauma on children; molestation is the involvement of minor children by adults in sexual activities, including physical sexual acts and written, pictorial, and verbal communications of a sexual nature Criminal justice issues: Domestic violence; medical and health issues; sex offenses; women’s issues Significance: Child abuse and child molestation are significant social problems that affect the physical and mental health of more than one million American children every year. Child abuse and child molestation have been sociologically and legally defined in a variety of ways, and their definitions have changed over time. Child abuse and child molestation can be subsumed under the more gen103
Child abuse and molestation eral heading of child maltreatment. Child maltreatment includes neglect, child endangerment, emotional and psychological abuse, physical abuse, and sexual abuse. Child neglect is not providing for the needs of a minor child, generally in matters of feeding, sheltering, clothing, educating, or providing for medical needs. For example, neglect cases have come up in the courts that concern parents who have not placed their children in school or have refused to seek medical treatment based on religious beliefs. Child endangerment occurs when adults who are responsible for the care of children expose the children to potentially or actually dangerous situations. These can range from leaving children unattended in cars while running errands to leaving children home alone for extended periods. Emotional and psychological abuse includes name-calling, belittling, threatening, and terrorizing. Physical abuse includes shaking (including shakenbaby syndrome), hitting, slapping, punching, kicking, beating, striking with objects, stabbing, cutting, burning, and choking. The most severe instances of physical abuse can lead to death. Sexual abuse includes all forms of sexual contact between minors and adults, from improper touching and fondling to forced vaginal, oral, or anal intercourse. Sexual abuse may also include sexual contact between two minors when a significant age difference exists between them; in some jurisdictions, a difference of three or four years in age is considered significant. Sexual abuse may also encompass activities such as encouraging minors to watch or to be involved in the making of pornography. Legal definitions of child abuse, and subtypes of abuse, vary from jurisdiction to jurisdiction and rely upon particular state statutes. In contrast to sociological definitions of abuse that may be vague and open to different interpretations, legal definitions and individual statutes specify exactly what particular abusive behaviors are illegal. Child Abuse and Molestation in History Throughout history, human societies have often treated their own children unkindly. Many actions that most Americans today would consider to be abusive have been commonplace throughout the world. For example, infanticide has been common in many parts of the world and still continues in some regions. Especially common is female infanticide and the killing of children with disabilities in developing nations. Some modern and industrialized nations also practice the selective termination of female fetuses and fetuses with disabilities. Because of the high infant mortality rate during the Middle Ages, many children born in that era were not even named until they reached the age of 104
Child abuse and molestation five. Prior to the enactment of compulsory schooling laws during the early twentieth century, education was generally reserved for only wealthy children and was more available to boys than to girls. Before the introduction of child labor laws during the early twentieth century, many children in Europe and North America worked as many as twelve hours a day in factories. Before the era of urban factories, rural children worked equally long hours on farms. In many modern developing nations, young children, especially girls, work as prostitutes to support their families. Children may also be sold to provide money for families. In modern Southeast Asian countries, many children still work in factories for low wages. Even in the United States, many children work without wages and for long hours in businesses owned by their parents. During the nineteenth century, movements such as the Child-Savers sought to improve the lot of children. However, much of the movement was driven by the need of middle-class white women to control what they saw as unruly and dangerous immigrant children. Rather than improve the conditions in which children lived and labored, the movement often criminalized their actions and placed the children under the control of social services or within the criminal justice system. In 1875, the New York Society for the Prevention of Cruelty to Children was formed. The first juvenile court system was founded in Chicago in 1899. Prior to that time, children were treated in much the same ways as adults in the legal system. They could be charged with crimes as adults and incarcerated in adult jails and prisons. These conditions naturally created atmospheres ripe for abuse. With the founding of the juvenile court system in Chicago, the American criminal justice system began to see children and their crimes as different from adults and in need of a different response, different treatment, and especially different housing arrangements, away from predatory adults. Early researchers found a strong correlation between alcohol abuse by parents and abuse of children. The desire to curb violence against children helped fuel the temperance and prohibition movements. Even today, there is a strong correlation between parental abuse of substances and abuse of children. Significant advances in the protection of children were encouraged by the women’s movement of the 1960’s and 1970’s that focused attention on the abuses perpetrated by men in their own homes against women and children. Prevalence In criminal justice the “dark figure of crime” is a frequently discussed phrase referring to the fact that, on average, only half the crimes that are 105
Child abuse and molestation committed are brought to the attention of law enforcement. Moreover, certain types of crimes, such as rape, are even less likely to be reported than other crimes. There is also a “dark figure of child abuse,” which makes it difficult to estimate the actual prevalence of child abuse and child molestation. The U.S. Department of Health and Human Services Administration for Children and Families has consistently estimated that childprotective services agencies across the country receive more than 50,000 allegations of child maltreatment each week. The Child Abuse Prevention and Treatment Act of 1974 stated that approximately one million children each year were the victims of maltreatment in the United States. By the early twenty-first century, approximately one million cases of child maltreatment reported to child-protective services were substantiated annually. By far, the most common form of child maltreatment dealt with by childprotective services is neglect. This accounts for about half of the substantiated victims of maltreatment, or approximately 500,000 neglected children each year. Although neglect is most commonly dealt with by child-protective services, emotional abuse is probably the most prevalent form of abuse. Emotional abuse is so common that it often occurs unnoticed. Many jurisdictions have not enacted specific laws to criminalize emotional abuse, so it is infrequently dealt with through the criminal justice system unless it occurs in conjunction with other forms of abuse that are perceived as being more severe. However, the long-term effects on a young child’s psyche of such forms of emotional abuse as being yelled at, belittled, threatened, and terrorized should not be minimized. Among the factors that increase the likelihood of a child’s being victimized are younger age, having a disability, alcohol or substance abuse in the home, and having previously come into contact with child-protective services. Younger children are more likely to be victimized and are more likely to die as a result of victimization. The youngest children cannot “tell” anyone of their victimization. Unless injuries are apparent or incidents of abuse are witnessed by third parties, they often go unnoticed. The younger the children, the greater the risks of abuse that they face. Abuse of children under the age of six is frequently brought to the attention of authorities by medical personnel who may treat victims repeatedly in emergency room settings. The vast differences in size between very young children and adults make younger children more likely than older children to suffer severe harm or death from physical abuse. Children with disabilities are at increased risk for being abused. This is 106
Child abuse and molestation due to several factors. Their disabilities may interfere with their speech, mobility, or cognition, making these children easier targets for victimization. Often unable even to understand that they are being victimized, children with disabilities may be unable to move away from attacks or unable to tell others about what has occurred. The stress of raising children with disabilities also increases the likelihood of parents treating them in inappropriate or abusive manners. Parents who abuse alcohol or other substances are more likely to become perpetrators of abuse than parents who do not abuse substances. Individuals who abuse substances are frequently under significant stress themselves. Rather than increase their users’ ability to cope with stress, substances have the opposite effect. Abuse of substances also diminishes cognitive reasoning abilities and increases the likelihood of violence. Alcohol and drugs also lower inhibitions. Many children who come into contact with child-protective services have had prior contact with the agencies. This may indicate that too often childprotective agencies return children to abusive homes for further victimization. Among substantiated victims of child maltreatment, African American children are overrepresented. It is difficult to ascertain whether this can be attributed to higher rates of abuse among this segment of the population or whether child-protective agencies are more likely to substantiate abuse allegations when the perpetrators are members of minorities. During the early twenty-first century, annual deaths from child maltreatment were estimated at slightly less than 2 per 100,000 children. In 75 percent of such cases, the victims are under the age of four. Investigation The U.S. Congress enacted the federal Child Abuse Prevention and Treatment Act of 1974 to address concerns about alarmingly high rates of child maltreatment. The law provided incentives for states to address this problem in a variety of ways, including research, prosecution, and treatment. The act does two important things. It encourages individuals to report suspected child abuse by providing immunity from prosecution— a protection traditionally granted in the criminal justice system only by judges and prosecutors. The act also mandates the reporting of child maltreatment by certain persons who come into contact with children in their professional capacities. Two types of investigations may occur into allegations of child abuse or molestation. Child-protective agencies may investigate allegations of abuse, and local, state, and federal law-enforcement agencies may conduct investiga107
Child abuse and molestation
False Allegations of Sexual Abuse Approximately 60 percent of all abuse allegations receive dispositions of “unsubstantiated.” A significant portion of these cases are not harmless errors made by well-meaning individuals but knowingly false allegations. While one of the main purposes of the Child Abuse Prevention and Treatment Act of 1974 was to make reporting of suspected abuses easier, it has had the unintended consequence of creating a climate that encourages false allegations. The act provides immunity from prosecution for persons who report alleged abuse. This allows people to report abuse for their own reasons. It also goes against the constitutional right of defendants to face and question their accusers. Once a child is in contact with the legal system and seen as a victim, the system tends to seek confirmation for that “victim status.” Social workers and law-enforcement officers who are well meaning, but untrained in interview techniques that are appropriate for alleged child victims of abuse, often ask leading questions, unintentionally encouraging children to give responses that are consistent with their having been victimized. This can be an important problem in divorce cases. Before the 1980’s, mothers were generally awarded custody of their children during divorce proceedings as a matter of course. Since then, as men have sought to assert their rights as parents, custody has become a significant issue during divorce proceedings and frequently for many years afterward. The acrimony that often prevails in divorce cases often leads to false allegations of child abuse when custody is at issue.
tions. These investigations are usually conducted independently, sometimes with relatively little coordination. Although it may seem sensible for cases in which child-protective agencies have found abuse to be turned over to law enforcement for prosecution, this does not always occur. Generally, abuse allegations are investigated by child-protective services prior to the states considering filing charges against individuals. Investigations by child-protective services begin with the initial contacts with the relevant agencies. About one-third of these initial contacts are not followed up by the agencies; they are either passed on to other agencies or dropped because of insufficient information. Any person may report suspected child abuse, but professionals who work with children—such as teachers, therapists, doctors, and nurses—must 108
Child abuse and molestation report suspected abuse to protective agencies. Roughly half of all abuse allegations come from professionals. Although these people are mandated to report suspected abuse, even mandated reporters do not report all instances of suspected abuse. Many individuals who are mandated reporters may not be trained to spot possible abuse, or they may not want to report suspected abuse for a variety of reasons. These factors contribute, in part, to the significant underreporting of abuse. Although there are significant variations in the lengths of time required for investigations to begin, investigations of high-priority cases generally begin within forty-eight hours of the initial contacts with child-protective services. The more severe the suspected abuse, the quicker the response. Childprotective service investigations generally include interviewing the children privately in neutral locations such as schools, interviewing parents of the children, and interviewing the alleged perpetrators. Other individuals involved with the children may be interviewed as necessary. If instances of abuse have only recently occurred and physical evidence, such as bruises, may be detectable, the children may be taken to medical facilities for examination and documentation of the abuse. Examinations may include photographing bruises or X-raying bones. Under certain circumstances, if a child is believed to be in immediate physical danger, the child may be removed from his or her home and placed into temporary foster care. Once an investigation is complete, a determination, or disposition, is made as to whether or not abuse has occurred. Although the individual states use a wide variety of terms for these dispositions, the terms generally correspond to the U.S. Department of Health and Human Services Administration for Children and Families dispositions of “indicated,” “substantiated,” and “unsubstantiated.” Although reports of abuse continue to increase, the percentage of reports that eventually receive dispositions of “unsubstantiated” is rising, totaling about 60 percent of all reports. Prosecution Most child-abuse and child-molestation cases in the United States are not prosecuted through the criminal justice system. Even those cases in which child-protective agencies have determined that abuse is substantiated are often not criminally prosecuted. This is due to significant differences in goals and standards of proof between child-protective agencies and criminal justice agencies. Moreover, the prioritizing of cases within the criminal justice system for prosecution makes it unlikely that most child-maltreatment cases are prosecuted. 109
Child abuse and molestation The goals of child-protective agencies and the goals of criminal justice agencies differ greatly. One of the goals of child-protective services is to keep families together. By contrast, a primary goal of the criminal justice system is to punish offenders. Generally, the prosecuting and possible sentencing to jail terms of family members, especially parents, are contradictory to the goal of keeping families together. For child-protective services it is frequently difficult to balance the dual goals of protecting children with keeping families together. In fact, these goals may be irreconcilable, considering the fact that the vast majority of all children who are injured or killed are victimized by their parents within their own homes. The standards of proof used in the investigation carried out by childprotective services differ substantially from the standards of proof used in criminal courtrooms. There are no specific standards for what burden of proof a “substantiated” case must reach, but in all criminal cases, the prosecution must prove its case beyond a reasonable doubt. It is difficult for many cases of child abuse and child molestation, even those which childprotective services have found to be substantiated, to reach this high burden of proof. The standard procedure for deciding which cases brought to the attention of the criminal justice system should be actively prosecuted makes it likely that child-maltreatment cases are “selected out” of the system. Within the criminal justice system, decisions to proceed with cases are made by prosecutors. Cases that are most likely to be prosecuted within the system are those in which complaints are filed within relatively short periods of time after the crimes occur, those for which significant physical evidence exists, and those with credible witnesses. Normally, only cases of severe child maltreatment are brought to the attention of the criminal justice system. Other cases are handled solely by child-protective agencies. Although the criminal justice system could prosecute cases of child sexual abuse, even they are infrequently prosecuted. Child molestation especially is unlikely to come to light until long after the abusive events occur. Indeed, many victims of molestation do not reveal their experiences to anyone until years afterward. Evidence presents other problems. Generally, only the most severe forms of physical and sexual abuse create physical evidence. However, even this evidence may be lost if the abuse is not reported quickly. Problems with Child Witnesses The nature of abuse crimes causes them frequently to be committed either within the privacy of family homes or in situations in which only the 110
Child abuse and molestation victims and perpetrators are present. Victims thus are generally the sole witnesses—apart from the perpetrators—of their own abuse. One of the difficulties that prosecutors face in successfully prosecuting perpetrators of child abuse and child molestation is working with child witnesses. The criminal justice system, correctly or not, has historically viewed child witnesses as less truthful than adult witnesses. Interviewing child witnesses also presents special problems since children are especially susceptible to leading questioning. Moreover, the youngest victims of abuse crimes many not have even learned to speak. In many instances, the experience of being a witness for the prosecution can be as traumatic for child victims as the actual incidents of victimization they have experienced. However, defendants are guaranteed the right of confronting and questioning their accusers. Officials in the justice system must thus weigh the possibility of further trauma to children against the constitutional rights of the defendants. Punishment Responses to child abuse or child molestation are more likely to come from child-protective service agencies than from the criminal justice system. Child-protective services may choose to remove children from their homes, but the services generally do not remove children from homes if they are shown that the children will remain safe. When children are removed and put into foster care, it is generally for only limited periods of time. It is rare for parental rights to be terminated. Contrary to popular perceptions fueled by media accounts of a few children who have died while in foster homes, children are rarely injured or killed while in foster care. Criminal justice sanctions against offenders are infrequent. The most common sanction is probation. Prison sentences are rare. By far, the average drug offender receives a much lengthier sentence than the average child abuser or child molester. The child-abuse perpetrators who are least likely to face punishment by the criminal justice system are those offenders who are related to their victims. This is true even though it may be these same offenders who cause the most severe and longest lasting trauma to their victims. Ayn Embar-Seddon Allan D. Pass Further Reading Barnett, Ola, Cindy L. Miller-Perrin, and Robin D. Perrin. Family Violence Across the Lifespan: An Introduction. 2d ed. Thousand Oaks, Calif.: Sage 111
Citizen’s arrests Publications, 2005. Examines violence in family contexts and discusses the various forms of child maltreatment. Also discusses date rape, battered women, and elder abuse. Best, J. Threatened Children: Rhetoric and Concern About Child-Victims. Chicago: University of Chicago Press, 1993. Scholarly study of child abuse. Helfer, Mary Edna, Ruth S. Kempe, and Richard D. Krugman, eds. The Battered Child. 5th ed. Chicago: University of Chicago Press, 1997. Covers a variety of child-abuse topics from history, to response of child-protective services and law enforcement, to recognizing abuse, with special emphasis on treatment. LeRoy, A. Endangered Children: Dependency, Neglect, and Abuse in American History. New York: Twayne, 1997. Detailed history of abuse in the United States from early settlement times through the 1990’s. Myers, John E. B., et al., eds. The APSAC Handbook on Child Maltreatment. 2d ed. Thousand Oaks, Calif.: Sage Publications, 2002. Discusses major types of child abuse along with treatment and legal issues. Van Dam, C. Identifying Child Molesters. Binghamton, N.Y.: Haworth Press, 2001. Thorough discussion of a variety of topics, including types of molesters, how molesters find their victims, and treatment issues. See also Animal abuse; Child abduction by parents; Domestic violence; Juvenile delinquency; Kidnapping; Pedophilia; Pornography, child; Sex offender registries.
Citizen’s arrests Definition: Arrests made without warrants by private citizens, rather than by officers of the law Criminal justice issue: Arrest and arraignment Significance: Citizen’s arrests allow private citizens to detain criminals either for committing felonies or breaches of the peace; they also allow law-enforcement officials to call for the assistance of citizens in making arrests. The concept of citizen’s arrests has its roots in English common law, formalized in the Statutes of Winchester in 1285. During the first century of United States history, citizen’s arrests were abused for individual self-interest, such as bounty hunting, causing most states to restrict citizen-arrest laws in the nineteenth century. Some of these restrictions limited citizen’s arrests 112
Citizen’s arrests by making citizens responsible for wrongful arrests and by placing boundaries on ways of getting information that led to arrests. In Aguilar v. Texas (1964), for example, restrictions were placed on the use of citizen informers: The informant must be reliable and credible, and the informant’s information has to be corroborated. In addition, the resulting arrest must comply with the standards of “probable cause” contained in the Fourth Amendment. Although citizens in all states may make arrests for both felonies and misdemeanors, usually the arrests involve a breach of the peace committed in the presence of the arresting citizen. Other crimes, especially in the case of felonies, need not be committed in the arrester’s presence if the arrester has reasonable cause for believing that the person arrested has committed the crime. When a citizen makes an arrest without the assistance of a police officer, the arrester is responsible for turning the arrested person over to an officer of the law as soon as possible. In other instances, a police officer may request the help of a citizen in making an arrest. In these instances, because the private citizen is legally bound to assist the officer, the officer is responsible for the actions of the private citizen assisting in the arrest. Most arrests made under citizen-arrest laws are not, however, made by private citizens. Most are made by other individuals or groups covered by these laws, including private-security personnel, postal inspectors, bank guards, store employees who detain shoplifters, customs inspectors, private investigators, and state and federal agents. Because not all these groups are registered or licensed, accurate statistics regarding their numbers and their arrests are impossible to obtain. The degree of physical force that can be used is a critical issue in making a citizen’s arrest. State laws vary on the degree of physical force allowable. Deadly force in making a citizen’s arrest is generally reserved for situations of protecting other people, and private citizens making such arrests act at their own legal peril in using deadly force. In contrast, when a citizen assists a police officer in making an arrest or in preventing an escape, deadly force may usually be used for self-defense, for the defense of a third party, or by the authorization of a police officer. Because the assisting citizen cannot take time to verify an officer’s authority, good-faith assistance is justified, even if the officer misdirects the assisting citizen. According to Les Johnson, in his book The Rebirth of Private Policing (1992), private policing by individual citizens and private groups was increasing during the early 1990’s. Even though psychologists and sociologists contend that most citizens avoid intervening in situations of criminal activity, citizens are forming groups such as neighborhood watch groups to lower 113
Civil disobedience crimes of theft and personal injury. These groups are especially strong in neighborhoods with high rates of crime and understaffed police forces. Carol Franks Further Reading Abrahams, Ray. Vigilant Citizens: Vigilantism and the State. Cambridge, England: Polity Press, 1998. Johnston, Les. The Rebirth of Private Policing. New York: Routledge, 1992. Loewy, Arnold H., and Arthur B. LaFrance. Criminal Procedure: Arrest and Investigation. Cincinnati: Anderson, 1996. See also Breach of the peace; Criminal law; Criminal procedure; Private police and guards; Probable cause; Vigilantism.
Civil disobedience Definition: A deliberate act of lawbreaking to protest a law or government policy that is regarded as immoral Criminal justice issues: Civil rights and liberties; morality and public order Significance: Civil disobedience is an important type of political dissent that goes beyond legal means of protest; it was widely employed by participants in the Civil Rights and anti-Vietnam War movements. Notable discussions of the conflict between the individual and legal authority are found in Plato’s Apology and Crito and Sophocles’ Antigone. The classic discussion of civil disobedience, however, is in the essay “Civil Disobedience” by Henry David Thoreau, first presented in a public lecture at Concord, Massachusetts, in January of 1848 under the title “On the Relation of the Individual to the State.” Thoreau defended his refusal to pay the Massachusetts poll tax because of his opposition to government policies, specifically the Mexican War and governmental acceptance of slavery. He contended that the claims of individual conscience were superior to those of the state and should be followed, even if the individual must violate the law and be subject to arrest and imprisonment. Thoreau himself had been arrested for his refusal to pay taxes, and he spent one night in the Concord jail until an anonymous friend made the tax payment owed by Thoreau. Early in the essay, Thoreau posed the question: “Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator?” 114
Civil disobedience
Major Events in the History of Civil Disobedience 1849
Henry David Thoreau publishes “Resistance to Civil Government” (later known as “Civil Disobedience”).
1906
Mohandas K. Gandhi urges Indians in South Africa to go to jail rather than accept racist policies, beginning his satyagraha campaign.
1919
Gandhi leads nationwide closing of businesses in India to protest discriminatory legislation.
1920-1922 Gandhi leads boycott of courts and councils in India and develops noncooperation strategies. 1928
Gandhi organizes on behalf of indigo workers in Bihar, India, and initiates fasting as a form of satyagraha.
1932-1933 Gandhi engages in fasts to protest untouchability. 1942
Gandhi arrested for satyagraha activities.
1955
Martin Luther King, Jr., leads boycott of transit company in Montgomery, Alabama.
1956-1960 King leads protest demonstrations throughout the American South. 1963
King leads March on Washington for civil rights.
1965
King leads “Freedom March” from Selma to Montgomery and organizes voter registration drive.
1968
King initiates a “Poor People’s Campaign” but is assassinated before it can be carried out.
His famous answer was: “I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume, is to do at any time what I think right.” He added the observation that “law never made men a whit more just; and by means of their respect for it, even the welldisposed are daily made the agents of injustice.” For Thoreau, the emphasis is placed on the appeal to individual conscience to justify the breaking of law. The best-known contemporary manifesto on civil disobedience is Martin Luther King, Jr.’s “Letter from Birmingham Jail,” written in April, 1963. King’s letter was a response to a public appeal made by eight white Alabama 115
Civil disobedience clergymen who urged King and his associates not to engage in mass protests against segregation in Birmingham. Instead they recommended negotiation and dialogue. King in reply insisted that sit-ins, marches, and other forms of nonviolent direct action were a means of creating a crisis and thereby establishing “such creative tensions that a community that has constantly refused to negotiate is forced to confront the issue.” King also addressed the white ministers’ criticism of King’s readiness to resort to breaking the law, especially when he had urged officials in the South to obey the 1954 Supreme Court decision outlawing racial segregation in public schools. King wrote: “One may well ask, ‘How can you advocate breaking some laws and obeying others?’ The answer is to be found in the fact that there are two types of laws. There are just laws and there are unjust laws. I would agree with St. Augustine that ‘An unjust law is no law at all.’” According to King, an unjust law is one that is out of harmony with the moral law. He thus offers what is sometimes called a “higher law” defense of civil disobedience, which differs from the appeal to individual conscience made by Thoreau. Defining Civil Disobedience In the writings of both Thoreau and King, one characteristic feature of civil disobedience is the deliberate violation of some established law or legal requirement. Civil disobedience is, after all, disobedience, although, as King and others have noted, the law violated may be only a putatively valid law. Especially in American legal contexts, a law may sometimes be challenged in order to test its constitutionality in court. Some have questioned whether such law-testing should be counted as civil disobedience. Other definitional concerns have been to distinguish civil disobedience from other forms of lawbreaking such as “ordinary” criminal activity and revolutionary action. One contrast is in the type of typical motivation; unlike the ordinary criminal, motivated by self-interest or malice, the civil disobedient is often moved by moral or conscientious motivation, in the sense that a moral belief prompts the illegal act. The revolutionary aims, at least ultimately, at overturning the existing political or legal order, whereas the civil disobedient seeks change within the established system. King captured these points when he affirmed that the civil disobedient must break the law “openly, lovingly . . . and with a willingness to accept the penalty” and that one who does this “to arouse the conscience of his community over its injustice is in reality expressing the very highest respect for law.” There is considerable controversy over how precisely to define civil disobedience. The philosopher John Rawls, in his book A Theory of Justice (1971), 116
Civil disobedience defined civil disobedience as a “public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of government.” Rawls regards civil disobedience as breaking the law from motives of conscience (that is, not from self-interest) and also requires that it be nonviolent. Some critics have questioned whether nonviolence should be a defining feature of civil disobedience, suggesting instead that it is a tactical feature of civilly disobedient protest or a factor to be considered in determining whether such a protest is morally justified. Other critics have objected to requiring as part of the definition that acts of civil disobedience be public, with the likelihood of detection and arrest. Types Definitions such as that offered by Rawls construe civil disobedience quite narrowly. Thoreau’s refusal to pay the poll tax, a pacifist’s refusal to submit to military service, and a Jehovah’s Witness’s refusal to salute the flag are not counted as acts of civil disobedience but instead are classified as cases of “conscientious refusal.” Rawls recognizes that his definition is narrower than Thoreau’s but favors it because it enables him to call attention to the public and political character of those protests he chooses to label as “civil disobedience” and to relate them to political activity within a constitutional democracy. Conscientious refusal is not primarily aimed at political change and is not made in terms of principles shared by the community. Rawls also excludes from the category of civil disobedience militant acts of resistance and disruption. An example might be animal rights activists breaking into laboratories in order to rescue the animals from experimentation. It is possible to use a more generic definition of civil disobedience, classifying under it such phenomena as conscientious refusal, militant action, and civil disobedience (in its narrow sense). A commonly drawn distinction is between direct and indirect acts of civil disobedience. The former are acts in which the law objected to is the one violated. A clear example is the sit-ins at segregated lunch counters by civil rights protesters in the 1960’s in order to protest segregation laws. They were violating the laws they were protesting. Such direct action is not always possible, since the law or policy regarded as immoral cannot be violated. Indirect acts of civil disobedience are ones in which a law violated is not the one protested. During the late 1950’s, Bertrand Russell and the Committee of 100, involved in the Campaign for Nuclear Disarmament, engaged in mass demonstrations involving civil disobedience. They were arrested for violating (morally unobjectionable) trespass law during the demonstrations. 117
Civil disobedience In a statement on the subject, “Civil Disobedience and the Threat of Nuclear Warfare,” Russell observed: “By means of civil disobedience, a certain kind of publicity becomes possible.” The aim of the group was to draw attention to the dangers of nuclear weapons policy, not to protest trespass law. Some forms of indirect civil disobedience are concerned less with publicity than with interfering with what participants in civil disobedience regard as immoral activity. This is sometimes referred to as “direct action,” although that expression is used in other ways as well. Activities associated with Operation Rescue, a campaign of abortion opponents to shut down abortion clinics in the hope of sparing the lives of the unborn who would have been aborted, constitute an example of direct action. Justification One of the most vexing questions is whether and when civil disobedience is morally justified. Thoreau seemed to be of the opinion that he and, presumably, others ought to do what they think is right. Many have taken a polar opposite position to the effect that, in a constitutional democracy at least, deliberately breaking the law is never justified. Others have argued
“White only,” “Colored only,” and similar signs were common sights in the South and some northern cities during the Jim Crow era. A goal of the Civil Rights movement was to end all forms of racial segregation, and its members often employed forms of civil disobedience, such as lunch-counter sit-ins, to dramatize their demands. (Library of Congress) 118
Civil disobedience that indirect civil disobedience is never justified. Former Supreme Court justice Abe Fortas, in the widely cited 1968 essay entitled “Concerning Dissent and Civil Disobedience,” specifically condemned indirect civil disobedience. Fortas, writing at a time of massive protests in connection with racial discrimination, the military draft, and the Vietnam War, concluded: So long as our governments obey the mandate of the Constitution and issue facilities and protection for the powerful expression of individual and mass dissent, the disobedience of laws which are not themselves the target of the protest—the violation of law merely as a technique of demonstration—constitutes an act of rebellion and not merely dissent. In the background of this issue are large questions about the nature of law, morality, and democratic government. A number of grounds have been offered for a general obligation to obey the law. In Plato’s Crito, Socrates cites several reasons why he should not escape from jail but should instead submit to the laws of Athens. Among them are gratitude for the protection the law has afforded him as well as an implicit agreement with the state. Another common appeal has been to considerations of fairness—in a democracy, laws and policies are arrived at by procedures in which people can exert their influence. Finally, others have cited the general value of respect for law and the threat to peaceful and orderly processes of collective decision posed by deliberate lawbreaking. If individuals are allowed to follow their diverse and sometimes erratic consciences, or if they are permitted to observe “higher laws,” which are difficult to verify and to interpret, then the health of the democratic process is seriously jeopardized. On the other hand, many defenders of civil disobedience have held that the obligation to obey the law is not absolute, because even in constitutional democracies the political process may yield morally unacceptable outcomes. Defenders of civil disobedience cite approvingly the nineteenth and twentieth century targets of protest and civil disobedience, including slavery and fugitive slave laws, the denial of suffrage to women, laws supporting segregation and discrimination, the war in Vietnam and the military draft, and nuclear weapons policies. Few defenders of civil disobedience see its justification as an issue that lends itself to resolution by a simple and easy formula. Complex factors relating to the type of civil disobedience, the motives and aims of the practitioners, and the circumstances in which it must be carried out must be taken 119
Civil disobedience into account. Among the questions that must be answered are: How gravely wrong is the law or policy being protested; what are the motives of those engaging in civil disobedience (that is, whether they are predominantly moral or are heavily mixed with less admirable motives such as fame or greed); what is the likelihood of success; what are the dangers of violence, especially injury to persons; and what is the risk of encouraging or spreading lawlessness and disrespect for law. On this latter point, the distinction between direct and indirect civil disobedience comes into play. Furthermore, significance is also given to the character of civil disobedience—that it is nonviolent, that it is done openly and with an acceptance of the penalty, and that it is done as a last resort, after available political and legal resorts have been exhausted. These are perceived as important in demonstrating that civil disobedience can be, in Rawls’s words, “a form of political action within the limits of fidelity to the rule of law.” While civil disobedience may be morally justified, courts and prosecutors have seldom shown any special leniency toward those who have broken the law for reasons of conscience. As noted earlier, in the context of American law, significant constitutional issues are implicated. In particular, there is the issue of whether an apparent illegal act is really that, since the law might subsequently be declared unconstitutional by judicial review. There are also First Amendment concerns, especially the extent to which protests are protected speech. For example, the U.S. Supreme Court has held that burning a draft card is not protected speech (United States v. O’Brien, 1968) but that burning an American flag as a political protest is protected speech (Texas v. Johnson, 1989). Mario F. Morelli Further Reading Bedau, Hugo. Civil Disobedience: Theory and Practice. New York: Pegasus, 1969. One of several excellent collections of essays that includes Thoreau’s famous essay. Greenawalt, Kent. Conflicts of Law and Morality. New York: Oxford University Press, 1987. Holmes, Robert L., ed. Nonviolence in Theory and Practice. 2d ed. Long Grove, Ill.: Waveland Press, 2005. Murphy, Jeffrie, ed. Civil Disobedience and Violence. Belmont, Calif.: Wadsworth, 1971. Singer, Peter. Democracy and Disobedience. New York: Oxford University Press, 1974. Scholarly discussion of civil disobedience. Thoreau, Henry David. “Walden” and “Civil Disobedience”; Complete Texts with 120
Coast Guard, U.S. Introduction, Historical Contexts, Critical Essays. Edited by Paul Lauter. Boston: Houghton Mifflin, 2000. Walzer, Michael. Obligations: Essays on Disobedience, War, and Citizenship. Cambridge, Mass.: Harvard University Press, 1982. Discussion of the idea that obligation derives from consent and applies it to practical situations, including civil disobedience. See also Marshals Service, U.S.; Nonviolent resistance; Trespass.
Coast Guard, U.S. Definition: Federal military service and law-enforcement agency that provides maritime support for the war on terror as part of the Department of Homeland Security Criminal justice issues: Federal law; military justice; terrorism Significance: The nation’s oldest maritime military service, the U.S. Coast Guard is responsible for protecting coastal boundaries and infrastructure and intercepting illegal drugs, goods, and aliens that are attempting to enter the United States. The modern-day U.S. Coast Guard is the largest and most advanced maritime law-enforcement agency in the world and has a long and distinguished history as an autonomous military branch. In contrast to other branches of the U.S. military, the Coast Guard has never been part of the Department of Defense. The forerunner of the Coast Guard was established in 1790 as the Revenue Marine. Since then, the service has undergone major changes and restructuring. In 2003, the Coast Guard became part of the Department of Homeland Security, and since then its primary mission has been to defend more than 95,000 miles of U.S. coastlines, 360 ports, 10,000 miles of interstate riverfronts, and 3.4 million square miles of ocean. This monumental responsibility requires the joint cooperation of local, state, and other federal agencies, as well as the private maritime industry and international entities. The Coast Guard receives its law-enforcement statutory authority under Title 14 of the United States Code. Historically, the service has had three primary law-enforcement charges. These have included collection of tariffs for imported goods, protection of shipping from piracy on the high seas, and the interception of illegal goods and persons. Of these tasks, the primary goal of the Coast Guard prior to World War II involved the confisca121
Coast Guard, U.S. tion of material contraband. During the 1960’s, however, the service began increasingly to limit the flow of illegal immigration coming from Cuba. After large numbers of Cuban refugees were intercepted during the early and mid-1960’s, the numbers decreased until the landmark Mariel boatlift of 1980. That massive exodus of 125,000 Cuban refugees to the United States marked the largest Coast Guard peacetime operation to that date. The 1970’s saw an increase in the role of the Coast Guard in stemming the flow of illicit drugs into the United States. The service’s drug-enforcement duties continued to increase into the first years of the twenty-first century, as the service seized large quantities of marijuana, cocaine, and other illicit drugs. Particularly notable were seizures of thirteen tons of marijuana in San Diego in 1984, twenty tons of marijuana in Jamaica in 1987, and 13.5 tons of cocaine from a vessel located 1,500 miles south of California in 2001. The Coast Guard also has served in virtually every major military engagement since the founding of the United States. It has assisted U.S. Navy operations with personnel and equipment and has also been assigned special missions. It has a rich and well-documented history of recognized service during the Mexican War, the Spanish-American War, World War I, World War II, the Vietnam War, and the Persian Gulf War of 1991. As part of Operation Iraqi Freedom in early 2003, the Coast Guard continued to support other branches of America’s armed services. Current Day and Beyond On February 25, 2003, supervision of the Coast Guard was passed from the Department of Transportation to the newly founded Department of Homeland Security. The Homeland Security Act of 2002 lists five specific law-enforcement directives for the Coast Guard. These directives focus on securing ports, waterways, and coastal security; defense readiness and response; drug interdiction; illegal immigrant interdiction; and other lawenforcement duties as needed. In 2004, the Coast Guard employed approximately 39,000 active duty personnel, 8,100 reservists, and some 37,000 civilian auxiliary personnel. On a typical day, the Coast Guard boards 138 vessels for law-enforcement checks, performs 450 waterway or port security operations, opens 38 federal cases for law violations, monitors more than 2,500 commercial vessels entering or exiting ports of entry, confiscates 39 pounds of marijuana and 324 pounds of cocaine, arrests 15 illegal immigrants, and enforces 103 security zones. Since the unprecedented loss of life and the disruption of domestic commerce that came with the terrorist attacks of September 11, 2001, the Coast 122
Coast Guard, U.S.
Armed crew members of a Coast Guard patrol craft preparing to board a rum-running boat during the Prohibition era. (Library of Congress)
Guard has faced significant challenges as it has defended ports, waterways, and maritime industries. Even before these attacks, however, the Coast Guard had a desperate need to replace its aging and technologically deficient fleet of equipment. The Coast Guard’s increased responsibilities have made correcting those shortcomings a major area of concern for adequate domestic security. To maintain the Coast Guard’s state of preparedness and intelligence necessary to prevent and intervene in terrorist threats, a new generation of boats, cutters, fixed-wing aircraft, and helicopters was developed during the first decade of the twenty-first century. This state-of-the-art system, known as the Integrated Deepwater System (IDS), was designed to integrate, link, and network all new equipment assets, both within the Coast Guard and between the Coast Guard and other military and government agencies. The new system promised to be a highly effective, efficient, and intelligent use of resources, equipment, and manpower by establishing a fully integrated communications system to support the Coast Guard’s increasingly complex operations. Denise Paquette Boots Further Reading Beard, Tom, Jose Hanson, and Paul Scotti, eds. The Coast Guard. Westport, Conn.: Hugh Lauter Levin, 2004. Containing a foreword by veteran broadcast journalist Walter Cronkite, this illustrated book covers the 123
Commercialized vice duty, history, life, and devotion of the Coast Guard and its people through a number of essays and contributors. Johnson, Robert Erwin. Guardians of the Sea: History of the U.S. Coast Guard, 1915 to the Present. Annapolis, Md.: Naval Institute Press, 1987. Comprehensive and detailed account of the history of the Coast Guard from the early twentieth century through the 1980’s. It offers explicit accounts of rescues, military operations, and more. Krietemeyer, George. The Coast Guardsman’s Manual. 9th ed. Annapolis, Md.: Naval Institute Press, 2000. Designed for members of the Coast Guard, this book offers a thorough overview of Coast Guard history, uniforms, and operations and is mandatory reading for recruits in boot camp. Ostrom, Thomas. The United States Coast Guard: 1790 to the Present. Oakland, Oreg.: Elderberry Press, 2004. Written for serious scholars of American military and agency history, this book offers an exhaustive history of the Coast Guard. White, Jonathan R. Defending the Homeland: Domestic Intelligence Law Enforcement and Security. Stamford, Conn.: Wadsworth, 2003. Survey of law enforcement in the United States discussing how the criminal justice system has changed since September 11, 2001. See also Drugs and law enforcement; Homeland Security Department; Law enforcement; National Guard; Search and seizure.
Commercialized vice Definition: Business enterprises catering to various human desires that lead to statutory crimes Criminal justice issues: Deviancy; morality and public order; victimless crimes Significance: Commercialized vice constitutes an ambivalent area in American justice as it involves mostly voluntary and consensual activities that are widely regarded as not harming anyone and thus frequently designated as victimless crimes. When not merely viewed as a social deviance, commercialized vice is often described as crime against public morality. These so-called victimless crimes include prostitution and related offenses, obscenity and pornography, certain drug-related crimes, gambling, and alcoholism. 124
Commercialized vice
So-Called Victimless Crimes Crime
Total number of arrests in 2002
Prostitution and commercialized vice 58,758 Other sex offenses (except forcible rape and prostitution) 67,833 Drug abuse violations 1,103,017 Gambling 7,525 Liquor law violations 463,849 Drunkenness 413,808 Disorderly conduct 482,827 Vagrancy 19,678 All other offenses (except traffic) 2,606,294 Notes: Police departments reporting these figures are often inconsistent in their classifications. Also, as the conduct involved is consensual, many victimless crimes are unreported. Source: Federal Bureau of Investigation’s Crime in the United States 2002: Uniform Crime Reports.
Prostitution and Related Crimes In addition to actual or attempted prostitution, commercialized vice includes keeping bawdy houses, procuring, and transporting women for immoral purposes (less frequently, men or minors). At first, prostitution was not an offense per se under English or American law. It was only in 1914 that an Indiana statute defined the trade and only in 1917 that Massachusetts made prostitution directly punishable instead of charging solicitation, vagrancy, disorderly conduct, loitering, and the like. By 1920 most states, using their police powers to protect the health, safety, welfare, and morale of the citizens, criminalized prostitution, with the exception of Nevada, where the matter is still decided at the county level. Despite variations, state and local criminal statutes may apply to the prostitute, panderer, pimp, customer (the “john” or the “jill”), the economic beneficiary of the prostitute’s activity (if other than the pimp), and the trafficker in prostitutes. The federal government, using the commerce clause of the U.S. Constitution as its authority, has taken part in regulating these offenses beginning with the Mann (White Slave Traffic) Act of 1910, which bars the interstate transportation, persuasion, or coercion of women or girls into prostitution. Under its war powers, the U.S. Congress subsequently banned prostitution around military bases beginning in World War I. Streetwalkers, who make up an estimated 10 to 20 percent of all prosti125
Commercialized vice tutes, account for some 85 percent or more of all arrests because they are the most visible prostitutes. In this regard, they differ from prostitutes in other categories such as call girls, in-house sex workers, and workers in massage parlors, photo studios, strip clubs, and elsewhere. There is little empirical evidence about the effectiveness of such arrests in curbing prostitution, as pimps often pay fines or hire lawyers to get their employees released from jail. Police often consider that more serious priorities than prostitution need attending to, and the general public and even the courts are ambivalent about this area of the law. Still, there are some notable examples of city mayors publishing lists of “johns” or of police vice squads, a few headed by women, strictly enforcing the laws relating to public morality or decency. Male prostitutes also ply their trade, primarily in the gay sex market. Many of these cater to pedophiles, often older men for whom children are the preferred sex objects. A few males are hired by older women, especially at tourist resorts where the customers, seeking adventure and fun, can also retain their anonymity. As with their female counterparts, male prostitutes fall into various categories, such as street hustlers, bar hustlers, call boys, kept boys, and escorts. Even in the twenty-first century, which has seen an unprecedented acceptance of homosexual activity, there are still antisodomy laws at the state and federal levels, and in 2004 the U.S. Supreme Court had yet to set aside its Bowers v. Hardwick decision of 1986, thus refusing to overturn antisodomy laws, even those involving consensual adults. Obscenity and Pornography The crime of obscenity or pornography (“porn” is the nonlegal term for obscenity) involves the selling, delivering, airing, or supplying in any form any sex-related materials that are considered offensive according to certain standards. Generally, these materials or acts have to go beyond the customary lines of candor in description or representation. Just what the benchmarks of acceptability should be has been hard for the U.S. Supreme Court to define. As Justice Potter Stewart stated in Jacobellis v. Ohio (1964), he could not describe pornography, “but I know it when I see it.” Justice John Marshall Harlan opined in Cohen v. California (1971) that “one man’s vulgarity is another man’s lyric.” Beginning with the case of Roth v. United States (1957), the Supreme Court has held that once it is ascertained, obscenity falls outside the protection of the First Amendment of the U.S. Constitution guaranteeing freedom of speech, actual or symbolic. For all that, the justices made it clear that nudity and sex are not by definition obscene but only if they are “hard-core 126
Commercialized vice pornography.” To be obscene, according to the landmark ruling of Miller v. California (1973), a work, taken as a whole, must be deemed by “the average person applying contemporary community standards” to appeal to the “prurient interest” or to depict “in a patently offensive way, sexual conduct specifically defined by applicable state law” and lacking “serious literary, artistic, political, or scientific value.” For all that, the courts will always have difficulty negotiating the fine line between the right of citizens (even children) to read, see, and hear what they wish and the right of others to protect minors and the community in general from moral “degradation.” Accordingly, recognizing that in a pluralistic society differing values will be in evidence, by the twenty-first century the Supreme Court, referring to artistic, literary, scientific, or political merit or deferring to community standards, had shown wide fluctuations of opinion in the decisions handed down in this area of commercialized vice. Drug-Related Crimes Of relatively recent origin, the so-called drug crisis in the United States relating to the abuse of narcotics is not a single problem but, in fact, a broad range of them. It is part of a global situation involving a vast network of growers, manufacturers, smugglers, wholesale dealers, and street retailers—even criminal justice officers who cannot resist the money involved in payoffs, in extorting money from the dealers themselves, or in selling the confiscated goods. Historically, the substance most widely used in the United States has been marijuana, at one time often employed, just as cocaine, in popular elixirs. By the 1970’s cocaine had again become the preferred “hard” narcotic. The invention of newer and more powerful or customized drugs, such as crack cocaine, has reportedly popularized addiction even more, despite fluctuations in the use of all drugs. Beginning in 1906 with the Pure Food and Drug Act and in 1914 with the Harrison Narcotic Drug Act, the federal government has imposed gradual control over drug use involved in interstate and foreign commerce. In 1919, two U.S. Supreme Court decisions (United States v. Doremus and Webb v. United States) declared almost all forms of drug addiction illegal. Federal control was tightened in the 1930’s, as heroin use spread and as organized crime became more involved in the distribution and sale of illegal drugs. State control was not far behind. In 1970, the Comprehensive Drug Abuse Prevention and Control Act consolidated all existing measures in the federal code. Stricter penalties for drug abuse and trafficking went into force in the wake of the Vietnam War127
Commercialized vice era drug epidemic. Most states began to follow the U.S. Department of Justice-recommended uniform code, updated by the Uniform Controlled Dangerous Substances Act of 1974. Since then, some states have relaxed the rules, including decriminalization of a few of the drugs, such as marijuana, which have been shown to have therapeutic value. In July, 2005, the U.S. Supreme Court ruled that Congress has the authority to prohibit the medical use of marijuana in states where the voters or the legislature have approved the drug’s use under a doctor’s care. Most observers agree that drug abuse and convictions are an important reason behind prison overcrowding and public budgets squeezed by law-enforcement outlays. Gambling Gambling is the staking of money or something else of value on an uncertain future event. The element of luck is the controlling factor in gambling, so wagers are made on the outcome of a game of chance or skill. The range of games, devices used, and places where bets are made is very wide. Since 1948, after a half century of regulation by states, the federal government expanded its role in regulating gambling. By the 1970’s, federal statutes had been enacted to control, among other things, interstate and foreign transportation of gambling paraphernalia, the transmission of wagering information through wire facilities, state-conducted lotteries, and taxes on betting. Accordingly, by the twenty-first century, the federal government was extensively involved in regulating the promotion of illegal gambling and in sanctioning violators. At the state level, wagering on dog races or cockfights—especially as these activities often violate animal rights legislation—is widely outlawed. At the same time, however, a number of gambling activities are being legalized—for example, church raffles and bingo games, state lotteries, and gambling casinos run by American Indians. As in the case of other so-called victimless crimes such as drug use, arguments are being made that legalizing games of chance will reduce the profits of running illegal ones, especially by organized crime, and that this, in turn, will curtail the corruption of officials and law-enforcement agents who apply gambling laws in a discriminating manner. There is disagreement on most of these points, and the fear, also voiced in connection with decriminalizing other so-called victimless crimes, is that ancillary criminality—such as prostitution—may increase at gambling casinos and other gaming locations.
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Commercialized vice Alcoholism This form of commercialized vice involves drunkenness and intoxication with alcoholic beverages. In the United States the consumption of such beverages—beer, wine, and hard liquor—is relatively high. As in the case of drug abuse, alcoholism—defined as excessive use of these beverages—is closely linked to violent crime, driving while intoxicated with the resulting automobile crashes, problems in the workplace such as absenteeism, disorderly and violent conduct of various kinds, family abuse and breakup, and other social ills. Criminal law has attempted to check the consequences of some alcohol abuse by raising the minimum drinking age in states (often to as high as twenty-one years) in public places, limiting bar hours, and checking secondary criminality flowing from middlemen profiting from the national addiction by operating after-hour bars and the like. However, the dismal experience of the Prohibition era (1919-1933), when the Eighteenth Amendment of the U.S. Constitution, implemented by the Volstead Act of 1919, unsuccessfully barred the manufacture, sale, transportation, import, or export of intoxicating liquors taught an object lesson. Thus, the “demon rum,” seemingly as American as apple pie, is no longer perceived as a major public menace. Vice Control Law, including the field of criminal justice, is always the product of the forces of time and place, and undoubtedly the American mosaic has evolved. Thus, when it comes to commercialized vice, what was considered widely reprehensible in an earlier, more puritanical age—as socially or legally deviant— may not be so today. Paralleling a supposedly better-educated and more sophisticated public and the socializing influence of the media, there has been a corresponding change in mores and in the laws and court decisions that reflect them over time. Peter B. Heller Further Reading Aggleton, Peter, ed. Men Who Sell Sex: International Perspectives on Male Prostitution and HIV/AIDS. Philadelphia: Temple University Press, 1999. A series of essays about the numerous, complex dimensions of male sex work in several different locations across the world and its regulation by legislation and police. Includes index. Chapkis, Wendy. Live Sex Acts: Women Performing Erotic Labor. New York: Routledge, 1997. Profile of the trade of prostitution and those engaged in it, 129
Community-based corrections with a chapter on “Legalization, Regulation, and Licensing.” Includes photographs, bibliography, and index. Lane, Frederick S., III. Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age. New York: Routledge, 2000. Covers how various social and technological developments have reduced or eliminated the stigma previously attached to pornography. Includes index. Liska, Ken. Drugs and the Human Body, with Implications for Society. 7th ed. Upper Saddle River, N.J.: Prentice-Hall, 2004. The social, medical, and psychotropic aspects of narcotic drugs. Includes bibliography, illustrations, and index. Mason-Grant, Joan. Pornography Embodied: From Speech to Sexual Practice. Lanham, Md.: Rowman & Littlefield, 2004. The debate about pornography in the women’s movement. Includes appendix, bibliography, and index. O’Brien, Timothy L. Bad Bet: The Inside Story of the Glamour, Glitz, and Danger of America’s Gambling Industry. New York: Random House/Times Business, 1998. The nature of compulsive gambling and its regulation. Includes bibliography and index. See also Disorderly conduct; Gambling; Pandering; Pornography, child; Public-order offenses; Victimless crimes.
Community-based corrections Definition: Sentence, or post-sentence arrangement, in which offenders are allowed to remain in their own communities, with supervision and sometimes assistance with rehabilitation and reintegration into their communities Criminal justice issues: Probation and pretrial release; punishment; rehabilitation Significance: Community-based corrections are alternatives to incarceration and are increasingly and innovatively being used by judges and corrections administrators to alleviate prison and jail overcrowding. An array of community-based correctional strategies is in use, but this was not always the case. Around the time of the American Revolution, offenders were routinely punished in their local communities, with public humiliation as the goal. Criminals, for example, were placed in stocks and forced to endure thrown garbage and insults while they were, literally, on display in the town square. Such punishments aimed to deter would-be offenders and pro130
Community-based corrections vided obvious retribution for wrongdoing. These early humiliating punishments, however, did not aim to reintegrate the offender. Over time, penal reformers argued that rehabilitation should also be an objective of punishment and that offenders could be corrected within their communities. By the mid-nineteenth century, some offenders were placed on probation and parole, the earliest attempts at their correction outside an institution. Until the late 1950’s, these were the only widely employed community-corrections strategies. During the 1960’s and 1970’s, increased interest and support for the idea of correction in the community led to the proliferation of work-release programs, halfway houses, substance-abuse centers, and other community-based corrections. By the 1980’s, support for rehabilitation and community-based corrections had decreased; the number of offenders removed from society via incarceration grew. Prison and jail populations skyrocketed. Consequently, alternatives to incarceration are now sought, if only to alleviate institutional overcrowding. Probation and Parole Probation and parole began to be used in the United States during the nineteenth century. Probation originated in Boston in 1841, through the work of John Augustus, an influential business owner. As a sentence, probation allows convicted offenders to remain in their communities, under supervision and with specified conditions. Liberty is, therefore, conditional. The conditions of probation quite often focus on an offender’s rehabilitative needs. For example, an offender with substance-abuse problems will likely be required to attend Narcotics Anonymous or other appropriate meetings. Unlike probation, parole is not a sentence. A parole board, rather than a judge, decides whether an offender may soon rejoin society. If the decision is favorable, an inmate is granted early release from prison. Therefore, all parolees have recently been incarcerated. New York, through its adoption of an indeterminate sentencing law in 1876, was the first state to allow prisoners to be released on parole. The aim of parole, like that of all community-based corrections, is to assist with an offender’s reintegration. Like a probationer, a parolee is supervised while in the outside community and must abide by conditions of release. For both probationers and parolees, failure to abide by the conditions specified for release may result in reimprisonment. The Mid-Twentieth Century From the late 1950’s to the late 1970’s, the scope of community-based corrections expanded beyond probation and parole. Penal reformers ar131
Community-based corrections gued that released inmates faced many problems as they made the transition from imprisonment to life back in the community. To combat the challenges former inmates faced, organizations such as the International Halfway House Association (now known as the International Association of Residential and Community Alternatives) and the American Correctional Association were instrumental in increasing the resources available for community-based corrections, and some were secured through legislation. For example, the Federal Prisoner Rehabilitation Act of 1965 authorized the establishment of halfway houses for both juveniles and adults. Largely because of these efforts, from 1966 to 1982 the number of halfway houses operating in the United States and Canada increased from fewer than fifty to more than fifteen hundred. The aim of halfway houses, both then and now, is to assist with an offender’s successful reintegration back into society. Some halfway houses also provide in-house rehabilitation, which may include job skills training, substance-abuse treatment, or mental health counseling. The number of inmates granted temporary release from prisons and jails also grew notably. In 1957, for example, North Carolina became the first state to permit selected convicted felons to leave prisons during the day to work in the local community. Other states followed suit. The U.S. Congress, in 1965, allowed work release for prisoners in federal institutions. Authorization for other temporary-release programs, such as furlough release and study release, also became more widespread. The aim of all temporaryrelease programs is to promote offenders’ positive ties to society by allowing them to maintain regular societal interaction. The 1980’s and Beyond Belief in the value of rehabilitation waned in the 1980’s. Critics argued that high recidivism rates were indicative of a correctional system that was not working, suggesting that “correction” was not possible. Consequently, deterrence, retribution, and incapacitation became the primary justifications for punishment. With this came an increased likelihood of incarceration for an offender. By 2004, the rate of incarceration was at an all-time high. Prisons and jails in many jurisdictions across the United States remained severely overcrowded. One method of reducing overcrowding is to sentence offenders to something other than incarceration. Intermediate sanctions, which are simply punishments that are more severe than probation but less severe than incarceration, provide an alternative. Use of most intermediate sanctions originated in the 1980’s and 1990’s. 132
Community-based corrections For example, Georgia became the first state to implement intensive supervised probation (ISP), in 1982, and widely to use correctional boot camps, in 1983. Both were done, in part, to avoid a federal takeover of its overcrowded prison system. New Jersey and Massachusetts also began utilizing ISP during the early 1980’s. The use of house arrest, with or without electronic monitoring, has also spread rapidly. In 1984, Florida was the first state extensively to use the sanction of home confinement. For many offenders, this punishment is the last chance to avoid incarceration in jail or prison. As technology has advanced, more and more jurisdictions have added electronic monitoring into their repertoire of punishment options. Day-reporting centers are among the newest of intermediate sanctions. In 1990 only thirteen day-reporting centers existed in the United States. By 2004, most major jurisdictions had at least one center to which offenders were sentenced to report on a daily basis. At the center, where offenders may spend up to eight hours of their days, focus is placed on an offender’s rehabilitation needs. Over time, expectations are that intermediate sanctions will increasingly be used. Pauline K. Brennan Further Reading Abadinsky, Howard. Probation and Parole. 9th ed. Upper Saddle River, N.J.: Pearson/Prentice-Hall, 2006. Detailed description of probation and parole in the United States. Allen, Harry E., Clifford E. Simonsen, and Edward J. Latessa. Corrections in America: An Introduction. 11th ed. Upper Saddle River, N.J.: Pearson/ Prentice-Hall, 2007. An introductory discussion of the history of corrections, sentencing, incarceration, alternatives to confinement, types of offenders under correctional supervision, and reintegration. Clear, Todd R., and Harry R. Dammer. The Offender in the Community. 2d ed. Belmont, Calif.: Wadsworth/Thomson Learning, 2003. Systematic review of a number of community-based corrections. Haas, Kenneth C., and Geoffrey P. Alpert. The Dilemmas of Corrections. 4th ed. Prospect Heights, Ill.: Waveland Press, 1999. Provides readings on rehabilitation, community-based corrections, and critical problems and issues faced by corrections institutions. Stohr, Mary K., and Craig Hemmens. The Inmate Prison Experience. Upper Saddle River, N.J.: Pearson Education, 2004. Describes life behind bars and the challenges of reintegration for former inmates. 133
Community service See also Community service; Deterrence; Drug courts; Electronic surveillance; Halfway houses; House arrest; Parole; Probation, adult; Recidivism; Rehabilitation; Restorative justice; Sentencing; Work camps; Work-release programs.
Community service Definition: Form of punishment that as an alternative to incarceration requires offenders to do work that improves the community or restores the damage their actions have caused Criminal justice issues: Punishment; restorative justice Significance: Community service has proven to be a cost-effective alternative to incarceration and offers other benefits to communities. At the same time, it requires a measure of accountability and responsibility on the part of the offenders. Offenders who are sentenced to perform community service are typically required to do set amounts of unpaid labor for some project or operation that benefits the community in which they have been convicted. The logic behind this practice follows a principle of restorative justice holding that reparations to victims or communities as a whole create a better end than simply punishing offenders through incarceration. While part of restoration may include imposition of fines, the amounts of the fines may be influenced by the offenders’ ability to pay and thus have unequal impact on the communities. Restitution to the community as a whole through tangible service can be a more even-handed way of achieving restorative justice, as the sentences imposed on the rich and the poor are more likely to be the same. Community service offers many benefits. While still holding offenders accountable for their actions, the communities can receive tangible forms of compensation. Moreover, monitoring completion of community service is nearly always less expensive than incarceration, allowing the limited incarceration resources to be directed to offenders who pose greater risks to the community. Another benefit is the offering of positive, structured activities for the offenders’ free time. However, although offenders themselves may benefit from performing their service, being forced to give up leisure time or opportunities to earn money clearly has a punitive aspect. The quality of community service is often dependent on the relationships between the court officers overseeing the work and the organizations 134
Community service for which the offenders perform services. An important aspect of community service is that the work performed serves genuine needs in the community, and that it is actually done. Assignments may be client-specific, to take advantage of individual offenders’ special skills, or offense-specific, such as assigning someone charged with animal cruelty to work in an animal shelter. Most offenders reside in their homes while completing their service, but some states have created centers in which the offenders are required to reside while performing their service. Residents of such centers are supervised twenty-four hours a day, but the centers create opportunities for the residents to work in programs that help the community. Upon release, the residents are generally better prepared to be reintegrated into their communities, and they may have developed new marketable job skills, along with positive feelings of involvement in the community. While research findings on the effectiveness of community-service programs have been mixed, most studies find that offenders sentenced to community service are, at the least, no more likely to become repeat offenders afterward than offenders who are incarcerated. On the other hand, if community service is overused for repeat offenders and jail is not an alternative, incentives for offenders to provide quality service may be diminished. One thing is clear, however: The cost savings and general benefit of the offenders’ work to the community make the programs attractive alternatives to traditional sentences of incarceration for many offender populations. John C. Kilburn, Jr. Further Reading Champion, Dean J. Probation, Parole, and Community Corrections in the United States. 6th ed. Upper Saddle River, N.J.: Pearson Education, 2008. Clear, Todd R., and Harry R. Dammer. The Offender in the Community. 2d ed. Belmont, Calif.: Wadsworth/Thomson Learning, 2003. Karp, David R., and Todd R. Clear. What Is Community Justice? Case Studies of Restorative Justice and Community Supervision. Thousand Oaks, Calif.: Sage Publications, 2002. McDonald, Douglas. Punishment Without Walls: Community Service Sentences in New York City. New Brunswick, N.J.: Rutgers University Press, 1986. See also Animal abuse; Community-based corrections; Punishment; Restitution; Restorative justice; Sentencing.
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Computer crime
Computer crime Definition: Illegal intrusions into computers and the use of computers for the perpetration of other crimes Criminal justice issues: Business and financial crime; computer crime; fraud; technology Significance: Computer crimes cause immense harm and present a national problem that is difficult to control because of constantly changing technology and the inconsistent and often unenforceable national and international laws enacted to counter the crimes. Computer crime comprises a broad range of illegal acts in which computers, other types of electronic information-processing devices, and information systems are the objects, targets, or instruments of crimes. They may also be the sites from which “attacks” are launched or the cyber environments are harmed in the course of attacks on information systems. The term “computer crime” has historically conveyed different meanings to criminal justice officials, policymakers, researchers, the media, and the general public. For example, computer crime was once regarded as any illegal act requiring knowledge of computer technology for its perpetration, investigation, or prosecution. Computers have also been conceptualized as symbols for intimidation, particularly in situations in which intended crime victims do not understand or become fearful about the functional capabilities of computers. The absence of a widely accepted definition of computer crime has much to do with the technical and special nature of computer abuses, such as computer “hacking,” the releasing into computer systems of viruses, and interruptions of service. Also important are the technologically evolving nature of computers and the crimes in which they are used, the pace of computerization, and increasing adoption of computers for illicit purposes throughout the United States and other nations. As a consequence of these complexities, several different terms and labels have come into use to describe crimes in which computers—often networked and used in combination with other electronic devices—are used for criminal purposes. Terms generally considered to be synonymous with computer crime include computerrelated crime, high-tech crime, information technology-related crime, information/New Age crime, Internet crime, and cybercrime. In addition, computer crimes are also frequently given sensational labels in the media, such as “data rape” and cyberstalking. These terms, too, further complicate wide acceptance of any specific term or label. 136
Computer crime History Computer crimes emerged in the United States with the computerizing of banking services. The first recorded instance of computer crime occurred in 1958. It involved “salami slicing,” in which a bank employee in Minneapolis, Minnesota, used a computer to divert and deposit rounding errors of financial transactions into a special account. Over the years, as evolving computer technology made possible new banking services, such as personal credit cards, automatic teller machines (ATMs), and online banking, new forms of computer-enabled financial crimes arose. Computer hacking—the unauthorized accessing of computerized information systems—also began during the late 1950’s. At that time, the nation’s first computer science students, at the Massachusetts Institute of Technology, were intent on discovering new uses for computers and called themselves “computer hackers.” Throughout the 1960’s and 1970’s the number, variety, and impact of computer abuses and crimes increased significantly. However, official estimates of such trends are not available. Nonetheless, growing concern about computer crime during the 1980’s, coupled with the beginning of widespread Internet operations in 1984, resulted in several state governments and the federal government enacting special computer crime laws. In 1984, the federal government enacted the Computer Fraud and Abuse Act, which made it illegal to access computer systems without prior authorization. During that same period, several new types of computer crimes arose, and several famous computer crime cases occurred. For example, in 1984 Fred Cohen, a famous computer-security instructor and consultant, introduced the term “computer virus” to describe self-replicating programs capable of infecting networked computers. On November 2, 1988, Robert Morris released an infamous computer “worm”—a program that shut down significant portions of the Internet. After 1994, the World Wide Web made online computing more accessible, versatile, and interesting to millions of computer users. The development invariably gave rise to more and increasingly imaginative forms of computer abuse. During the first decade of the twenty-first century, computer crimes included disruptions of computer services by writing and distributing malicious computer programs (viruses, worms, and trojans), and trespassing into information systems without authorization in order to explore, steal, modify, or destroy data. Computer crimes now also include such financial crimes as embezzlement, securities fraud, unlawful use of credit card account numbers, identity theft, and fraud in online auction and retail-purchasing Web sites. Other 137
Computer crime forms of computer crime include piracy of digitized music, film, and application files; sending of unwanted spam; online harassment and stalking; and accessing, distributing, and possessing computer media containing child pornography. Prevalence Computer crime now reportedly occurs throughout the United States at record rates, in more complex variations and combinations, and with increasing social and economic impacts. Computer crime is also raising fears of lost, damaged, or stolen data among computer users everywhere and is generally raising concerns about information security throughout society, including at the highest levels of government. Nevertheless, reliable estimates of the numbers and impact of computer crimes remain largely undetermined, as few studies of the problem have been undertaken. Moreover, even when such studies are conducted, they seldom employ random sampling and other research methods capable of producing results that are scientifically valid and applicable to society as a whole. This condition is the consequence of unclear or imprecise definitions of computer crime and categorizations of offenses and offenders, the unwillingness on the part of many computer crime victims to reveal successful attacks on their information systems, the lack of criminologists specializing in computer crime issues, and a general lack of federal government funding for computer crime research. Three basic ways of estimating the prevalence of computer crime are victimization surveys, self-report (offender) surveys, and crime reporting systems such as the Uniform Crime Report (UCR) system, which is operated by the Federal Bureau of Investigation (FBI) with voluntary participation of state and local law-enforcement agencies. None of these methods is systematically and consistently used within the United States for reporting computer crime occurrences or trends. In 2001, the federal government began considering how best to measure the prevalence and costs of computer crime to businesses in the United States. A pilot computer security survey administered in 2001 and responded to by 198 businesses revealed that 74 percent of the businesses had been victims of computer crimes, and 68 percent of the companies experiencing incidents had losses totaling $61 million. These findings are not nationally representative but may illustrate the feasibility and utility of a data collection program that in 2004 the federal government was planning to initiate among some 36,000 U.S. businesses. Other research efforts to establish the prevalence of computer crime in138
Computer crime dicate that most large corporations and government agencies surveyed have detected computer security breaches that resulted in financial losses within the previous twelve months. For example, 223 organizations surveyed in 2002 reported $455,848,000 in total financial losses from thefts of proprietary information and financial fraud. The organizations surveyed also reported that their Internet connections and internal systems were the most frequent points of attack. Internet auction fraud is a frequent form of computer crime, along with credit- and debit-card fraud, computer intrusions, unsolicited e-mail (spam), and child pornography. Of 75,063 complaints received by the Internet Fraud Complaint Center of the National White Collar Crime Center in 2002 and subsequently referred to law-enforcement and regulatory agencies for investigation, Internet auction fraud constituted 46 percent. Auction fraud problems included nondelivery of merchandise and account payment matters. It also appears that the levels of automation in attack tools are increasing as attack-tool developers use more advanced techniques. The number of newly discovered vulnerabilities continues to rise at a rate more than double each year, making it difficult for systems administrators to keep up with information security patches. Attack technologies are being designed to bypass typical computer firewall configurations. The security of the Internet and other systems is interdependent, as it can only be as strong as its weakest point. Attacks against critical information infrastructures are increasing concern because of the number of organizations and users on the Internet and their increasing dependency on the Internet to perform their daily functions. Investigation The investigation, prosecution, and punishment of computer abuse and crime began during the late 1950’s as financial transactions and other types of record-keeping by banks were computerized. The first federally prosecuted case of computer crime occurred in 1966; it involved a perpetrator using a computer to manipulate computerized banking records. During the early years of computer crime, many investigators and prosecutors considered the problem to arise mainly in isolated instances in which computers were merely tools being used in innovative ways to commit already wellunderstood forms of white-collar and financial crimes, such as fraud and embezzlement. The onset of computer abuse and crime also arose from establishment of the computer hacker subculture, whose participants believed in the “hacker 139
Computer crime ethic” of unconstrained discovery, exploration, and sharing of information. Although such motives may have been noble in their original intent, they encouraged unauthorized hacking into computer systems and have remained a justification for many acts of computer trespassing, software piracy, and illegal sharing of digitized music and film files. Prosecution During the 1970’s and throughout the 1980’s computers were increasingly used to commit other new forms of computer abuse and crime, including the creation and distribution of digitized child pornography. Fraud and exploitation of children and the elderly by means of computer bulletin boards and online information services were also commonplace during this period, as were traditional types of crimes committed with the aid of computers, such as counterfeiting, robbery, illegal gambling, kidnapping, prostitution, racketeering, drug trafficking, and homicide. Hate crimes and acts of terrorism were also facilitated by the use of computers. As a result, the U.S. Department of Justice published the first Computer Crime Criminal Justice Resource Manual in 1979. In 1987, the federal government passed the nation’s first Computer Fraud and Abuse Act. The following year, Robert Morris became the first offender prosecuted under this law for releasing an Internet worm program that infected thousands of connected computers in November of 1988 and essentially shut down significant portions of the Internet throughout the eastern United States. In 1989, the Department of Justice published a second edition of its computer crime resource book for criminal justice officials and also explained how state and local law-enforcement officials could go about creating special computer crime investigation and prosecution units. Afterward—and especially after the creation of the World Wide Web and the explosion of new forms of computer crime that ensued—numerous state and local lawenforcement agencies, as well as the federal government, established computer investigation and prosecution units. In 1994, the Computer Crime Prosecution Unit of the Department of Justice published its first set of federal guidelines for searching and seizing computers. Several professional associations and organizations, such as the international and regional chapters of the High Technology Crime Investigation Association, the Computer Security Institute, and the SANS Institute are now instrumental in developing training programs that teach and promote best practices for investigating and prosecuting computer crime, as well as enhancing information-systems security. In 2000, agencies of the federal 140
Computer crime
Prosecutor Offices and Computer Crime in 2001 This chart shows the percentages of all U.S. prosecutor offices that reported prosecuting computer-related crimes in 2001. The left column for each category shows the percentages of all offices that prosecuted related cases; the right column shows the percentage for offices serving populations of at least one million people. all offices
large offices
100
percentage of prosecutors’ offices
90 80 70 60 50 40 30 20 10
identity theft
transmitting child pornography
intellectual property theft
computer sabotage
bank card fraud
credit card fraud
Source: U.S. Bureau of Justice Statistics.
government, including the Department of Homeland Security, the National Security Agency (NSA), and the National Institute for Standards and Technology, began establishing technical standards and recommending best practices to meet the goals of improved security. These and other government agencies and private associations and organizations now routinely provide updated resource materials at no charge for law-enforcement investigators, prosecutors, and information security professionals. 141
Computer crime Despite such capacity-building to prevent and control computer crimes, the international and transnational aspects of investigating and prosecuting computer crimes are immensely complex and problematic for criminal justice officials. In 2004, there was no universally accepted body of international law or treaty governing search, seizure, and the admissibility of computer evidence. There were also no universally recognized methods for effecting arrests of offenders beyond U.S. borders or extraditing them back to the United States to stand trial for alleged crimes. The general requirements for successful investigations and prosecutions of computer crimes do not substantially differ from those for other types of crime. However, greater understanding, curiosity, and technical knowledge about computers and other types of electronic information processing systems is required in some instances. Computer crimes range from offenses that involve little computer usage to those that involve significant usage. Evidence of computer crimes may be testimonial and either tangible or cyber, as well as circumstantial. Human factors surrounding motives, means, and opportunities to commit computer crimes, as well as the skills, knowledge, resources, and access to information systems possessed by perpetrators also matter from the standpoints of investigating and prosecuting computer crimes. Investigations of computer crimes are subject to the same rules that govern the search, seizure, and analysis of evidence in other crimes. For example, search warrants are required to search computers for digital evidence of crimes unless exceptional circumstances exist. Ultimately, judges and juries decide on the acceptability and relative value of evidence in cases that go to trial. Punishment Depending on the types of computer crimes involved, suspected perpetrators may be charged with either misdemeanor or felony crimes. Adults convicted of misdemeanors are normally subject to punishment of up to one year in jail, fines of up to one thousand dollars, or both. Adults convicted of felony computer crimes may be sentenced to spend more than one year in prison, pay fines greater than one thousand dollars, or both. However, amounts of fines vary among state and federal courts. Other sanctions, such as performing community service and paying victims of crimes financial restitution may also be imposed. Early computer criminals typically received light punishments. However as the number and seriousness of computer crimes increased, courts began imposing more severe sanctions. In an incomplete but regularly updated list 142
Confessions of punishments imposed on convicted computer crime offenders, the Department of Justice reported that penalties ranged from five to sixty months incarceration, often combined with fines of thousands or even hundreds of thousands of dollars, depending on the circumstances of the cases. Samuel C. McQuade III Further Reading Baase, Sara. A Gift of Fire: Social, Legal, and Ethical Issues for Computing and the Internet. 3d ed. Upper Saddle River, N.J.: Pearson/Prentice-Hall, 2007. Broad examination of criminal and other issues relating to computer use. Clifford, Ralph D, ed. Cybercrime: The Investigation, Prosecution, and Defense of a Computer-Related Crime. 2d ed. Durham, N.C.: Carolina Academic Press, 2006. Collection of articles on all aspects of investigating and prosecuting cybercrime; includes discussions of selected court cases. Grance, T., K. Kent, and B. Kim. Computer Security Incident Handling Guide: Recommendations of the National Institute of Standards and Technology. Washington, D.C.: U.S. Department of Commerce, 2004. Government report on the latest methods of enhancing computer security. Himanen, P. The Hacker Ethic and the Spirit of the Information Age. New York: Random House, 2001. Examination of the philosophy of computer hackers and their impact on the computer world’s growing interconnectedness. Rantala, R. R. Cybercrime Against Businesses. Washington, D.C.: Bureau of Justice Statistics, 2004. Report of a U.S. Department of Justice study of the impact of computer crime on American businesses. Stephenson, Peter. Investigating Computer-Related Crime. Boca Raton, Fla.: CRC Press, 2000. Moderately technical discussion covering types of computer crime, their impacts, investigations, and different forensic technologies available for investigating them. See also Blackmail and extortion; Electronic surveillance; Embezzlement; Fraud; Privacy rights; Trespass; White-collar crime.
Confessions Definition: Criminal suspects’ oral or written acknowledgments of guilt Criminal justice issues: Confessions; interrogation Significance: Because confessions are of high evidentiary value at criminal 143
Confessions trials, law-enforcement officers must secure the admissibility of the confession by utilizing proper interrogation methods in custodial settings. Traditionally, any statement made by a criminal suspect, regardless of how the statement was obtained, was admissible at trial. This rule had the effect of producing unreliable statements, especially when the interrogators had used extreme force or brutality. Beginning during the late nineteenth century, American courts began to recognize that a confession was of little evidentiary value if it was not made voluntarily. To that end, the U.S. Supreme Court determined that the Fifth Amendment right against selfincrimination made involuntary confessions inadmissible. A confession may be deemed involuntary in one of two ways. First, if the confession is obtained by the use of coercion, such as physical or mental torture, that confession is considered involuntary because it was not made of the suspect’s free will. Second, if the confession is obtained while the suspect is in a custodial setting and is not free to leave, that confession is presumed to be compelled and will be inadmissible at trial, even if police have not used coercive tactics. The U.S. Supreme Court has set forth numerous procedural guidelines designed to assist police officers during the interrogation process in order to obtain admissible confessions while safeguarding suspects’ constitutional rights.
A Dubious Movie Confession One of the most famous films about capital punishment ever made is director Robert Wise’s I Want to Live! Loosely based on the true-life story of Barbara Graham, who was executed in California in 1955, this 1958 film stars Susan Hayward as Graham, a woman who is convicted of participating in a robbery and murder. Although Graham insists on her innocence to the end, she is executed in a gas chamber after a series of appeals. A key element behind Graham’s conviction is the confession that she apparently made to a fellow prison inmate, who promised to provide her with an alibi if she would confess. This bit of trickery, made at a time when the defendant was represented by an attorney, probably made her confession inadmissible, and the film is now unrealistic for failure to note this fact. Timothy L. Hall
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Confessions Voluntariness Aware that the pressures one faces when subjected to police interrogation might stimulate false confessions and therefore undermine the integrity of the criminal justice system, the Supreme Court mandated in Miranda v. Arizona (1966) that police officers advise suspects in custody, prior to interrogation, that they have the right to remain silent, that anything they say can be used against them in court, and that they have a right to an attorney present during questioning. If a police officer fails to read these rights before questioning a suspect, the suspect’s statements will not be admissible at trial. In addition, any evidence obtained as a result of the illegal interrogation can be considered tainted and excluded from trial as “fruit of the poisonous tree.” It is important to note that the Miranda doctrine only applies to a suspect who is in custody. The Miranda decision has come under attack. Some prosecutors and lawenforcement officers view the rigid guidelines as the primary reason for losing valuable evidence that could have been used at trial. Instead, they have argued that Miranda should be overturned and that the admissibility of confessions should be determined by the totality of the circumstances surrounding the interrogation. In 2000, however, the Supreme Court reaffirmed Miranda’s constitutional underpinnings in Dickerson v. United States when it held that Miranda rules are “concrete constitutional guidelines” which may not be overturned by legislation enacted by Congress in favor of the pre-Miranda case-by-case voluntariness standard. While Miranda may appear to place significant restrictions on police interrogation procedures, it does not bar police officers from lying, using tricks, or cajoling a suspect into speaking. Although threatening a suspect would be considered coercive, and evidence gained in that way would be inadmissible, police may, for example, tell a suspect that evidence exists, even when it does not, in order to coax the suspect into confessing. Similarly, while physical mistreatment will render a confession invalid, an officer pretending to be angry to induce a confession or playing on a suspect’s sympathies may not be. In short, there is a fine line between what is considered coercive and what is not, and it takes a skilled practitioner to extract a confession in a manner that is constitutionally acceptable. The Sixth Amendment Right to Counsel Laws regulating admissibility of confessions do not apply only to police interrogation before trial. After a suspect is arrested and charges are filed by a district attorney, the suspect becomes a criminal defendant and is entitled to legal representation. In Massiah v. United States (1966), the Supreme Court 145
Confessions held that a criminal defendant may not be questioned by any police or officers of the court outside the presence of counsel. If any illegal interrogation occurs, or if any tricks are used, such as informants or wiretaps, to deliberately elicit a statement from the accused, that statement will be inadmissible at trial. There is a major difference between the Fifth Amendment right to avoid self-incrimination and the Sixth Amendment right to counsel. The Massiah doctrine is offense-specific and only applies to those charges for which adversarial criminal proceedings have been initiated. It does not bar police from questioning criminal defendants about other cases. Additionally, if defendants are released from custody, they are no longer considered to be under arrest, and Miranda does not apply. In such cases, the suspects need not be advised of their rights prior to interrogation. Kimberly J. Belvedere Further Reading Dressler, Joshua. Understanding Criminal Law. 4th ed. Newark, N.J.: LexisNexis Matthew Bender, 2006. Comprehensive text regarding constitutional criminal procedure, with several chapters on confession law and relevant defenses. Inbau, Fred, John Reid, Joseph Buckley, and Brian Jayne. Criminal Interrogations and Confessions. 4th ed. Boston: Jones and Bartlett, 2001. Explanation of the popular nine-step process used by many police departments that shows police officers how to distinguish between truth and falsity. Orth, John V. Due Process of Law: A Brief History. Lawrence: University Press of Kansas, 2003. Traces the development of the concept of due process as well as the logic underlying the issue from as early as the Magna Carta to Supreme Court decisions that may shed light on how and why certain tactics used during interrogations might be considered unconstitutional. Stephen, John, and Earl Sweeney. Officer’s Interrogation Handbook. New York: LexisNexis, 2004. Primarily designed for police officers, this handbook explains the constitutional constraints applicable to statements, admissions, and confessions as they apply to the Fifth and Sixth Amendments. Zalman, Marvin. Criminal Procedure: Constitution and Society. 5th ed. Upper Saddle River, N.J.: Pearson/Prentice Hall, 2008. Highlights how legal doctrines, including those dealing with the Bill of Rights, interact with the criminal justice system through a comprehensive account of the issues from both a legal and social perspective. See also Arrest; Discovery; False convictions; Miranda rights; Self-incrimination, privilege against; Testimony. 146
Conspiracy
Conspiracy Definition: Planning of an illegal act by any two or more persons Criminal justice issues: Business and financial crime; fraud; legal terms and principles; white-collar crime Significance: The criminal charge of conspiracy is used to fight terrorism, prevent overt commissions of crimes, and bring to justice accessories and accomplices who aid and abet in the planning or commission of crimes ranging from violent crimes against persons to business crimes against consumers or stockholders. Conspiracy is one of several inchoate crimes that involve talking about the commission of crimes that are to take place in the future. An increasing number of white-collar criminal prosecutions include charges of conspiracy. In the past, it was assumed that businesses and other organized groups were artificial constructs, without minds of their own, and therefore incapable of forming the intention necessary to commit crimes. This view has been changing, however, so that businesses, as well as individuals, are now held liable for conspiracy and fined accordingly. Conspiracy involves two or more actors who come together or communicate with one another to plan to engage in criminal activity. These actors may be individual persons, businesses, families, or groups. They must mutually agree to engage in criminal conduct themselves, to solicit others to engage in criminal conduct, or to aid other persons in planning, committing, or attempting to solicit someone to engage in criminal conduct. Agreement among actors is essential to the charge of conspiracy. Agreements need not be written, oral, or even explicit. Agreements among actors may simply be inferred when actors meet together or are in communication and there exists a general understanding that those involved are working toward a common purpose. The agreements may be to commit unlawful acts, such as robberies, or to do lawful acts by unlawful means, such as businesses setting lawful prices by unlawful collusion among competing storeowners. Some participants in conspiracies may limit their own involvement to legal activities; however, if the end result of a conspiracy’s combined activities is illegal, then all its actors may be held accountable for conspiracy. Prosecution of Conspiracies Prosecutors can gain several advantages by filing conspiracy charges against defendants. First, because law-enforcement officials often learn about 147
Conspiracy conspiracies while they are still being planned, they can bring charges against conspirators before their intended crimes actually take place, thereby preventing the intended crimes. Second, defendants who are only marginally involved in conspiracies can be charged and brought to trial together with those who are more actively involved. Juries tend to find defendants guilty simply because of their proven association with other defendants who are more deeply involved in crimes. This is especially true with chain conspiracies. Chain conspiracy involves multiple participants in a single long criminal chain. An example is a series of illegal drug deals that begins with the manufacture of a drug and extends to the dealers on the street. Conspiracy defendants are held responsible for the actions of all participants in the chain, even if they never meet or communicate with the other participants and even if some of the actors in the chain engage in entirely lawful activities. Members of a chain can also be charged with vicarious criminal liability and be punished as though they themselves have committed the end crime, if the end crime can be proven to have been reasonably foreseeable by the actors. Hub-and-spoke conspiracies involve multiple individuals conspiring with a single central individual, or “hub,” but not with any of the other spokes. It is a more difficult form of conspiracy to prosecute, as defendants can claim that their own communications with the hub person are separate and disconnected from the hub’s communications with the other spokes and thus not part of true conspiracies. Many popular conspiracy theories are hub-and-spoke conspiracies in which central actors, or groups of actors, plan objectives—such as controlling world oil prices or maintaining secrecy about the crash of an alien spacecraft—and use their connections with, or their control over, multiple spokes to further their objectives. Each of the spokes may or may not know the objectives of the hub and usually do not know the roles that the other spokes play in the conspiracy. Defense Against Conspiracy Charges To prevent prosecutorial abuses, such as law-enforcement entrapment schemes and violations of the freedoms of speech, assembly, or association, many states require that at least one of the actors involved in an alleged conspiracy commit some overt act in furtherance of the objectives of the conspiracy. For example, if antiwar activists were to meet to discuss assassinating political leaders to help bring an end to the war that they oppose, they could not be charged with conspiracy if none of them takes active steps toward im148
Conspiracy plementing the assassinations. Such persons would merely be involved in free speech. However, if one of the participants in such a meeting were subsequently to purchase a sniper rifle, hire an assassin, or begin hoarding cash, charges against the entire assemblage might be possible. Conspiracy is a continuing course of conduct. A conspiracy is considered to be abandoned if none of its actors takes overt action within a reasonable time to pursue the conspiracy’s objective. An individual actor can also abandon or renounce the actor’s role in the conspiracy either by telling the fellow conspirators or by reporting the conspiracy to law-enforcement authorities. Gordon Neal Diem Further Reading Formisano, Ronald. The Great Lobster War. Amherst: University of Massachusetts Press, 1997. Fascinating account of multiple conspiracies and a conspiracy trial in the lobster industry. Knight, Peter, ed. Conspiracy Nation: The Politics of Paranoia in Postwar America. New York: New York University Press, 2002. Collection of scholarly articles on conspiracy theories in popular culture. McSorley, Joseph F. A Portable Guide to Federal Conspiracy Law: Tactics and Strategies for Criminal and Civil Cases. Chicago: American Bar Association, 2003. Advanced-level discussion, with cases, of the complete definition of conspiracy, indictment for conspiracy, and the relationship between conspiracy and aiding and abetting. Marcus, Paul. Prosecution and Defense of Criminal Conspiracy Cases. New York: Matthew Bender, 1978. Two loose-leaf volumes that are constantly updated and revised, this publication covers evidentiary matters, constitutional issues, practical prosecutorial and defense matters, and the text of relevant federal statutes and important conspiracy cases. Parish, Jane, and Martin Parker, eds. The Age of Anxiety: Conspiracy Theory and the Human Sciences. Oxford, England: Blackwell/Sociological Review, 2001. Collection of scholarly articles on conspiracy theories in popular culture. Podgor, Ellen S., and Jerold Israel. White Collar Crime in a Nutshell. 3d ed. St. Paul, Minn.: West, 2004. Contains chapters on each inchoate and whitecollar crime, including conspiracy. See also Accomplices and accessories; Attempt to commit a crime; Criminal law; Entrapment; Multiple jurisdiction offenses; Organized crime; Solicitation to commit a crime. 149
Consumer fraud
Consumer fraud Definition: Intentional deception of consumers by the use of untruthful or misleading information about goods, services, and other aspects of business transactions, such as financial terms Criminal justice issues: Business and financial crime; fraud; white-collar crime Significance: There are many ways that consumers can fall victim to fraud by corporations and individuals. The financial cost of such crimes to the United States as a whole is immeasurable. Consumer fraud takes many forms. Consumers fall victim to fraudulent acts such as false advertising, telemarketing and Internet scams, price gouging, chiseling, investment fraud, and many others. Such crimes are so prolific it is impossible to estimate accurately the total number of victims and costs to consumers. “Let the buyer beware” is a fundamental principle within a capitalistic economy. This assumption lends itself to consumer fraud by shifting responsibility from sellers, producers, and providers of goods and services to the consumers. Consumers should naturally be leery of products or services that seem too good to be true. Failing to distrust corporations and businesspersons, believing their claims to be true, is too often viewed as irresponsibility on the part of the consumer rather than victimization. False Advertising Goods and services are advertised almost everywhere. Television, magazines, billboards, sides of buses, and even park benches are sites of advertisements used to entice consumers to try new products, services, and companies. Consumers are bombarded with information intended to entice them into spending money. Using deceitful means or misrepresentations of facts to get people to buy particular products and services is the essence of fraud. Consumers cannot make informed decisions about how to spend their money when the information they are given is untrue or misleading. For example, actors dressed in white laboratory coats are often used in television commercials. The professional-looking attire of the actors gives them the appearance of medical professionals making claims about the quality of products. Audiences may be more inclined to believe the claims made in the commercials because they assume that the persons presenting them are experts. Similarly, celebrity endorsements can sway consumers’ purchasing deci150
Consumer fraud sions because people are often willing to trust the word of well-known individuals. It has only been since the 1990’s that the Federal Trade Commission has required celebrity endorsers to base their remarks in commercials on their own personal findings or experiences with products. Before this requirement was instituted, celebrities were free to endorse products and services without any firsthand knowledge of their quality. Sellers occasionally included disclaimers within the fine print of their products’ packaging. Such disclaimers were both easy to overlook and often difficult to understand, but their mere existence left victimized consumers with little or no legal recourse if they found that their purchases did not match up to the claims made in endorsements. Another fraudulent technique used by sellers is known as “bait and switch.” The “bait” is typically an exceptionally low-priced product or service designed to lure customers. The appeal of the bait is short-lived, however. Once customers are in the place of business, they are encouraged to purchase different and more expensive or more profitable goods or services— hence the “switch.” Sellers lure consumers in with little intention of actually selling the advertised bait to them. The products are advertised only to draw in customers who might buy different goods or services. Sellers generally do carry limited quantities of the advertised bait, but it usually sells out quickly or may be of such poor quality that customers are easily talked into buying something else. Chiseling and Price Gouging A second sales technique used to defraud consumers is chiseling, a systematic means of taking money from consumers, typically without their knowledge. Chiseling takes a variety of forms, such as scales calibrated to overweigh products such as meat and produce sold by retailers, gas pumps calibrated to overmeasure the quantities of fuel dispensed, and phone calls that are charged to the nearest whole minute. Consumers are often unaware they are being overcharged because the overcharge amounts are too small to be detected without special tools. However, the cumulative profits that can be generated from chiseling techniques can be substantial. Regardless of how small the overcharges, consumers are ultimately defrauded by paying for goods or services they do not receive. An equally sinister means of defrauding consumers is through the practice of price gouging. Price gouging occurs when sellers take advantage of emergency situations, such as gas shortages, to inflate prices for their goods and services. The threat of a shortage of a product or the increased need of a product might result in inflated prices and is in essence “gouging” the con151
Consumer fraud sumer. In times of natural disasters, for example, opportunistic sellers may inflate prices for emergency items. A bag of ice that normally sells for one dollar might instead go for three to five times as much. Rumors of shortages of “must have” products, such as popular children’s toys, often drive up prices for consumers. The examples are endless but the outcomes are the same. Consumers are forced to pay higher prices for goods or services often in times of crisis, fear, or disadvantage. The poor are often especially vulnerable to price gouging because of their lack of purchasing options. As a result, the poor often pay much higher prices for the same goods and services that the rich buy for less. Another aspect of price gouging is the practice of selling “knockoff” products—inferior goods designed to look like high-quality products, such as designer clothes. Consumers are often aware when they are purchasing knockoff products because of where they buy them. For example, an openair flea market is an unlikely place to buy a genuine designer product. However, when consumers are unaware that the items they are purchasing are not genuine, they are victims of fraud. Investment Frauds Named after its most notorious perpetrator, Charles Ponzi, Ponzi schemes are fraudulent investment schemes that promise to return high profits to investors but are actually only methods of funding lavish lifestyles for their originators. The promise of high returns on an investment is appealing to consumers. Initial investors in Ponzi schemes often receive returns, which make the offers more appealing to later investors. However, the returns the initial investors receive are simply the money paid into the schemes by new investors. The schemes work as long as investors receive returns, but they never pay at the levels promised. Pyramid schemes are closely related to Ponzi schemes. Consumers are promised large returns by purchasing or selling goods or services and bringing additional investors into the businesses. The schemes are pyramidshaped, with the initial investors at the top. As in a real pyramid, each lower level of investors must be larger. Each level makes its profits from the investments of the lower levels; the more levels below, the more return an investor receives. Eventually, however, the scheme collapses when no new investors come in and the most recent participants receive no return at all on their investments. Consumers are defrauded out of billions of dollars each year through investment fraud. Low-priced penny stocks are offered to investors with misrepresentations about their money-making potentials. Investment insiders 152
Consumer fraud inflate the prices of the stocks only long enough to sell their own shares when the market prices reach their peak. These investors make large amounts of money while outsiders lose money. Fraudulent investment firms, often called “boiler rooms,” make phone calls to unsuspecting investors telling them about “hot” stocks that will make them rich if they invest immediately. Brokers often make false claims about the stocks, their ability to make money for investors, and the inside information they have about the stocks. The investment firms profit from both the sales of the worthless stock and from the commissions they receive on the sales. Telemarketing Scams Smooth-talking telemarketers bilk billions of dollars from the unsuspecting public. Their offers are often too good to pass up. Good telemarketers quickly develop such trust with their customers that they can persuade them to pay for goods and services before they are received, even though the goods may never materialize or be of inferior quality. Telemarketers often use travel scams and time-share vacation packages as their hooks. A typical travel scam works by informing consumers of “prizes” they have won. The prizes are typically expensive vacations to wonderful locations. However, in order to claim their prizes, the consumers must first purchase memberships in travel clubs or pay service fees. After the consumers pay the required fees, the vacation packages they receive often have so many restrictions in place that they are virtually impossible to use. The consumers are then left with little legal recourse because the vacation packages have been provided. Even when consumers do use the vacation vouchers, they often find that the quality of their vacations has been grossly misrepresented. Similarly, time-share vacations are a lucrative and common type of scam. Consumers are again informed about the “no further obligation” prize(s) they have won and can claim if they attend an information session. The consumer is met with high-pressure salespeople trying to sell them membership in the time-share. The prize they won rarely comes to fruition. Amie R. Scheidegger Further Reading Rosoff, Stephen M., Henry N. Pontell, and Robert H. Tillman. Profit Without Honor: White-Collar Crime and the Looting of America. 4th ed. Upper Saddle River, N.J.: Pearson/Prentice Hall, 2007. Critical evaluation of corporate criminals as well as government wrongdoing and the public’s perceptions of such crimes. 153
Contempt of court Simon, David R. Elite Deviance. 9th ed. Boston: Pearson/Allyn & Bacon, 2008. Examination of various deviant and criminal acts performed by corporations and the impact such behaviors have individually and collectively. Swierczynski, Duane. Complete Idiot’s Guide to Frauds, Scams, and Cons. Indianapolis: Alpha Books, 2003. Popular guide to the elements of confidence games that includes a typology of con men and illustrations of the most common scams and frauds. Wells, Joseph T. Corporate Fraud Handbook: Prevention and Detection. 2d ed. Hoboken, N.J.: John C. Wiley & Sons, 2007. Examines an array of fraudulent schemes and provides insight on prevention and detection. See also Cable and satellite television signal theft; Cybercrime; Fraud; Insider trading; Insurance fraud; Tax evasion; Telephone fraud; Theft; Whitecollar crime.
Contempt of court Definition: Conduct that obstructs a court’s administration of justice or undermines its dignity Criminal justice issues: Courts; punishment; trial procedures Significance: Citing persons who disrupt court procedures or disobey court orders with contempt of court can be a powerful tool for maintaining order and decorum within courtrooms, and judges can use contempt of court to send offenders to jail without the help of police or trials. Just as law-enforcement officers use discretion in deciding whom to arrest, judges use discretion when deciding to hold persons in contempt of court. However, just as police officers do not issue tickets to all motorists who exceed posted speed limits, judges do not cite all those who disrupt court proceedings with contempt. Judges typically reserve contempt citations for those who they believe are creating the most serious disorders and for situations in which they wish to set examples for other persons present in their courtrooms. Contempt of court can also be used as a prosecutorial tool for imprisoning wrongdoers without trials. For example, prosecutors might call certain witnesses to testify, knowing that they are likely not to cooperate and then be jailed for contempt of court. In fact, everyone who fails to comply with subpoenas or other court orders can be punished with contempt. In addition, those who disobey gag orders can also be held in contempt of court. Those 154
Contempt of court
During the early nineteenth century the abolitionist Passmore Williamson was jailed for contempt of court for giving evasive testimony about his own part in freeing three slaves. Later Supreme Court rulings have limited the courts’ contempt power to prevent abuses. (Library of Congress)
who are found in contempt of court can be subjected to fines, jail time, or both, depending on the decisions of the judges holding the offenders in contempt. Those held in jail can be kept there without trial until they comply with the original court orders. A justification for the courts’ power to punish those guilty of contempt of court is deterrence. The sanctioning of individuals with contempt of court may deter others from being disruptive in court or from disobeying court orders. It can be especially useful in persuading news reporters to obey gag orders. Jenephyr James Further Reading Champion, Dean J., Richard Hartley, and Gary A. Rabe. Criminal Courts: Structure, Process, and Issues. 2d ed. Upper Saddle River, N.J.: Pearson/ Prentice Hall, 2008. Neubauer, David W. America’s Courts and the Criminal Justice System. 9th ed. Belmont, Calif.: Wadsworth, 2008. See also Deterrence; Fines; Ignorance of the law; Judges; Subpoena power. 155
Contributing to delinquency of minors
Contributing to delinquency of minors Definition: Any acts or omissions perpetrated by adults that encourage juveniles to engage in behaviors that may lead to delinquency Criminal justice issues: Crime prevention; juvenile justice Significance: American laws are designed to protect naïve juveniles from the depredations of adults. Contributing to the delinquency of a minor is, like the term “juvenile delinquency,” relatively recent in origin. For centuries, childhood was the most precarious period in an individual’s life. Scant knowledge existed concerning illnesses and bacteria, and, as a result, it was common for people to die in infancy or childhood—the central reason that married couples had big families. If children were strong enough to survive, around age seven they entered the workforce alongside their parents and older siblings, becoming “little adults.” Views regarding childhood began changing in the nineteenth century because of the paradigm shift caused by the Industrial Revolution. Instead of families working together at the farm, people began migrating into the cities. Children competed with their elders for the new jobs created by the industrial boom. Up to this point, most children could not read or write, because education was not a particularly important issue for individuals tilling the soil. With the growth of urban populations, education became increasingly important. Most parents were happy for their children to gain educations because it meant they might not have to work twelve to fifteen hours a day in factories. In addition to providing an academic education, many reformers attempted to teach the children that certain activities or vices were unhealthy and that it would be advantageous to leave certain things alone. For example, many children enjoyed the same unhealthy habits as their parents, such as smoking, using snuff or chewing tobacco, and drinking alcohol. Once society started seeing childhood as separate from adulthood, the social and moral mores changed, and what had once been done in the open (such as smoking cigarettes) now became surreptitious. Likewise, behaviors considered normal for adults began to be seen as taboo for juveniles. Over time, statutes and law codes were written describing the punishments, usually mild, that adults would receive if they engaged in any activities that might lead juveniles toward delinquency. Furthermore, if adults al156
Contributing to delinquency of minors lowed juveniles to engage in behavior considered “out-of-bounds,” they could face charges based on not restricting the child. For example, adults who catch children smoking cigarettes but do nothing could conceivably be brought before a judge, as tobacco use is a proscribed activity for individuals who have not reached the age of majority. Furthermore, if a parent indulges in an illegal activity, such as smoking marijuana, the state has the right to arrest the parent for setting an example that could conceivably cause the juvenile to seek out opportunities for further drug exploration. Cary Stacy Smith Further Reading Champion, Dean John. The Juvenile Justice System: Delinquency, Processing, and the Law. 4th ed. Upper Saddle River, N.J.: Prentice-Hall, 2003. Broad overview of delinquency and the treatment of juveniles in the justice system. Examines juvenile legal rights and the courts’ decisions regarding adjudication, disposition, and sanctions. Cox, Steven M., John J. Conrad, and Jennifer M. Allen. Juvenile Justice: A Guide to Theory, Policy, and Practice. 6th ed. Los Angeles: Sage Publications, 2008. Comprehensive examination of the juvenile justice system that connects theory and practice. Malmgren, K. W., and S. M. Meisel. “Examining the Link Between Child Maltreatment and Delinquency for Youth with Emotional and Behavioral Disorders.” Child Welfare 83, no. 2 (2004): 175-189. Examination of one cause contributing to juvenile delinquency. Paternoster, R., S. Bushway, R. Brame, and R. Apel. “The Effects of Teenage Employment on Delinquency and Problem Behaviors.” Social Force 82, no. 1 (2003): 297-336. Sociological treatment of one contributing factor in juvenile delinquency. Shoemaker, Donald J. Theories of Delinquency: An Examination of Explanations of Delinquent Behavior. 5th ed. New York: Oxford University Press, 2005. Survey of theoretical approaches to explaining delinquent behavior. Clearly written evaluations of the various individualistic and sociological theories. Siegel, Larry J., and Brandon C. Welsh. Juvenile Delinquency: Theory, Practice, and Law. 10th ed. Belmont, Calif.: Cengage Learning, 2008. Comprehensive examination of juvenile justice along with policies, theories, landmark court decisions, and contemporary issues. The eighth edition of this perennial textbook pays special attention to multimedia and Web resources. Vander Ven, Thomas. Working Mothers and Juvenile Delinquency. New York: 157
Convictions LFB Scholarly, 2003. Sociological study of the special problems of children with working mothers. See also Indecent exposure; Juvenile courts; Juvenile delinquency; Juvenile justice system; Youth authorities; Youth gangs.
Convictions Definition: Legal process through which judges and juries establish the guilt of criminal defendants Criminal justice issues: Convictions; defendants; prosecution; verdicts Significance: The focus of all criminal trial proceedings is the prosecution’s efforts to obtain convictions by proving defendants guilty and the defendants’ efforts to avoid convictions. Convictions may be established in several ways: Defendants may enter pleas of guilt, they may enter pleas of nolo contendere, or they may be found guilty at trial. In each instance, the courts enter final judgments, in which the factual and legal allegations are sustained, and orders of conviction are pronounced. Upon entry of the orders, the courts may then proceed to the sentencing phase. The combined process of entering judgments, convictions, and penalties are known as the judgment and sentence phase. A conviction may only be entered when the legal and factual allegations reach the appropriate level of proof. In all criminal matters, the level of proof required is beyond a reasonable doubt. This is the level of factual certainty in which no mere skeptical condition of the mind exists but in which the evidence may fall short of absolute proof beyond all doubt. It means simply that the proof must be so conclusive and complete that all realistic doubts of the facts are removed from the minds of ordinary persons. After Convictions The legal status of defendants changes substantially once they are convicted. Convictions bring with them restrictions and losses of certain due process and other rights. The most significant loss is that of the defendants’ freedom, which may be ordered as part of the sentences. In addition, convictions confer the status of having been found guilty of crimes. In some instances a conviction may also terminate or limit personal rights, such as the ability to own firearms, vote, be bonded, serve in the U.S. military, or obtain professional licenses, such as those of attorneys, medical doctors, or accountants. 158
Convictions
The moment that defendants are pronounced guilty, their legal status changes. While they have the right to appeal their convictions, they nevertheless fall under the jurisdiction of the courts in which they are convicted and begin to lose their personal rights and freedoms. (Brand-X Pictures)
Convictions are generally considered permanent parts of the defendants’ criminal records. A person who has multiple convictions—especially for the same or similar crimes—may receive an enhanced punishment for the later offenses. For example, in most states conviction of the felony crime of burglary carries penalties of from one to seven years in the states’ penal systems. Second and subsequent convictions generally increase punishments up to life in prison. Similar crimes carry similar punishments, which may be enhanced based on the type or number of prior convictions. In instances in which more than one crime is charged against a defendant, each conviction may affect the penalties for any other convictions. In such instances, the courts tend to treat the companion cases either as separate crimes requiring individual punishments or as parts of a larger group of crimes. The courts may run sentences concurrently or consecutively, depending on how they wish the individual convictions to be treated. Concurrent sentences are served and completed at the same time. For example, a person convicted both of driving under the influence of alcohol (DUI) and of manslaughter (both arising from the same set of facts) may be punished for both convictions at the same time. Thus, if a court were to order the defendant to serve a one-year sentence for the DUI conviction and a two-year sentence for 159
Convictions
Malcolm X’s “Concurrent” Sentences In 1946, the future black nationalist leader Malcolm X and a friend were convicted on fourteen counts of burglary in Massachusetts. The Autobiography of Malcolm X (1965) offers a vivid description of the moment that a county judge passed down the men’s sentences: “Count one, eight to ten years— “Count two, eight to ten years— “Count three . . . ” And, finally, “The sentences to run concurrently.”
As Malcolm’s partner Shorty heard the judge reading off the fourteen counts, he nearly collapsed: “not understanding the word ‘concurrently,’ [Shorty] had counted in his head to probably over a hundred years; he cried out, he began slumping. The bailiffs had to catch and support him.” Malcolm’s and Shorty’s net sentences were ten years. Two white women with whom they had collaborated in their crimes received sentences of only one to five years each. Malcolm’s and Shorty’s sentences were doubtless harsher because the men were black, but they were not nearly as harsh as they would have been, if they were not to be served concurrently.
Malcolm X. (Library of Congress)
the manslaughter conviction, the defendant would serve both sentences at the same time and spend a total of only two years in prison. By contrast, if a defendant were convicted of the exact same pair of crimes and instead received one- and two-year sentences to be served consecutively, the defendant would spend a total of three years in prison. Convictions may be used to prove conduct in civil cases as well. The burden of proof in criminal cases is higher than that required in civil actions. 160
Convictions This means that once the burden is met for a criminal case, as proven through existence of the conviction, the burden will also be met for the civil action. The key is that the facts leading to the conviction must be the same as those used in the civil case. Thus, defendants who are convicted of driving under the influence of alcohol may find themselves civilly liable for car crashes arising from the same set of facts. One must be careful when associating convictions with a jury trial. The duty of the jury is to determine the facts in a case. It is always the duty of the judge to determine the given law. A conviction can only be entered when both facts and law combine to prove the elements of the particular crime. While a jury may reach a verdict as to the facts, it is only the judge that may enter a conviction as part of the final judgment. Carl J. Franklin Further Reading Christianson, Scott. Innocent: Inside Wrongful Conviction Cases. New York: New York University Press, 2004. Investigative reporter’s account of forty-two wrongful conviction cases. Connors, E., T. Lundregan, N. Miller, and T. McEwen. Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial. Alexandria, Va.: National Institute of Justice, 1996. Close examination of some of the first cases of false convictions that were overturned by DNA evidence. Hanson, Roger A. Federal Habeas Corpus Review: Challenging State Court Criminal Convictions. Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics, 1995. Statistical study of habeas corpus petitions in eighteen federal district courts in nine states. LaFave, Wayne. Criminal Law. 4th ed. Belmont, Calif.: West Group, 2003. Detailed treatise of criminal law with lengthy explanations and references to cases. LaFave, Wayne R., Jerold H. Israel, and Nancy J. King. Criminal Procedure. 4th ed. St. Paul, Minn.: Thomson/West, 2004. See also Acquittal; Criminal justice system; Criminal prosecution; Criminal records; False convictions; Jury system; Plea bargaining; Pleas; Recidivism; Sentencing; Verdicts.
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Coroners
Coroners Definition: Public officials who investigate deaths when there are reasons to suspect those deaths did not occur naturally Criminal justice issues: Evidence and forensics; investigation; medical and health issues Significance: A coroner is the officer responsible for finding out how a person died if that death is unexplained or appears to have been violent. The coroner may hold an inquest and order an autopsy to be performed if the manner of death is not obvious. When a person dies and the manner of death is deemed either uncertain or violent, it is the coroner’s job to investigate the death. A coroner is called to the scene of a crime to determine whether a death occurred by accidental, suicidal, homicidal, natural, or uncertain means. Even if law-enforcement officials feel that there already exists enough evidence to proceed with a criminal investigation, they still must wait for the coroner’s decision before they act. The coroner may order an autopsy and wait until its completion before making a final decision on the manner of death. Coroners can be elected officials who do not necessarily possess any medical or law-enforcement knowledge. Usually, though, the coroner is a mortician, doctor, or other local law-enforcement official. In big metropolitan areas such as Los Angeles, a coroner’s position is a full-time job and is assisted by deputies who do the fieldwork. Responsibilities A coroner’s responsibilities are many, including the primary one of determining whether or not enough evidence accompanies a death to justify a criminal investigation. A coroner may investigate against the will of the deceased’s relatives or hospital employees; conversely, a coroner may declare the matter closed, stating that there should not be an investigation at all. Coroners are also responsible for notifying the proper authorities regarding deaths and signing death certificates. A human body must be certified as legally dead before any funeral arrangements are made. If the body is eventually going to be cremated, an autopsy may be mandatory according to regional laws. If the cause of death is not obvious at the crime scene, the coroner will usually hold an inquest and order an autopsy. For medicolegal or forensic investigations, a coroner does not have to get permission from the de162
Coroners ceased’s next of kin in order for an autopsy to be performed. The coroner will usually order a full autopsy, so as much information can be gathered as possible. The results of the autopsy will determine whether law-enforcement agencies should continue with their own investigations. Everybody is under the jurisdiction of the coroner, from the pathologists or medical examiners who perform the autopsy to the laboratory technicians who run further tests on dissected organs (such as toxicologists). The coroner can issue arrest warrants and subpoenas as needed if investigations warrant it; in some counties the coroner is legally more powerful than the sheriff. The coroner also identifies remains, testifies regarding insurance and estate claims, and warns the community about dangerous new illegal drugs as they are discovered. History Throughout history, there have been coroners or people like them whose job it was to say whether someone’s death was intentional or not. The English were the first to establish a coroner’s office: In 1194, as a way to raise ransom funds for King Richard I, knights in each county were given the task of selling the goods of hanged felons. These knights were known as “crowners,” a word that eventually became “coroner” (taken from corona, a Latin word for “crown”). Eventually the coroner’s job became that of ensuring all taxes were collected honestly by the sheriff. This meant that all deaths of a sudden or violent nature were investigated. Matters became complicated when suicide was concerned. The laws of medieval England stated that all possessions belonging to someone who committed suicide become the property of the Crown. The Church of England added that the suicide victim’s soul was condemned to hell unless the victim had suffered from demoniac possession or insanity. This the coroner had to determine, and the first inquests were held. The first written work about forensic medicine was Sung Tz’u’s Hsi Yuan Chi Lu (washing away of unjust imputations or wrongs), written in 1247. The first university department of legal medicine opened at the University of Edinburgh, Scotland, in 1807, and in England, coroners became officials who dealt with deaths that were suspicious. The United States adopted the British coroner system but eventually began to change how it worked by using professionally trained physicians who had studied forensic pathology.
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Corporal punishment The Coroner in the United States In the United States, a coroner was either elected or appointed to the job until 1877. In that year, a physician in Massachusetts was chosen instead to be the coroner. The job’s description changed, also, so that coroners were only supposed to investigate violent deaths. In 1915, New York became the first city to give a coroner the authority to order an autopsy, and Maryland began a statewide medical examiner system in 1939. Modern coroners are not only invaluable assets to medicolegal investigations but can also become celebrities in their own rights. Thomas Noguchi, Los Angeles County’s chief coroner from 1967 to 1982, became known as the “coroner to the stars” because he supervised the investigations of Hollywood celebrity deaths such as those of Natalie Wood and John Belushi. Noguchi also invented a method of trace metal identification that is now used throughout the United States. Kelly Rothenberg Further Reading Blanche, Tony, and Brad Schreiber. Death in Paradise: An Illustrated History of the Los Angeles County Department of Coroner. New York: Four Walls Eight Windows, 2001. Details what a forensic coroner does and gives examples from famous Hollywood murders. Burton, Julian L., and Guy N. Rutty. The Hospital Autopsy. New York: Oxford University Press, 2001. Contains a chapter about coroners and autopsies. Geberth, Vernon J. Practical Homicide Investigation: Tactics, Procedures, and Forensic Techniques. 4th ed. Boca Raton, Fla.: CRC/Taylor & Francis, 2006. Kadish, Sanford H. Encyclopedia of Crime and Justice. Vol. 1. New York: Free Press, 1983. Detailed history of coroners and what their job entails. Noguchi, Thomas T. Coroner. New York: Simon & Schuster, 1983. Autobiography of Los Angeles County coroner Thomas Noguchi. See also Forensics; Medical examiners; Murder and homicide; Police detectives; Subpoena power.
Corporal punishment Definition: Infliction of physical pain or discomfort as the means to punish behavior that violates established rules, including criminal laws Criminal justice issues: Confessions; interrogation; medical and health issues; punishment 164
Corporal punishment Significance: Although corporal punishments were once commonly applied, they were eliminated from the American justice system as the United States moved toward exclusive reliance on fines and restrictions on freedom, such as probation and incarceration, as methods of criminal punishment. In seventeenth and eighteenth century Europe and colonial America, people routinely received physical punishments for violating society’s rules. These corporal punishments included branding; whipping; cutting off ears, fingers, hands, or tongues; and placing people in stocks, wooden structures in a town square into which a person’s head, arms, or legs could be locked. These corporal punishments were legacies of religious beliefs that had also encouraged torture, burning people at the stake, and public executions for a variety of offenses, both serious and minor. A basic belief that underlay these physical punishments of people’s bodies was an assumption that people who misbehaved were possessed by the devil and therefore unable to conform their behavior to God’s rules for society. During the Enlightenment period of the late eighteenth century, the emphasis on corporal punishment in Europe began to be displaced by reforms intended to rehabilitate offenders. Instead of branding or whipping them, various localities began to incarcerate them with a Bible or make them work in prison shops in the hope that they would discover God and self-discipline and thereby become good people. Punishment in the United States During the colonial and postrevolutionary periods, the United States employed many of the corporal punishments that had been brought from Europe, including whipping, branding, and placing in stocks. The movement away from corporal punishments in favor of incarceration occurred during the nineteenth century. In the southern United States, corporal punishments of the most vicious kinds, particularly whipping, branding, and dismemberment, were applied against African American slaves as punishment for escapes or any other infractions as defined by slave owners. Local law-enforcement officials and courts reinforced the institution of slavery by actively supporting these forms of punishment. After the Civil War, corporal punishments began disappearing as formal punishments for crimes, but their use still flourished on an informal basis. Police in many localities throughout the country utilized beatings and even torture as a means to punish people informally and to obtain confessions. 165
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Whippings and other forms of corporal punishment that did not interfere with slaves’ productivity were frequently inflicted on American slaves before the Civil War. (Library of Congress)
While corporal punishment was used successfully to obtain many confessions, these confessions often came from innocent people who had simply been selected for victimization by unethical police officers. Such abusive behavior by police officers became less common in the twentieth century as policing began to become a profession with training and as judges scrutinized the activities of police. Corporal punishment was used in prisons and jails until the 1960’s. Prisoners in some states were beaten, locked in small compartments, and otherwise physically coerced into obeying orders. Officials sometimes permitted inmates to abuse other inmates in order to force prisoners to perform labor under harsh conditions. These practices were outlawed by federal judges as a result of lawsuits in the 1960’s and 1970’s. Corporal Punishment and the Law By 1969, all but two states had abolished whipping as a punishment for prison inmates. The final two states were effectively barred from further use of corporal punishment when a U.S. court of appeals decision said that Arkansas’s continuing use on prisoners of the “strap”—a leather whip attached to a wooden handle—violated the prohibition on cruel and unusual punishments (Jackson v. Bishop, 1969). Beginning in the 1970’s, prison officials, like police officers, could not 166
Corporal punishment use corporal punishments. They could, however, use physical force for selfdefense and for gaining control over people who were fighting, threatening, or disruptive. Despite the prohibition on corporal punishments, lawsuits are still filed against police officers and corrections officials who have beaten criminal defendants and inmates. The formal abolition of corporal punishment in the criminal justice system did not mean that corporal punishment no longer existed in the United States. Parents are permitted to apply corporal punishment to their children as long as that punishment does not cause injuries or break laws against child abuse. In addition, corporal punishment is permitted in schools in many states. In 1978, the Supreme Court decided that the Eighth Amendment’s prohibition of cruel and unusual punishments did not apply to disciplinary corporal punishments in schools (Ingraham v. Wright, 1978). Thus many schools continued to use corporal punishments, most frequently paddling with a wooden paddle, as a means to punish misbehaving students. By 1992, twenty states and the District of Columbia had banned the use of corporal punishment in schools, and many individual school districts in the remaining states had done the same. In 1994, public debates resumed concerning the desirability of corporal punishment when Singapore sentenced Michael Fay, an American teenager, to six lashes with a bamboo cane for committing acts of vandalism. Although the U.S. government protested on Fay’s behalf that the punishment (“caning”) was barbaric, leaders in many American local communities seized on the issue to advocate the reintroduction of corporal punishment as a cheaper and more effective punishment for juvenile offenders. Corporal punishment was not reinitiated, but the debate demonstrated that many Americans still consider corporal punishment to be an effective deterrent to misbehavior by young people. Christopher E. Smith Further Reading Berkson, Larry. The Concept of Cruel and Unusual Punishment. Lexington, Mass.: Lexington Books, 1975. Examination of the legal aspects of corporal and other forms of punishment. Foucault, Michel. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. 2d ed. New York: Vintage Books, 1995.Traces the history of punishment from brutal public events to subtle exertions of power over individuals in everyday life. Garland, David. Punishment and Modern Society. Chicago: University of Chicago Press, 1990. General overview of punishment. 167
Counterfeiting Genovese, Eugene D. Roll, Jordan, Roll: The World the Slaves Made. New York: Pantheon Books, 1974. Discusses the use of whipping and other corporal punishments of slaves in the antebellum South. Hyman, Irwin A., and James H. Wise, eds. Corporal Punishment in American Education: Readings in History, Practice, and Alternatives. Philadelphia: Temple University Press, 1979. Examination of the debates over corporal punishment in schools. Rothman, David J. The Discovery of the Asylum: Social Order and Disorder in the New Republic. Rev. ed. New York: Aldine de Gruyter, 2002. Contains a broad history of punishment in the United States. See also Cruel and unusual punishment; Juvenile delinquency; Police brutality; Prison and jail systems; Probation, juvenile; Punishment; Rehabilitation; Sentencing; Vigilantism.
Counterfeiting Definition: Illegal copying of currency for the purpose of committing fraud or creating political and economic instability Criminal justice issues: Business and financial crime; federal law; fraud; technology Significance: The counterfeiting of currency has been a problem in the United States since the founding of the nation in the late eighteenth century, but modern technology has made it so much easier for criminals and foreign enemies to duplicate currency that the U.S. government has been forced to redesign its currency and find new methods of countering the problem. The counterfeiting of a national currency is a process used by governments and individuals for different goals. Governments sometimes attempt to undermine the financial and political stability of other countries by debauching their currency and weakening their political and financial stability. On the other hand, individual counterfeiters usually engage in the crime to take advantage of existing instability to make profits. For these reasons, incidents of counterfeiting tend to rise during periods of economic or political instability. 168
Counterfeiting History During the American Revolution, the Continental Congress attempted to create a single currency for the new republic. The British government responded by printing large amounts of counterfeit continental dollars and dumping them into the American market. This made the American government’s valid currency worthless and had a devastating impact on the colonial economy during and after the war. Counterfeiting continued even after the revolution ended as states struggled to fix their own economies and were unable to protect their individual currencies from local counterfeiters. During the first seventy years of its history, the United States suffered through chaotic and tumultuous financial conditions. The new federal government was given the exclusive power to issue a currency and punish counterfeiters, but no single currency was recognized throughout the country until the Civil War. Meanwhile, individual states issued bills of credit that could be used to pay off debts. These documents were easily copied by counterfeiters, and the counterfeit versions were used to defraud both individuals and the government in purchases of land and other commodities. Enforcement of counterfeiting laws was left to the states and localities as the federal government itself had no law-enforcement agency to investigate or prosecute counterfeiters. Catching counterfeiters was made more difficult by the ease with which the paper money could be copied and the variety of bills of credit offered by states and their banks. The counterfeiting of currency became a national problem during the Civil War, when more thousands of different legal currencies were in circulation. The high cost of the war ended the country’s dependence on coins and the gold standard for currency and forced both the Union and Confederate governments to issue paper money to pay their bills. As paper became the main currency, criminals seeking to make quick profits began to print counterfeit federal currency and distribute it in order to undermine the war effort. Federal Counterfeiting Laws In response to the growing problem of counterfeiting, the federal government created the Secret Service on July 5, 1865. The agency was given the task of tracking down and prosecuting counterfeiters. At the same time, one of the first federal laws punishing counterfeiters was passed as Title 18 of the United States Code. Title 18 remains in force in the twenty-first century and is used by the Secret Service as counterfeiting has again become a more frequent practice. 169
Counterfeiting One of the earliest cases prosecuted by the new Secret Service involved an instance of insider involvement in a counterfeiting scheme. The Bureau of Engraving and Printing is part of the Treasury Department, the same department that originally oversaw the Secret Service. A clerk in that bureau stole the metal plates used by the bureau to print currency. He then gave the plates to two professional counterfeiters, Tom Hale and Charlie Adams, who printed large quantities of unauthorized currency and distributed it into the economy. Hale and Adams were eventually caught in the first instance of the Secret Service’s protection of U.S. currency. The service spent much of the rest of the nineteenth century tracking more amateurish counterfeiters, who did not have access to government plates. However, it was not until the creation of the Federal Reserve Bank in 1913 that the mass production of U.S. currency made counterfeiting a truly lucrative crime and one that could be used by other countries to undermine the U.S. economy and political system. During World War II, counterfeit currency was used by both the Allied and Axis Powers as a tool for weakening the economies and war-fighting abilities of their enemies. The U.S. government itself printed and distributed counterfeit German currency, while the German government sought to flood the American economy with millions of fake U.S. bills. Neither effort succeeded, however. Germany’s fake American dollars were destroyed at the end of the war before they could be distributed in the United States. While counterfeiting is usually undertaken for profit, there have also been instances in which counterfeiting laws have been used to prosecute people who publish photographs of currency to promote stories or products. For example, a 1981 issue of Sports Illustrated magazine used a cover picture showing currency to dramatize the rise of money in professional sports. The Treasury Department responded by charging the magazine’s publisher, Time Inc., with violating Title 18, which prohibited the copying of currency. However, in its Regan v. Time Inc. (1984) ruling, the U.S. Supreme Court struck down that portion of Title 18 as a violation of free speech. Nine years later, Title 18 was revived in a ruling prohibiting the copying of currency under certain specific conditions. New Counterfeiters Through the nineteenth and most of the twentieth centuries, professional counterfeiters were generally experts at printing and engraving. Some counterfeiters created metal printing plates that were nearly identical to the plates used by the government to print currency. High levels of expertise in 170
Counterfeiting engraving and printing were usually required for successful large-scale counterfeiting operations. However, as advanced computer technology and digital printing reached consumer markets during the late twentieth century, the levels of knowledge required to counterfeit currency declined. By the twenty-first century, any person with a computer and a good color printer could make counterfeit U.S. currency that many people—especially in other countries—would accept. During the 1990’s, the Secret Service handled counterfeiting charges against high school and college students who used public copy machines to print and distribute fake U.S. currency. Meanwhile, as small-scale counterfeiting became more prevalent at the individual level, it grew to nearly epidemic proportions at the international level, as foreign states and organized groups began counterfeiting American currency to fund their political schemes. The federal government responded by redesigning currency notes to make them more difficult to duplicate. At the end of the twentieth century, the Secret Service reported that the twenty-dollar bill was the most counterfeited piece of U.S. currency, followed by the one-dollar bill. Larger denominations were less frequently counterfeited because changes in their designs were making it more difficult to duplicate them. By contrast, the twenty- and one-dollar bills had yet to be redesigned. However, as the lower denominations were redesigned, it was expected that counterfeiting of those bills would also decline. International Dimensions As U.S. currency has been adopted as the currency of some other nations, it has increasingly become the target of foreign counterfeiters, particularly in Central and South America. At the turn of the twenty-first century, the largest producers of counterfeit American currency were in Colombia. With narcotic drug production and distribution a central part of the Colombian economy, the drug cartels and Marxist rebels in the country have attempted to use counterfeit American currency to advance their own ends. South America is also a convenient part of the world for counterfeiting of U.S. currency, as several South American nations, such as Bolivia, use American dollars as their own currency. Another South American state, Chile, was the second-largest producer of counterfeit American currency at the turn of the century. Bulgaria, in Central Europe, is another major source of counterfeit currency, with Great Britain just behind it. Although billions of dollars in counterfeit U.S. currency is produced abroad, only a small portion of it enters the U.S. economy. It has been estimated that $600 billion in counterfeit money circulates around the world; 171
Counterfeiting however, the Secret Service has been able to find less than $49 million of the bills in circulation. In 2001, the largest amount passed was in Hong Kong; the second-largest amount circulated in Mexico. Most of the counterfeit dollars that were discovered were found inside the United States. In 2001, the Secret Service charged some five thousand people with counterfeiting and closed more than six hundred counterfeiting “plants,” in which the phony bills were produced. Counterfeiting is expected to remain a problem as long as paper currency is a medium of exchange in modern economies. Making counterfeiting more expensive and time consuming to undertake reduces the profits to be made in counterfeiting. However, as counterfeiting technology continues to advance, governments must also develop new methods of combating the crime. Investigation One of the first American attempts at stifling counterfeiting was made by the North American colonies’ most famous printer, Benjamin Franklin. A prolific inventor, Franklin was assigned the task of printing notes by the colonial government and created a system of raised leaves on the documents that made copying them nearly impossible. However, the expenses associated with such printing also made it nearly impossible for the governments to afford printing the notes on a large scale. During the American Revolution, the continental government was unable to prevent the mass counterfeiting of its currency by criminals in the colonies and by the British government. Counterfeiting again became a major problem during the Civil War. To combat the fake currency being distributed, the federal government created the Secret Service to investigate and prosecute counterfeiters. The Secret Service is required to find counterfeiters, but another government agency, the Bureau of Engraving and Printing, is responsible for creating currencies that are difficult to counterfeit. Created in the 1870’s, the bureau long used highly skilled engravers to design bills with ornate decorations, making them difficult to copy. Through much of the nineteenth and twentieth centuries, American currency was difficult to counterfeit because there were few craftsmen who could duplicate the finely designed details in government currency. Moreover, the special currency paper used by the federal government also made it all but impossible for undetectable counterfeit bills to be created. Finally, the printing technology available to counterfeiters was so primitive that only a small number of people could mass-produce counterfeit bills of any quality. The development of computer technology, digital printing, and color 172
Counterfeiting copying made counterfeiting much easier for ordinary people. The ornate decorations and engraving quality on bills could be easily reproduced on photocopiers and by computers. By the 1990’s, both individuals and countries were engaged in counterfeiting for profit. The Treasury Department and Bureau of Engraving and Printing responded by issuing redesigned currency notes developed specifically to prevent counterfeiting. In 1996, new one-hundred-dollar bills were issued; lower denominations followed. The faces on the fronts of the bills were enlarged and given finer details that could not be copied by machines. Watermarks were added, providing another feature that machines could not copy. These changes impeded counterfeiting by amateurs, foreign governments, and organized crime groups. While the new bills were created to make counterfeiting more difficult, detecting counterfeit bills fell mainly on the efforts of the private sector. When counterfeit bills are passed to merchants, it is their responsibility to make quick determinations of the bills’ authenticity. Modern bills have several special features that allow quick and easy determination of their genuineness. People can hold them up to a light source or use special pens to mark them to see if color changes occur. In addition, many commercial establishments now utilize computer systems to read the bills by looking for such features as strips of printing down the sides of the bills. When fake bills are suspected, local police should be contacted. Although the Secret Service is given the task of investigating and prosecuting counterfeiters, most counterfeiting cases begin at the local level. Local police usually conduct the preliminary investigations of counterfeit bills and then pass their findings along to the Secret Service, which collects the evidence and makes arrests. Punishment The basic punishments for counterfeiting are outlined in Title 18 of the United States Code. Under this section of the law, counterfeiters can be imprisoned for up to fifteen years and fined up to fifteen thousand dollars for creating or knowingly distributing counterfeit currency. While local law enforcement is willing to work with the Secret Service within the United States and federal law can be used to punish domestic counterfeiters, a considerable amount of counterfeiting occurs outside U.S. borders, where the Secret Service lacks authority to enforce American laws. Halting overseas counterfeiting requires cooperation from the countries in which fake bills are being created and distributed. The main foreign sources of counterfeit American currency have been Colombia, Mexico, Great Brit173
Court types ain, and China. Most of these countries have been willing to work with the U.S. Secret Service, allowing the agency to establish offices in their territory and to help train local police to detect counterfeit bills. Some countries, such as China, that have closed political and economic systems have been less cooperative. However, as all the world’s nations become more closely tied to the world economy, it is becoming more difficult for any nation to allow fake American currency to be used within its own economy. While counterfeiting remains a problem both domestically and in foreign countries, the creation of new types of currency that is harder to counterfeit and greater international cooperation have made counterfeiting easier to detect and counterfeiters easier to catch. Douglas Clouatre Further Reading Green, Edward J., and Warren Weber. “Will the New $100 Bill Decrease Counterfeiting?” Federal Reserve Bank of Minneapolis Quarterly Review (1996): 3-10. Early analysis of the first completely redesigned unit of currency to be placed in circulation. Johnson, David Ralph. Illegal Tender: Counterfeiting and the Secret Service in Nineteenth-Century America. Washington, D.C.: Smithsonian Institution Press, 1995. Fascinating history of the early years of counterfeiting and the rise of the U.S. Secret Service. Motto, Carmine J. In Crime’s Way: A Generation of Secret Service Adventures. Boca Baton, Fla.: CRC Press, 1999. Firsthand stories by a retired Secret Service agent who specialized in counterfeiting investigations. The Use and Counterfeiting of U.S. Currency Abroad. Washington, D.C.: U.S. Department of the Treasury, 2003. One of a series of annual Treasury Department reports to Congress on the department’s ongoing fight against counterfeiting. See also Forgery; Identity theft; Mail fraud; Money laundering; Secret Service, U.S.; Telephone fraud.
Court types Definition: Courts of narrow and broad functions Criminal justice issues: Appeals; courts; jurisdictions; military justice Significance: The judicial system in the United States is complex. Each state has courts of specialized, limited, and general jurisdiction. A separate hi174
Court types erarchy of federal courts parallels the fifty state judiciaries. In many states, efforts have been made to reduce the number of court types. In contrast to Japan and many European countries, the United States has a highly complex network of courts. In nations with unitary political systems, such as France, there is a single judicial hierarchy. Because of federalism, however, there are two sets of trial and appellate courts in the United States, one state and the other federal. At the state level many courts of original jurisdiction can hear only a single type of case, such as that dealing with wills (probate courts) or claims for small amounts of money. Courts also differ in whether jury trials are possible, in what types of procedures are used, and in what types of remedies judges can provide complaining parties. Selecting the correct court in which to file a complaint is so complicated that most law schools offer students a course called “Conflict of Laws” to help them make the right choice. Types of Jurisdiction There are a number of fundamental characteristics that distinguish one court from another. Jurisdiction is the power, or authority, of a particular court to hear a case. Courts of original jurisdiction, or trial courts, hear cases for the first time. Courts of appeal review the decisions of trial judges to determine if they made any reversible errors. Courts of common law can provide monetary compensation to injured plaintiffs in civil suits. Equity courts, or chancery courts, issue injunctions, which are orders to act or to refrain from acting in a particular way, such as polluting a river. The right to trial by jury can be exercised in common law and criminal courts but not in equity courts. Courts of specialized jurisdiction can hear only one type of case. Courts of limited jurisdiction hear several kinds of cases but not all.
Examples of Reversible Errors • • • • • •
incompetent counsel judicial bias jury bias trial testimony based on coerced confessions failure of judge to recognize statutory requirements incomplete jury instructions
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Court types The most important state trial courts are the civil and criminal courts of general jurisdiction, which can hear and determine any case. State courts hear cases involving state law, while federal courts determine legal disputes arising under the U.S. Constitution or federal laws. There are circumstances, however, in which a state court can hear a case that requires the interpretation of federal law and in which a federal court can determine controversies arising under state legislation. In the former type of case, the losing party may appeal to the U.S. Supreme Court after the state supreme court has rendered its decision. Criminal courts try cases in which the government seeks punishment of a defendant for violating the law. Civil courts resolve disputes between private parties in which a complainant alleges harm as a result of a defendant’s failure to fulfill a legal duty. A court of record is a trial court whose determinations of fact are final. Criminal Courts States have established a variety of judicial tribunals to handle criminal cases. Municipal courts are trial courts of limited jurisdiction with the authority to determine misdemeanor cases. Other names for criminal courts of limited jurisdiction are justice or general sessions courts. Night court, or police court, is available in many large urban areas to process cases in which defendants are charged with petty offenses, such as public drunkenness. Police forces in populous cities issue citations ordering drivers caught breaking the law to appear in traffic court. In rural areas, justices of the peace often hear cases involving minor criminal charges. Municipal courts preside over preliminary hearings to determine if evidence is sufficient to hold over felony defendants for trial in superior court. Felonies are prosecuted in criminal courts of general jurisdiction, often called superior or county courts. It is in these courts that most jury trials occur. Other names for such bodies are circuit, district, or criminal courts. Civil Courts Trial courts of limited and general criminal jurisdiction in most states have the power to determine civil controversies. Municipal courts may hear legal disputes in which the amount of compensation requested is relatively low, usually under thirty thousand dollars. County and superior courts hear civil cases in which the monetary amount in dispute exceeds that. Most states have established a court of specialized jurisdiction, or small claims court, to make the civil courts more accessible to ordinary citizens. In these courts parties typically are not represented by lawyers, the filing fees are low, and the waiting period before trial is relatively short. The jurisdiction of 176
Court types small claims courts is typically confined to cases not exceeding five thousand dollars. Probate courts exercise jurisdiction over wills, estates, and guardianship questions. Probate judges determine how the assets of deceased persons are to be allocated and who is legally responsible for frail elderly or mentally incompetent persons. Family law courts, or domestic relations courts, process divorce cases and resolve often contentious issues of child custody, visitation, child support, alimony, and the division of property. Family law court judges have broad equitable powers. Youths charged with delinquency or in need of protection appear in family law or juvenile courts. Juvenile courts are civil courts; they do not mete out punishment, but rather provide treatment. In mediation court, or conciliation court, judges help parties negotiate mutually acceptable compromises rather than impose solutions to conflicts. In states with unified judicial systems, such as California, the trial court of general jurisdiction, the superior court, may sit as a probate court, juvenile court, family law court, and conciliation court. Appellate Courts While trial courts consist of a single judge, appellate courts are collegial bodies with three or more judges. They review trial courts’ decisions at the request of losing parties. A reversible error is one that is so egregious that a trial judge’s decision must be overturned. In general, appellate courts can reverse only a trial judge’s interpretation of the law and not the trial court’s determinations of fact. This rule exists to prevent appellate judges from undermining the jury system. In the United States, each loser in a trial has the right to one appeal. A consequence of this tradition is that some appellate courts have no control over their dockets. They must hear and decide every appeal that is filed. The final court of appeal is the state supreme court (known in New York as the Court of Appeals). If a case involves matters of state law only, the decision of a state supreme court cannot be further appealed. In many states, the state supreme court is the only appellate court. In twenty-five states, however, there are intermediate courts of appeal. In these states the state supreme court enjoys discretion over the cases it wishes to review. Some states have separate intermediate courts of appeal for criminal and civil cases. Several states, including New Jersey, Virginia, and California, have taken steps to simplify their judicial hierarchy. Their goal is to establish an integrated judicial pyramid embracing only a few kinds of trial courts and a single type of intermediate appellate court. 177
Court types Federal Courts Article III of the U.S. Constitution authorizes Congress to establish trial and appellate courts to determine cases arising under federal law, cases involving foreign ambassadors, and suits between citizens of different states. The federal courts of general trial jurisdiction are the ninety-four U.S. district courts. Federal jury trials occur in the district courts. They have both civil and criminal jurisdiction. Federal law requires that judges give preference to criminal over civil cases when scheduling trials. There are a number of federal trial courts of specialized jurisdiction. Each district court has a bankruptcy unit. Bankruptcy courts determine whether petitioners can be relieved of the obligation to repay debts. Magistrate judges handle misdemeanor trials and many of the procedural disputes that must be resolved before a trial in the district court can begin. Appeals of district court decisions are made to one of the thirteen U.S. courts of appeals. The judges sit in panels of three. They also hear appeals from the decisions of federal administrative agencies, such as the National Labor Relations Board (NLRB) and the Federal Communications Commission (FCC). The courts of appeal must accept for review all appeals. A specialized federal court is the U.S. Court of International Trade. It reviews the rulings by federal customs inspectors governing tariffs on imported goods.
Supreme Court of the United States
United States Court of Military Appeals
Military Courts
United States Court of Appeals for the Federal Circuit
12 United States Courts of Appeals
United States Tax Courts
96 United States District Courts
Territorial Courts
Federal Regulatory Agencies
United States Court of International Trade
United States Claims Court
State Supreme Courts*
State Appellate Courts State Trial Courts
* The state supreme court is usually the court of last resort, but this is not always the case. When an issue based on the federal Constitution, a treaty, or a federal statute is involved, it might be possible to appeal a state supreme court decision to the Supreme Court of the United States.
Source: Barbara A. Bardes et al. American Government Politics Today: The Essentials (St. Paul, MN: West Publishing, 1994).
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Court types When a federal question is at issue, appeals of decisions of the U.S. courts of appeals and the state supreme courts may be filed with the U.S. Supreme Court. The U.S. Supreme Court has complete discretion and only grants review to approximately 1 percent of the cases that are filed before it. All nine justices of the U.S. Supreme Court participate in the decision of every case accepted for review. From time to time the U.S. Congress has established tribunals to assist administrative agencies in the performance of their adjudicative functions. U.S. Tax Court, for example, was set up to hear taxpayers’ appeals of decisions of the Internal Revenue Service (IRS). Such so-called Article I courts differ from their Article III counterparts in the judges’ tenure. Article I judges serve for a limited number of years, while Article III judges are appointed for life. There are four other federal legislative courts: the U.S. Court of Federal Claims, the U.S. Court of Military Appeals, the U.S. Court of Veterans Appeals, and territorial courts. The Court of Federal Claims adjudicates plaintiffs’ claims for compensation from the federal government. The Court of Military Appeals is a body of civilian judges who hear appeals from military court-martials. The Court of Veterans Appeals reviews decisions of the Board of Veterans Appeals denying benefits to former military personnel. Appeals from the Court of Federal Claims, the Court of International Trade, and the Court of Veterans Appeals must be filed with the U.S. Court of Appeals for the Federal Circuit. The federal territories Guam, the Virgin Islands, and the Northern Mariana Islands have territorial courts, which can hear matters involving both local and federal law. Because Puerto Rico has its own set of local courts, the territorial court in Puerto Rico has the same jurisdiction as a U.S. district court. Kenneth M. Holland Further Reading Abraham, Henry. The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France. 7th ed. New York: Oxford University Press, 1998. Offers a clear description of differences among courts. Banks, Lenore. The Judicial Maze: The Court System in New York State. Albany, N.Y.: League of Women Voters, 1990. Practical advice, from a citizen’s viewpoint, on the daunting task of selecting the correct court in the state of New York. Baum, Lawrence. American Courts: Process and Policy. 6th ed. Boston: Houghton Mifflin, 2007. Widely used textbook that covers every aspect of U.S. courts, from their organization and structure to the procedures they employ. 179
Crime BNA’s Directory of State and Federal Courts, Judges, and Clerks. Washington, D.C.: BNA Books, 1997. Contains detailed listings of the various types of courts. Includes state court structure charts, which show the routes of appeal for all courts of record. Also includes listings of Internet sites for federal and state courts. Meador, Daniel John. American Courts. 2d ed. St. Paul, Minn.: West Group, 2000. Succinct and straightforward description of the American judicial process, with emphasis on the U.S. court system. State Justice Institute. Improving the Quality of American Justice, 1987-1997. Alexandria, Va.: State Justice Institute, 1997. Exploration of ways in which the courts might be improved through unification. Want’s Federal-State Court Directory 1998: All Fifty States and Canada. New York: Want Publishing, 1997. Another catalog of courts. See also Appellate process; Criminal justice system; Criminal procedure; Drug courts; Judicial system, U.S.; Jurisdiction of courts; Juvenile delinquency; Juvenile waivers to adult courts; Night courts; Supreme Court, U.S.; Trials.
Crime Definition: In narrow legal terms, violations of criminal laws that ban or command acts whose commission or omission are subject to penalties Criminal justice issues: Criminology; legal terms and principles; robbery, theft, and burglary Significance: Crimes are seen as offenses against the state rather than against the individual, the latter being civil violations subject to restitution rather than punishment. Historically, scholars have challenged the strict legal definition and have developed several different views about the criteria that should be used to define crime. These criteria emphasize moral, cultural, social, political, and integrational dimensions of intended or avoidable harm. Crime is the category of behavior to which criminal justice is a response. It has several defining features that make it “unwanted” behavior, including the extent of harm to its victims, the intent and culpability of the offenders, the degree of public consensus over its moral significance, the severity of society’s response, and the visibility of its effects. Although different crimes share some common features—such as the 180
Crime use of instruments of power to gain advantages over others—crime is not a single kind of behavior but a category that comprises multiple types of behavior, each with its own range of causes. Criminologists study crime, its causes, and society’s criminal justice responses. What is defined as crime determines how big a problem society confronts, which areas of society are affected, what resources are put into policing to control the crime, and what systems of justice should be deployed to deal with it. What behaviors are considered criminal has varied through history and among different cultures and in different situations. This is because behaviors that are defined as crimes essentially reflect values, or express what the legal scholar Jerome Hall termed “disvalues.” Anthropologists and sociologists have observed that values, and therefore behaviors that are sufficiently unwanted to be designated “crimes” by societies, change over time, depending upon the cultures, and are subject to the interpretation of meaning of local contexts and social situations. The seriousness of offensive behavior depends upon the interpretation of the meanings of acts, and these are affected by society’s concept of who the acts allow to be victims. Moreover, since crime is defined by laws, and laws are made by legislators and politicians with particular interests, what comes to be defined as criminal need not reflect a universal set of harmful behaviors but those that lawmakers consider significant. Sociopolitical factors as well as economic and political interests affect what legislators judge to be sufficiently offensive to be criminalized. Some behaviors that are considered harmful to American society and its members fall within American definitions of crime. These behaviors include such acts as murder (homicide), rape, robbery, theft, physical violence, and arson. At the same time, other behaviors that can be equally or even more harmful are excluded from the definition. Examples include industrial pollution, creating dangerous working conditions for employees, faulty product manufacture, and violations of food and safety standards. Such acts are typically designated as “white-collar” crimes and are usually subject to administrative regulation, rather than criminal law, and are thus often technically not considered “crimes.” Since the 1980’s, the United States has seen an accelerating movement to criminalize many white-collar and corporate harms and to subject their perpetrators to criminal sanctions. Views of Crime In their 1933 book Crime, Law and Social Science, social philosophers Jerome Michael and Mortimer Adler clarified the legal view of crime in the United States. They stated that criminal law itself gave behavior its quality of 181
Crime criminality. By this they meant that any behavior that has not been designated—by case or statutory law—as a felony or a misdemeanor offense is not a crime. The law crudely distinguishes crimes by their seriousness, and this is indicated by the severity of the punishment associated with individual offenses. A crime is called a felony if it is punishable by a prison sentence, usually of more than a year, or by the death penalty; it is a misdemeanor if punishable by a fine or a prison sentence of less than a year (typically served in a jail). Felonies and misdemeanors are typically categorized as crimes against persons, such as murder, rape, and assault; crimes against property, such as theft, burglary, arson, and fraud; and crimes against morality and public order, such as substance abuse and rioting. The law also distinguishes between two kinds of acts: those seen as bad in and of themselves (mala in se) and those legislated as crimes (mala prohibita). Criminals are, by definition, persons who commit crimes. They may include collectivities, such as criminal corporations, as well as criminal individuals. Sociologist Paul Tappan argued in 1949 that to be a criminal one had to be convicted by a court of law. To be found guilty of a crime a person or collectivity has to have both criminal intent (mens rea, or a guilty mind) and have acted voluntarily (actus reus), meaning that a perpetrator must act willingly rather than being coerced. In the case of a corporation or organization, the “criminality” that produces criminal harm is seen to be in the collective mind, such as that of a board of directors, or an agency policy. Since the mid-twentieth century the strict legalistic view has been increasingly challenged. There are several deficiencies in the narrow legal view. First, what is included is historically and culturally relative, meaning that, at different periods in history and in different cultures and places, the behaviors that are defined as criminal change, not least because values change or are different. For example, it was once not considered criminal to use cocaine, for a man to rape his wife, or for symbols of racial hate to be directed at members of minorities. In the twentieth century, smoking in public places and in government buildings is being increasingly banned and defined as a crime. In 1939, sociologist Edwin Sutherland pointed out that the criminal law is biased; it includes some harms but excludes others, particularly those produced by corporations, which are handled as violations of administrative regulations rather than as violations of criminal laws. Increasingly in the second half of the twentieth century this regulatory approach changed as “white-collar crime” was seen as a significant omission from criminal law. However, critics have pointed out that “socially injurious acts” by the 182
Crime powerful—whether corporations, organizations, or state agencies—still manage to largely escape being classified in law as crimes. Moral Consensus and Cultural Conflict Views A fundamental assumption embodied in the legalistic view is that criminal laws reflect a moral sentiment of the public. What is defined as a crime is behavior that arouses moral indignation, or as nineteenth century French sociologist Émile Durkheim stated, behavior that “shocks the common conscience.” The difficulty with this view is that such indignation is filtered through interested legislators and moral entrepreneurs rather than being tied specifically to the state of public opinion. For this reason, the early conflict sociologist Thorsten Sellin argued in 1938 that value-neutral social scientists, rather than politicians, should map which behaviors the public is concerned about enough to ban by identifying naturally occurring “conduct norms” and use these as the basis to construct laws. Indeed, there have been some studies that index public views about crime, which have revealed that previously ignored harms by corporations and professionals such as doctors are rated as more serious than many more conventional crimes of violence, yet the latter are typically “reacted to” more severely. The argument that crime is a variable rather than a fixed body of behaviors reflecting social values that are subject to change led some to the view that cultures and even subcultures within a society should be allowed to develop their own laws, depending upon their norms of conduct, rather than having these imposed by the dominant group of a mainstream culture. Indeed, in this view what Sellin called “culture conflict” comes into play, wherein different subcultural groups have conflicting allegiance to their own cultural norms and societal laws, which may clash. This tendency can be seen in immigrants to the United States, who may have norms different from those of mainstream Americans. Immigrants from Mediterranean and Middle Eastern honor cultures believe that private family vengeance should be taken on those who dishonor a family, such as by having sexual relations outside marriage. Acts of private vengeance are illegal by American criminal law. In a clash between laws and norms, which should prevail? Are there generalized social values that transcend the specific interests of mainstream culture and its subcultures and serve a functional value to society as a whole, as implied by Hall’s view of crime as an expression of “disvalues”? Alternatively, do the values of a society, and thereby the behavior banned by criminal law, depend upon which interest groups and which major political forces mobilize most effectively to criminalize the behavior of those most threatening to themselves? 183
Crime The Social Conflict View Those who see conflicts of interest, whether based on, for example, wealth, status, political power, honor, or religion, as the driving forces of society, believe that the behavior most criminalized is that which offends those in positions of power. These critics are also concerned with the broader question of values tied to banned behavior. They say that the idea of “appropriate” or “wanted” behavior, versus “unwanted” behavior, as used by some analysts, such as the Law Commission of Canada in its deliberations on What Is a Crime? (2004), begs several critical questions. Not least of these is who decides what counts as “unwanted.” The key issue is how far behavior interpreted as unwanted is the result of powerful audiences finding the behavior problematic/unacceptable or harmful to them, rather than to the society as a whole. As sociologist Howard Becker pointed out in his studies of social deviance, it is important to consider the role of those interest groups (moral entrepreneurs) who can whip up moral support and advocacy, through the media, for turning some “problem behaviors” into “deviance” or “crimes.” According to this view, the questions can be reframed: To whom is a particular behavior problematic? On what basis is it problematic, implying a need to distinguish between harmful and morally unacceptable? Who decides that this behavior should be acted upon? This view is ultimately concerned with the politics of defining behavior as “unacceptable.” Which levels of society are involved, and which are excluded? Whose views prevail in “opinion” or popular culture, and whose views are translated into formal law? How do those who prevail draw on the resources of government, agencies, and media to defeat others who may have different views? Clearly there are political struggles between interested groups over what is defined as crime. In part this involves the fight to control the symbolic meaning of laws, but it also involves the issues of whose behavior is criminalized and what behavior counts as punishable and in what ways. Social Interactionist and Situational Constructionist Views Social constructionism, the idea that people construct their social worlds through symbolic meanings and shared discourse, sees a significant role played by the media in defining crime. It is not just that the media influence the content of definitions of crime by shaping what actions people take as serious and offensive but also that the media are used as resources in the struggle over some groups asserting their interests over others. As British criminologist Stanley Cohen first noted, one way of doing this is to create a “moral panic” about some kinds of behavior, although the actual behavior 184
Crime need not have actually occurred, and the demonized offenders need not actually engage in the practices that have been claimed. Of central concern of constructionists and critical theorists is how groups with different resources gain equal access to the media in asserting their position, how they make truth claims that lead to the banning of behavior, and how the production of mass-mediated images of “crime” is shaped by those in positions of power. Rather than taking consensus or conflict as significant factors in defining crime, some social constructionists see the situational context and the interaction between local actors as important. For example, criminologists Leroy Gould, Gary Kleck, and Marc Gertz see crime defined as a social event, involving many players, actors, and agencies. Beyond the offenders and victims, a “crime event” includes bystanders and witnesses, police officers, and members of political society. A crime event is a particular set of interactions among offenders, crime targets, police, community, and society’s institutional agencies. This social situational view of crime emphasizes the complexities associated with defining crime by recognizing its socially constructed nature. The local situation involves the claim-making and legitimating process by local community agencies, and that necessarily involves issues of power. Critical Conflict View Critical theorists also question how the interests of the powerful influence the selection of societal responses, or penalties, such that the most punitive seem to disproportionately affect the powerless (resulting in their predominance in the criminal justice system), yet the most harmful offenses are committed by those who receive the least punitive sanctions (resulting in their relative absence from the criminal justice system). For example, multimillion-dollar corporate fraud receives considerably less punitive sentencing than conventional street crimes of burglary or robbery. Critics ask how the powerful avoid having their “unwanted” yet harmful behavior criminalized and how they seem to attract the most constructive societal responses, such as rewards for conforming to regulation. In the view of some, there appears to be one law for the rich and another for the poor. The example of the punishment for using “crack cocaine,” a drug taken mostly by African Americans, is compared to the punishment for using “powder cocaine,” used primarily by white substance abusers. Sentences for the use of powder cocaine can be 10 percent of the level of sentences given to persons convicted of crack cocaine use. If people want to use less punitive criminal law in responses to “unwanted” behavior, argue these theorists, equity should prevail between re185
Crime sponses to the crimes of the powerful compared with crimes of the powerless. To deal with these concerns it would be necessary to criminalize and punish some crimes of the powerful, while decriminalizing and regulating the behaviors of the powerless. Critical criminologists Herman and Julia Schweindinger and Richard Quinney built on the early work of Sutherland to suggest that definitions of crime need to be more expansive and include behavior that violates the human rights of others and the socially injurious acts by the structurally powerful toward the powerless in society. For example, critical theorist Raymond Michalowski used the term “analogous social injury” to describe a range of currently legal behaviors by corporations, organizations, and state agencies that produce social, environmental, and health problems. Examples are promoting cigarette and alcohol production and distribution and setting work production targets that force employees to cut health and safety protective practices. Postmodernist and Power-as-Crime Views Postmodernist-influenced constitutive criminologists such as Dragan Milovanovic, Bruce Arrigo, and Stuart Henry have developed definitions of crime that take account of the total context of powerful relations and the situational context. Postmodernism rejects claims that knowledge is true or can be true. Instead, like social constructionists, its advocates believe that “claims to know” are simply power plays used to dominate others. For example, Henry and Milovanovic define crime as an agency’s (individual, corporation, or organization) ability to make a negative difference to others. They define crimes as nothing less than moments in the expression of power such that those who are subjected to these expressions are denied their own contribution to the encounter and often to future encounters. Crime then is the power to deny others . . . in which those subject to the power of another, suffer the pain of being denied their own humanity, the power to make a difference. From a similar perspective, anarchist criminologists Larry Tifft and Dennis Sullivan argue that the power in social organizations, institutions, and processes operate through hierarchical structure and social arrangements to produce harm that evades the legal definition. They, like the critical Marxist theorists, argue for a greatly expanded definition of crime that will include as crimes the activities of many contemporary legal industries and 186
Crime commerce. Paradoxically, this approach would also question many of the criminal justice system’s responses to crime, because these, too, produce harm, not merely by definition but by exerting power over others. Integrative View It is clear that defining crime is far more complex than the simplistic idea that crime is behavior defined by law. In an attempt to take account of several of these themes, Canadian criminologist John Hagan developed a concept of crime as a continuous variable expressed through his pyramid of crime; each slope represents one dimension of the crime phenomenon. Regardless of who defines behavior as “unwanted,” a related issue is the degree of “unwantedness,” which Hagan argued ranges from apathy through mild to severe. The question of unwantedness is different from how much consensus exists about unwantedness and also different from the degree of severity of any reaction or societal response. At a minimum, says Hagan, the issue of unwantedness exists along three dimensions: first, the degree of harm caused; second, the degree of consensus about the harm caused; and third, the severity of society’s response. In expanding Hagan’s pyramid into the concept of a “crime prism,” Stuart Henry and Mark Lanier added further dimensions. A fourth dimension is the degree of consensus about the severity of society’s response: Does everyone agree with the sentence, or is there wide disagreement that it is either too severe or too lenient? A fifth dimension is the degree of visibility of unwanted behavior—and the role of mass-mediated culture in sensitizing populations to fear of some unwanted behavior/crime rather than others. A sixth dimension is the extent of harm caused (which is different from how harmful the act is in itself), for example, a terrorist act that kills one hundred people is seen as more harmful than an act of terrorism that kills one person, even though the act itself may be the same. The seventh and final dimension is the selectivity of society’s responses to such behavior, which relates to the equality of responses across the different levels of society and the degree to which power and resources of those in different levels are drawn on to resist. By integrating these different dimensions it is possible to develop a more balanced and comprehensive definition of the crime phenomenon. This necessarily takes account of crime’s complexity, recognizes its multiple victims, and acknowledges the critical role of power in various aspects of the crime creation process. Stuart Henry 187
Crime labs Further Reading Barak, Gregg, ed. Media, Process, and the Social Construction of Crime: Studies in Newsmaking Criminology. New York: Garland, 1994. Useful examination of the media’s role in defining crime. Hagan, John. The Disreputable Pleasures. Toronto: McGraw-Hill Ryerson, 1977. Explanation of the integrated view of defining crime. Hall, Jerome. General Principles of Criminal Law. 2d ed. Clark, N.J.: Lawbook Exchange, 2005. Revised edition of a long-useful foundational statement of the legal perspectives on defining crime. Henry, Stuart. “What Is School Violence? An Integrated Definition.” The ANNALS of the American Academy of Political and Social Science 567 (January, 2000): 16-29. An application of the integrative view of crime. Henry, Stuart, and Mark Lanier, eds. What Is Crime? Controversies Over the Nature of Crime and What to Do About It. Boulder, Colo.: Roman & Littlefield, 2001. In-depth coverage of a wide variety of views on what constitutes crime. Law Commission of Canada, ed. What Is a Crime? Defining Criminal Conduct in Contemporary Society. Vancouver: University of British Columbia Press, 2004. Penetrating study that tries to grapple with concrete problems of defining crime. Surette, Ray. Media, Crime, and Criminal Justice: Images, Realities, and Policies. 3d ed. Belmont, Calif.: Thomson/Wadsworth, 2007. Another useful examination of the media’s role in defining crime. See also Accomplices and accessories; Attempt to commit a crime; Crime scene investigation; Criminal law; Criminal liability; Criminals; Felonies; Misdemeanors; Solicitation to commit a crime; Uniform Crime Reports.
Crime labs Definition: Facilities—mostly government-run—designed to analyze physical evidence of crimes Criminal justice issues: Evidence and forensics; investigation; technology Significance: Crime labs process, analyze, and sometimes collect physical evidence from crimes and crime scenes. As the field of criminalistics has become increasingly important within the criminal justice system, crime labs have provided the expertise to use and understand scientific methods of analysis of evidence. 188
Crime labs Most crime labs are funded and administered by governmental agencies, such as the Federal Bureau of Investigation (FBI), state departments of justice, and local law-enforcement agencies. There are also private, for-profit crime labs. The criminalists who work within crime labs typically have degrees in chemistry, biology, and other sciences and often have masters and doctoral degrees. Crime labs perform a wide variety of analyses. One of their most common tasks now is analysis of deoxyribonucleic acid (DNA). Among other things, DNA analysis is done to identify criminal offenders and crime victims. DNA analysis can be performed on body tissues and on body fluids, such as blood, saliva, and semen. Other common crime labs tasks include fingerprint analysis; identification of trace evidence such as clothing fibers and paint particles; screening of body fluids for alcohol, drugs, and toxins; identification and matching of firearms and ammunition; identification and matching of marks made by hammers, screwdrivers, saws, and other tools; and analysis of written documents, such as matching handwriting samples to those of suspects. Depending on the types of analysis being performed, criminalists use a wide variety of scientific equipment and techniques. Modern Challenges As crime labs become increasingly important in the investigation of crime, they face a growing number of challenges. One of these is overwhelming caseloads and limited personnel and budgets. In 2002, for example, the fifty largest crime labs in the United States received more than 1.2 million requests for services. Although these labs had 4,300 full-time employees, they had a backlog of 270,000 requests by the end of that year. As a result of these backlogs and contrary to what is often depicted on television shows such as CSI, it often takes well over a month for a real-life law-enforcement agency to obtain results of scientific analysis. This contributes to slowing down the criminal justice system’s response to crimes. The delays allow some guilty people to escape justice, while innocent suspects may be detained for longer periods of time. Another challenge that crime labs face is the quality of their work. The first years of the twenty-first century have seen a number of high-profile incidents involving crime labs and crime lab employees that have provided false and misleading results. These problems have been caused by such factors as high caseloads and inadequate personnel training and supervision. Faulty crime lab analyses are particularly troubling because they can lead to mistaken convictions of innocent people. In fact, according to the Innocence Project, defective and fraudulent science was a major contributor to the 189
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DNA Testing and Privacy Rights In early 2005, police in Truro, Massachusetts, tried to solve the January, 2002, murder case of fashion writer Christa Worthington by asking men in the town voluntarily to submit to DNA testing. Investigators hoped to find the murderer by matching a DNA sample with DNA samples found in semen collected from the body of Worthington, who had had sexual intercourse before she was killed. Hundreds of Truro residents complied with the request by allowing swabs to be taken from inside their mouths; however, the investigation’s attempt to test the entire town alarmed civil libertarians concerned with unwarranted intrusion into privacy rights. Particularly troubling was the fact that the police were recording the names of men who refused to comply with the request for DNA samples. The American Civil Liberties Union of Massachusetts sent letters to the Cape Cod County prosecutor and Truro’s chief of police asking them to stop the DNA collection. In 2003, police in Baton Rouge, Louisiana, collected DNA samples from about 1,200 men in an effort to catch a serial killer. The authorities eventually arrested a suspect but did not reveal whether DNA evidence figured into the arrest.
false convictions of dozens of men for crimes as serious as murder and rape. Some of these innocent men even received death sentences, and many of them spent long years in prison. In response to the problem of bad science, there has been a recent trend toward accrediting crime labs. Under a formal accreditation process, an external agency such as the American Society of Crime Laboratory Directors audits and inspects labs. The accrediting agency checks for such things as proper employee education and training, availability of appropriate equipment and space, and correct evidence handling and analysis techniques. In addition, the U.S. Department of Justice has published several reports providing guidelines on forensic science training and techniques. Accreditation and guidelines are likely to do little to help alleviate the backlogs in lab work. However, they should improve the accuracy and quality of the labs’ work, thus leading to more accurate crime investigations. Phyllis B. Gerstenfeld
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Crime scene investigation Further Reading Bureau of Justice Statistics. Fifty Largest Crime Labs, 2002. Washington, D.C.: U.S. Department of Justice, 2004. Evans, C. The Casebook of Forensic Detection: How Science Solved One Hundred of the World’s Most Baffling Crimes. New York: John Wiley & Sons, 1998. Geberth, Vernon J. Practical Homicide Investigation: Tactics, Procedures, and Forensic Techniques. 4th ed. Boca Raton, Fla.: CRC/Taylor & Francis, 2006. Genge, N. The Forensic Casebook: The Science of Crime Scene Investigation. New York: Ballantine Books, 2002. Lee, H., T. O’Neil, and C. Gill. Cracking Cases: The Science of Solving Crimes. Amherst, N.Y.: Prometheus Books, 2002. National Institute of Justice. Education and Training in Forensic Science: A Guide for Forensic Science Laboratories, Educational Institutions, and Students. Washington, D.C.: U.S. Department of Justice, 2004. See also Crime scene investigation; Drug testing; Federal Bureau of Investigation; Forensics; Murder and homicide; Police detectives; Sobriety testing; State police.
Crime scene investigation Definition: Meticulous preservation of physical evidence at specific locations by use of photographs, sketches, and collection and preservation of crime-related evidence Criminal justice issues: Evidence and forensics; investigation; technology Significance: Securing the crime scene and meticulously protecting evidence contribute to successful prosecution. Crime scene procedures allow proper coordination among investigators, scientific laboratory personnel, and prosecutors; interagency cooperation is essential to exoneration of the innocent and conviction of the guilty. The primary objectives of the first responding officers at a crime scene are to arrive safely and render aid to crime victims. The officers’ next immediate task is to isolate, contain, and preserve the crime scene. Officers use barriers to create an exclusion zone and prevent unauthorized access. In most cases, the responding officers conducting the preliminary investigation release the crime scene to the follow-up investigators and the Crime Scene Investigation (CSI) unit. The ultimate purpose of crime scene investigation is to maintain proper care, custody, and control of evidence. Well-delineated 191
Crime scene investigation procedures result in competent, material, and reliable evidence for presentation in a criminal trial. Crime Scene Coordination Lead investigators coordinate logistical resources for crime scene investigation. Requests for technical CSI unit services—crime scene processing and a mobile crime laboratory—require approval of the senior investigator. CSI technicians process the crime scene; they do not conduct follow-up investigations or arrest suspects. The media, however, portray CSI roles inaccurately. The CSI’s primary role is to record the crime scene, including photographing it, and collect evidence. The CSI evidence team coordinates with forensic laboratory scientists and investigators. In smaller agencies with limited resources, state police or the State Bureau of Investigation (SBI) may assist local officers with the follow-up investigation. The lead follow-up investigator establishes a systematic search plan at the crime scene. Officers estimate boundary determinations; inner and outer crime boundaries divide the scene. The investigator attempts to identify potential offender routes. For example, in a homicide, the inner crime scene might include the victim’s home and immediate property. The outer crime scene may include several blocks or open fields. A wounded criminal may
One of the first things that police do on their arrival at crime scenes is seal off the areas to prevent contamination of evidence. (Brand-X Pictures) 192
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A Typical Crime Scene Application Officers respond to a homicide call and discover the body of a young woman in the bedroom. After securing the scene, they set up the crime scene log, which controls all people having the right of access to the crime scene. The preliminary survey requires written notes, sketches, and identification of fragile evidence. Officers identify footprints outside the bedroom window. They alert investigators and CSI specialists to the location of fragile evidence. Officers establish a pathway for medical personnel; this pathway prevents destruction of physical evidence. If emergency medical responders request assistance from the pathologist, the pathway allows such follow-up investigators opportunities to locate obvious physical evidence, for example, a weapon, blood, and footprints. The initial point-to-point search turns up additional evidence to be photographed. Special attention to points of entry windows and exits will assist in identifying the offender’s travel pattern. Officers locate broken glass near a damaged window and notice a bloody fingerprint below the putty line. This is a strong indicator that the offender pulled the broken glass from the window frame. The corpse represents a secondary crime scene. The autopsy examination provides essential information on cause of death. There are three possible explanations for death crime scenes: accidental, suicide, or homicide. The case of death in this scenario is homicide. The autopsy report links trace evidence from the victim to the scene and offender.
provide a travel pattern of blood trace evidence from the bedroom window, backyard, and to a specific vehicle. The vehicle, once traced to another location, may provide additional evidence. Additional locations to be investigated may include those of other crimes or dump sites. These areas may contain other evidence that will lead police to offenders. Investigative service teams may assist in interviewing witnesses, recording statements, and canvassing neighborhoods or vehicles. Lead investigators conduct liaison activities with technical and investigative services personnel. Specialists in criminal investigative analysis and criminal profiling may assist in linking physical and psychological evidence. Criminal information is stored, collated, analyzed, and disseminated to appropriate agencies and personnel. 193
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Because the importance of individual items of evidence may not be apparent until well after the initial investigation of a crime scene, it is important to record every detail that may later prove relevant. One such detail in a homicide investigation is the exact position in which a body is found—a detail that is often recorded in a chalk outline. (Brand-X Pictures)
Crime Scene Inspection The basic rule of criminal investigation requires that evidence never be touched, altered, or moved before being photographed. The CSI team records the crime scene according to specific photography and videography procedures. Specialists such as fingerprint examiners, blood evidence technicians, and footprint technicians may gather fragile trace evidence. A sketch team further documents and measures the location of the physical evidence. Standard search methods ensure the successful collection of all crime scene evidence. The collection team secures, marks, and tags the evidence and initiates the chain of custody forms. In the after-action briefing review, the investigative team and the CSI team share findings. Investigative teams compare preliminary notes for potential follow-up procedures. Discussions focus on essential evidence and its connection to primary suspects. The process identifies potential suspects and 194
Crimes of passion the need for laboratory examination to develop associative trace evidence. The final survey is the last official step before the crime scene is released according to agency regulations or other legal requirements. Standing procedures require final inspection by the lead investigator and the CSI team leader. The purposes of the final survey are to check for and collect uncovered evidence, police equipment, and dangerous materials. In summary, crime scene reconstruction requires critical thinking and problem-solving strategies. Investigators apply scientific analysis to determine an accurate sequence of events and reconstruct what happened at a crime scene. Physical evidence determines the suspects and the manner in which the crime was carried out. Crime scene interpretation is the result of hypothesis formulation, experimentation, laboratory examination, and logical analysis. Thomas E. Baker Further Reading Becker, Ronald F. Criminal Investigation. 2d ed. Sudbury, Mass.: Jones and Bartlett, 2005. A handbook for use by crime laboratory personnel. Gilbert, James N. Criminal Investigation. 7th ed. Upper Saddle River, N.J.: Pearson/Prentice Hall, 2007. Includes index and bibliography. Ogle, Robert R. Crime Scene Investigation and Reconstruction: With Guidelines for Crime Scene Search and Physical Evidence Collection. 2d ed. Upper Saddle River, N.J.: Pearson/Prentice Hall, 2007. Textbook for practical crime scene investigation work. See also Arson; Coroners; Crime labs; Evidence, rules of; Forensics; Medical examiners; Murder and homicide; Police detectives; State police; Suspects.
Crimes of passion Definition: Crimes that are regarded as having been committed impulsively, without premeditation or malice aforethought Criminal justice issues: Defendants; homicide; women’s issues Significance: This concept is most frequently used in distinguishing the crime of murder, in which the killing is done with premeditation or malice aforethought, from the lesser crime of manslaughter. One concept in determining the seriousness of a crime is the mental state of the perpetrator. A crime of passion, often known by the French term crime 195
Crimes of passion passionnel, is one committed under the influence of such strong feelings as rage, anger, hatred, furious resentment, wild desperation, or terror that occur so suddenly or extremely as to render the mind incapable of cool reflection. Such passion can be considered as a mitigating, although not an exonerating, factor. The distinction between premeditated murder and manslaughter in American jurisprudence goes back to a Pennsylvania law enacted in 1794 to remove the death penalty from murders not considered willful, deliberate, and premeditated. If a killing follows from adequate provocation on the part of the victim and there is insufficient time for a reasonable person to have recovered self-control, the perpetrator is assumed to lack the mens rea, or evil intent, required for a murder charge. To distinguish between a premeditated act and a crime of passion, all circumstances must be considered, including the length of time between the provocation and the crime, the manner in which the crime was committed, and the relationship between the parties. The application of this law has of course been influenced by contemporary mores. The traditional example of the homicidal crime of passion used to be the man who caught his wife flagrante delicto (in the act) with another man. There was some disagreement as to whether this was an extenuating circumstance for killing the wife, the man, or both, but men who killed in that situation were often given minimal sentences on the grounds that they were impelled by their passions. In modern America that approach is questioned. Feminists have argued that overly mild sentences in such cases all but license killing, and some would ask whether the supposedly masculine reaction of quick, angry violence should be privileged. Women, it is argued, are more likely to wait and build up courage before acting, and the “heat of passion” argument does not cover that. These issues came to the forefront in a Maryland case in 1994, when Kenneth Peacock was convicted for killing his wife. After catching his wife in an act of adultery, Peacock had argued with her for several hours, then shot her to death. He was allowed to use the crime-of-passion defense, pleading guilty to voluntary manslaughter. He was given a minimum three-year sentence with half of it suspended, a decision that brought widespread public criticism, especially when the judge publicly said that he might have done the same thing himself. Arthur D. Hlavaty Further Reading Daly, Martin, and Margo Wilson. Homicide. New York: Aldine de Gruyter, 1988. 196
Criminal intent Geberth, Vernon J. Practical Homicide Investigation: Tactics, Procedures, and Forensic Techniques. 4th ed. Boca Raton, Fla.: CRC/Taylor & Francis, 2006. Mandelsberg, Rose G., ed. Crimes of Passion: From the Files of True Detective. New York: Pinnacle Books, 1993. See also Adultery; Crime; Criminal intent; Criminal law; Criminals; Manslaughter; Murder and homicide.
Criminal intent Definition: Necessary state of mind needed to assign criminal responsibility to persons for their actions Criminal justice issues: Defendants; prosecution Significance: Criminal intent is one of the conditions that must be met in order to find a defendant criminally responsible. In order to establish criminal responsibility, the easiest condition to recognize is the act, known as the actus reus. This is the outward behavior that makes up the crime. An equally important component is a person’s state of mind when committing the act, known as mens rea. Justice Robert Houghwout Jackson in the U.S. Supreme Court case of Morissette v. United States (1952) defined crime as “a compound concept . . . constituted only from concurrence of an evil-meaning mind and an evil-doing hand.” In common law the evil mind has also been referred to as a guilty mind, felonious intent, guilty knowledge, evil purpose, or mental culpability. All these terms signify that persons charged with crimes meant to cause the natural and probable results of their actions. In 1962 the American Law Institute published the Model Penal Code, which suggested that confusion in this and other areas of law could be avoided if specific, uniform definitions were incorporated into statutes. It determined that four culpable mental states compose criminal intent. In order of severity, crimes may be committed purposely, knowingly, recklessly, and negligently. In most statutes the mental states required to categorize crimes are specifically stated. Persons act purposely when they desire a result. For example, persons act purposely if they plan to kill other persons by lying in wait and ambushing them using techniques that ensure success. Acts are carried out knowingly when persons act in such a way that they are clearly aware that a certain result is likely. When persons point guns at others and pull the trigger, they are 197
Criminal justice system fully cognizant that this will most likely cause death. Persons act recklessly when they disregard an obvious and considerable risk. Driving under the influence of alcohol is an example of a crime based on the criterion of recklessness as a mental state. Negligence is present when persons deviate significantly from a standard of care that would constitute normal behavior in the situation. If a gun owner in a home with children leaves a weapon on a nightstand and a child shoots a playmate with it, the owner is negligent in creating the situation and is criminally liable. One type of act may be judged differently depending solely on the criminal intent involved. If persons driving cars hit pedestrians, they do so purposely if they aim their cars at the pedestrians. They do so knowingly if they see the pedestrians crossing the street and refuse to slow down, expecting the pedestrians to move out of the way. They do so recklessly if they have been drinking heavily and are unable to react to the pedestrians in a crosswalk. They do so negligently if they drive significantly over the speed limit and are unable to stop quickly enough. However, they have committed no crime whatsoever if the pedestrians have darted from between two parked cars into the middle of the street. Michael L. Barrett Further Reading Acker, James R., and David C. Brody. Criminal Procedure: A Contemporary Perspective. 2d ed. Sudbury, Mass.: Jones and Bartlett, 2004. Garner, Bryan A., ed. Black’s Law Dictionary. 8th ed. St. Paul, Minn.: Thomson/West, 2004. Hall, Jerome. General Principles of Criminal Law. 2d ed. Clark, N.J.: Lawbook Exchange, 2005. See also Accomplices and accessories; Attempt to commit a crime; Burglary; Crimes of passion; Criminal law; Criminal liability; Criminals; Defenses to crime; Ignorance of the law; Insanity defense; Reckless endangerment; Solicitation to commit a crime.
Criminal justice system Definition: Interrelationships among law enforcement, the courts, corrections, and juvenile justice Criminal justice issues: Courts; juvenile justice; law-enforcement organization; punishment 198
Criminal justice system Significance: The American criminal justice system is a multilayered complex that interconnects courts, law-enforcement agencies, and corrections of federal, state, and local governments in the common goal of reducing crime, punishing wrongdoers, and rehabilitating offenders. Crime is found in all societies, and every culture develops its own mechanisms to control and prevent it. The ways in which the different peoples of the world confront crime vary considerably. Great dissimilarities can be found in the very definitions of what constitute illegal acts and in the variety of methods used to judge and punish criminals. The ways that a society employs to confront crime often reflect the society’s political and cultural values. The United States is a democracy, and the ways in which Americans control crime reflect the national political philosophy. The usual meaning of a democratic government is a representative one in which those in authority are periodically elected by the people. The basic philosophy of an elected government should thus reflect the will of the people. However, on many issues, the people may disagree with their government. Even when they agree, they may differ among themselves on how the majority opinions should be put into effect. A key element in a democracy is consent of the people. Democratic governments operate on agreement and not on the basis of coercion. It is understood that a democracy’s citizens concur as to its existence. If not, then its citizens are free to withdraw from the society or to work within the system for change. Another element of democracy is that of participation. Democratic governments allow and encourage their citizens to participate in making policies and, at times, executing them as well. In a democracy the dignity of the people will be assumed along with all citizens being treated with fairness and justice. The foundation of American democracy traditionally holds the value in the confidence and consent of the people as the primary basis for justice. The governmental system that deals with the nature of crime in society, as well as analyzing the social agencies and formal processes, has come to be known as the criminal justice system. The word “system” implies an integrated process that works to control crime. Some scholars consider criminal justice to be more of a process than a coordinated system working together to control and prevent crime and prefer the term “criminal justice process.” However, the term “criminal justice system” has become accepted when discussing the process of handling crime through the legal channels to arrest, convict, and punish criminal offenders. 199
Criminal justice system Framework The basic framework of the American criminal justice system is found in the legislative, judicial, and executive branches of government. The legislative branch defines the laws determining criminal conduct and establishing criminal penalties. Appellate courts interpret laws and review their constitutionality. The executive branch has administrative responsibility for criminal justice agencies and program planning. Also, public agencies such as police departments and parole boards function as parts of the government and are established to implement specific legislation. All three branches of government generally work together to direct the criminal justice system. The legislative branch is not completely independent of the executive branch, nor is the judiciary branch independent of the other two branches of government. For example, if a legislature passes a criminal statute making conviction for possession of a handgun a mandatory prison sentence, both the judiciary and executive branches are involved in the law’s implementation and influence the criminal justice system. A gun law may be the product of the executive branch, requiring legislative approval and eventually judicial review. The criminal justice system has three separately organized components: law enforcement, the courts, and corrections. Some scholars consider the juvenile justice system to be a fourth component of the criminal justice system. The primary reason for this is that juvenile offenders are handled in noncriminal procedures. Terms from civil law, and not from criminal law, are used when juveniles are accused of criminal offenses. The philosophy of the juvenile justice system is completely different from that of the adult system. Since the creation of the first juvenile system by the Illinois legislature in 1899, the philosophy of juvenile justice has been to “save the child.” In contrast, the goals of the adult criminal justice system have been either to punish or to rehabilitate offenders. Each of the three components of the criminal justice system—law enforcement, the courts, and corrections—has distinct tasks. However, these components are not independent of one another. What each one does and how it operates have direct bearings on the work of the other components. For example, courts can deal with only those whom the police arrest, and correctional institutions handle only those who are sentenced to incarceration by the courts. Moreover, the successful reform of prisoners by correctional institutions determines whether the offenders may again come into contact with law-enforcement officers and influences the sentences judges pass. In addition, law-enforcement activities are scrutinized by the courts, and court decisions establish law-enforcement procedures. 200
Criminal justice system The concept that the agencies of justice form a system has become increasingly popular among academicians, practitioners, and other professionals involved in the criminal justice field. The term system, theoretically, refers to interrelationships among all the agencies concerned with the prevention of crime in society. Generally, it has become acceptable to some students of the criminal justice system to assume that if a change occurs in one of the major criminal justice components, that change will affect the other components. This approach implies that coordinating of policies and procedures occurs among the various components composing the system. The various elements of the criminal justice system—law enforcement, courts, and corrections—are all related, but only to the extent that they are influenced by one anothers’ policies and procedures. They are not well coordinated. Adjectives such as “fragmented,” “divided,” and “splintered” are often used to describe the criminal justice system. Criminal justice is a field of study, an interrelated system of agencies, and a system that involves moving offenders from the arrest stage to the release stage from a correctional institution. The goals of the system may be broken down into two basic categories: theoretical and practical. Theoretical goals include retribution, deterrence, incapacitation, and rehabilitation. Practical goals include crime prevention, diversion of offenders from the criminal justice system, fairness in handling offenders, and efficiency in criminal justice operations. Law Enforcement The functions and goals of the different components of criminal justice all differ from one another. The law-enforcement component consists of all police agencies at the federal, state, and local levels. Included at the local level are county and municipal agencies. Law-enforcement agencies are part of the executive branches of government and work toward deterring and preventing crime. Their mission is to reduce crime or to eliminate the opportunities for criminal acts. The police have the function to apprehend and arrest criminal law violators. They are responsible for investigating crimes, collecting and preserving evidence, and preparing criminal cases for prosecution. The police play an important role from the investigative phases of criminal acts through the arrests and prosecution of cases against offenders. Without sufficient evidence collected by the police, prosecutors will not prosecute cases against suspects charged with crimes. Another function of police is protection of life and property. The strate201
Criminal justice system gies of this have included crime prevention, crime repression, apprehension of criminals to protect society, and the performance of specialized services to maintain public safety. Law enforcement functions at all three levels of government—local, state, and federal. In 2005, there were approximately 18,000 local police agencies in the United States. They vary in size from a single police officer to the approximately 40,000 officers of the New York City Police Department. Most police officers serve as patrol car officers; in some instances, they walk beats. The largest departments contain many specialized sections. These may include investigation units, planning units, drug units, juvenile units, traffic units, and SWAT teams. Several counties in the United States have established county police departments to police unincorporated areas of the county. County police departments are given law-enforcement duties when local sheriff’s departments have limited jurisdiction. Among the best-known county police departments are those of Maryland’s Baltimore County and New York’s Nassau and Suffern Counties. All three are counties with urban populations of sufficient size and resources to provide full law-enforcement services. State constitutions generally provide that sheriffs are the chief lawenforcement officers of counties. Services provided by sheriffs’ offices vary from county to county and often from state to state. Some sheriffs may have virtually no fixed responsibilities, or they can be responsible for a full range of law-enforcement services. The federal government’s role in law enforcement evolved during the twentieth century. Until the 1960’s, the federal government emphasized that federal law-enforcement agencies should concentrate on enforcing federal laws. In 1968, the U.S. Congress passed the Omnibus Crime Control and Safe Streets Act, which was designed to provide resources to local law enforcement for equipment, training, and personnel. Local lawenforcement officers are now often incorporated into federal task forces directed by the Drug Enforcement Agency (DEA) and Federal Bureau of Investigation (FBI). There are approximately fifty federal law-enforcement agencies. Most of these agencies have specific powers, and their investigative powers are specified by federal legislation. In 2002, several federal investigative agencies were placed under the new Department of Homeland Security. State Courts The second criminal justice component, the court system, includes those judicial agencies at all levels of government. The courts ensure that the ac202
Criminal justice system
Per Capita Justice System Expenditures by State in 1999 WA $418 OR $464
NV $543
MT $340 ID $384
UT $400
CA $603 AZ $472
WY $483 CO $438
NM $441
ND $243 SD $268
MN $364
VT $248 ME $257 WI $449
WV $228
NY $630 MI $439 IA PA NE $315 $424 $284 IL IN OH $424 $418 $283 KS VA MO KY $355 $388 $325 $303 NC OK TN $323 $351 AR $302 SC $280 MS AL GA $331 $282 $295 $365 TX LA $388 $411
NH $299 MA $465 RI $408 CT $455 NJ $518 DE $561 MD $451 M DC $1,212
FL $503 AK $725
HI $430
Source: U.S. Bureau of Justice Statistics, 2002. Figures represent average per capita expenditures for police protection, judicial and legal systems, and corrections. Figures are rounded off to the nearest dollar. Per capita expenditure for federal judicial system in 1999 was $442.10.
cused receive fair and impartial trials under the relevant laws of the jurisdictions in which they are charged with criminal offenses. There two basic types of courts: trial courts and appellate courts. All criminal crimes take place in trial courts. The names of the state trial courts differ from state to state. In Kansas, for example, they are called district courts. In Pennsylvania, they are called courts of common pleas. The federal court system calls its trial courts district courts. In jurisdictions, trial courts have the responsibility of determining by the evidence presented whether defendants should be convicted of crimes. The trial courts review all evidence presented by prosecutors and consider its relevance and admissibility, while examining and reviewing the circumstances surrounding the crimes. 203
Criminal justice system The trial courts have the responsibility of protecting the rights of accused offenders. They review the actions of the law-enforcement agencies to ensure that the police have not violated the constitutional rights of the accused. After defendants are convicted, the trial courts examine the backgrounds of the defendants and consider sentencing alternatives. Since the trial courts have a duty to protect their communities and repress criminal behavior, they have the task of imposing specific penalties. When imposing penalties, the trial courts usually take into consideration the circumstances of the crimes, the characters of the offenders, and the potential threats that the offenders may pose to public safety. Federal Courts Article III of the U.S. Constitution provides that “the judicial power of the United States shall be vested in one Supreme court and in such inferior courts as the Congress may from time to time ordain and establish.” The United States has a “dual court system,” meaning that there is one federal court and fifty state courts. The fifty-one court systems are independent of one another and are not hierarchically related, except for the fact that the constitutional decisions of the U.S. Supreme Court are binding on both state and federal courts at all levels. The U.S. Supreme Court is the highest court in the country. Although it can conduct ordinary trials, it functions primarily as appeals court. The Court hears cases appealed from either the federal court of appeals or from the highest courts of appeal of the individual states. Below the Supreme Court are thirteen U.S. courts of appeals, each of which handles appeal from its own designated region of the country or its territories. These courts hear appeals from federal district courts, the trial courts of the federal government. The district courts conduct trials in ninety-four districts scattered throughout the United States and its territories. Most states have appeals courts comparable to the U.S. Supreme Court. Their various names include Court of Appeals, Supreme Court of Appeals, and Supreme Judicial Court. Below the states’ highest courts of appeals lie intermediate courts of appeals and trial courts. Cases generally enter the federal and state judicial systems at the trial court level. In these courts, defendants are either convicted or held to be innocent. Losers in the cases may appeal the verdicts to the appeals court. Appeals courts do not reevaluate the evidence presented in trial courts. Instead, they determine whether errors of law have been made and provide remedies for prejudicial errors. The federal and state court systems merge at the Supreme Court of the United States. The Supreme Court reviews only 204
Criminal justice system claims and defenses found in the U.S. Constitution or laws enacted under its authority. Corrections Corrections, the third component of the criminal justice system, comprises the executive agencies of the federal, state, and local government that are responsible both directly and indirectly for housing and controlling persons convicted of crimes. The first duty of corrections is to maintain prisons, jails, and halfway houses. The purpose of corrections is to provide protection for law-abiding citizens by isolating criminal offenders in secure facilities. The confinement of offenders prevents them from committing further crimes. At various periods in the history of American corrections, consideration has been given to reforming offenders. Reforming offenders consists of providing services that will assist them to be released and returned to society to lead law-abiding lives. The trial courts also encourage crime deterrence by incarcerating convicted offenders. This act may deter potential criminal offenders from violating the law by the threat of the loss of their freedom of movement. The federal government’s Bureau of Prisons was established in 1930, under the Department of Justice. Facilities within the federal system consist of correctional institutions, detention centers, medical centers, prison camps, metropolitan corrections centers, and penitentiaries. All fifty states maintain their own corrections systems. State departments of corrections generally divide their facilities according to their levels of security: minimum, medium, and maximum. Large states, such as New York, Texas, and California, operate a wide variety of units, encompassing all levels of security and beyond. Smaller states generally have fewer and lessspecialized facilities. Jails are another type of corrections facility that are used for temporary detentions at the local level. Depending upon the jurisdiction, jails may be called lockups, workhouses, detention centers, or stockades. Most jails are overcrowded. They usually employ minimal staff, who are often poorly paid and poorly trained. These limitations can result in inadequate attention to inmate needs and the mistreatment of the inmates by the jailers. An important part of the corrections component is community-based corrections, which involve activities and programs within local communities. Emphasis in community-based corrections programs is on rehabilitation rather than punishment. Rehabilitation may include education, employment, and social services. Community-based corrections sometimes 205
Criminal justice system include diversion programs that remove offenders from the direct application of the criminal law process. Criminal proceedings are stopped in favor of noncriminal dispositions. Probation and parole are other forms of community-based corrections. Probation is a conditional release from a prison upon conviction of a crime, provided that the probationers follow the guidelines established by the court. Parole provides for prison inmates to be released early, then follow the guidelines established by their parole boards. Juvenile Justice The fourth component of criminal justice deals primarily with juveniles who have not reached the age of majority. Because of their age, juveniles are deemed to have a special status. The philosophy of the juvenile justice system holds that children should be treated in ways that protect them and correct their misbehavior. The state of Illinois established the first juvenile court system in 1899. Under Illinois law, all children were placed under one jurisdiction. The juvenile court was given jurisdiction over dependent, neglected, and delinquent children. The first juvenile court was established in Cook County, which included the city of Chicago. All juveniles under the age of sixteen alleged to be delinquents came under the jurisdiction of the juvenile courts, which were created by the legislatures as courts of limited jurisdiction. Illinois’s juvenile courts were designed to protect and correct the inappropriate behavior of juvenile offenders. These courts were to provide protective services, which included placing youthful offenders with families that would function as surrogate parents. The intent of the Illinois legislature was for juvenile court settings to be informal and for proceedings to function in a civil manner rather than in a criminal-court manner. The hope was that humane judges would function as substitute parents who would prescribe and apply individual treatment based on the needs of the children and the communities. Juvenile courts differ from adult criminal courts in several ways. First, their judges are assigned to handle juvenile cases. Also, records of juvenile courts are separated from those of adult criminal court; juvenile court records are confidential. Juvenile courts employ more informal court procedures than adult courts, and their courtrooms are physically separated from courtrooms used in adult cases. In theory, juvenile courts do not consider juveniles defendants or criminals and regard them as children in need of care, protection, and rehabilitation. In contrast to procedures in adult criminal court, juvenile courts do not 206
Criminal justice system readily recognize due process for the juvenile defendants. Juvenile courts have the power to punish juveniles for specific offenses and the responsibility to determine if the juveniles are immoral, wayward, in need of supervision, incorrigible, or living in unfit homes. The chief objective of juvenile courts is to promote the rehabilitation of juvenile offenders and to assist them to become useful citizens. To achieve this goal, judges are appointed specifically to deal with juvenile cases, and probation officers are hired to supervise the juveniles. Juvenile court facilities are separated from adult courthouses and usually offer physical environments that are less severe and threatening. Juvenile judges sit behind desks rather than benches, and terms such as “intake hearing,” “petition,” and “adjudication inquiry” are used in place of “hearing,” “arrest,” and “arraignment.” Michael J. Palmiotto Further Reading Champion, Dean John. Criminal Justice in the United States. 2d ed. Chicago: Nelson Hall, 1998. General survey of the modern legal system of the United States, with an extensive treatment of juvenile crime and alternatives to incarceration. _______. The Juvenile Justice System: Delinquency, Processing, and the Law. 4th ed. Upper Saddle River, N.J.: Prentice-Hall, 2003. Broad overview of the treatment of juveniles in the justice system. Examines juvenile legal rights and court decisions regarding adjudication, disposition, and sanctions. Cole, George F., and Christopher Smith. American System of Criminal Justice. 10th ed. Belmont, Calif.: Thomson/Wadsworth, 2004. Standard textbook that covers all aspects of criminal justice in the United States. Inciardi, James A. Criminal Justice. 8th ed. Boston: McGraw-Hill, 2007. Comprehensive overview of the criminal justice system: law enforcement, courts, and corrections, along with up-to-date statistics and major court decisions and important changes in the criminal justice system. Travis, Lawrence F., III. Introduction to Criminal Justice. 6th ed. Newark, N.J.: Lexis Nexis Matthew Bender, 2008. Another excellent textbook covering all aspects of the criminal justice system. See also Appellate process; Arrest; Bail system; Court types; Criminal procedure; Criminal prosecution; Judges; Judicial system, U.S.; Justice; Justice Department, U.S.; Juvenile justice system; Law enforcement; Police; Prison and jail systems; Special weapons and tactics teams; State police. 207
Criminal law
Criminal law Definition: Body of law that defines criminal offenses and metes out appropriate punishments for convicted offenders Criminal justice issues: Law codes; law-enforcement organization; prosecution; punishment Significance: Criminal law sets out formal codifications and definitions of crimes against which to measure actions. Crimes are generally regarded as offenses against society, even though they are often committed against single persons or small groups. Nevertheless, the fundamental concept assumes that criminal acts injure society as a whole. Therefore, the state, acting as the injured party, begins the process of bringing offenders to justice in criminal proceedings. Violations of the criminal law can result in the imposition of punishments that express society’s outrage or displeasure with the offensive behaviors. Criminal law is said to have numerous goals: punishment of wrongdoers, deterrence of future criminal acts by making wrongdoers examples to others, retribution justifying punishment on the ground that it is correct to inflict pain on criminals in order to prevent future crimes, rehabilitation aiming to change criminals’ behavior so that they will conform to the law, and incapacitation of criminals through confinement. Despite these goals, studies have indicated that many convicted criminals are recidivists, or repeat offenders. Elements of a Crime Every statutory crime has three elements: a wrongful act, or actus reus; an evil intent, or mens rea; and causation. At trial, prosecution must prove the presence of each element of a crime separately and beyond a reasonable doubt in order to convict a wrongdoer of a crime. For an act to be wrongful, it must be willful and not an involuntary action, such as a physical spasm or an action undertaken while sleepwalking or under hypnosis. A failure to act in a situation in which one has a legal duty to act may also constitute a wrongful act. Examples might include parents who neglect the proper care of their children or a lifeguard who does not attempt to rescue a drowning swimmer. The duty to act may also be imposed by statute, such as a citizen’s duty to file an income tax return or register with the selective service. Failure to perform moral duties does not constitute criminal omission. 208
Criminal law Possession offenses constitute an exception to the requirement of a physical act. For example, a person found with a controlled substance, such as cocaine, in a pocket may not be engaging in any physical act; however, the law would treat the fact of possession of the illegal substance as the equivalent of a wrongful act. The principle of mens rea recognizes the mental component to crime. It focuses on the intent of wrongdoers at the moments the crimes are committed, rather than the mental state of the wrongdoers at some earlier or later times. People rarely express intent overtly. Therefore, the law determines intent by indirect or circumstantial evidence. Intent is inferred from actions in the absence of direct observation. Mens rea is said to be present when people should know that the consequences of their actions are likely to result in serious bodily injury or death, even if such consequences are not part of their original intent. A legal presumption exists that people intend the natural and probable consequences of their actions. For example, if a person shoots a loaded gun into a crowd of people intending to frighten them and someone is killed, the law supplies the mens rea to convict the wrongdoer. The third element of criminal activity is causation. Clear links must be established between wrongful acts and their resulting harm. Criminal liability attaches to conduct that is determined to be the proximate, or legal, cause of the resulting harm. A person who sets in motion a chain of events that eventually results in harm may be the indirect cause of the harm. There must also be concurrence of events in order for an action to constitute a crime. For example, a person who mistakenly takes another person’s umbrella and leaves his own in its place commits a wrongful act; however, there is no wrongful intent, so no crime is committed. Some scholars regard concurrence as a fourth element of criminal activity. Classifications of Crime Crimes are classified as felonies and misdemeanors. Felonies are serious crimes punishable by imprisonment of more than one year. They generally include murder, rape, aggravated assault, robbery, burglary, and arson. Misdemeanors constitute crimes punishable by prison sentences of less than one year or incarceration in local jails. It should be noted that precise classifications vary among different jurisdictions. The common law classified crimes as either mala in se or mala prohibita. The former are offenses that are intrinsically bad; the latter are acts that are considered criminal only because the law defines (“prohibits”) them as such. An example of the latter would be a parking violation that is illegal but not evil. Petty offenses or violations are punishable by imposition of fines. 209
Criminal law Parties to Crime The doctrine of complicity, or being a party to a crime, establishes the conditions under which more than one person incurs liability before, during, and after the commission of criminal activity. At common law there were four parties to crime. Principals in the first degree actually commit the crime. Principals in the second degree are aiders and abettors who are present when the crimes are committed; they might include lookouts, getawaycar drivers, and coconspirators. Accessories before the fact are aiders and abettors who are not present when the crimes are committed, such as persons who provide weapons used in the crimes. Accessories after the fact are persons who give aid and comfort to known criminals, such a person who harbors a fugitive from justice. In common law, only after principals were convicted could the government try their accomplices. Modern statutes have removed those distinctions by defining accomplices (accessories before and during the crime) principals. However, most jurisdictions retain the common-law accessoryafter-the-fact category for complicity following crimes. Courts have established that mere presence of a person at the scene of a crime is generally insufficient to establish guilt. Based on the relationships between persons who commit crimes and others, the principle of vicarious liability applies primarily to business relationships, such as employer-employee or buyer-seller. Vicarious liability generally punishes the principals (employers) for the wrongful acts of their agents (employees) acting within the scope of their employment. States have occasionally imposed vicarious liability on parents for minor children and on owners of cars for those who drive them. Inchoate Crimes Certain acts are preliminary or incomplete crimes that may involve attempts, conspiracies, and solicitation. Each aspect of inchoate crimes is considered a separate offense, and each has its own elements. All share the mens rea of specific intent to commit a crime and the actus reus taken to fulfill the crime, but each falls short of completion of the crime. Attempt constitutes the intent to commit a crime and some overt act taken in pursuance of the intention that falls short of completion of the crime. The law must distinguish between mere preparation to commit a crime—which is not in itself a criminal attempt—and some steps taken toward completion of the crime that fall short of actually completing the crime. If a crime ultimately is accomplished, the inchoate crime of attempt merges with the completed crime, so that the defendant is tried only for the 210
Criminal law greater offense. For example, one cannot be tried for attempted murder of a person and murder of the same person. The former, inchoate, offense merges with the latter crime. Conspiracy is an agreement between two or more persons for the purpose of committing an unlawful act or doing a lawful act by an unlawful means. The agreement does not have to be formal, and the parties do not have to know one another. Conspiracies are of two kinds: wheel, or hub and spoke, and chain conspiracies. In the former, one or more defendants participate in every transaction. They constitute the “hub” of the wheel. Each other member of the conspiracy participates in only one transaction and constitutes a spoke of the wheel. Chain conspiracies usually involve the distribution of some commodity such as illegal drugs. Every participant handles the same commodity at different distribution points. Failure to convict one party in the chain does not prevent conviction of other parties. Solicitation is a command, urging, or request to a third person inducing that person to commit a crime. Criminal solicitation does not have to result in a completed criminal act. The law considers those who urge others to commit crimes dangerous enough to warrant punishment, even if the crimes are not actually committed. Defenses to Crime Defendants can avoid criminal liability in certain instances. For example, they may have alibis and contend that others have committed the crimes for which they are charged. In defenses of justification, defendants admit their responsibility for the wrongful acts but argue that what they have done was right under the circumstances. In defenses of excuse, defendants admit what they have done was wrong but argue that they were not responsible for their actions under the circumstances. Justifications include self-defense, which justifies the use of force only when defenders are resisting unlawful force used against them by aggressors or reasonably believe that they are in imminent danger of unlawful force. Moreover, defenders can use only the amount of force they reasonably believe necessary to repel the attacks; excessive force is not permitted. Defense of others includes third persons. Nearly all states authorize the use of force to protect one’s own home and property. However, this authorization does not include the use of deadly force. Execution of public duties is another justification. It applies to persons such as government executioners, soldiers killing during wartime, and police officers using force to make arrests. Excuses include duress and brainwashing situations, in which persons commit crimes because they are coerced to do so. Such coercion negates 211
Criminal law both actus reus and mens rea. Involuntary intoxication—which occurs when persons do not know they are taking intoxicants or do so under duress— is also an excuse to criminal liability. Voluntary intoxication is not. Mistakes of fact can excuse criminal liability if the mistakes are honest and reasonable. A mistake of law does not excuse liability under the principle that ignorance of the law is not an excuse. Immaturity has also excused criminal liability. At common law a presumption existed that people under age seven lack the mental capacity to commit crime because they cannot form mens rea. Under common law, everyone over the age of fourteen was presumed to have mental capacity, and those between ages seven and fourteen were presumed incapable. About half the states in the United States adopted the common-law approach but altered specific ages. Other states have granted juvenile courts exclusive jurisdiction up to a certain age, generally between fifteen and sixteen. Entrapment is another excuse for criminal liability but is often misunderstood. Entrapment excuses crime when law-enforcement officers lead citizens to commit crimes. If, however, a person would have committed the crime in any case, the defense of entrapment does not apply. A final excuse to criminal liability is insanity. Four primary tests determine insanity: the right-wrong test or M’Naghten rule, stating that defendants did not appreciate the nature and quality of their acts, or, if they did, they did not know that their acts were wrong. The Durham rule, or product test, used only in New Hampshire, states that acts that are products of mental disease or defect excuse crime. With the irresistible impulse test, defendants cannot control their conduct, and under the Model Penal Code or substantial capacity test, defendants must lack substantial mental capacity either to appreciate the criminality of their conduct or to conform their conduct to the law. Diminished capacity is used in a few jurisdictions, and guilty-but-mentally-ill pleas are allowed in others. The latter was the defense pleaded by John Hinckley, Jr., who attempted to assassinate President Ronald Reagan in 1981. Crimes Against Persons Homicide, or the taking of the life of another person, is divided into murder and voluntary and involuntary manslaughter. Premeditated, or first-degree, murder is the most serious form of homicide. Most jurisdictions include in second-degree murder all homicides that are neither first-degree murder nor manslaughter. Pennsylvania has an additional category: Killings that occur during the commission of felonies are classified as second-degree, or felony, murder. All other murders constitute third-degree murder. 212
Criminal law Manslaughter is divided into voluntary and involuntary. Voluntary manslaughter is the intentional killing of another under circumstances constituting provocation, during the heat of passion without time to cool off. A commonly cited example of voluntary manslaughter is that of a husband who catches his wife in the act of adultery and kills her lover. Involuntary manslaughter is criminal homicide in which the killers do not intend to cause the deaths of their victims. The deaths result from reckless or negligent legal acts or the commission of illegal acts. Negligent homicide is an unintentional killing in which the actors should know that they are creating substantial risks of death by engaging in conduct that deviates grossly from the norm. Another crime against persons, rape is sexual intercourse by force or threat and without consent. Statutory rape is carnal knowledge of a person under the age of consent—which age varies by jurisdiction. Battery is a harmful or offensive touching and covers a wide spectrum. Battery requires some injury, at least of an emotional nature in most jurisdictions. Assault is the fearful apprehension of an imminent battery. Words alone do not constitute assault; they must be accompanied by threatening gestures. False imprisonment is forcible detention or confinement that interferes substantially with the victims’ liberty. Kidnapping requires a carrying away or transportation of victims. Modern statutes in some states have removed the transportation requirement, replacing it with the requirement that the kidnappers intend to confine or significantly restrain their victims in secret. Crimes Against Habitation and Property At common law, burglary was defined as the breaking into and entering of the dwelling place of another at nighttime with intent to commit a felony. Over time, the requirements have become modified, so that the element of “breaking” was satisfied simply by an unauthorized entry or surreptitious remaining. The concept of “dwelling place” was broadened to include the dwelling structures as well as garages and yards. Vehicles are also included in many burglary statutes. The “nighttime” requirement no longer exists, and the “felony” requirement has been replaced by an intent to commit a “crime.” Arson is the burning or setting on fire of structures and includes the use of explosives and scorching. The structures do not have to be completely destroyed for the crime to be considered arson. The common-law crimes against property included larceny, embezzlement, false pretenses, receiving stolen property, robbery, and extortion. Many modern statutes have grouped the first three of these under the umbrella term “theft.” Larceny included the wrongful taking and carrying away 213
Criminal law of the property of others with intent permanently to deprive the rightful owners of their possessions. Larceny was limited to movable objects and also excluded stocks, bonds, checks, and negotiable instruments. Modern statutes include virtually all property within their scope. Embezzlement is the retention of the property of others by those already lawfully in possession of it, such as bank tellers handling customers’ money, parking lot attendants handling other people’s cars, and dry cleaners handling customers’ clothes. False pretenses requires obtaining the property of another through false misrepresentation of a material past-or-present fact. Receiving stolen property requires that property taken or acquired by deception comes into the receiver’s control for at least a short time period and also an intent on the part of its receivers permanently to dispossess the rightful possessors. Robbery is the taking and carrying away of others’ property from their persons, or in their presence, through force of threat or force with intent permanently to deprive them of their property. Actual force is not always required; threatened force is sufficient. Most states have divided robbery into degrees according to the injury committed or the force or threat used. The force must be imminent or immediate. Extortion, in contrast, involves threats of future harm. The consolidated theft statutes eliminate the need to decide the nature of the action in order to distinguish among larceny, embezzlement, and false pretenses. Instead, the offenses deal with the social problem of criminal property misappropriation and group the offenses together. Marcia J. Weiss Further Reading Bergman, Paul, and Sara J. Berman-Barnett. The Criminal Law Handbook: Know Your Rights, Survive the System. 9th ed. Berkeley, Calif.: Nolo Press, 2007. Pracitcal guidebook for people outside the legal professions. LaFave, Wayne R. Criminal Law. 4th ed. Belmont, Calif.: West Group, 2003. Detailed treatise on criminal law with lengthy explanations and reference to cases. Loewy, Arnold H. Criminal Law in a Nutshell. 4th ed. Belmont, Calif.: West Group, 2003. Concise summary of modern American criminal law. Reid, Sue Titus. Criminal Law. 7th ed. Los Angeles, Calif.: Roxbury, 2007. College text containing edited cases highlighting timely issues. Samaha, Joel. Criminal Law. 9th ed. Belmont, Calif.: Thomson/Wadsworth, 2008. Clearly written college text containing criminal law principles and edited legal cases illustrating the principles. 214
Criminal liability Schmalleger, Frank. Criminal Law Today: An Introduction with Capstone Cases. 3d ed. Upper Saddle River, N.J.: Pearson/Prentice Hall, 2006. Basic college text containing an overview, opening stories, and illustrations of the law in practice. See also Accomplices and accessories; Attempt to commit a crime; Crime; Criminal intent; Criminal liability; Defenses to crime; Felonies; Ignorance of the law; Law enforcement; Misdemeanors.
Criminal liability Definition: Accountability under criminal law Criminal justice issues: Defendants; prosecution Significance: Criminal liability is the foundation upon which the criminal justice system is based. The commission of crimes without legal justification or excuses, criminal liability is responsibility under criminal law. In contrast to civil law—which concerns the rights and responsibilities of private citizens—criminal law is designed to maintain the safety and order of the state and is that part of law that codifies offenses committed against society. Criminal law carries within it the possible sanction of loss of freedom, incarcerating those who are held responsible for violating it, in addition to fines and other penalties. Crimes have main parts: mental and physical. For crimes to occur, criminal law defines such mental elements as intention, knowledge, recklessness, and gross criminal negligence. It also defines the physical elements of crimes as the actual actions offenders complete, or attempt to complete, while committing crimes. The mental elements together constitute criminal intent or culpability (mens rea) but are not considered criminal unless they are coupled with actual acts or omissions that are defined as crimes. To be held criminally liable, one must either voluntarily perpetrate a crime or fail to perform an act that one is legally mandated to perform. For example, assault may be defined by the law as an intentional or reckless (mental element) injury (physical element) perpetrated on another person. The perpetrator can be prosecuted criminally—or held criminally liable—for the violation of the law. An example of a criminal act omission might be the failure of a parent or guardian to protect a child from physical, mental, or moral harm. Parents and guardians who refuse to provide needed medical care for the children 215
Criminal procedure in their care can be prosecuted criminally—or held criminally liable—for violating criminal law. Criminal liability differs from vicarious liability. The latter holds one responsible for the actions of another and is primarily defined by civil law. Similarly, criminal liability differs from strict liability, a civil law concept that concerns itself with crimes without the intent or culpability (mens rea) that are required elements of criminal law. Criminal liability focuses on the actors who violate the law. Jennifer C. Gibbs Further Reading Acker, James R., and David C. Brody. Criminal Procedure: A Contemporary Perspective. 2d ed. Sudbury, Mass.: Jones and Bartlett Publishers, 2004. Garner, Bryan A., ed. Black’s Law Dictionary. 8th ed. St. Paul, Minn.: Thomson/West, 2004. Ross, Darrell. Civil Liability in Criminal Justice. 3d ed. Cincinnati: Anderson, 2003. See also Accomplices and accessories; Attempt to commit a crime; Crime; Criminal intent; Criminal law; Ignorance of the law; Police civil liability; Punitive damages; Sports and crime; Trespass.
Criminal procedure Definition: Stages and points at which particular decisions are made in the criminal justice process that are mandated by statutes and constitutional judicial decisions Criminal justice issues: Arrest and arraignment; probation and pretrial release; trial procedures Significance: The procedural steps in the processing of criminal cases are designed to ensure that correct decisions are made about guilt and innocence and that authorities respect the rights of criminal defendants. Every country has the authority to decide how it will determine which individuals will be punished for committing crimes. In some systems, the police or the army may have complete authority to identify and punish wrongdoers. The individual suspect may have no ability to question the lawenforcement officers’ decisions or swift imposition of punishment. In the United States, however, criminal procedure has been established to ensure 216
Criminal procedure that only guilty defendants receive punishment and to protect the public from abusive practices that police and prosecutors might employ in investigating, convicting, and punishing suspected criminals. Historical Background American criminal procedure, like other aspects of law, traces its roots to legal practices in England. The practice of using trials as a procedural mechanism to determine guilt and innocence began in England. Originally, England used physical trials to identify guilty offenders. Suspects were forced to place their hands in boiling oil, for example, or fight in a public duel with the assumption that God would protect the innocent but injure the guilty during such events. Eventually, the Church discontinued its sponsorship of such events, and England gradually shifted to the use of trials involving the presentation of testimony and the use of witnesses and jurors. Juries assumed an important role by protecting the public against abusive decisions by prosecutors. If there was insufficient evidence of guilt presented by the prosecutor, then the jury could acquit the defendant and the defendant would go free. The American jury trial, a key component of criminal procedure, developed from these English origins. The U.S. Constitution The first ten amendments to the Constitution, commonly known as the Bill of Rights, contain several provisions that mandate procedures to be followed in the investigation, prosecution, and punishment of criminal offenders. The Fourth Amendment protects people against “unreasonable searches and seizures.” It also requires that search warrants and arrest warrants be supported by probable cause and that they specifically describe places to be searched and persons or things to be seized. The Fifth Amendment requires indictment by a grand jury before serious charges are prosecuted. The amendment also provides protection against compelled self-incrimination and the possibility of being tried twice for the same offense. The Sixth Amendment provides rights to speedy and public trials by impartial juries, as well as the right to be informed of charges, to obtain relevant documents and witnesses, to be confronted by adverse witnesses, and to have the assistance of a defense attorney. The Eighth Amendment prohibits excessive bail and fines and bans cruel and unusual punishments. The Fourteenth Amendment, which was added to the Constitution in 1868, provides additional rights to due process and equal protection of the laws. All of these provisions help shape the procedures used in criminal cases by defining suspects’ rights; limiting the author217
Criminal procedure ity of police, prosecutors, and judges; and mandating elements that must be incorporated into the legal process. The provisions of the Bill of Rights originally applied only in federal court cases concerning defendants accused of violating criminal laws enacted by Congress. From the 1920’s through the 1960’s, the U.S. Supreme Court made many decisions that incorporated individual provisions of the Bill of Rights into the due process clause of the Fourteenth Amendment and made them applicable in state criminal cases. The only federal constitutional right concerning criminal procedure that has not been incorporated is the Fifth Amendment right to be indicted by a grand jury. State courts are not required by the Supreme Court to use grand juries, but many use such proceedings on their own. States are required to abide by all the other provisions of the Bill of Rights concerning criminal procedure. State and Federal Criminal Justice System The legislatures for each state have the authority to design procedures that will be used within their state courts to process the cases of criminal defendants. Congress possesses this authority with respect to the federal courts. In addition, all court systems must obey the U.S. Supreme Court’s decisions that apply to them and mandate the use of certain procedures or respect for specific rights. State court systems must also obey the decisions of their own state supreme courts. The highest court in each state has the authority to interpret its state constitution and apply those decisions to the procedures used in processing criminal cases within that state. If legislatures want to change the kinds of procedures used within their own state’s courts, they can enact reforms as long as those reforms respect the relevant provisions of the state and federal constitutions as interpreted by the state supreme court and the U.S. Supreme Court. Because each state legislature and Congress possess the power to design procedures for the courts under their authority, there are differences in the criminal procedures used in different court systems. Although certain requirements of the U.S. Constitution that apply to all court systems, such as the use of defense attorneys and the availability of jury trials, provide common elements to all systems, other aspects of states’ criminal procedure are quite different, especially with respect to preliminary proceedings. Pretrial Proceedings Immediately after an arrest is made by police officers, the individual arrested by the police is processed through the various steps of the state or federal court’s criminal procedure. Two issues are decided shortly after arrest: 218
Criminal procedure first, whether the defendant will be released from custody on bail while the case is being processed; and second, whether there is enough evidence to justify pursuing charges against the person arrested. The process for setting bail varies from state to state and from county to county within states. If suspects are arrested for minor charges, the police may have the authority to release them after fingerprinting them, photographing them, and obtaining relevant personal information. Suspects may be released on their “own recognizance,” which means that they do not have to post any amount of money with the police or court in order to gain release. The suspects merely sign promises to appear at scheduled court dates. They may also be required to post set amounts of money, which will be forfeited if they fail to appear in court. It is more common for bail to be set by judges in initial court hearings, and judges always handle bail decisions when suspects are charged with very serious crimes. In some state constitutions, there is a right granted for each defendant to have bail set. Judges, however, will set a very high bail, perhaps even in the millions of dollars, if they do not want the person released while the case is being processed. In the federal courts and some states, the judge can deny bail by finding that the person would endanger the community if released or by deciding that no amount of money would guarantee that the person would return to court. In other states, suspects arrested for the most serious crimes, such as first-degree murder, may not be eligible for bail. If a suspect is arrested through a decision by a police officer rather than through an arrest warrant issued by a judge upon the presentation of evidence, then the suspect is entitled to an initial hearing to make sure that evidence exists to support the arrest. The U.S. Supreme Court has interpreted the Fourth Amendment’s prohibition on unreasonable seizures to require that initial hearings be held within forty-eight hours after a warrantless arrest (County of Riverside v. McLaughlin, 1991). People who are arrested have a right to have an attorney represent them in court. The police must inform them of this right before any questioning takes place (Miranda v. Arizona, 1966), and defendants who are too poor to hire an attorney have a right to have an attorney provided for them by the government (Gideon v. Wainwright, 1963; Argersinger v. Hamlin, 1972). Attorneys need not be provided immediately after arrest if the police do not intend to question the suspect or if the suspect agrees to answer questions without an attorney present. Attorneys must be made available, however, to represent defendants at arraignments in which an initial plea is entered and at preliminary hearings in which a judge determines whether there is enough evidence to proceed with the case. Attorneys can also seek to have 219
Criminal procedure bail set or the amount of bail reduced by presenting arguments at a bail hearing. At arraignments, the courts officially inform the suspects of the charges against them and give the suspects the opportunity to plead “guilty” or “not guilty.” Few suspects plead guilty at felony arraignments because their attorneys have just begun to work for them, and even if they will plead guilty eventually, as most defendants do, their attorneys need time to develop pleabargain proposals. It is more common for guilty pleas to be entered immediately in traffic courts or in misdemeanor cases, because defendants usually face only fines or probation and are anxious to get the cases resolved quickly. At preliminary hearings, prosecutors must present enough evidence to persuade a judge that sufficient grounds exist to proceed in a case against the defendant. In some states, arraignments and preliminary hearings take place in lower-level courts, often called municipal courts or district courts. After these initial proceedings, felony cases will be transferred to upper-level courts, often called superior courts, circuit courts, or courts of common pleas. Defendants frequently waive formal proceedings for arraignments and preliminary hearings because they are aware of the charges and already know that enough evidence exists to move the cases forward. Some states and the federal government use grand jury proceedings to make the final determination about whether sufficient evidence exists to prosecute a defendant on serious charges. Grand juries are composed of citizens drawn from the community who meet in secret proceedings to hear witness testimony and examine the prosecutor’s other evidence to determine whether charges should be pursued. The suspect has no right to be present in the grand jury proceedings. Defense attorneys are barred from the courtroom when grand juries meet. If the grand jury believes that charges are justified, it issues an indictment against the defendant. Defense Attorneys and Criminal Procedure Beginning with the preliminary hearing, defense attorneys file motions in an effort to have evidence excluded or to learn more about the evidence possessed by the prosecutor. Motions provide the basis to protect the defendant’s rights against unreasonable searches and seizures. The defense attorney often argues during the preliminary hearing and subsequent pretrial motion hearings that specific evidence should be excluded from trial because it was obtained in violation of the defendant’s rights. The defense attorney also often initiates plea negotiations with the prosecutor. More than 90 percent of defendants whose cases are carried forward 220
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Provisions of the U.S. Constitution and its amendmentsguarantee defendants a number of important rights in criminal trials, including the right to have the assistance of defense attorneys— at government expense, if necessary. (Brand-X Pictures)
past grand jury indictments or preliminary hearings eventually enter guilty pleas in exchange for agreements about what punishment will be imposed. Although felony defendants have a right to have their cases decided at trial under constitutional rules for criminal procedure, most defendants prefer to make a plea agreement. Such agreements frequently produce lighter punishments than those that might have been imposed after a trial. Defendants’ guilty pleas may be entered at any point in the process, from the arraignment through the middle of a jury trial. The Trial Process Defendants who face felony charges are entitled to a jury trial. Many defendants choose to have a bench trial before a judge alone rather than a jury if their case is controversial or if they believe that a judge will be fairer or more understanding. Misdemeanor defendants are entitled to jury trials under some states’ laws, but they may have only bench trials under the laws of other states. The U.S. Supreme Court has said that the Sixth Amendment’s right to trial by jury applies only to serious charges (Blanton v. North Las Vegas, 1989). Under the Supreme Court’s interpretations of the Sixth Amendment right to an impartial jury and the Fourteenth Amendment right to equal protection, jurors must be drawn from a fair cross section of the community, and jurors cannot be excluded because of their race or gender. Through a 221
Criminal procedure process called voir dire, the prosecutor and defense attorney question potential witnesses and ask the judge to exclude those who might be biased because of their attitudes or personal experiences. Although the federal government and most states use twelve-member juries in criminal cases, many states use six- to eight-member juries for misdemeanor cases. Six states use six- or eight-member juries for felony cases. The Supreme Court has declared that six-member juries must reach unanimous verdicts (Burch v. Louisiana, 1979), but nonunanimous verdicts are permissible for convicting defendants before twelve-member juries if permitted under a state’s laws (Apodaca v. Oregon, 1972). At the trial stage of criminal procedure, the prosecutor and defense attorney present evidence, question witnesses, and raise objections to each other’s evidence and arguments. Each attorney attempts to persuade the jury or judge (in a bench trial) about the defendant’s guilt or innocence. A conviction requires a finding of guilt beyond a reasonable doubt. In considering whether the evidence presented by the prosecutor achieves that standard, jurors must follow the judge’s instructions about how to interpret the relevant law and evidence. Throughout the trial, the judge must follow the relevant laws of procedure and evidence that govern the state or federal court in which the trial is being conducted. The relevant laws are created by the state legislature for state courts and by Congress for the federal courts, and then they are refined and clarified by decisions of appellate courts, such as the state supreme court and U.S. Supreme Court. Decisions by the U.S. Supreme Court guide trial judges with respect to constitutional rights, such as those concerning double jeopardy, compelled self-incrimination, and confrontation of adverse witnesses, each of which can arise in the context of a trial. Post-trial Procedures After the jury or judge reaches a verdict, a defendant who is found guilty will be sentenced by the trial judge. In some states, juries determine the sentence in death-penalty cases. Death-penalty cases have special hearings in which the judge or jury must consider aggravating and mitigating circumstances, which are any circumstances making the crime or criminal especially deserving or not deserving of execution. Every sentence imposed for a crime must follow the punishments established by the legislature for that crime. The sentence must not violate the Eighth Amendment’s prohibitions against excessive fines and cruel and unusual punishments. Convicted defendants have a right to appeal their convictions by filing legal actions in appellate courts. These legal actions allege that the trial judge 222
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Examples of Mitigating Circumstances • defendant has a limited history of past criminal conduct • defendant was an accessory to the crime and not the principal actor • crime was committed when the defendant was under great personal stress, such as after having lost a job • no one was hurt during the commission of the crime
made specific errors that violated relevant laws or the defendant’s constitutional rights. In most states, such appeals go first to an intermediate appellate court, usually called the state court of appeals, and then may be pursued in the state supreme court. In twelve states, however, there is no intermediate appellate court, so appeals go directly to the state supreme court. A few states have special appellate courts that hear only criminal appeals. There is a right to counsel only for the first appeal (Douglas v. California, 1963). Subsequent appeals may have to be prepared and presented by the convicted offenders unless they can hire attorneys or unless the relevant state law provides assigned counsel beyond the first appeal. Unsuccessful appeals to state supreme courts can subsequently be filed in the U.S. Supreme Court, but the nation’s highest court accepts very few cases for hearing. Convicted offenders can also file writs of habeas corpus, a traditional legal action from English history that permits a person to seek release or a new trial through a claim of wrongful detention. In the American system, prisoners must be able to show that their federal constitutional rights were violated in the course of the case and conviction. Very few prisoners prevail in such actions, but several thousand habeas corpus petitions are filed in the federal courts each year. Christopher E. Smith Further Reading Abraham, Henry Julian, and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed. Lawrence: University Press of Kansas, 2003. Broad history of criminal procedure in the United States. Bodenhamer, David J. Fair Trial: Rights of the Accused in American History. New York: Oxford University Press, 1992. Brief and readable perspective on the development of criminal procedure. 223
Criminal prosecution Decker, John. Revolution to the Right: Criminal Procedure Jurisprudence During the Burger-Rehnquist Court Era. New York: Garland, 1992. Collection of reviews of Supreme Court criminal procedure decisions during the 1970’s and 1980’s. Del Carmen, Rolando V. Criminal Procedure: Law and Practice. 7th ed. Belmont, Calif.: Thomson/Wadsworth, 2007. Comprehensive and readable review of criminal procedure, including constitutional rights, that covers each stage of criminal procedure, with special attention given to Supreme Court cases. Garcia, Alfredo. The Sixth Amendment in Modern American Jurisprudence. Westport, Conn.: Greenwood Press, 1992. Examination of the previous three decades of U.S. Supreme Court rulings in the Sixth Amendment— a period during which rights of defendants were eroded, according to Garcia. Kamisar, Yale, et al. Modern Criminal Procedure: Cases, Comments, and Questions. 11th ed. St. Paul, Minn.: Thomson/West, 2005. Textbook providing deeper coverage of legal cases. See also Appellate process; Arraignment; Bail system; Booking; Criminal justice system; Defendants; Grand juries; Indictment; Judicial system, U.S.; Jurisdiction of courts; Jury system; Miranda rights; Preventive detention; Public defenders.
Criminal prosecution Definition: Area of legal practice that involves the charging and trying of persons for criminal offenses Criminal justice issues: Courts; prosecution; trial procedures Significance: Criminal prosecution, or the work of criminal prosecutors, is an integral part of the criminal justice system. The U.S. criminal justice system is an adversarial system based on the model of two opposing sides presenting their best cases to an impartial fact finder—either a jury or a judge. The side presented by the government in an effort to prove beyond a reasonable doubt that defendants committed the offenses for which they have been charged is presented in criminal cases by the prosecution. The work of criminal prosecution in the United States is wider than sim224
Criminal prosecution ply presenting a case to a fact finder. Criminal prosecutors sometimes assist law-enforcement authorities in the investigation of suspected crimes, assess the strength of evidence, and make critical decisions about whom—if anyone—to charge with criminal offenses and what charges to bring. They often present these charges to a grand jury in order to have the grand jury weigh the evidence of a suspected crime and—if it is sufficient—return an indictment, or a statement of charges. Prosecutors handle hearings and arguments in court following the formal institution of charges and deal with questions such as bail or the suppression of evidence under the exclusionary rule. The vast majority of criminal charges in the United States that result in convictions never go to trial but are resolved through plea bargaining. The prosecutor, as the representative of the government’s position in legal cases, is the principal player in this process. If a case goes to trial, the prosecutor tries it and attempts to convince the fact finder that the defendant is guilty as charged. Finally, whether a case is resolved through negotiation or trial, if a conviction is handed down, the prosecutor presents the government’s recommendation for sentencing. In many jurisdictions, the prosecutor’s sentencing recommendation is weighed heavily by the judge. In jurisdictions in which sentencing is constrained by guidelines, such as in federal court and an increasing number of states, the prosecutor’s charging decision before the case ever reaches court can have a dramatic impact on sentencing. Throughout this wide range of responsibilities, the prosecutor’s discretion in these matters is virtually unconstrained. Systems of Prosecutors There are three distinct levels of prosecution in the United States, each of which focuses on different offenses. Local prosecutors, often called district attorneys, handle prosecution of criminal offenses in state court for a particular county or judicial district, which may span several counties. Local prosecutors are usually elected, although some are appointed, and they may be employees of the county or state. They primarily prosecute crimes against persons or property or drug offenses. They may prosecute very serious offenses such as murder, but most of the important events and facts surrounding the offenses they prosecute generally occur within their local jurisdictions. The national organization of local district attorneys is the National District Attorneys Association. State prosecutors, usually under the supervision of a state attorney general, represent the state in state and federal courts. The state attorney general is often elected, although sometimes this is an appointed position. State 225
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The longest phase of almost every criminal trial is the prosecution’s presentation of its case. Because the prosecution bears the burden of proof, it presents every scrap of evidence it can collect to prove its case beyond a shadow of a doubt. (Brand-X Pictures)
prosecutors handle criminal appeals (defending the validity of convictions on appeal) and the prosecution at the trial level of certain types of more complex criminal offenses, which are often committed in several counties or districts or even several states. These types of more complex offenses involve environmental crimes, consumer fraud, civil rights violations, and securities offenses. The organization of state attorney generals is the National Association of Attorneys General. Finally, federal prosecutors are located in each federal judicial district, which is either a state or in more populous regions a portion of a state. Federal prosecutors, called U.S. attorneys, operate under the control of the U.S. attorney general, an officer in the cabinet of the president of the United States. The attorney general runs the U.S. Justice Department, which has hundreds of prosecutors handling the prosecution of different types of federal crimes in its “criminal division.” The attorney general also supervises U.S. attorneys, who are responsible for the local prosecution of offenses in the federal court in their judicial districts. U.S. attorneys are appointed by the U.S. president. Besides these systems of prosecutors, there are also military prosecutors, who handle cases arising under military law. 226
Criminal prosecution State and Local Prosecutors State and local prosecutors in the United States are spread over more than two thousand offices. According to the 1994 statistics from the U.S. Justice Department’s Bureau of Justice, there were 2,343 offices of state prosecutors employing about 65,000 lawyers, investigators, and support personnel. Slightly more than 10 percent of these offices, or 127, were concentrated in major metropolitan centers with populations over 500,000 people. These large offices employed an average of 179 persons. A few large offices in the nation’s most populous counties employed several times this number of persons. About 65 percent of the prosecutors’ offices in the United States served smaller cities and towns and employed an average of 10 persons. About 30 percent of the country’s prosecutor’s operated only parttime offices. State and local prosecutors’ offices and procedures vary widely from jurisdiction to jurisdiction. Some have particular units to prosecute particular types of offenses, such as drug crimes, sex offenses, or homicides. Others organize their staffs according to the particular courts in which they practice. In most jurisdictions, prosecutors review criminal charges before they are filed. One of the most important functions of the prosecutor is to screen prospective cases and identify those that present the most significant violations for which the public benefit from prosecution will be greatest. Federal Prosecutors The U.S. Justice Department is responsible for the prosecution of federal crimes in federal court. In each federal judicial district, the local U.S. attorney’s office handles federal prosecutions. From its main office in Washington, D.C., the Justice Department also centrally investigates and prosecutes violations of criminal laws and laws that may carry criminal penalties, such as civil rights violations, antitrust offenses, and consumer fraud offenses. These investigations often span more than a single federal district. The agency responsible for investigating and assisting in the prosecution of federal offenses is the Federal Bureau of Investigation (FBI). The U.S. attorney is the lawyer who represents the federal government in each judicial district. A U.S. attorney is appointed by the president of the United States with the advice and consent of the U.S. Senate in each of the ninety-four federal judicial districts in the country and in U.S. territories. U.S. attorneys serve four-year terms. The U.S. attorney is the chief federal law-enforcement officer in a federal judicial district and is assisted by assistant U.S. attorneys. U.S. attorneys have extensive discretion over their staffs, resources, and prosecutorial efforts. Different districts characteristically 227
Criminal prosecution have different focuses of investigation and prosecution. Major financial and securities cases, for example, are characteristically brought in large urban areas—particularly the southern district of New York—which includes the financial area of Wall Street in Manhattan. Drug prosecutions are brought in virtually every district and are the most common cases heard in federal court. Prosecutions for drug offenses are particularly common in the border areas of the southern districts of Florida and Texas. The Role of the Prosecutor The job of prosecutors is to seek justice. This is different from the role of lawyers representing accused persons. Although prosecutors represent the government, they are also charged with representing the public interest and seeing that justice is done. The prosecutor, for example, has the authority to bring and to dismiss charges. This responsibility, a public trust, has been formalized in standards of practice for prosecutors prepared by the American Bar Association (ABA), the largest bar association in the United States. First published in 1968, these Standards for Criminal Justice set forth guidelines for effective and ethical conduct by both prosecutors and defense lawyers. The ABA standards explain that “the duty of the prosecutor is to seek justice, not merely to convict.” This means that prosecutors not only must pursue the most compelling cases for conviction but also must pursue them properly, within the applicable legal and ethical rules. They must disclose to defendants’ lawyers any evidence suggesting that defendants are innocent. Prosecutorial Discretion Prosecutors in the United State wield extraordinary power. Their discretionary decisions concerning the investigation, charging, prosecution, and disposition of cases are largely unreviewable. This is a uniquely American phenomenon, for which several explanations have been offered. Criminal codes are the products of political processes; many offenses appear in criminal codes not necessarily because they are common problems but because legislatures seek to declare their public abhorrence of them. Sufficient evidence is not present in every potential case, and prosecutors must make hard judgments not only about the public importance of particular cases but also the likelihood of conviction. As prosecutorial resources are limited, they must be put to the most efficient use possible. Finally, justice must be done in every case for every offense, and some defendants are better candidates for informal types of sanctions or penalties (often called “diversion”) than for formal criminal prosecution. David M. Siegel 228
Criminal records Further Reading American Bar Association. Standards for Criminal Justice: The Prosecution Function. 3d ed. Washington, D.C.: Author, 1992. Guidelines for ethical conduct by prosecutors. Barnes, Patricia G. Congressional Quarterly’s Desk Reference on American Criminal Justice. Washington, D.C.: CQ Press, 2001. Answers to questions often asked about the U.S. legal system. Reference materials include significant laws and court decisions and a glossary of common legal terms. Jacoby, Joan E. The American Prosecutor: A Search for Identity. Lexington, Mass.: Lexington Books, 1980. Thorough social science analysis of several prosecutors’ offices and the problems they face. Schmalleger, Frank. Criminal Justice Today: An Introductory Text for the Twentyfirst Century. 10th ed. Upper Saddle River, N.J.: Pearson/Prentice Hall, 2008. Introductory college textbook that is especially good for providing actual case studies. Siegel, Larry J., and Joseph J. Senna. Introduction to Criminal Justice. 11th ed. Belmont, Calif.: Thomson/Wadsworth, 2008. Long-established textbook on criminal justice with a sociological emphasis. Stewart, James B. The Prosecutors. New York: Simon & Schuster, 1987. Interesting account of major federal prosecutions. See also Bail system; Criminal justice system; Defense attorneys; Dismissals; District attorneys; Exclusionary rule; Eyewitness testimony; Grand juries; Jurisdiction of courts; Plea bargaining; Pleas; Sentencing; Statutes of limitations; Trials.
Criminal records Definition: Official documents that list individuals’ past convictions for misdemeanors and felonies and that sometimes include arrests that do not result in convictions Criminal justice issues: Convictions; defendants; sentencing Significance: Criminal records allow police agencies and courts to know the histories of criminal suspects’ and defendants’ violations of laws and are often used as sentencing tools in evaluating convicted persons’ eligibility for probation and parole. Local, state, and federal law-enforcement agencies and courts all compile criminal records. Effective national coordination of criminal records is now 229
Criminal records a clear goal of the Federal Bureau of Investigation (FBI) and other lawenforcement agencies, but there are still holes in the system of record keeping that make it difficult to track mobile offenders, particularly low-level misdemeanants. Data Collection The FBI has national responsibility for the compilation of criminal records. These records are stored at the FBI’s Criminal Justice Information Services (CJIS) division, which is headquartered in Clarksburg, West Virginia. The CJIS is now the world’s largest fingerprint repository; it cooperates with both national and international law information agencies. At the end of the twentieth century, CJIS had more than 219 million fingerprint cards. Of these, more than 132 million were criminal record cards and more than 187 million were civil record cards. Although submission of records to the CJIS is voluntary for state and local law-enforcement agencies, data submission increased during the late twentieth century. The CJIS also receives the fingerprints of aliens who seek permanent residence, naturalization, and asylum in the United States, as well as the fingerprints of Americans seeking to adopt children abroad. Alien residents who are convicted of felonies are automatically deported if found, and aliens with serious criminal records cannot be admitted to the United States legally. In some states, state law requires those arrested for felonies and class A and B misdemeanors to be fingerprinted, and two sets of fingerprint records are made so that both local authorities and the state bureau of investigation can maintain appropriate records. Juveniles charged with offenses that would be felonies or class A and B misdemeanors for adults also must submit fingerprints. Minor misdemeanors slip through the cracks of states’ recording systems. Private and Public Use of Criminal Records In addition to law-enforcement, court, and corrections use of criminal records, private citizens increasingly seek access to criminal records. Employers must know whether they are hiring individuals with criminal histories that raise serious concern about their fitness to deal with vulnerable populations in day-care centers, schools, summer camps, and nursing homes. If an employer fails to do a background check and hires an employee whose record would have indicated that he or she posed a potential threat, the employer can be sued for negligent hire. Judgments now average more than $1 million per case. Specialized search firms have proliferated to meet 230
Criminal records employer needs to learn of potential employees’ criminal histories and other potentially damaging background information. Potential employees must often sign a consent form agreeing to a criminal record check or forfeit further consideration for employment even in low-level jobs. Law-enforcement agencies use criminal records to track offenders over time. While juvenile records were once sealed when juvenile offenders became adults, many states now make them available to courts sentencing former juvenile felons for adult crimes. Prosecutors and courts use criminal records in determining how serious punishment should be for particular crimes. In some states, first-time offenders may be granted a diversion that keeps them out of the criminal justice system if they accept responsibility for their offenses and honor restitution and other conditions imposed on them. The successful completion of diversion leaves persons with no formal criminal record, although prosecutors have access to records that indicate who has been granted diversions. Judges in many states use mandated sentencing guidelines that impose sen-
The FBI’s Criminal Justice Information Services division has the largest collection of fingerprints in the world. Fingerprints, which are unique to every person, provide one of the most valuable tools in making positive identifications. Criminals occasionally try to destroy the indentations on their fingertips with acid. However, identifiable ridge characteristics survive acid treatment, and the acid damage itself forms new unique fingerprint characteristics. (Brand-X Pictures) 231
Criminal records
Rights of the Subjects of Background Checks It is generally up to the person who will become the subject of a background check to allow or disallow the investigation. Potential and current employers cannot conduct background checks without the subjects’ written authorization. Those who refuse to allow background checks may be eliminated from consideration for job openings and possibly even lose the jobs they currently have. However, anyone who authorizes a background check has the right to see the results of the investigation and also has the right to dispute the findings if they appear to be incorrect.
tences for specific offenses based on the severity of the offense and individuals’ prior criminal records. Judges must justify departures from a recommended sentencing range. Coping with a Criminal Record Former offenders find themselves severely handicapped by their criminal records. In addition to losing voting rights and the right to bear arms, those with felony convictions are barred from obtaining many occupational and professional licenses in most states. Sometimes criminal background checks are required for health care workers who deal directly with patients, and some states have passed laws that revoke the teaching certificates of public school teachers with felony records. Some states have a formal process called expungement, through which persons who can demonstrate that they have been rehabilitated can have convictions for most crimes removed from their records. Expunged records are not totally destroyed, however. In addition, expunged records can be reopened if further offenses are committed. Susan A. Stussy Further Reading Bureau of Justice Statistics. Improving Criminal History Records for Background Checks. Washington, D.C.: U.S. Department of Justice, 2003. Official government report outlining methods of improving criminal record systems. Niam, Edward, Jr. “Do You Know Who You Are Hiring?” USA Today Magazine 125 (July, 1997). Describes the legal problems that can confront employ232
Criminals ers who hire employees without thoroughly researching their pasts. If someone with a serious criminal record is hired and then commits a felony, the employer may be liable in tort for negligent hiring practices. Sontag, Deborah. “U.S. Deports Felons but Can’t Keep Them Out.” New York Times, August 11, 1997. Reports on the efforts of the INS to exclude deported criminal aliens from the United States. Vail, Kathleen. “Privacy Rights Versus Safety.” American School Board Journal 184 (April, 1997). Reports on trends to open juvenile records of serious offenders to school superintendents and other educators. See also Booking; Convictions; Criminals; Immigration and Naturalization Service; Misdemeanors; Sentencing; Sex offender registries; Three-strikes laws; Traffic schools; Uniform Crime Reports.
Criminals Definition: Perpetrators of criminal offenses Criminal justice issues: Defendants; deviancy; legal terms and principles Significance: Although the concept of “criminals” may seem obvious, identifying and understanding criminals is actually fraught with ambiguity, disagreement, and misunderstanding. Definitions of “criminals” are inexorably intertwined with the definition of “crime.” All societies have laws. Therefore, all societies have crimes as well as criminals. The maintenance of order in any social group, whether small or large, primitive or advanced, requires that laws governing the interactions among its members be established and enforced. However, definitions of “crime” and “criminals” vary widely across societies. Conduct that makes a person a criminal in one society might be regarded as neutral or even heroic in another society. Nevertheless, despite ambiguities in definitions of crime and criminals, it is useful to categorize different types of criminals. At least five basic types can be identified. Classifying Criminal Types Perhaps the most frightening criminals are those who commit crimes of violence. Robbers, murderers, and rapists all qualify as violent criminals. It is also important to recognize that, under Western law, violence can occur even when no clear bodily harm results. For example, a rapist who psychologically coerces or manipulates an underage victim is considered a violent offender. 233
Criminals
Declining Violent Crime Rates, 1973-2005 60
violent crimes per 1,000 persons
55 50 45 40 35 30 25 20 15 10 0
1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005
5
Source: U.S. Bureau of Justice Statistics, 2008. Data represent aggregate violent victimization rates for murder, rape, robbery, and assault.
What is not commonly understood is that many violent criminals are not repeat offenders. Many violent crimes of passion, such as aggravated assault and murder, are unique events that occur under extraordinary circumstances involving highly charged emotional conflicts that are often fueled by drugs or alcohol. Nevertheless, in the United States, fear of violent crime and concern about so-called repeat violent offenders have spurred interest in stiff mandatory sentencing laws. Far more common than violent criminals are property criminals, who include shoplifters, purse and wallet snatchers, and vandals who deface or destroy public or private property. Many property criminals are drug addicts who steal to finance their addictions. Others, such as cat burglars and professional car thieves, are experienced professional criminals who can make steady livings from their crimes. A third category of criminals includes members of organized crime syndicates. These include the Mafia, drug and prostitution rings, and stolen car “chop shops.” Criminal organizations often profit from so-called consensual crimes, such as illegal narcotics and prostitution. A fourth category, white-collar criminals, includes professionals such as stock traders who use improperly acquired information to make stock transactions, industrialists who violate occupational safety and environmental laws, and embezzlers. The proliferation of electronic commerce in the late 234
Criminals twentieth century generated new types of white-collar criminals, such as identity thieves, who steal personal information to tap their unaware victims’ bank and credit card accounts. The fifth category of political criminals may be the most controversial of all. Figures such as the American civil rights leader Martin Luther King, Jr., and Indian nationalist leader Mohandas K. Gandhi are now celebrated as heroes who opposed injustice. However, both men were once considered criminals by their governments’ law-enforcement officials and spent considerable time in jails. Gandhi became a criminal under British colonial law when he opposed imperialism in South Africa and India. In the United States, many white southerners regarded King as a criminal because of his open defiance of segregation laws. J. Edgar Hoover, the head of the Federal Bureau of Investigation (FBI) regarded King as a dangerous subversive and kept special files on him. Both Gandhi and King were political criminals because their political positions made them the targets of the institutions of law. However, their opponents never opened called them “political criminals.” The descriptions most often applied to them include “anarchists,” “seditionists,” and “traitors.”
Now honored as a national hero because of his leadership of the Civil Rights movement, Martin Luther King, Jr., was regarded as a criminal lawbreaker in many states and spent a considerable amount of time in jails. (Library of Congress) 235
Criminals Terrorists are also political criminals. However, definitional issues beset even this example. To Americans, the September 11, 2001, attacks against the United States were barbarous acts of murder, and their perpetrators were international “criminals.” However, in many parts of the Arab and Muslim worlds, the attacks were praised as justified retaliation for perceived mistreatment of Muslims in American foreign policy, and the hijackers are regarded as holy warriors and martyrs. In any attempt to identify general crime types, it is important to remember that criminals—like the crimes they commit—are not easily boxed within mutually exclusive categories. For example, the September 11 hijackers can be considered violent criminals for their murders of thousands of people; they can be considered property criminals because of their destruction of billions of dollars worth of private and public property; and they can also be classified simply as “terrorists” and might even be considered members of an organized crime syndicate, al-Qaeda. Biological and Psychological Theories A subfield of sociology, criminology is the social science of observing and explaining the behavior of criminals. Criminologists and political scientists have long debated the causes of criminality. There have historically been many competing views of crime causation. Basic theories of crime can be divided into broad categories. One category falls under the heading of biological/psychological theories. The idea that innate human tendencies explain the existence of criminals has a long history in criminology. Primitive and early religious societies generally attributed antisocial behavior to individual moral defects or the temptations introduced by demons or devils. Even throughout most of Western history, there was no meaningful distinction between ecclesiastical and secular law. “Illegal” was synonymous with “un-Christian.” The Age of Enlightenment saw the introduction of more scientific explanations of crime. In 1876, Italian physician Cesare Lombroso wrote The Criminal Man, in which he argued that autopsies showed that criminals were more likely than other people to exhibit so-called atavistic traits, such as asymmetrical faces, exceptionally large or small brains, and unusually long arms. Lombroso’s notions are now generally dismissed as pseudoscience, but the idea that innate individual attributes can explain criminal behavior persists. Studies of twins separated at birth indicate that antisocial tendencies are at least partially inheritable, suggesting a biological component to crime— often oversimplified as the idea of a “crime gene.” There is also evidence that life experiences, especially early childhood events, can powerfully shape indi236
Criminals vidual psychology for better or worse. Inmates of modern prisons are disproportionately likely to have had traumatic pasts—such as abuse or neglect— that can solidify psychological trajectories toward criminal behavior. Environmental Theories Many sociologists deny or downplay the importance of psychological or biological attributes in explanations of why some people become criminals. They argue that even if there are variations in criminal tendencies among different individuals, the most powerful causes of criminal behavior are immediate environmental factors, such as family and peer influences, work and education opportunities, and socioeconomic conditions. These sociological views of crime are numerous and well researched. For example, various social-learning theories contend that some individuals become criminals by imitating the behaviors and adopting the values of criminal peers. “Strain” theorists contend that poor and marginalized individuals are blocked from traditional means of survival and success in a competitive society such as the United States. These individuals turn to crime in reaction to the “strain” resulting from the incongruity between their aspirations and their legitimate prospects. Social-Control and Critical/Conflict Theories Rather than attempting to explain why some people become criminals, social-control theories approach the question of crime by explaining why most people do not become criminals. For example, the general theory of crime holds that individuals with propensities for analogous high-risk behaviors are also more likely to become criminals. Early childhood experiences can condition this propensity for high-risk behaviors. Children not properly disciplined and socialized can later become adults without the ability to empathize with others or appreciate the consequences of their actions, and thus they are more likely to become criminals. “Critical,” or “conflict,” criminologists argue that criminals are neither made nor born. Instead, criminals are defined into existence by law. These theorists argue that the institutions of law favor the interests of the privileged and powerful who make the laws. Members of racial and ethnic minorities are economically, socially, and politically marginalized, making it easy for the dominant interests to frame them as “dangerous criminals” whose crimes should be aggressively targeted by the institutions of law. At the same time, these theories downplay or ignore crimes committed by the social elite, such as securities fraud, occupational safety violations, and environmental crimes. 237
Criminals A potential limitation of the critical/conflict perspective is accommodating “absolute” moral imperatives. Some legal/ethical restrictions are nearly universal, suggesting that some moral understanding beyond the hegemony of arbitrary law explains them. For example, almost everyone would agree that murder, rape, and incest should be forbidden, even if there are substantive differences on the exact definitions of these crimes. However, in other cases, the conflict interpretation is more compelling. One oft-cited instance is the schedule of penalties for drug offenses under federal law. For example, the penalties for crack cocaine are much harsher than those for powder cocaine, even though no proven medical differences between the two exist. Since crack cocaine is disproportionately used by poor members of minorities, the latter are more aggressively prosecuted and overrepresented for drug crimes in federal prison, even though the proportions of white and minority drug use are roughly equal. Conflict criminologists argue that this focus on the drug crimes of marginalized classes is a classic example of how law itself creates criminals. The explanations of crime summarized here focus on individual-level crime and are only a basic typology of the vast literature of criminological theory. There are other individual theories of crime, as well as a host of sociological theories explaining why some geographic areas and social groups, as opposed to individuals, are especially prone to pervasive crime. The Social Construction of Criminals The word “criminal” can conjure any number of images. However, in a mass media-dominated society such as the United States, the public’s understanding of “criminals” is generally confined to television, film, and newspaper presentations. These media images of criminals can be both powerful and constricting, because most people have limited firsthand knowledge of criminals. Commonly held beliefs about criminals are thus socially constructed, not formulated from direct observations. Television crime dramas emphasize plots about lurid and bizarre crimes and the heroic law-enforcement professionals who solve or prevent such crimes. Television and print news sources generally emphasize sensational car chases, shoot-outs, and murders in an effort to attract viewers and maximize advertising revenue. In the print media, many editors openly admit that “If it bleeds, it leads.” White-collar and corporate crimes, by contrast, tend to be less sensational and less amenable to “sound byte” news coverage, and thus often receive less attention. Additionally, some argue, there are institutional barriers that prevent the crimes of powerful individuals and corporate entities from coming to light 238
Criminals in the mainstream media. These media images, and omissions, can create or reinforce dubious assumptions in an unaware public. Citizens can easily come to believe that the typical “criminal” is a young, disheveled, thuggish, male member of a dark-skinned minority group who commits his crime out of naked greed or barbarous impulse, or that serial killers pose a frequent and pervasive threat. There are, in fact, some criminals who fit these caricatures. More common, however, are the drug-addicted prostitutes, burglars, and thieves; minor juvenile offenders; and tormented individuals who commit tragic, atypical crimes of passion. However, little media attention is paid to them or to the underlying economic and social conditions that are arguably responsible for much crime. These incomplete media images could in turn distract both the public and elected policymakers from the best solutions to crime. If the socially constructed image of “criminal” is limited to include only physically menacing, impenitent brutes or serial killers, the public might be less sympathetic toward social policies that can alleviate the underlying social and psychological conditions that create most criminals and less inclined to invest public resources in potentially effective rehabilitation and drug treatment programs to help them. Timothy Griffin Further Reading Akers, Ronald L., and Christine S. Sellers. Criminological Theories: Introduction, Evaluation, and Application. 5th ed. New York: Oxford University Press, 2008. Summary of competing theories of what makes individual criminals. Andrews, Donald A., and James Bonta. The Psychology of Criminal Conduct. 4th ed. Cincinnati: Anderson Publishing, 2006. Overview of different psychological and biosocial bases of criminal conduct. Geldenhuys, Deon. Deviant Conduct in World Politics. New York: Palgrave Macmillan, 2004. Examination of international criminal behavior by individuals, organizations, and states. Wilson, James Q., and Richard J. Herrnstein. Crime and Human Nature. New York: Simon & Schuster, 1985. Detailed analyses of the various attempts to account for individual differences in propensity for crime, with an outline for a general theory to explain how criminals are made. See also Crime; Crimes of passion; Criminal intent; Criminal records; Defendants; Deterrence; Organized crime; Rehabilitation; Sting operations; Terrorism; Three-strikes laws. 239
Cross-examination
Cross-examination Definition: Procedure in which witnesses testifying in trials and depositions are questioned by attorneys representing opposing sides Criminal justice issues: Attorneys; interrogation; trial procedures; witnesses Significance: The fact that unexpected revelations from witnesses can upset the development of cases makes cross-examinations one of the most dramatic—and sometimes perilous—parts of the judicial process. In trial testimony, attorneys try to establish the credibility of their own witnesses through direct examinations. When they complete their questioning, the opposing attorneys then cross-examine the same witnesses and try to undo their credibility. In the popular mind and media, cross-examination offers the appealing prospect of a clever interrogator—such as Erle Stanley Gardner’s fictional Perry Mason or one of his innumerable imitators— uncovering deception and establishing guilt. For legal experts as well, cross-examination is at the heart of judicial proceedings. John Henry Wigmore, a famous early twentieth century theorist of the law of evidence, said of the matter: If we omit political considerations of broader range, then cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial procedure. The Sixth Amendment to the U.S. Constitution guarantees the right of defendants to confront witnesses brought against them. Cross-examination gives defendants—through counsel—the opportunity to put their opponents’ evidence to the test. However, within the adversarial format of the American judicial system, emphasis in cross-examination is often less on testing the truth of claims than on discrediting inconvenient witnesses. Many standard cross-examination techniques involve rhetorical maneuvers designed to capitalize on favorable concessions and to minimize the impact of unfavorable testimony on juries. The first question that trial counsel faces is whether to cross-examine at all. Legal lore is replete with stories of attorneys who asked one question too many and elicited unanticipated answers that damaged, instead of helped, their cases. The primary aim of cross-examination is to impugn the veracity of witnesses and thereby lessen the weight of the evidence supporting the opposing side. In practice, achieving that goal involves suggesting—if not actually 240
Cross-examination
Cross-examination is a central feature of the American adversarial system of justice, as it is a primary way in which attorneys challenge the evidence presented by the opposing sides. (Brand-X Pictures)
proving—that a witness’s testimony is incorrect or incomplete. Witnesses seem less believable to juries if they are shown to be biased, to have interests in the outcomes of cases, to be generally careless with the truth, or to lack the ability or opportunity to secure the knowledge they claim to possess. For reasons well known to psychologists, judges, and attorneys, witnesses, even eyewitnesses, are often mistaken in their claims about who did what to whom. Members of juries, however, are less likely to be sophisticated about such matters, so one purpose of cross-examination is to alert them to the natural and inevitable limitations of testimony. Witnesses in special categories, such as court-recognized experts, or children, require special treatment. In general, however, the basic object of cross-examination is to attack witnesses’ credibility, without alienating judges or—especially—juries. Edward Johnson Further Reading Mauet, Thomas A. Trial Techniques. 7th ed. Austin, Tex.: Wolters Kluwer Law & Business/Aspen Publishers, 2007. 241
Cruel and unusual punishment Wellman, Francis L. The Art of Cross-Examination. New York: Macmillan, 1936. Reprint. New York: Simon & Schuster, 1997. Wigmore, John Henry. Evidence in Trials at Common Law. 2d ed. Boston: Little, Brown, 1961. See also Depositions; Expert witnesses; Eyewitness testimony; Perjury; Testimony; Trials; Witnesses.
Cruel and unusual punishment Definition: Treating convicted offenders in unnecessarily abusive ways Criminal justice issues: Convictions; government misconduct; medical and health issues; punishment Significance: The U.S. Constitution prohibits cruel and unusual punishment, and the courts are responsible for interpreting the meaning of that provision. The Eighth Amendment to the U.S. Constitution forbids the use of cruel and unusual punishments. The words are not complex, but exactly what they prohibit is not obvious. In 2004, much debate surrounded arguments about whether the death penalty violates the Eighth Amendment. Some legal scholars argue that the Eighth Amendment should be read to mean exactly what it meant to the founders and that they did not intend to restrict the use of death itself as a punishment. Critics claim that capital punishment, because it treats a human life as disposable, is inherently cruel and therefore unconstitutional. Others look to the framers of the Constitution and assert that they had no qualms about capital punishment. They cite the Fifth Amendment’s guarantee that no one should be deprived of life, liberty, or property without due process of law. It is possible to read that guarantee as meaning that deprivation of life is permissible if due process has been followed. Likewise, the Fifth Amendment’s restriction on double jeopardy, providing that no one should twice be forced to risk life or limb, could imply that life is an acceptable stake if one only has to risk it once. When the Constitution was written during the late eighteenth century, “cruel and unusual punishment” was a familiar phrase taken from the English Bill of Rights. Many states included similar wording in their constitutions. The terminology involved the ideas that punishments should be proportionate to crimes and that punishments not authorized by law were 242
Cruel and unusual punishment prohibited. The founding generation had vivid memories of gruesome punishments devised by kings for retribution against their enemies. The founders wished to avoid such creative use of unusual sanctions by placing the authority to codify crimes and punishments in the hands of the people’s representatives, the legislatures. In deciding how and when to apply the legislated punishments, the courts and the executive branch enjoyed wide latitude. The Eighth Amendment could be read to forbid punitive measures that were unnecessarily painful or too oppressive. Exactly how those characteristics were to be defined was based on the notion that the sensibilities of a republic placed a high value on human dignity. In a society where all free citizens were believed to share inalienable rights, punishments should not purposely degrade but should be severe enough only to accomplish a social purpose. Ultimately, the responsibility for defining “cruel and unusual” rests with the courts, especially the U.S. Supreme Court. For more than a century after the Constitution was written, the justices considered only a few cases that addressed the issue. The idea that the death penalty itself might be unconstitutional because it violated the Eighth Amendment was not brought before the Court until the middle of the twentieth century. The Court, for the most part, assumed that the forbidden cruel and unusual punishments were the obvious tortures and barbaric cruelties that offended modern, civilized communities. They did not need to rule that boiling in oil or drawing and quartering would not be permitted under the U.S. Constitution. They did, however, rule that two less dramatic but still violent means of execution did not violate the Eighth Amendment. Although hanging remained the most widely used form of capital punishment in the United States throughout the nineteenth century, the leaders of the Utah Territory preferred death by firing squad. As the territory was settled, largely by Mormons who believed in blood atonement for the crime of murder, being shot by riflemen was considered more theologically correct than being swung from the gallows. Use of the firing squad was challenged as cruel and unusual punishment in Wilkerson v. Utah (1878). In that case, the Court ruled that shooting was a traditional method of execution, long favored by the military. Utah and Idaho still offered condemned prisoners the choice of a firing squad or lethal injection in the twenty-first century. Another innovation in capital punishment techniques came in 1890, when the Supreme Court decided that death by electrocution was not a violation of the Eighth Amendment. Its ruling in re Kemmler held that, even though no human being had yet been put to death in the electric chair, the 243
Cruel and unusual punishment method would produce “instantaneous, and therefore, painless death.” Aside from recognizing that there were outer limits to the humane treatment of offenders, in the nineteenth century the Court avoided most discussion of capital punishment, believing its methods and application were matters for the individual states to decide. Eighth Amendment Cases In 1910, the Supreme Court made a significant Eighth Amendment ruling in a case that did not concern the death penalty. Weems v. United States involved an American official in the Philippines who was sentenced to fifteen years of hard labor for forging a minor document. Weems challenged his punishment as cruel and unusual, and the Court agreed, holding that the sentence was so disproportionate to the crime as to be a violation of Weems’s constitutional rights. Almost a half century later, in Trop v. Dulles (1954), the justices revisited the Eighth Amendment and added the concept that cruel and unusual should be measured against contemporary public beliefs and attitudes. The case involved Army private Trop, who had left his unit for one day in 1944 during World War II. Trop thought better of going absent without leave and was voluntarily returning to his base when he was stopped by the military police. He was convicted of desertion, sentenced to three years at hard labor, and given a dishonorable discharge. Eight years later, when Trop applied for a passport, he learned that a dishonorable discharge for wartime desertion had resulted in the loss of his American citizenship. The Court examined the law that deprived a person of citizenship for desertion and found it unconstitutional. It spelled out one of the major premises of modern Eighth Amendment jurisprudence: It held that the words “cruel and unusual” must draw their meaning from “the evolving standards of decency that mark the progress of a maturing society.” Thus, the Court provided a new test for determining whether a punishment violated the Constitution. The criteria were dynamic. As ideas about human dignity evolved and changed, the attitudes about what constituted acceptable treatment of offenders would presumably become more refined. Virtually every Eighth Amendment and capital punishment case that followed Trop v. Dulles invoked the concept of “evolving standards of decency” and wrestled with how to measure and apply those standards. The National Association for the Advancement of Colored People (NAACP) was one group who brought cases during the 1950’s and 1960’s challenging the application of the death penalty on Eighth Amendment grounds. They raised the claim that racial bias in capital sentencing violated the evolving stan244
Cruel and unusual punishment dards and was therefore unconstitutional. They developed and presented social science research on racial bias and the arbitrariness with which the death penalty was applied. In 1972, the Supreme Court heard Furman v. Georgia, an attempt by the NAACP to win from the Court a statement that capital punishment violated the Eighth Amendment. FURMAN V. GEORGIA In 1972, the Court heard three death-penalty cases grouped under the title Furman v. Georgia. Furman was a black man who had shot a white homeowner, apparently by accident, during a robbery. The other two cases, from Georgia and Texas, involved rapes in which the offenders were black and the victims were white. No injury, aside from the rape, had occurred in either case. All three defendants were sentenced to death. Each justice wrote a separate opinion, and although a majority of five members of the Court found that the death penalty, as administered, was unconstitutional, the explanations for the justices’ holdings varied widely. The four dissenting justices found no constitutional flaws with the system of capital punishment. All nine justices argued that evolving standards of decency were the measure of cruel and unusual punishments. They differed over what those standards were. Those who voted to uphold the death sentences believed that the only objective ways to assess contemporary standards were through the actions of legislatures and the decisions of juries. Neither had found capital punishment per se to be cruel and unusual—and therefore unconstitutional. Without that endorsement from lawmakers and jurors, the four dissenting justices held that the Court could not move on the issue. On the other side, Justice William Brennan argued that the death penalty was, by definition, unconstitutional. In this view, degrading punishments were not only those that caused pain but also included those that dehumanized people and treated them as disposable objects. He maintained that even vile criminals retained their humanity and dignity. Brennan’s fellow opponents believed that capital punishment failed every constitutional test. It was unusually severe. There was a strong possibility of its arbitrary and biased use. It was substantially rejected by every modern democratic society, and it accomplished no greater purpose than less severe punishments. From this perspective, standards of decency had already evolved to the point where the death penalty was unacceptable. It remained only for the Court to formalize that position by declaring it unconstitutional on Eighth Amendment grounds. Thurgood Marshall, the first African American justice on the Supreme Court, reiterated that the “cruel and un245
Cruel and unusual punishment usual” clause must be reexamined continually in the light of changing human knowledge. He asserted that if citizens were fully informed about the injustices inherent in the death penalty, they would find it unacceptable and reject it. Justices taking a middle position in Furman identified the problem that the death penalty was being applied in an “arbitrary and capricious” manner, that death sentences were cruel and unusual “in the same way that being struck by lightning is cruel and unusual.” In other words, it was the randomness in the application of capital punishment that made it cruel and unusual. Furman thus suspended executions until state legislatures could devise new laws that met the constitutional objections. The new legislation would be measured by its conformity with evolving standards of decency. GREGG V. GEORGIA The Court had found the laws at issue in Furman arbitrary and capricious, allowing too much discretion to juries and permitting the consideration of unacceptable factors such as race. North Carolina was one state that tried to meet those concerns by making the death penalty mandatory for certain offenses. To the majority of the Supreme Court in Woodson v. North Carolina (1976), this approach violated contemporary standards of decency and was therefore considered cruel and unusual under the Eighth Amendment. On the same day as Woodson, however, the Court upheld the new Georgia capital statute again invoking contemporary standards of decency in their analyses of the death penalty. The majority in Gregg v. Georgia (1976) read the eagerness of thirty-five states to create new death-penalty laws as significant evidence that the punishment itself did not violate public sensibilities. They determined that a death sentence could serve to express a community’s belief that because certain crimes were so reprehensible, only death was an adequate response. They also deferred to the theory of federalism, holding that each legislature can best evaluate the moral consensus in its state, determining what its constituents find cruel and unusual. Gregg was a 7-2 decision. Since then, the Court has operated on the assumption that the death penalty itself is not cruel and unusual punishment and does not violate the evolving standards of decency. The justices have constructed an elaborate structure of law around the death penalty, providing for a process of guided discretion to choose who will die. Many of those decisions have employed the notion of evolving standards of decency to define the meaning of cruel and unusual punishment as it applies to specific crimes or to categories of defendants. 246
Cruel and unusual punishment Evolving Standards Just one year after Gregg, the Court ruled that the punishment of death for the rape of an adult woman violated the Eighth Amendment. In Coker v. Georgia (1977), they reasoned that execution was disproportionate for a crime in which the victim did not lose her life. On several occasions, the Court considered whether an accomplice to a crime, who did not actually commit murder, could be put to death without violating the ban on cruel and unusual punishments. In Enmund v. Florida (1982), the justices found the death penalty too severe for someone who participated in a crime but did not kill or intend to kill. Five years later, however, in Tison v. Arizona (1987), the Court seemed to reverse itself and allowed for the execution of defendants whose recklessness allowed a murder to occur. Coker, Enmund, and Tison all attempt to measure whether punishment by death for those who did not take a life violates evolving standards and is therefore cruel and unusual punishment. Rather than drawing a bright line, the Court seems to have linked its judgment with the degree of the defendant’s responsibility. In other cases, the Supreme Court has ruled on whether the Eighth Amendment is violated if certain categories of defendants—the mentally ill, the developmentally disabled, juveniles, or the factually innocent—are executed. In Ford v. Wainwright (1986), they found it would offend basic standards of humanity to put a mentally ill person to death. The Court has not decided, however, whether a state may medicate inmates to make them “sane” enough for the death penalty to be carried out. In 2002, the justices ruled that there was a national consensus that executing the developmentally disabled violated standards of decency and was cruel and unusual punishment in Atkins v. Virginia. The ruling left it up to the states to determine who met the criteria as mentally retarded. In a 1989 case, Stanford v. Kentucky, the Court held that executing a juvenile who was sixteen years old at the time of his crime did not violate the Eighth Amendment. Since that ruling, the majority of states have raised the age of eligibility for the death penalty, and virtually every country in the world has outlawed the execution of juveniles. On March 1, 2005, the Supreme Court overturned its 1989 decision by ruling that executions of juveniles constituted cruel and unusual punishment. The Supreme Court has not been clear with respect to whether it violates the Eighth Amendment when an innocent person is punished with death. In Herrera v. Collins (1993), the majority of the justices held that Herrera had a fair trial, that he was not denied due process, and that if he were truly innocent, he should ask the governor for clemency. Therefore, he was not permitted to introduce new evidence of innocence in court. Five justices wrote 247
Cruel and unusual punishment separately that executing an innocent person would be constitutionally intolerable. More Noncapital Issues Citing the doctrine against cruel and unusual punishment, the Court required prisons to end the policy of whipping inmates in the 1960’s. However, the justices have also ruled that prison officials cannot be sued for excessive use of force unless it is proved that they used force maliciously and sadistically and that they intended to cause harm. Thus, although inmates are theoretically protected from violent punishments, the remedies for such violations are difficult for those inside prison walls. Likewise, if corrections facilities fail to meet humane standards in food, housing, or health care, prisoners must prove the conditions were caused by the officials’ deliberate indifference. The Supreme Court has also ruled that the Eighth Amendment applies only to convicted offenders. Therefore, people held in jail awaiting trial are not covered by the ban on cruel and unusual punishment. Nor do the provisions apply to children in public schools. The Court has been unwilling to view school officials who beat or paddle students as violating the students’ constitutional rights. Mary Welek Atwell Further Reading Banner, Stuart. The Death Penalty: An American History. Cambridge, Mass.: Harvard University Press, 2002. An examination of capital punishment in the United States since the colonial era. Puts the application of the death penalty into the social milieu of each period. Bedau, Hugo Adam, ed. The Death Penalty in America: Current Controversies. New York: Oxford University Press, 1997. A collection of articles, statistics, and court opinions that summarize the major issues in the death penalty debate, including substantial attention to Eighth Amendment jurisprudence. Irons, Peter H. A People’s History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped Our Constitution. Rev. ed. New York: Penguin Books, 2006. Very readable history of important cases and judicial behavior beginning with the writing of the Constitution. Kaufman-Osborn, Timothy V. From Noose to Needle: Capital Punishment and the Late Liberal State. Ann Arbor: University of Michigan Press, 2002. Considers the way capital punishment is inflicted as it relates to the overall functioning of modern capitalist society in the United States. Latzer, Barry, ed. Death Penalty Cases: Leading Supreme Court Cases on Capital 248
Cybercrime Punishment. 2d ed. Burlington, Mass.: Butterworth Heinemann, 2002. A comprehensive, edited collection of major death penalty rulings by the Supreme Court from Furman v. Georgia to Atkins v. Virginia. Lifton, Robert Jay, and Greg Mitchell. Who Owns Death? Capital Punishment, the American Conscience, and the End of Executions. New York: Perennial, 2002. An analysis of the workings of the modern death penalty, including its randomness and its impact on those who work within the criminal justice system. Sarat, Austin. When the State Kills: Capital Punishment and the American Condition. Princeton, N.J.: Princeton University Press, 2001. A critical examination of the politics and purpose served by capital punishment in the modern state. Smith, Christopher E. Constitutional Rights: Myths and Realities. Belmont, Calif.: Thomson Wadsworth, 2004. A thorough discussion of the rights included in the Bill of Rights that challenges conventional wisdom about the application of constitutional rights. See also Capital punishment; Corporal punishment; Execution, forms of; Police civil liability; Punishment; Solitary confinement; Supermax prisons; Three-strikes laws.
Cybercrime Definition: Crimes that involve use of the Internet and computers Criminal justice issues: Business and financial crime; computer crime; technology; vandalism Significance: One of the major areas of computer crime, cybercrime is expanding rapidly, costing Americans hundreds of millions of dollars per year. Victims seldom see or know the perpetrators, and the criminal justice system is only beginning to address the problem directly. The first useful electronic computer was built in 1946. By the mid-1960’s, the term “computer crime” was in the general lexicon and in legal jargon by the 1970’s. The term “cybercrime” entered general use with the development and expansion of the Internet. The two terms, cybercrime and computer crime, are often used interchangeably. This, however, is not precisely correct. A cybercrime is one that is committed using the Internet and, by definition, computers. Most observers would agree that a computer must be the tool of the attack, the object of the attack, or both. Computer crime, on 249
Cybercrime the other hand, does not need the Internet to be committed. Many crimes that have been around since before the development of computers can be committed today via computer. Computers, most of the time, add an increased shroud of anonymity to criminal acts. Crimes perpetrated over the Internet can be committed from almost any place on the planet. Types of Cybercrime When thinking of cybercrime, most people think of releasing so-called viruses, trojans, worms, and denial-of-service attacks. Other cybercrime includes snooping, hacking and cracking, spoofing, and various forms of theft and fraud. Stalking takes place on the Internet, and Internet pornography is abundant. Finally, organized crime and terrorists are using the Internet. The following discussion briefly covers prominent types of criminal activity on the Internet. Computer viruses of many kinds have been developed, Each is able to replicate itself and to become part of another file; this is how viruses spread. Not every virus does damage, but every virus is potentially dangerous. Trojans differ from viruses in two important ways: They do not replicate themselves, and they can stand alone as files. Trojans are disguised as files that users want, such as music files, video files, games, or other software. Once inside victims’ computer systems, trojans are free to release the hidden programs for which they are designed. These can be anything from harmless pranks to outright destruction of computer hard drives. Worms spread copies or segments of themselves to other computers, usually via electronic mail. Worms differ from viruses because they do not need to attach to other files. Worms occupy increasing amounts of system resources, eventually bringing down the system. The first worm program was released in 1988. Its spread across the United States shut down a significant part of the Internet. A denial-of-service attack makes the computer service unavailable to authorized users. The attack hogs resources or damages resources to the extent that they cannot be used. Web-jacking occurs when someone takes control of a site and either changes it or otherwise manipulates it. Cases have occurred in which sites have been vandalized, instructions have been altered, and other types of changes have been made. Logic bombs are dormant until triggered by some specific logical event. This event might be a specific date and time, the removal of a person’s name from the system, or some other specific event. Then the bomb delivers its 250
Cybercrime payload, which can be very destructive within the computer system. Spoofing occurs when an Internet user is redirected from a legitimate Web site to a fake site set up to look like the original. This is done to get the victim to give personal information to the “company” when transacting business. Snooping, hacking, and cracking are all forms of unauthorized intrusion into computer systems. Snoopers are usually just curious people who enter a system to browse around. Hackers are persons with varying degrees of expertise who break into computer systems for many reasons. The challenge may merely be to see if they can do it, or it may be for more sinister reasons, such as stealing information or vandalizing the computer or Web site. Hackers also work for hire. Some consider themselves to be advanced and elegant programmers, and they consider the term “hacker” a badge of honor. These people think that hackers who ply their trade for nefarious purposes should be called “crackers,” the type of hacker who should be viewed with contempt. Crackers communicate with one another online, on Web-based bulletin boards or private electronic mail lists. Sometimes crackers form groups with strange names like the Legion of Doom or the Chaos Computer Club and seek out more and more challenging exploits for their computer expertise. In 1995, the Department of Defense was subjected to more than 250,000 attacks by hackers and crackers. Personal Crimes A variety of thefts and fraud can take place online. The most damaging type of theft is identity theft. Hackers and crackers look for Social Security numbers and other types of personal information. Corporate and government databases are the largest sources of this kind of data. Illegal use of the victim’s Social Security number, for example, can enable a criminal to borrow money, even qualify for mortgage loans, under the victim’s name. Purchases of all kinds can be made, with victims unaware of it until they apply for a loan or credit card or until they check their credit reports. It can take months, or even years, to get credit issues arising from identity theft resolved. Fraud can take many forms, old and new. The Nigerian letter scam, formerly perpetuated by postal mail, is an example. In it, electronic mail appears in the victims’ in-boxes offering to transfer large sums of money to the victims’ banks if they will provide their account numbers so that the transfer can take place. Victims are offered a percentage for their cooperation. More recent examples include investment schemes and lottery or inheritance scams. 251
Cybercrime It is possible to gamble online. Players buy “chips” using a credit card, can play any game in the “house,” and bet as much money as they want. Where gambling is illegal, such online gambling is illegal, too. The games may be rigged against the players. Also, some online gambling is used for money laundering. Cyberstalking involves sending harassing or threatening electronic mail to a specific individual repeatedly and over time. It may also include visiting chat rooms frequented by victims and harassing them there. Usually, women are the victims of stalking crimes. Children may also fall victim to cyberstalkers, especially if the perpetrators are pedophiles. As many as 200,000 people stalk someone each year. Internet pornography is another new version of an old problem. Thousands of pornographic Web sites offer pictures and videos of all kinds to anyone who can find them. All Internet sites that offer pornographic material, whether on a subscription basis or for free, are supposed to have a warning about the contents that instructs minors to exit the site. The most serious problems associated with pornography are in the area of child pornography. Child pornography can be encrypted (hidden) on computers and exchanged. In 2003, authorities in Europe and the United States uncovered an international child pornography ring leading to the arrest of hundreds of defendants. Organized crime and terrorists also use the Internet, mainly for money laundering and transfers. The written text is encrypted to hide its meaning before it is sent over the Internet. A process called steganography hides graphic images and sends them undetected over the Internet. Gangsters operate gambling sites online as well as other illegal enterprises. Terrorists operate Web sites that incorporate elaborate symbols to deliver hidden messages. They also use the sites as recruitment tools and propaganda dissemination vehicles. Prevalence In 2004, a survey by the Gartner research group indicated that 1.98 million people in the United States had been victimized for $2.4 billion in checking account fraud. The same report estimates that more than fiftyseven million American Internet users received electronic mail phishing for personal information, and nearly two million people had been tricked into sending their personal data to scammers. Criminal justice professor Marjie Britz estimated that “the vast majority of Fortune 500 companies have been electronically compromised to the tune of at least $10 billion/year.” If less than 20 percent of corporate crime is 252
Cybercrime reported, the number of companies and their losses could be far higher. Internet “baby-sitter” software has been developed for use by parents to safeguard their children from deleterious Internet material and chat rooms, but it is no substitute for careful monitoring of children’s online activity. Internet crime continues to expand, and criminals find new ways to victimize people. Major companies have been founded on virus-scanning technology. Many other private companies have been formed to investigate cybercrime. Investigation At issue in investigating cybercrime effectively are training enough officers to conduct investigations, developing sufficient case law and knowledge among prosecutors to prosecute criminals, and establishing effective punishments to deter cybercriminals and effectively protect the private and public sectors of American society. Since the mid-1960’s, the Federal Bureau of Investigation (FBI) has effectively promoted crime fighting through the use of task forces. These have been used to fight organized crime, distribution of drugs and guns, and many other crime problems. In 1996, the FBI formed the Computer Investigations and Infrastructure Threat Assessment Center (CITAC) to coordinate computer crime initiatives. When it comes to cybercrime, the FBI continues to coordinate task forces but also offers investigative help and support, training, grants and other assistance to state and local agencies as they try to handle the growing problem. Even though computer crime and cybercrime have been in the public consciousness since the late 1980’s, the majority of police departments, and perhaps the majority of states’ law-enforcement agencies, do not have welltrained, well-equipped computer crime investigation units. A few large cities, such as New York, Washington, D.C., and San Francisco, have had computer crime units since the late 1980’s. These units were formed with the help of the FBI. In 2004, however, only large and well-funded departments had effective cybercrime investigative capabilities. Mid-sized and small cities had no capability for such investigations. Larger cities like the ones mentioned above and regional cooperative ventures, like the Sacramento Valley High-Tech Crimes Task Force, emerged as leaders in the field. The Institute for Security Technology Studies at Dartmouth College convened a meeting of leading national and state agencies in 2003 to draft a coordinated research and development agenda for fighting cybercrime. Training and research were slowly being implemented to equip investigators with the necessary expertise to investigate cybercrime. The FBI and 253
Cybercrime some of the larger, better-funded law-enforcement agencies offered training opportunities in the field of cybercrime. A few colleges and universities offered classes in the subject. A growing literature on cybercrime and investigations was emerging. Nevertheless, most investigation was still carried out by private sector employees of computer firms and by companies created to conduct cyber-investigations. Most police agencies do not have the necessary resources to provide adequate training for their officers and investigators. The ability to conduct investigations of cybercrime includes not only all the training to investigate normal street crime but also a thorough knowledge of computer systems, electronic evidence collection, preservation and analysis techniques, both logical and physical analysis, and forensic analysis techniques. Most departments that do any cyber-investigation are fortunate enough to have staff members who had learned about computers before they arrived. Others have learned on the job. Organized training is still emerging and is still expensive. Prosecution When criminal activity on the Internet was first being recognized, it was not taken very seriously by law-enforcement agencies. Women who complained of being harassed or stalked were told to avoid particular chat rooms or to delete electronic mail messages from the harassers. Victims of fraud were told that nothing could be done to recover their money. Hackers were considered to be harmless curiosities. As the phenomenon of cybercrime gradually came to be understood, law-enforcement personnel realized that the criminal justice field would be changed forever. One of the problems with successfully prosecuting cybercrime is that of establishing jurisdiction. At issue is who should have jurisdiction when an offense occurs. Considering that the victim and the offender may be thousands of miles apart, the answer to this question has been difficult. Some have expressed the idea that cyberspace should be designated a separate and unique jurisdiction. A consensus has yet to emerge. However, the number of cases that have been tried has rapidly expanded, so the issue of jurisdiction is expected to become clearer. Perhaps the most important computer crime statute, the Computer Fraud and Abuse Act of 1984, was the first major piece of legislation to govern cyberspace. Since its passage, a number of other laws have been enacted to address computer crime. Because there are a large number of types of such crimes, many laws are necessary. Important on the list are the Electronic Privacy Act of 1986, the Computer Abuse Amendments Act of 1994, 254
Cybercrime the Electronic Espionage Act of 1996, the Electronic Theft Act of 1997, and the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999. On January 1, 2004, Congress passed a new federal antispam law in response to dramatically increasing levels of spam arriving in citizens’ electronic mail in-boxes. The FBI, in cooperation with the Direct Marketing Association, launched an antispam initiative called Operation Slam-Spam. As of May, 2004, this operation had turned fifty cases over to state and federal prosecutors. In a similar case from 2003, New York State prosecutors sent Howard Carmack to prison for three-and-a-half years for sending 825 million junk electronic messages from his home. Big Internet providers have been involved in suing spammers for several years. Now federal and state agencies are also getting involved. Along with an expanding amount of federal law to curtail cybercrime, states also have an expanding collection of statutes to deal with the issue. Among the topics covered under these laws are computer tampering, which includes modification to programs or to the way a network or networked computer operates; computer trespassing, or unauthorized access to computer systems; disruption of computer services statutes, which seek to protect the integrity of Internet service providers; computer fraud statutes, which include all forms of fraudulent activity but specifically cover cases in which a computer is used to conduct the activity; spam-related statutes, which generally focus on using a network to falsify the header information on mass electronic mail; unlawful use of encryption statutes, which are aimed at using this technology to hide information passed between cybercriminals and increasingly among terrorists and drug traffickers. Cyberstalking laws make it illegal to use the Internet to harass or threaten individuals, especially for purposes of extorting money. Other broad categories of crime that have had to be covered in the cybercrime rubric include money laundering and monetary transactions, racketeering, economic espionage, theft of trade secrets, swindles, embezzlement, gambling, pornography, stalking, and terrorism. Punishment Early computer criminals were not punished very severely. There was little specific case law under which to punish their crimes, and most cases were novelties. When Robert Morris was convicted for releasing the first worm in 1988, the Cornell University graduate student was dismissed from school, fined ten thousand dollars, and placed on three years’ probation. This was despite the fact that the worm had spread to six thousand computers and 255
Cybercrime clogged both government and university systems at an estimated $100 million in damages. In 1992, Kevin Poulsen, who was wanted for other Internet crimes, rigged the phone system of a radio station in order to win a contest fraudulently. He spent five years in prison for computer and wire fraud. In 1994, Vladimir Levin was sentenced to three years in prison for stealing $10 million from Citibank. The courts are beginning to realize that cybercrimes are at least as bad as any white-collar crimes and that they deserve to be punished accordingly. In early 2005, a federal court found nineteen-year-old Minnesota resident Jeffrey Lee Parsons guilty of “intentionally causing or attempting to cause damage to a computer.” In August, 2003, Parsons had released onto the Internet a worm that affected more than seven thousand computers. Conviction for this crime can carry sentences of up to ten years in prison and $250,000 in fines, but a federal judge sentenced Parsons to the minimum term of eighteen months in prison. According to estimates, cyberthieves take an estimated $100 billion annually, with 97 percent of the crimes going undetected. Brown, Esbensen, and Geis (2001) say hackers’ offenses cost an average $104,000 per incident in damage and labor and productivity costs. The criminal justice system is just beginning to address the issue effectively but is constantly having to catch up to the challenges posed by cybercriminals. Donald R. Dixon Further Reading Baase, Sara. A Gift of Fire: Social, Legal, and Ethical Issues for Computing and the Internet. 3d ed. Upper Saddle River, N.J.: Pearson/Prentice-Hall, 2007. Broad discussion of issues related to computers, cybercrime, and related issues. Clifford, Ralph D., ed. Cybercrime: The Investigation, Prosecution, and Defense of a Computer-Related Crime. 2d ed. Durham, N.C.: Carolina Academic Press, 2006. Collection of chapters by different authors detailing cybercrime and investigation, including selected court cases. Hammond, Robert J., Jr. Identity Theft: How to Protect Your Most Valuable Asset. Franklin Lakes, N.J.: Career Press, 2003. Practical guide to techniques for protecting oneself from identity-theft crimes, including cybercrimes. Shinder, D. L., and Ed Tittle. Scene of the Cybercrime: Computer Forensics Handbook. Rockland, Mass.: Syngress, 2002. Chapter 2 contains a brief history of cybercrime. Stephenson, Peter. Investigating Computer-Related Crime. Boca Raton, Fla.: CRC Press, 2000. Moderately technical discussion covering types of com256
Date rape puter crimes, their impacts, investigations, and different forensic technologies available. See also Bank robbery; Cable and satellite television signal theft; Consumer fraud; Fraud; Identity theft; Private detectives; Telephone fraud; Terrorism; Theft; Trespass; White-collar crime.
Date rape Definition: Rape committed by persons whose victims are voluntarily engaging in social outings Criminal justice issues: Domestic violence; sex offenses; women’s issues Significance: Date rape is the most common form of rape committed against women between the ages of fifteen and twenty-five. Rape, as defined by the U.S. Justice Department’s National Violence Against Women Survey in 2000, is forced vaginal, anal, or oral sex. Acquaintance rape is a form of rape perpetrated by persons whom the victims already know. Approximately 85 percent of all rapes are committed by persons whom the victims know. Date rape is a specific form of acquaintance rape that most commonly occurs when a man (less than 2 percent of rapists are women) forces sex on a woman by means of threats or physical strength. Men who rape women on dates may believe that the women owe them sex because they are spending money on them. Those who are likely to rape their dates often exhibit warning signs. For example, they tend to be physically or emotionally abusive to their dates or others, they talk negatively about women in general, they try to get their dates intoxicated, and they become hostile or aggressive when their dates reject their sexual advances. It is estimated that more than 50 percent of all rapes occur during dates. However, while 55 percent of rapes committed by strangers are reported, only 19 percent of acquaintance rapes and only 2 percent of date rapes are reported to the police. One of the most common reasons for nonreporting is the fear of reprisal from the assailants. At colleges and universities, an estimated 20 to 25 percent of female students are victims of date rapes during the years they spend on campus. College fraternity members are more than twice as likely as other male students to commit date rape. Date rapes are also disproportionately committed by college athletes. When date-rape cases go to trial, they differ from stranger-rape cases, in 257
Date rape
Victim-Offender Relationships in Crimes of Rape and Sexual Assault relatives 2%
strangers 32% well known 40%
casual acquaintances 26%
Source: U.S. Bureau of Justice Statistics, Criminal Victimization. Figures are based on all reported rapes and sexual assaults in the United States in 2002.
which defenses may argue that the accused rapists have been misidentified or that no sexual acts occurred. Defenses in criminal date-rape cases often argue that the alleged sexual acts were consensual. Therefore, the prosecution must look for evidence demonstrating the use of physical force, such as photographs of genital and other physical injuries, damaged clothing, the existence of alcohol or other drugs in the victims’ blood or urine, interviews with people to whom the victims have disclosed information about their assaults, and evidence from the rape scenes. In an estimated 90 percent of rape cases, physical evidence is available. However, only 3 to 10 percent of that evidence is actually collected. From the perspective of the victims, date rape is often more traumatic than stranger rape because the victims are more likely to blame themselves for being raped. Moreover, the experience of being raped by trusted friends causes the victims to lose their ability to trust others. Elizabeth M. McGhee Nelson 258
Defendant self-representation Further Reading Cocca, Carolyn. Jailbait: The Politics of Statutory Rape Laws in the United States. Albany: State University of New York Press, 2004. Leone, Bruno, ed. Rape on Campus. San Diego, Calif.: Greenhaven Press, 1995. Sanday, Peggy Reeves. A Woman Scorned: Acquaintance Rape on Trial. Berkeley: University of California Press, 1997. Smith, Merril D., ed. Sex Without Consent: Rape and Sexual Coercion in America. New York: New York University Press, 2001. Warshaw, Robin. I Never Called It Rape: The MS Report on Recognizing, Fighting, and Surviving Date and Acquaintance Rape. New York: HarperPerennial, 1994. See also Domestic violence; Felonies; Rape and sex offenses; School violence; Sexual harassment; Statutory rape.
Defendant self-representation Definition: Situations in which criminal defendants reject professional legal counsel and represent themselves Criminal justice issues: Attorneys; defendants; trial procedures Significance: Defendant self-representation is a right of criminal defendants that has been recognized by the U.S. Supreme Court. However, that right sometimes comes into conflict with the right of defendants to counsel and their right to have fair trials. First recognized by the U.S. Supreme Court in Gideon v. Wainwright (1963), the right of criminal defendants to counsel is now a cornerstone of the criminal justice system. The recognition of that right has generated questions about what rights, if any, criminal defendants have to waive counsel. The Supreme Court also found there was a right to self-representation in Faretta v. California (1975). The basis of this decision rests on the notion that personal autonomy means that counsel cannot be foisted on unwilling defendants. However, the right to self-representation raises a number of difficult practical and legal issues. Limitations on the Right to Self-Representation As a practical matter, virtually no judge wants criminal defendants to represent themselves. Even otherwise well-educated defendants who lack legal 259
Defendant self-representation training almost inevitably inhibit the smooth functioning of courts because they lack knowledge of criminal procedures, the norms and rules governing pretrial proceedings, and the trial proceedings themselves. Defendant selfrepresentation almost always makes for lengthier and more laborious proceedings. Moreover, criminal defendants who represent themselves raise difficult questions about the degree to which judges should intercede on their behalf when they neglect to make motions or raise objections that competent lawyers would. Despite these questions, courts must acknowledge the right to selfrepresentation recognized in the Supreme Court’s Faretta ruling. They do so, first, by advising defendants of their right to counsel, and then, by trying to ensure that the defendants’ decisions are unequivocal, voluntary, and intelligently made. This second step almost always includes a recitation of the dangers and disadvantages of not having lawyers. In addition, most courts inquire as to whether requests for defendant self-representation are made to delay the proceedings, in which cases judges will not grant the requests. The Issue of Competence The most difficult and controversial issues surrounding exercise of the right to self-representation involve whether such an exercise is “voluntary and intelligent.” In a typical situation, a criminal defendant suffering from a mental disorder seeks to exercise the right to self-representation. Such circumstances raise profound and troubling questions. When do defendants’ autonomy and personal choice become so tainted by their mental disorders that the state should not permit them to pursue paths that are almost certainly more likely to result in their convictions and harsher sentences? Is it possible that the right of self-representation in such circumstances might conflict with the defendants’ right to receive fair trials? How should these rights be balanced? The so-called insanity defense is sometimes the most powerful defense available to a criminal defendant. However, a characteristic of some mental disorders is the inability of afflicted persons to recognize that they have the disorders. Defendants with mental disorders may not want their counsel to present evidence concerning their mental status and run into conflicts with their attorneys who believe that such evidence might be the most effective evidence available. In such situations, defendants may demand to represent themselves. How to handle these questions becomes all the more difficult in the light of how challenging it is to draw definitive conclusions about the nature or even existence of mental illness. Two cases illustrate the difficult of these issues. The first involves the 260
Defendant self-representation “Unabomber” Theodore Kaczynski, who was tried during the late 1990’s for a series of bombings. Kaczynski vigorously tried to prevent his attorneys from presenting evidence about his mental status but failed. The court then denied his request to represent himself. Faced with a choice between an inquiry into his mental status and a guilty plea, he chose the latter, and later unsuccessfully appealed his conviction on the grounds that his plea was “involuntary.” What makes Kaczynski’s case especially difficult is continuing debate about what mental illness afflicted him or even whether he suffered from mental illness at all. The second case involved Colin Ferguson, a man accused of shooting nineteen people on a commuter train and killing six. He successfully requested that he represent himself at trial. While virtually all commentators agreed that an insanity defense would be Ferguson’s best hope at trial, he chose to argue that another assailant committed the murders after stealing his gun, thus contradicting the testimony of numerous witnesses. Ferguson’s defense itself might well have been an example of psychosis. The bizarre trial that ensued ended in Ferguson’s conviction. The Kaczynski and Ferguson cases—both controversial and both representing different decisions as to whether criminal defendants should represent themselves—demonstrate the extraordinary challenges faced by the criminal justice system in reaching principled approaches in such cases. Robert Rubinson Further Reading Bardwell, Mark C. Criminal Competency on Trial: The Case of Colin Ferguson. Durham, N.C.: Carolina Academic Press, 2002. Full description of the Ferguson case. Mello, Michael. The United States of America Versus Theodore John Kaczynski: Ethics, Power, and the Invention of the Unabomber. New York: Context Books, 1999. Description of the Kaczynski case by an attorney who assisted Kaczynski’s appeal. Rhode, Deborah L., and David Luban. Legal Ethics. 4th ed. New York: Foundation Press, 2004. Casebook that excerpts portions of judicial opinions in the Kaczynski case, asks pointed questions about the conduct of the case, and provides additional citations to other commentators and sources. Sabelli, Martin, and Stacey Leyton. “Train Wrecks and Freeway Crashes: An Argument for Fairness and Against Self-Representation in the Criminal Justice System.” Journal of Criminal Law and Criminology 19 (2000): 161261
Defendants 235. Examination of the importance of mental illness evidence and the right of self-representation. See also Confessions; Defense attorneys; Grand juries; Insanity defense; Public defenders; Self-incrimination, privilege against.
Defendants Definitions: Persons or organizations who are formally accused of crimes; litigants in lawsuits Criminal justice issues: Constitutional protections; defendants; trial procedures Significance: The American criminal justice system is designed to pit litigants against one another in virtual fights for justice. Criminal justice procedures attempt to balance defendants’ rights and government’s interests in speedy and efficient trials with the desire for justice. The rules of criminal procedure are therefore designed to ensure that defendants’ rights are protected. The Sixth Amendment to the U.S. Constitution grants to all defendants the right to speedy and public trials decided by impartial juries in the states and districts in which the crimes are alleged to have been committed. The Sixth Amendment also grants accused persons the right to be informed of the nature and cause of the accusations against them, to be confronted by witnesses against them, to present witnesses of their own to testify on their behalf, and to consult with attorneys. The Fifth Amendment to the Constitution grants defendants the right not to be tried more than once for the same crimes (the double jeopardy clause), the right not to testify against themselves (self-incrimination clause), and the right to established courses of judicial proceedings designed to protect the legal rights of citizens (due process clause). These are all federal constitutional protections that states can supplement but cannot take away. Defendants are subject to criminal or civil procedures depending on whether they are accused of violating criminal or civil statutes. The rules of criminal procedure differ from those of civil procedure because criminal and civil proceedings have different objectives and results. Criminal cases involve violations of criminal law, while civil cases involve violations of tort law, such as negligence and wrongfulness. In criminal cases, the states bring the suit against defendants and must prove guilt beyond a reasonable doubt. 262
Defendants By contrast, in civil cases, private citizens and organizations bring the suits against defendants, and they are required only to show that the defendants are liable by a preponderance of the evidence. Allison M. Cotton Further Reading Abramson, Leslie, with Richard Flaste. The Defense Is Ready: Life in the Trenches of Criminal Law. New York: Simon & Schuster, 1997. Acker, J. R., and D. C. Brody. Criminal Procedure: A Contemporary Perspective. 2d ed. Sudbury, Mass.: Jones and Bartlett, 2004. Ingram, Jefferson L. Criminal Procedure: Theory and Practice. Upper Saddle River, N.J.: Prentice-Hall, 2005. See also Criminal procedure; Criminals; Defendant self-representation; Defense attorneys; Indictment; Insanity defense; Plea bargaining; Pleas; Public defenders; Self-incrimination, privilege against; Suspects; Verdicts.
Realistic Fiction In Joyce Carol Oates’s 1989 novel American Appetites, Ian and Glynnis McCullough are a long-married couple who get into a drunken quarrel over the wife’s suspicions that her husband has been unfaithful. As the quarrel turns into a brawl, Glynnis accidentally falls through a plate-glass window and is fatally injured. Afterward, Ian is tried for second-degree murder. During the trial, the prosecution’s evidence eventually appears so weak that the prosecutor reduces the charges against Ian to manslaughter. However, the jury acquits Ian of even that charge. The novel is a generally realistic depiction of how the criminal process might affect a middle-class citizen who becomes a defendant. It is a suburban variant of a similar setting in Tom Wolfe’s The Bonfire of the Vanities (1987). One of the more interesting dynamics in Oates’s book involves the continued insistence of Ian’s lawyer to him that nothing will come of the police investigation, the grand jury consideration of his wife’s death, and so forth. In reality, attorneys must walk a careful line between encouraging their clients and seeming to be in control of matters, on one hand, and accurately conveying to their clients the possibilities of an adverse conclusion, on the other hand. Timothy L. Hall
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Defense attorneys
Defense attorneys Definition: Attorneys who are engaged to represent criminal defendants and are paid by the clients Criminal justice issues: Attorneys; defendants; pleas Significance: Private attorneys are essential to fair defenses in criminal cases. Private defense attorneys engage in the representation of persons charged with crimes in local, state, federal, or tribal courts. Unlike public defenders, private defense attorneys are engaged and paid by their clients, rather than by the state. Criminal defense lawyers must be members of the bar in good standing in the jurisdiction in which they practice. A law student wishing to become a criminal defense lawyer will usually take (in addition to the courses in criminal law generally required in law school) specialized courses preparing them for criminal trial work, including advanced criminal law, trial practice, criminal procedure, and negotiation. Many defense lawyers begin their career as prosecutors in local district attorney offices and go into private practice after receiving some criminal trial experience. The defense lawyer’s task is to represent the client zealously, regardless of any personal feelings about the defendant or the crime. If the client has not yet been charged, the defense attorney’s job is to advise the client on communicating with the grand jury, to accompany the client to meetings with police and prosecutors, and to advise the client as to evidence. Once the client is arrested, the defense attorney will represent the client at bail hearings and arraignment. The defense attorney will often try to “build a Chinese wall” around the client, denying the police and prosecution access to the client and regulating the prosecution’s access to evidence to the extent possible. The defense attorney is entitled to any information the prosecution has on the crime and defendant prior to trial, and the defense attorney will often use a private investigator to evaluate this information and discover new information. At trial, the criminal defense lawyer will seek to exclude damaging evidence, or at least minimize its impact, and will present evidence to introduce a “reasonable doubt” in the jury’s mind as to guilt. If a defendant is convicted, a criminal defense attorney may participate in filing an appeal, but a different attorney will usually represent the defendant on appeal. While criminal defense lawyers often take cases to trial, they also spend considerable time negotiating plea bargains for their clients. A plea bargain 264
Defense attorneys
A fundamental principle of the American criminal justice system is the right of all defendants to professional legal counsel—whether they can afford it or not. (Brand-X Pictures)
is an agreement between the prosecutor’s office and the defendant for the latter to plead guilty to a particular charge in exchange for a predetermined sentence. A defense lawyer must be prepared to offer a plea bargain to a prosecutor, evaluate any offer of a plea bargain by the prosecuting attorney, make sure that the client understands any offer, and help the client decide either to take the offer or to go to trial. It is, however, ultimately the client’s responsibility (not the lawyer’s) to decide whether to make or accept a pleabargain offer. Gwendolyn Griffith Further Reading Grace, Nancy, with Diane Clehane. Objection! How High-Priced Defense Attorneys, Celebrity Defendants, and a 24/7 Media Have Hijacked Our Criminal Justice System. New York: Hyperion, 2005. Neubauer, David W. America’s Courts and the Criminal Justice System. 9th ed. Belmont, Calif.: Wadsworth, 2008. Rotunda, Ronald D. Legal Ethics in a Nutshell. 3d ed. St. Paul, Minn.: Thomson/West, 2007. Wishman, Seymour. Confessions of a Criminal Lawyer. New York: Penguin, 1982. 265
Defenses to crime Wolfram, Charles. Modern Legal Ethics. St. Paul, Minn.: West Publishing, 1986. See also Acquittal; Convictions; Criminal justice system; Criminal procedure; Defendant self-representation; District attorneys; Insanity defense; Plea bargaining; Public defenders; Public prosecutors.
Defenses to crime Definition: Justifications and excuses offered by criminal defenses in attempts to win cases or have charges dropped or reduced Criminal justice issues: Defendants; medical and health issues; pleas Significance: Many potential justifications and excuses are offered by criminal defendants for their illegal acts, and it is up to the courts to determine their validity. To protect themselves from prosecution, persons accused of committing criminal acts can use a variety of defenses, which fall into two broad categories: denying all involvement in the acts and acknowledging involvement while denying responsibility. Actus reus is the actual commission of a criminal act. Defendants who deny actus reus are denying having committed the acts with which they are charged. In effect, they are simply asserting that their prosecutors are accusing the wrong people. Mens rea pertains to the mental elements behind commissions of crimes—what is known as criminal intent. Defendants who deny mens rea are acknowledging their commission of the acts in question but are also claiming either that their acts were justified or that their actions must be excused because of the circumstances surrounding them. Justifications Justifications involve situations in which accused persons admit to committing criminal acts but claim their acts were legally justified for any of various reasons. The accused persons are admitting to committing the acts. They understand fully that the acts are wrong and illegal but are submitting that they were legally justified in committing those acts because of circumstances. Otherwise criminally punishable acts can be justified under numerous circumstances. The best-known justification is self-defense. For defendants to make that claim successfully, they must prove that they had a reasonable belief that they were in imminent danger and used reasonable force to 266
Defenses to crime quell the danger. Justifiable self-defense can also include defending family members, friends, and the helpless. It does not apply to preemptive strikes against possible threats or acts of vengeance. Most states adhere to a retreat doctrine that requires defendants claiming self-defense to show that they took all means to avoid or escape the dangerous situations before using force. However, this doctrine usually does not apply in situations in which persons are attacked within their own homes, from which they are not expected to retreat. A second justification for criminal acts is performance of a public duty— committing criminal acts in order to acknowledge a higher loyalty, such as upholding the law. This concept supports issues of military justice and diplomatic immunity and covers police behavior, including shooting looters after natural disasters cause a breakdown in public order. The main idea regarding this defense is that upholding the law is a higher authority that may permit otherwise criminal behavior. The justification of necessity involves committing one criminal act in order to avoid having to commit, or avoid, a greater wrong. Examples of situations in which the necessity of justification might apply include violating a speed limit to get a gravely ill person to a hospital, dispensing drugs without a prescription in a medical emergency, breaking and entering an empty structure to avoid freezing to death, and destroying property to prevent the spread of a fire. In most jurisdictions, economic necessity is not acceptable as a justification for stealing; however, the government’s power to pardon may be invoked in special cases. The consent of victims is sometimes recognized as a justification by courts in cases in which it can be shown that the victims of criminal acts voluntarily consented to the offenders’ acts in advance. For such a defense to be acceptable, it must be proved that the victims were capable of giving informed consent; that offenses themselves were “consentable” (murder and statutory rape are examples of crimes that are not considered consentable); that consent was not obtained by fraud; and that the persons giving consent had authority to do so. Excuses Legal excuses for criminal behavior may be acceptable for defenses in situations in which the accused admit to committing the acts but provide satisfactory reasons why they should not be held responsible for those acts. Such defenses typically argue that the accused did not act from their own volition or free will and thus did not have the true criminal intent necessary for criminal liability. 267
Defenses to crime A common excuse is duress: being forced by others to do something wrong. The principle behind the idea of duress as a defense is that people who are forced to commit illegal acts should not be held responsible for those acts. An often-cited example of duress is cases involving persons who are forced to rob banks or commit other criminal acts while under gunpoint. The laws of different states vary on the specific circumstances in which duress defenses apply. However, the general rule is that if the lives of the accused—or others—are immediately threatened, the accused are judged to be under duress and excused from their behavior. Involuntary intoxication is another legal excuse for criminal behavior. Involuntary intoxication may occur when people are forced, against their will, to consume alcohol or intoxicating drugs and when people consume intoxicants unknowingly, as when drugs are slipped into their drinks or food. Defendants who have been intoxicated under those conditions may be said to have lost their volition or free will. The validity of that type of defense may rest on the strength and dosage of the intoxicants that are involved. Honest mistakes are sometimes accepted as legitimate excuses for criminal acts. A classic example of an honest mistake is a man leaving a restaurant with someone else’s umbrella, thinking it is his own. In such a case, no criminal act occurs because there is no criminal intent (mens rea). Such situations are referred to as mistakes of fact. On the other hand, ignorance of the law itself is not an acceptable excuse, unless the accused has made a reasonable effort to learn the law. The youthfulness of defendants may also be an acceptable excuse for criminal acts. The general assumption is that individuals cannot have true criminal intent until their brains have fully developed to make rational adult decisions. In the common-law tradition, persons under the age of seven are presumed to be psychologically incapable of committing criminal acts. In modern American law, the states vary on what constitutes the age of accountability. In most, the dividing line is fourteen years, but the modern trend has been to lower that age. Another excuse is entrapment—being induced by government to commit crimes that the perpetrators would not otherwise commit. This defense to criminal responsibility arises from the idea that it is wrong for state authorities, usually undercover police officers, to encourage criminal behavior. When police officers play upon the weaknesses of individuals to lure them into committing criminal acts, such actions may be ruled entrapment, and evidence against the defendants would be barred according to the exclusionary rule. 268
Defenses to crime The Insanity Defense The principle behind the so-called insanity defense holds that persons who lack the mental capacity to form the intent to commit crimes cannot be held legally responsible for their criminal acts. For that defense to be acceptable, the defendants must be judged legally insane. States vary in the legal standards they use to determine the sanity of defendants. One of the standards for measuring sanity is the so-called M’Naghten rule, or right-wrong test. This rule holds that persons who do not have the mental capacity to differentiate right from wrong do not have the intellectual awareness necessary to form criminal intent. To be held criminally responsible for their actions, defendants must be able to grasp the significance of their acts. A modified version of the M’Naghten rule is the irresistible impulse test. This latter tests focuses more on the idea of volition to consider whether the accused have the ability to exercise free will to inhibit their criminal behavior. Persons who are judged to suffer from diseases of the mind so strong that they have lost the power to avoid committing criminal acts cannot be held criminally responsible according to this standard. Under the substantial capacity test, “substantial capacity”—as defined by the American Legal Institute—is lost when persons lack the capacity to appreciate the wrongfulness of their criminal acts at the time they commit them. The insanity defense is often viewed by the media and public as a way for offenders to evade punishment for their criminal actions. However, the principle actually gives government the authority to incarcerate without conviction offenders who are judged to be mentally abnormal. The insanity defense is thus usually reserved for very serious cases. Defendants who are found to be legally insane in serious cases are often incarcerated in mental institutions for periods longer than the prison sentences that they would receive if they were convicted of the criminal charges against them. A related defense is diminished capacity, a concept that stems from the idea that certain mental disorders may reduce offenders’ culpability for their criminal acts while falling short of rendering them legally insane. Successful diminished capacity defenses usually result in reductions of charges or less severe punishments of convicted defendants. The automatism defense comes into play when it can be claimed that the accused acted unconsciously or semiconsciously because of some physical problem or mental problem aside from insanity. Reasons for such behavior may include epilepsy, concussions, blackouts, childhood traumas, and brainwashing. As medical and psychiatric professionals continue to decipher the mys269
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Emerging Mental-Related Defenses • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
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Adopted child syndrome Accommodation syndrome American Dream syndrome Antisocial personality disorder Arbitrary abuse of power syndrome Attention deficit disorder Battered child syndrome Battered woman syndrome Black rage syndrome Cherambault-Kandinsky syndrome Chronic fatigue syndrome Computer addiction Cultural norms defense Distant father syndrome Drug-abuse defense Elderly abuse syndrome Failure-to-file syndrome Fan obsession syndrome Fetal alcohol syndrome Football widow syndrome Gangster syndrome Genetics defense Gone with the Wind syndrome Gulf War syndrome Holocaust survivor syndrome Legal abuse syndrome Meek-mate syndrome The minister-made-me-do-it defense Mob mentality defense Mother lion defense Multiple-personality disorder
• Munchausen-by-proxy syndrome • Nice-lady syndrome • Nicotine withdrawal syndrome • Not-in-my-backyard syndrome • Parental abuse syndrome • Parental alienation syndrome • Patient-therapist sex syndrome • Pornography syndrome • Posttraumatic stress disorder • Premenstrual stress syndrome • Prozac defense • Rape trauma syndrome • Repressed (or recovered) memory syndrome • Ritual abuse syndrome • Road rage • Rock-and-roll defense • Self-victimization syndrome • Sexual abuse syndrome • Sexually transmitted disease syndrome • Sitting duck syndrome • Situational stress syndrome • Stockholm syndrome • Super Bowl Sunday syndrome • Super-jock syndrome • Sybil (multiple-personality) syndrome • Television defense • Tobacco deprivation syndrome • Twinkie defense • UFO survivor syndrome • Unhappy gay sailor syndrome • Urban survival syndrome • Vietnam syndrome
Defenses to crime teries and development of the human brain, it is likely that new mentalrelated defenses will emerge. Numerous syndromes have already been advanced as criminal defenses as they have been diagnosed by medical professionals. Many of these syndromes are creations of industrious defense attorneys, but others are fully acknowledged by medical and legal professionals. All, however, have been presented as defense at one time or another. Because defending the criminally accused is an ever-evolving endeavor— much as criminal law itself is—new defenses may always be expected to emerge. Theodore Shields Further Reading Conley, R., R. Luckasson, and G. N. Bouthilet. The Criminal Justice System and Mental Retardation: Defendants and Victims. Baltimore: Brookes, 1992. Broad study of the special legal problems of both defendants and victims who have mental disabilities. Dershowitz, Alan M. The Abuse Excuse. Boston: Little, Brown, 1994. Thoughtful consideration of one of the most frequently cited excuses used by criminal offenders, by a prominent law professor and attorney. Nicholson, R. “A Comparison of Instruments for Assessing Competency to Stand Trial.” Law and Human Behavior 12, 313-322. Provides examples of the techniques used to screen for mental disorders. Szegedy-Maszak, M. “The Brainwashing Defense.” U.S. News and World Report (December 22, 2003): 135. Case study showing why a person who has experienced brainwashing may not be competent to stand trial. Taylor, Lawrence, and Steven Oberman. Drunk Driving Defense. 6th ed. New York: Aspen Publishers, 2006. Handbook offering legal advice on how to beat drunk-driving charges. The ethics of publishing a book such as this may be questionable, but the book offers insights into the problems of prosecuting drunk-driving offenses. Whitlock, Francis Antony. Criminal Responsibility and Mental Illness. London: Butterworths, 1963. Now-classic study of the general issue of mental disability and criminal responsibility. See also Criminal intent; Defendant self-representation; Defendants; Defense attorneys; Ignorance of the law; Insanity defense; Self-defense.
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Deportation
Deportation Definition: Forcible expulsion of foreign visitors from a host nation, usually back to their home nations Criminal justice issues: Espionage and sedition; international law; terrorism Significance: Traditionally a tool for ridding countries of ordinary criminals and other foreign undesirables, deportation can also be used to remove political radicals or suspected terrorists. The nations of the world have long used deportation as a criminal sanction. In U.S. history, however, deportation has tended to be regarded not so much as a judicial process involving punishment but as an administrative process to aid in shaping the composition of the national population. Indeed, in one of the Chinese exclusion cases, Fong Yue Ting v. United States (1893), the U.S. Supreme Court formally declared that deportation was an administrative process for removing undesirable and unwelcome resident aliens from the United States in the interest of “public welfare.” With that ruling, due process provisions for deporting aliens were severely curtailed, since deportation was not considered to pose a risk of “punishment.” Nevertheless, deportation was still deemed a serious matter that could significantly affect a person’s future and required administrative hearings in order to be handled fairly. To that end, government interpreters have long been made available to aliens facing possible deportation. However, the services that such interpreters rendered to aliens during the early twentieth century were questionable, as the interpreters often took liberties in translating. In some deportation cases, the interpreters were provided by government prosecutors and occasionally even testified against the people for whom they were interpreting. Aliens facing deportation also had a right to counsel. However, the significance of that right was often not made clear to them, and many chose not to utilize it. Moreover, even in cases in which aliens chose to use counsel, their attorneys sometimes had serious conflicts of interest, such as being employees of the Department of Justice or acting on primarily mercenary interests. Federal Laws One of the earliest deportation laws enacted in the United States was the Alien Act of 1798, which empowered the president of the United States to deport persons considered dangerous. The Immigration Act of 1903 per272
Deportation
Crimes Involving Moral Turpitude in the U.S. State Department Foreign Affairs Manual • • • • • • • • • • • • • • •
alcohol and drug violations arson assault with dangerous weapons bigamy blackmail bribery counterfeiting desertion from the military extortion forgery gambling violations incest kidnapping larceny loan sharking
• mail fraud • malicious destruction of property • mayhem • misrepresentation of office • murder • pandering • perjury • prison escape • prostitution • robbery • smuggling • tax evasion • theft and related crimes • vagrancy
mitted deportations in response to the social and economic changes accompanying late nineteenth century industrialization. After these laws came the Deportation Acts of 1917 and 1918, which made it easier for the federal government to deport anarchists. Sweeping immigration reforms in 1996 facilitated the deportation of resident aliens with criminal convictions, including those serving sentences for offenses as serious as murder in the first degree. In the twenty-first century, deportation remains an administrative tool for the removal of undesirable aliens from the United States. Reasons for deportation include entering the country improperly; violating the terms of admission or conditional residency; certain criminal convictions—in either the United States or abroad—including most serious felonies and “moral turpitude”; membership in a forbidden organization, such as a known terrorist group; and certain cases in which immigrants become government dependents within five years of arriving in the country as the result of conditions that preceded their entry into the United States. Stopping Deportations Deportation proceedings can be stopped under the terms of the Immigration and Nationality Act of 1952, the first comprehensive federal immi273
Deportation gration law that consolidated previous immigration laws into one coordinated statute. That law, and its many amendments, remains the basic federal immigration and nationality statute. The law empowers the U.S. attorney general to issue cancellations of departure, working through immigration judges or successful appeals of immigration court decisions to the Board of Immigration Appeals.
During the 1920’s, Marcus Garvey’s black nationalist movement was dealt an irreparable blow when the federal government deported Garvey back to his homeland, Jamaica. In 1923, Garvey was convicted on a trumped-up mail-fraud charge and sent to a federal prison. Four years later, President Calvin Coolidge commuted Garvey’s sentence, only to have him deported immediately. Garvey was never allowed to return to the United States. (Library of Congress) 274
Deportation Cancellations of deportations can take several forms. One is a waiver of deportability in which an alien demonstrates that deportation would lead to unusual hardships for a parent, spouse, or child who is a U.S. citizen or a permanent resident of the United States. Another form is a cancellation of removal for aliens who have been classified as permanent residents for at least five years and have resided in the United States continuously for at least seven years without any convictions for aggravated felonies. Aliens can also get deportation orders canceled when they can show that they have been in the United States continuously for ten years, while exhibiting good moral character and not engaging in document falsification, security violations, criminal activities, or marriage fraud. They must also show that their deportation would result in exceptional hardships to parents, spouses, or children who are U.S. citizens or permanent residents. Aliens resident in the United States for only seven years who otherwise meet the same qualifications can have their deportation orders suspended. Political factors are also considered in suspending deportation orders, as when aliens can demonstrate that returning to their countries of origin would result in their persecution because of their race, religion, political opinions, nationality, or membership in certain groups. Camille Gibson Further Reading Cassese, Antonio. International Criminal Law. New York: Oxford University Press, 2003. A readable introduction to international criminal law examining the substantive aspects of the law and the procedural dimensions of state practice. Panunzio, Constantine M. The Deportation Cases of 1919-1920. New York: Da Capo Press, 1970. Preston, William, Jr. Aliens and Dissenters: Federal Suppression of Radicals, 19031933. 2d ed. Urbana: University of Illinois Press, 1994. Rush, George E., and Judy Hails. The Dictionary of Criminal Justice: With Summaries of Supreme Court Cases Affecting Criminal Justice. 6th ed. Guilford, Conn.: Dushkin/McGraw-Hill, 2003. See also Border patrols; Criminal records; Espionage; Extradition; Homeland Security Department; Immigration and Naturalization Service.
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Depositions
Depositions Definition: Out-of-court statements from persons involved in cases Criminal justice issues: Courts; legal terms and principles; witnesses Significance: Depositions can provide attorneys with valuable information prior to trials and can be useful during the trial process. The formal and informal exchange of information between prosecutors and defense attorneys is called discovery. One of the most common methods of discovery involves depositions, which are out-of-court statements given under oath by people involved in cases. They usually consist of oral examinations, followed by opposing attorneys’ cross-examinations. Most states permit both prosecutors and defense attorneys to take depositions, and both sides have the right to be present during oral depositions. Information collected through depositions can be used at trial or during the preparations for trials. The chief benefit of depositions is that they allow both prosecution and defense to know in advance what witnesses will say at the trials. Depositions can take the form of written transcripts, videotapes, or both. There are instances in which information can be gathered prior to trial by either side by submitting sets of questions to the opposing side. This procedure requires that the questions be answered in writing and under oath. In addition to depositions being taken so that attorneys are aware of what witnesses will say at trial, they also serve the purpose of questioning the credibility of witnesses’ testimony. At the conclusion of a deposition, both sets of attorneys are provided with transcripts of the statements. This is a particularly useful function of the deposition when a witness’s testimony at trial differs from what is offered in the deposition. Depositions can also be taken to obtain testimony from important witnesses who cannot appear during trials, due to death or other reasons. When this is the case, testimony from depositions is read into evidence. In contrast to testimony during trials, in which there are strict standards regarding what types of questions can be asked, questions asked during depositions are not held to such restrictions. Attorneys from either side have much wider latitude in the questions they may ask witnesses about different facets of the issues at hand. Another obvious benefit of depositions is that they help preserve witnesses’ recollections while the information is still fresh in their minds. This is especially important when long periods of time separate events and trials. 276
Deterrence Moreover, it sometimes happens that in the process of collecting depositions and reviewing all information collected, opposing attorneys find compromises that allow them to avoid the expense and time of trials. Jenifer A. Lee Further Reading Champion, Dean J., Richard Hartley, and Gary A. Rabe. Criminal Courts: Structure, Process, and Issues. 2d ed. Upper Saddle River, N.J.: Pearson/ Prentice Hall, 2008. Meyer, Jon’a F., and Diana R. Grant. The Courts in Our Criminal Justice System. Upper Saddle River, N.J.: Prentice-Hall, 2003. See also Cross-examination; Discovery; Evidence, rules of; Exclusionary rule; Grand juries; Subpoena power; Testimony; Witnesses.
Deterrence Definition: Notion that harsh punishments discourage individuals from future involvement in criminal conduct Criminal justice issues: Crime prevention; legal terms and principles; punishment Significance: Prevention of crime is a major public issue; if punishments could indeed be shown to deter crime, the finding would be of considerable importance to numerous public policy questions. There are two categories of deterrence: specific (or simple) and general. Both involve the idea that the threat of punishment will influence individuals not to commit crimes. Specific deterrence focuses on the individual and rests on the assumption that if the punishment imposed on a specific offender is severe enough for a crime, the offender will not commit crimes in the future. General deterrence focuses on society and is based on the idea that potential offenders will be deterred by the fear of being punished. Both categories of deterrence are based on the assumptions that potential offenders are rational and will perceive the possible punishment for crime as painful. Does punishment, in fact, deter? Although many people would intuitively argue that it does, scholarly studies have not proven with certainty that punishment, or the fear of it, deters. There are several problems with the notion that punishment or fear of punishment will prevent crimes in the future. 277
Deterrence A major assumption of deterrence theory is that people are rational and will consider the costs of committing a crime before committing the act. While this may be true in some cases, many crimes are unplanned events resulting from chance and opportunity. Another assumption of deterrence theory is that swift punishment proportional to the seriousness of an offense will deter. In the American criminal justice system, however, many offenders are provided with the opportunity for numerous delays prior to trial. Moreover, many cases end in plea bargains that call for punishment for less than the actual offense. Both specific and general deterrence theories rest on the notion that most offenders fear being caught. Critics of deterrence policies, however, note that many potential offenders do not believe that they will be caught and prosecuted. Victimization surveys reveal that fewer than half the crimes committed in the United States are known to law-enforcement authorities. Violent crimes are the crimes most frequently reported to the police, yet studies reveal that fewer than 47 percent of all violent crimes are reported. Fear of punishment is further mitigated by the fact that fewer than 5 percent of all crimes reported to police are ultimately prosecuted. A final argument used to bolster deterrence theory is the assertion that potential offenders will avoid criminal activity because they fear the pain as-
A primary justification for incarcerating offenders in prisons is that loss of freedom should be a powerful deterrent to committing crime. However, studies have found that many prisoners do not regard incarceration as especially disagreeable, and a high proportion of former prisoners repeat their crimes and wind up in prison again. (Brand-X Pictures) 278
Deterrence
Public Opinion on Effectiveness of the Death Penalty as a Deterrent to Violent Crime Numbers in parentheses are responses of supporters of capital punishment versus opponents of capital punishment. don’t know 8% (6% vs. 4%)
not a deterrent 30%
major deterrent 33% (41% vs. 8%)
(21% vs. 66%)
minor deterrent 29% (32% vs. 20%)
Source: ABCNEWS.com Poll, June 2000. Percentages reflect responses of 1,004 adults from throughout the United States.
sociated with punishment. Yet some studies have shown that although substantial portions of the offender population in prisons acknowledge that prison is recognized as a cost of criminal activity, many offenders do not consider it an especially painful experience. Even with regard to crimes that carry the potential for the death penalty, most studies reveal that few criminals fear the pain of punishment prior to the crime because they do not believe that they will ever receive such a punishment. Although politicians and the public often clamor for stiffer penalties as a solution to rising crime rates, few scholars would argue that such remedies are likely to prove very effective. Robert R. Wiggins
279
Discovery Further Reading Colvin, M. Penitentiaries, Reformatories, and Chain Gangs: Social Theory and the History of Punishment in the Nineteenth Century. New York: St. Martin’s Press, 1997. Foucault, Michel. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. 2d ed. New York: Vintage Books, 1995. Friedman, Lawrence M. Crime and Punishment in American History. New York: Basic Books, 1993. Tonry, Michael, and Richard Fraser. Sentencing and Sanctions in Western Countries. New York: Oxford University Press, 2001. See also Capital punishment; Community-based corrections; Contempt of court; Crime; Fines; Prison and jail systems; Punishment; Punitive damages; Reckless endangerment; Rehabilitation; Speeding detection.
Discovery Definition: Court process that requires prosecution and defense attorneys to share the information they gather Criminal justice issues: Attorneys; legal terms and principles; prosecution; trial procedures Significance: An overriding goal of the criminal justice system is fairness and impartiality in all phases of trial processes, and the principle of discovery helps achieve that goal. American courts operate under an adversarial system in which opposing legal teams attempt to further their versions of the truth while being overseen by neutral judges. This system is based on the premise that adversarial proceedings provide the best way to uncover the truth and determine the facts in a case. Another premise of the system is that the accused must be considered innocent until proven guilty. It is thus the task of prosecutors to prove beyond a reasonable doubt that defendants have committed the crimes of which they are accused. To do that, prosecutors submit evidence and testimony. In contrast, the role of defense attorneys in the adversary system is to contest the criminal allegations made against the defendants and dissuade the courts or juries from concluding that the defendants are guilty. Purpose of Discovery When preparing for trial, both prosecutors and defense attorneys need to examine all available evidence that has been collected by police investiga280
Discovery tors, the results of any tests that have been conducted, and information about who is to be called to testify at the trials. American courts insist that both sides have equal opportunities to present complete cases, so that one side does not have an unfair advantage over the other. Discovery ensures that both sides have equal access to the same information. Discovery involves both the formal and informal exchange of information between prosecutors and defense attorneys. The types of information considered “discoverable” vary from state to state. Items that are particularly likely to be considered discoverable include laboratory reports, fingerprint results, ballistic tests, witness statements, defendants’ confessions, psychiatric reports, and police reports. The implementation of discovery tends to focus on the actions of prosecutors more than on defense attorneys because prosecutors have greater access to investigators (usually police officers), laboratory technicians, and advanced equipment for the analysis of evidence. If prosecutors were to restrict access to such information, it would jeopardize the right of defendants to fair trials. Defense attorneys therefore depend on strong discovery rules to secure their defendants’ rights. Allowing defense attorneys to learn what the prosecutors know, or possess in the form of evidence, may spare defense attorneys from the difficult task of attempting to force their clients voluntarily to disclose information that they are reluctant to admit. In addition to the formal process of discovery, there is an informal process. Informal prosecutorial disclosure operates under the long-held theory that providing defense attorneys with advance viewings of the prosecutors’ cases encourages guilty pleas. Because prosecutors believe that defendants tell their attorneys only part of the story, informal disclosure allows the defense attorneys to be armed with the same information possessed by the prosecutors. The defense attorneys can use the evidence to confront their clients with more complete pictures of the events. This process often convinces both defendants and their attorneys to conclude they would be better served by entering guilty pleas. Informal and Reciprocal Disclosure The process of discovery does not require that only prosecutors turn over their evidence to defense attorneys. Defense attorneys must reciprocate by disclosing all relevant materials in their possession. This step seems only fair considering the goal of the adversary system to achieve fairness. If trials are to be conducted fairly, both sides must start on a level playing field and be prevented from presenting surprise evidence. As with many issues in state courts, reciprocal-disclosure requirements 281
Discovery vary from state to state. Some jurisdictions require defense attorneys to file notices of alibi defense—claims that their clients were elsewhere when the crimes with which they are charged were committed—along with lists of witnesses to be called to support the alibis. Such pretrial notices allow prosecutors to investigate witnesses before they testify in court so they can counter the claims of the defendants. Some jurisdictions require defense attorneys to disclose to prosecutors, prior to trial, that insanity pleas will be entered or that expert witnesses will be called. Some states require defense attorneys to turn over to prosecutors the names, addresses, and statements of the witnesses they plan to call at trial. The process of discovery is meant to ensure that trial processes result in verdicts based on all available evidence. The process achieves that goal when
Vinny’s Discovery In the popular 1992 film My Cousin Vinny, Joe Pesci plays a cocky selftaught Brooklyn attorney whose first trial experience comes when he defends his cousin and a friend in a murder case in Alabama. Much of the film’s humor emerges from Vinny’s bumbling attempts to comply with formal courtroom procedures. Although he has passed the New York bar exam, he is a complete novice in a southern courtroom. There are many holes in Vinny’s legal education, and one of the most glaring is exposed midway through the trial. While Vinny takes smug satisfaction in persuading the prosecutor (Lane Smith) to give him copies of his files in the murder case, his girlfriend (Marisa Tomei) learns—from browsing through a legal textbook—that the prosecution is required to do just that. The girlfriend’s revelation of that fact to Vinny generates powerful comic tension, but it also touches on a central feature of modern criminal practice: Prosecutors are required to reveal any evidence to the defendants that might possibly exonerate them. In My Cousin Vinny, the prosecutor agrees to give Vinny copies of his files while the two men are out hunting during a break in the trial. Such fraternization between opposing attorneys is unusual during trials, but the film reflects another reality about attorneys: They may be fierce opponents inside a courtroom but cordial professional acquaintances outside. Timothy L. Hall
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Dismissals no side in a case is permitted to ambush the other with surprise evidence or witnesses because both sides have exchanged all relevant information. Jenifer A. Lee Further Reading Champion, Dean J., Richard Hartley, and Gary A. Rabe. Criminal Courts: Structure, Process, and Issues. 2d ed. Upper Saddle River, N.J.: Pearson/ Prentice Hall, 2008. Comprehensive textbook on the workings of criminal courts that includes a thorough discussion of discovery. Hancock, Barry W., and Paul M. Sharp. Criminal Justice in America: Theory, Practice, and Policy. 3d ed. Upper Saddle River, N.J.: Prentice-Hall, 2003. General text on criminal law. Neubauer, David W. America’s Courts and the Criminal Justice System. 9th ed. Belmont, Calif.: Wadsworth, 2008. Comprehensive analysis of the dynamics of criminal justice in action as seen in the relationship of judge, prosecutor, and defense attorney. Stolzenberg, Lisa, and Stewart J. D’Alessio. Criminal Courts for the Twenty-first Century. 2d ed. Upper Saddle River, N.J.: Prentice-Hall, 2001. Another fine textbook that examines all aspects of the criminal court processes. See also Criminal procedure; Depositions; Evidence, rules of; Exclusionary rule; Subpoena power; Testimony; Trials; Witnesses.
Dismissals Definition: Formal terminations of legal proceedings Criminal justice issues: Legal terms and principles; prosecution; trial procedures; verdicts Significance: Dismissals end judicial proceedings in legal matters without the completion of trials and generally without conclusive findings of law or facts. In the broadest sense of the term, a dismissal is simply the termination of a legal proceeding. In criminal law it is the cancellation of an indictment, information, complaint, or charge. A dismissal may be done with or without prejudice to the refiling of a subsequent complaint. A dismissal without prejudice means the prosecution may seek new charges either through indictment, information, or complaint. However, a dismissal with prejudice does not allow the prosecution to file the same charge against a defendant again at a later time. 283
Dismissals Dismissals may be voluntary, as in cases when the prosecution chooses to stop pursuing a matter, or involuntary. In cases of voluntary dismissals, the prosecution usually has tactical or legal reasons for its actions. Tactical reasons for dismissal may include the absence of key witnesses or the need to take more time to process important evidence. So long as the relevant statute of limitations on filing a charge does not expire, a prosecutor may choose to dismiss the original complaint and refile at a later time when the case is better prepared. Strict due process rights are common reasons for dismissing cases for legal reasons. Once a criminal charge is brought against someone, due process rights attach and place a heavy burden on the prosecution to move forward. Any failure to proceed with a case in a timely fashion may subject the matter to either voluntary or involuntary dismissal. One example would be the use of evidence obtained without probable cause or a search warrant. Prosecutors who recognize that their cases rest on such evidence may voluntarily dismiss the cases in the hope of finding supported evidence later. If they do not dismiss at that time, they run the risk that courts will dismiss their cases later, possibly with prejudice, when defenses make motions or raise the troublesome issues at trial. In circumstances in which dismissals are involuntary, courts generally make decisions as to the prejudice or harm caused to the parties. An involuntary dismissal does not always mean that it is with prejudice to the refilling. Involuntary dismissals are generally used when the interests of justice mandate the judicial action. One example is found in cases in which the defendants’ affirmative defenses are sustained by the court. For example, when defendants can prove their alibis, then the prosecutors or the judges, upon proper motions, may enter dismissals based on the perfected defenses. It is important to recognize that dismissals do not include rulings or judgments on the issues at trial. In most instances, dismissals occur prior to trial and in almost all instances before verdicts or judgments are rendered. Thus, the dismissals are not legal determinations in the truest sense. Nevertheless, they may have impact similar to those of judgments. For example, dismissals with prejudice carry the same weight in preventing subsequent charges for the same offense that findings of “not guilty” carry at trial. Another important point in criminal cases is that dismissals prior to the start of jury trials do not necessarily violate the concept of double jeopardy. This means that a dismissal at any time up to the point of picking a jury or beginning the trial does not restrict the later prosecution of the same case, unless prejudice has been ordered by the court. Carl J. Franklin 284
Disorderly conduct
Vinny Wins a Dismissal In the 1992 film My Cousin Vinny, Joe Pesci plays the title character, an inexperienced New York lawyer who defends his young cousin and a friend in an Alabama murder trial. Although Vinny has trouble coping with unfamiliar trial procedures, he eventually casts so much doubt on the prosecution’s eyewitnesses and so thoroughly discredits the prosecution’s expert witness on a key point of evidence that the prosecutor finally agrees that his case has no merit and dismisses all charges against the defendants. This is the appropriate action for a prosecutor to take in the circumstances, but it is unlikely that a real-life prosecutor would dismiss a case on the spot, as the film’s prosecutor does. A prosecutor would probably use an evening recess to consider the new developments in the case before taking a step that is, by its nature, irrevocable. If he later discovers that he has made a wrong decision, he cannot recall the defendants and try them again. Timothy L. Hall
Further Reading Acker, J. R., and D. C. Brody. Criminal Procedure: A Contemporary Perspective. 2d ed. Sudbury, Mass.: Jones and Bartlett, 2004. Del Carmen, Rolando V. Criminal Procedure: Law and Practice. 7th ed. Belmont, Calif.: Thomson/Wadsworth, 2007. LaFave, Wayne R., Jerold H. Israel, and Nancy J. King. Criminal Procedure. 4th ed. St. Paul, Minn.: Thomson/West, 2004. See also Acquittal; Criminal prosecution; Jury system; Mistrials; Trials; Verdicts.
Disorderly conduct Definition: Any public behavior that disturbs or shocks the senses of the public or community, including disturbing the peace, which is considered as basically destroying the tranquillity or settled state of the public arena Criminal justice issues: Morality and public order; victimless crimes Significance: Violation of disorderly conduct statutes in most states are 285
Disorderly conduct prosecuted as misdemeanors, and the extent of punishment is usually based on the specific nature of the disorderly conduct. The term “disorderly conduct” is used in statutes to identify various acts against the public peace. It has been held to include the use of obscene language in public, the blocking of public thoroughfares, and the making of threats. It may also include conduct that is perceived as threatening morals or public decency or that constitutes a disturbance of a controversial or disorderly matter. Almost every state has a disorderly conduct law that makes it a crime to be drunk in public, to disturb the peace, or to loiter in certain areas. A statute for disorderly conduct, however, must identify acts that constitute the prohibited conduct with sufficient clarity in order to avoid being held unconstitutional because of vagueness of exactly what is prohibited by the statute. Disorderly conduct is usually charged as a misdemeanor. Minors and drunken adults are the most common offenders of this statute. Disorderly conduct violations are common during celebrations, such as Mardi Gras or sporting events. Although offenders are sometimes jailed in order to calm them down while they are intoxicated, the most common forms of punishment range from fines to probation and community service. Disorderly conduct is usually not regarded as a serious blot on a person’s criminal record, unless it is accompanied by more serious offenses. Bernadette Jones Palombo Further Reading Critcher, Chas, and David Waddington. Policing Public Order: Theoretical and Practical Issues. Brookfield, Vt.: Ashgate, 1996. Sanders, Pete, and Steve Myers. Getting into Trouble or Crime. Brookfield, Conn.: Copper Beech Books, 1999. Scott, Michael. Disorderly Youth in Public Places. Washington, D.C.: U.S. Department of Justice, Office of Community Oriented Policing Services, 2001. See also Breach of the peace; Commercialized vice; Juvenile delinquency; Loitering; Misdemeanors; Pandering; Public-order offenses; Resisting arrest; Vagrancy laws.
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District attorneys
District attorneys Definition: Prosecuting attorneys for local government Criminal justice issues: Attorneys; prosecution Significance: District attorneys are responsible for pursuing charges against persons accused of violating state criminal laws. In many cities the chief prosecutor responsible for enforcing state criminal laws is called the district attorney and is often referred to as the DA. In some places these officials are called county prosecutors or state’s attorneys. They make decisions about which people will be charged with crimes, which charges will be filed, and which plea agreements will be accepted for presentation to a judge. Duties of District Attorneys District attorneys work closely with local police officials to identify suspects and crimes that should be investigated. They often must approve police officers’ requests for search warrants and arrest warrants before those requests are presented to judges in order to obtain the actual warrants. After a suspect is arrested, DAs and their assistants often make arguments to the court about setting bail or other conditions for the pretrial release of individual defendants. They must also represent the government in preliminary hearings, in which judges may consider whether there is sufficient evidence to move a case forward. District attorneys determine which charges will be filed against each defendant based on an evaluation of the evidence gathered by the police. They have the authority to drop charges and have suspects released if they believe there is insufficient evidence to pursue a case. District attorneys are not obligated to prosecute every suspect arrested by the police. Even if the prosecutor believes that the suspect might be guilty of a crime, the district attorney has a professional obligation to pursue only those cases in which there is sufficient evidence to justify initiating criminal charges. Many cases conclude after either a plea agreement or a trial. In the pleabargaining process the district attorney determines whether any concessions will be made, such as dropping or reducing charges, in order to gain a guilty plea from the defendant. If a defendant agrees to plead guilty, the district attorney often agrees to recommend that the judge impose a sentence less than the maximum possible punishment for the crime. If no plea agreement is arrived at after discussions between the district attorney and defense 287
District attorneys attorneys representing the defendant, then the case will go to trial. The district attorney is responsible for organizing the available evidence and then preparing and presenting evidence and arguments in court before a judge or jury. After a defendant is convicted, the district attorney may represent the government in opposing any appeals filed by the convicted offender. Selection of District Attorneys District attorneys must be law school graduates who have passed their state’s bar exam and have become licensed to practice law. In most places lawyers must run for election in order to become district attorneys. Successful efforts to gain election to local office usually require that attorneys be active in a political party and have the support of local political party leaders. Successful election campaigns also require that candidates raise money and gain public visibility. The electoral process may pose problems for district attorneys. There are risks that reelection campaigns may take up so much time that they interfere with the effective fulfillment of the district attorney’s prosecutorial responsibilities. In addition, some observers fear that the process of raising money from supporters and gaining favor with politicians make district attorneys unable to make fair and equitable decisions if financial supporters or political colleagues become suspected of wrongdoing. A few states attempt to avoid such problems by having the state attorney general or chief state prosecutor appoint and supervise local prosecutors. After a lawyer is elected district attorney, the lawyer must hire and train assistant DAs. In small cities there may be only one assistant, but in major metropolitan areas there may be hundreds of assistants under the supervision and direction of the district attorney. The district attorney must also attempt to establish policies for determining which cases will be prosecuted and which kinds of plea agreements will be acceptable. Assistant district attorneys often have substantial freedom to make decisions about what will happen in their own cases, but they must generally follow guidelines developed by the district attorney so that there is an element of consistency in the processing of criminal cases within a particular city. Key Relationships As the central figure in the criminal justice process, the district attorney must develop and maintain relationships with various court actors and constituents. The district attorney must cooperate with the police in order to prosecute cases effectively. The DA relies on the police to gather evidence properly and to serve as witnesses for many criminal cases. The district attor288
District attorneys ney must also work well with victims and witnesses from among members of the public. These people must be questioned with sensitivity and care, and they must be informed about the court processes and questions they will encounter in preliminary hearings and trials. The district attorney must develop good relationships with defense attorneys and judges. The plea-bargaining process can operate smoothly if the prosecutor and defense attorney do not permit personal animosity to develop. Instead, both lawyers must recognize that they are likely to meet together repeatedly over the years as they discuss the possibility of concluding criminal cases without undertaking the time and expense of a trial. Plea bargaining is not always adversarial, because both the prosecution and defense may gain benefits from a quick plea bargain that saves court time and seals a conviction while permitting the offender to avoid the strongest possible sentence. Similarly, district attorneys are likely to appear before the same judges year after year. Thus, there is a strong incentive to become well acquainted with the judge and the judge’s preferences for sentencing. The district attorney does not want to waste the court’s time by, for example, recommending sentences in plea agreements that are known to be unacceptable to the presiding judge. Instead, the district attorney must often talk regularly with judges to gain an understanding of their values and philosophies about punishment and the criminal justice system. District attorneys also seek to maintain good relationships with the news media and political parties. Such relationships are essential in efforts to gain reelection to office at the end of a term in office. These contacts also help if DAs seek higher office, because many DAs subsequently seek election to judgeships and legislatures. Thus, district attorneys often hold press conferences and submit to interviews with reporters. Typically, they attempt to portray themselves as being very tough on criminals in order to impress the voters with their effectiveness in combating crime. Relationships with political party officials are important for most district attorneys, because DAs need the parties to mobilize campaign workers and voters at each election. Christopher E. Smith Further Reading Carter, Lief. The Limits of Order. Lexington, Mass.: Lexington Books, 1974. Examinations of the work of local prosecutors. Del Carmen, Rolando V. Criminal Procedure: Law and Practice. 7th ed. Belmont, Calif.: Thomson/Wadsworth, 2007. Comprehensive and readable review of all phases of criminal procedures. Heilbroner, David. Rough Justice: Days and Nights of a Young D.A. New York: 289
Domestic violence Pantheon Books, 1990. Presents perspectives of actual district attorneys on their jobs. McDonald, William, ed. The Prosecutor. Beverly Hills, Calif.: Sage Publications, 1979. Broad collection of topics concerning prosecutors in the United States and other countries. Parrish, Michael. For the People: Inside the Los Angeles District Attorney’s Office, 1850-2000. Santa Monica, Calif.: Angel City Press, 2001. Revealing examination of the inner workings of one of the busiest district attorney offices in the United States. See also Criminal procedure; Criminal prosecution; Defense attorneys; Judicial system, U.S.; Plea bargaining; Public prosecutors; Trials.
Domestic violence Definition: Emotional, sexual, or other physical abuse committed by a spouse, intimate partner, or other relatives living in the same household as the victim Criminal justice issues: Domestic violence; medical and health issues; sex offenses; women’s issues Significance: Domestic violence involves acts of abuse formerly considered to be private family matters and now considered crimes. Domestic violence is characterized by a recurring and often escalating pattern of emotional and physical control and coercion of a vulnerable victim who is dependent—physically, emotionally, or financially—on the abuser. Definitions of domestic violence differ from state to state and among practitioners who deal with domestic violence victims and offenders. The broadest definitions of domestic violence include various kinds of maltreatment, from yelling, shoving, slapping, or “inappropriate” touching to rape or murder. Specific legally included acts may include battering (injurious physical assaults) and stalking (repeated unwanted following, phone calls, or other unwanted communications). States differ in whether they limit domestic violence to acts involving bodily injury or the threat of bodily injury and whether they include psychological abuse such as harassment. Some categories of domestic violence depend on the relationship between the victim and abuser. Family violence covers a range of victims, from infants and children to elderly parents. Abuse of an aging parent by an adult child or other adult in the household is called elder abuse. Abuse commit290
Domestic violence ted by one’s husband or wife is termed spousal or marital abuse. Women who are repeatedly assaulted by their husbands are called battered wives, and their husbands are called batterers. Abuse committed by a current or former intimate partner or spouse is called partner abuse or intimate partner abuse. Partner abuse can involve partners of either sex. While assault or abuse of women can occur outside a domestic relationship, the phrase “violence against women” is often used to mean abuse committed by husbands, boyfriends, or former husbands or boyfriends. Child abuse, too, can occur outside of a domestic situation but is considered a form of domestic violence when committed by a parent or other adult living in the same home as the victim. In some states, children who witness abuse of their parents are considered to be victims of those same acts. In the remaining sections of this article, the focus is on domestic violence involving adults. Readers who want to know more about child abuse are referred to the separate sections. History of the Crimes Throughout much of recorded history, domestic violence short of murder was not believed to be a crime. Women were considered the property of first their fathers and then their husbands. Men were formally or informally given the right to use physical force against their wives. Forcible sex between a husband and wife was considered a private matter and, as late as the twentieth century, treated in novels and motion pictures as romance, not rape. While several religions formally prohibited use of excessive physical force or defined some marital rights of wives, the common perception was that a man’s home was inviolate and that authorities should not interfere with spousal relationships. Historically, women who willingly participated in intimate relationships with men other than their husbands were considered to be immoral and had even fewer rights than wives. Same-sex partners were also viewed as engaging in illegal relationships and were allowed no rights to protection from abusive partners. Early in the twentieth century, a few efforts were made in progressive cities to prevent abuse and assist battered women, but domestic violence was rarely publicly recognized until the 1960’s, after the emergence of the women’s movement. During the 1960’s, women began to organize to provide emergency shelter for battered wives, often in private homes, and to call for designation of domestic violence as a crime. Highly educated women, many of whom had previously been active in the Civil Rights movement, campaigned at local, 291
Domestic violence state, and national levels to end discrimination against women in general and to call attention to women who were battered at home. It was not until the 1970’s, when more women had entered legislatures and professions dealing daily with domestic violence victims, that shelters for battered wives were created by community organizations and criminal justice agencies began to recognize domestic violence as a crime. In 1976, the first national directory of shelters and victim services for battered women was published. In 1978, the National Coalition Against Domestic Violence (NCADV) was founded. At this time, women affiliated with the NCADV, together with state and local domestic violence coalitions, began pressuring legislators and police departments to recognize and respond to battered women as victims and not as participants in private feuds. For example, in 1977 the state of Oregon passed the Family Abuse Prevention Act, which included statutes for mandatory arrests of batterers. A few months later, Massachusetts enacted the Abuse Prevention Law, which criminalized wife battering and enabled victims to obtain civil protection orders free of charge. During the late 1970’s, the phrase “battered woman’s syndrome” was coined and first used in expert legal testimony in cases in which battered women were tried for killing husbands who had repeatedly abused them. During the 1980’s, an increasing number of states officially recognized domestic violence as a crime and enacted legislation favoring the arrests of perpetrators, streamlining the process for victims to obtain restraining orders and providing public funds for emergency shelters and other services for children. A growing number of police began to institute mandatory or proarrest policies for domestic violence offenders, in part based on highly publicized research that found that mandatory arrest led to fewer subsequent incidents of abuse. (The finding was challenged by other research findings but was later validated using more advanced statistical techniques.) Also during the 1980’s, a strong national victims’ rights movement, initiated in part by families of homicide victims, succeeded in passing federal legislation that provided resources for domestic violence victims and agencies that served them. The 1982 Victim and Witness Protection Act addressed issues of victims’ rights, services, and safety within justice agencies. The 1984 Victims of Crime Act (VOCA) provided federal funds to supplement state allocations for victim services and shelters. Several developments in 1994 led to increased public awareness of domestic violence and greater commitment among criminal justice agencies to deal with the crime. The murder of Nicole Brown Simpson and the subsequent trial of her former husband, O. J. Simpson, raised public interest in 292
Domestic violence the plight of battered women. The NCADV and state coalitions implemented an annual concerted national campaign to publicize and remember the names of all victims of domestic violence homicide. The Violence Against Women Act (VAWA) was enacted, providing federal funds for state and local criminal justice agencies to combat domestic violence. VAWA also provided new federal legislation to strengthen convictions and sentences of domestic violence offenders who used guns. It also defined more responsibilities for U.S. attorneys in domestic violence cases involving interstate jurisdictions. Prevalence Given the hidden nature of domestic violence and the varying definitions of it, most statistics on the prevalence of domestic violence must be considered estimates. Primary data on prevalence come from the National Crime Victimization Survey (NCVS) and state and local police reports collected by the Federal Bureau of Investigation (FBI). Homicides are more likely to be reported and recorded by police than any other form of domestic violence and therefore are relatively accurate. Based on Supplementary Homicide Reports police departments provide to the FBI, in the year 2000 women were far more likely to be murdered by an intimate partner, including spouses or former spouses (1,247), than were men (440). Among all men murdered in 2000, only 3.7 percent were murdered by an intimate partner; 33.5 percent of murdered women were killed by an intimate partner. Although there had been a precipitous decline in the number of men murdered by an intimate after 1976, the number of women murdered by an intimate has been only slightly reduced. Far more victims of intimate partner abuse suffer nonfatal assaults. In 2001, based on the NCVS, close to 700,000 adults, or 3 out of every 1,000 persons, were victims of nonlethal intimate partner violence. The majority of these victims—about 85 percent—were women. Another national survey indicated that 25 percent of women in the United States are victims of intimate partner violence at some point in their lives. Most acts of intimate partner violence, more than 68 percent, involved simple assault, including punching resulting in black eyes or bruises, while 17 percent involved aggravated assault, including attacks with a weapon or attacks that resulted in serious injury or more than one day of hospitalization. Other, less frequent, acts of intimate partner violence include robbery and rape or other sexual assault. Although there is a common perception that men are just as likely to be victims of some forms of domestic violence as women, research shows that women are significantly more likely than men 293
Domestic violence
Types of Violent Acts by Intimate Partners rape and sexual assault 6%
robbery 9%
aggravated assault 17%
simple assault 68%
Source: U.S. Bureau of Justice Statistics, Intimate Partner Violence, 2003. Percentages are based on 691,710 incidents between intimate partners in the United States in 2001. Intimate partners include current and former spouses and current and former boyfriends and girlfriends.
to be victims of all types of intimate partner violence. The NCVS also shows that elderly people, those sixty-five years or over, are far less likely to be victims of any form of crime, especially violent crime, than younger people. Elderly victims of nonlethal assault are also less likely to have been attacked by a relative or intimate partner than younger victims of nonlethal violence. However, elderly murder victims are much more likely to be killed by a relative or intimate partner than younger murder victims. While many researchers believe that same-sex partners are just as likely to be victims of domestic violence as heterosexual partners, scientific evidence is currently lacking. Investigation Initial investigation of domestic violence incidents is usually carried out by police officers or sheriffs’ deputies who respond to calls from the victim or another party who hears or sees the abuse in progress. 294
Domestic violence When domestic violence was still considered a private family matter, police commonly believed that family fights posed a relatively high danger of injury to the responding officers. Policy and training for responding police focused on reducing danger to both police and the involved couple by providing a “cooling off” period. Unless one party required immediate medical care, the couple was separated into different rooms, or the police strongly suggested that the husband or boyfriend leave the home for a while. Police departments later adopted mandatory-arrest or pro-arrest policies, but these were difficult to enforce because offenders often told police that the victim attacked them first, while the victim remained silent. Under these circumstances the police might have been compelled to arrest both attacker and victim. Now community-based victim advocates help improve the effectiveness of investigations in many jurisdictions. They provide training to police officers and educate them about the many reasons victims refuse to cooperate with police. In some cities, police and advocates form response teams; police officers call advocates to the crime scene once the safety of the advocate can be ensured, or they transport victims to a safe place where advocates meet the victims and help them receive needed services, such as shelter or assistance in obtaining a restraining order against the abusers. Rather than depending on victim cooperation, police also are being trained to gather more evidence when they respond to domestic violence incidents. Methods include noting evidence that helps them to distinguish between the so-called primary aggressor and the victim, recording “excited utterances” of the victim about the attack, interviewing witnesses (including children), and checking to see if a court previously issued a restraining order that should have prevented the abuser from contacting the victim. A growing number of law-enforcement departments have special domestic violence units staffed by officers who receive special training for initial and follow-up investigations. One function of officers in these units is to interview victims a day or two after the incident, when the victims are calmer and in a safe place. Because bruises are more visible a day or two after an attack, the officers also take photographs of the victim at that time to use as evidence in court. Many officers are able to provide victims with cell phones so they can call for immediate response if they are being threatened again. Prosecution Prosecutors’ offices were the first among criminal justice system agencies to provide victim assistance programs and to institute specific programs for victims of domestic violence. Victims are contacted by the prosecutor’s of295
Domestic violence fice, informed about the court process and the dates when they will be needed to appear in court, provided information about changes in schedules, and, if needed, provided assistance with transportation to and from court. Prosecutors have also taken a leading role in coordinating their offices with those of police and other agencies addressing domestic violence. In addition to forming interagency teams with police, prosecutors have taken several other steps. Vertical prosecution, in which one prosecutor is assigned to handle a domestic violence case from intake to disposition, has been instituted in a number of counties. Vertical prosecution helps ensure that the prosecuting attorney who appears in court is familiar with the victim and with all aspects of the case. Some prosecutors have also formed specialized domestic violence units. Attorneys assigned to these units receive special instruction about changes in state domestic violence laws as well as training in interviewing domestic violence victims and advising them about services available to help them as they go through the justice system. Still, most prosecutors continue to deal with uncooperative victims by issuing subpoenas to compel them to testify, a procedure that may revictimize already vulnerable persons. To deal with domestic violence defendants, some prosecutors have instituted diversion programs. If a first-time defendant meets certain conditions such as attending treatment, not reoffending, and obeying restraining orders, the case is dropped. A number of prosecutors’ offices have instituted a “no drop” domestic violence case policy, in which attorneys have less discretion to drop a case because of a lack of victim cooperation or weak evidence. “No drop” policies are very controversial and are opposed by many victim advocates. Punishment Most domestic violence offenders who are found guilty are sentenced to probation and released, rather than being sentenced to jail or prison. Many prosecutors and victims advocates feel that these sentences are too lenient. To prevent these convicted offenders from continuing to batter, some probation departments have formed special domestic violence probation teams or units. Officers assigned to these teams or units regularly check up on the convicted offenders and contact the victims to make sure they are not being further intimidated or harmed. Some cities have formed special domestic violence courts in which judges not only adjudicate cases but also continue to review records col296
Drive-by shootings lected by probation officers and deal with offenders who are rearrested for domestic violence. Marcia R. Chaiken Further Reading Ammerman, Robert T., and Michel Hersen, eds. Case Studies in Family Violence. New York: Plenum Press, 2000. Scholarly essays on legal, medical, social, and psychological issues involved in domestic violence. Barnett, Ola, Cindy L. Miller-Perrin, and Robin D. Perrin. Family Violence Across the Lifespan: An Introduction. 2d ed. Thousand Oaks, Calif.: Sage Publications, 2005. Useful textbook covering all aspects of domestic violence. Bureau of Justice Statistics. Intimate Partner Violence, 1993-2001. Washington, D.C.: U.S. Department of Justice, 2003. This brief report presents data in simple tabular form on the prevalence of domestic violence and changes over time. Jasinski, Jana L., and Linda M. Williams, eds. Partner Violence: A Comprehensive Review of Twenty Years of Research. Thousand Oaks, Calif.: Sage Publications, 1998. Chapters by different social scientists summarize what is known about partner violence, based on twenty years of research. National Research Council. Understanding Violence Against Women. Washington, D.C.: Author, 1996. A panel of experts presents information on the nature and scope of crimes against women, causes, consequences, prevention, and treatment. Office for Victims of Crime. Enforcement of Protective Orders. Washington, D.C.: U.S. Department of Justice, 2002. Information is provided for victims and victims’ advocates about laws and legal issues in each state relevant for obtaining restraining orders. Violence Against Women Office. Toolkit to End Violence Against Women. Washington, D.C.: U.S. Department of Justice, 2001. Practical advice for community organizations and individuals. See also Adultery; Animal abuse; Child abduction by parents; Child abuse and molestation; Date rape; Rape and sex offenses; Restraining orders; Sexual harassment; Special weapons and tactics teams.
Drive-by shootings Definition: Use of firearms to shoot at people from moving vehicles that enable rapid getaways 297
Drive-by shootings Criminal justice issues: Homicide; juvenile justice; violent crime Significance: Because they provide the offenders with quick escapes from the scenes of their crimes, drive-by shootings are popular among criminals with violent intentions, particularly youths who are members of violent gangs. Commonly associated with gang activity, drive-by shootings are used not only to kill rival gang members but also to terrorize rivals. Drive-by shootings have also been associated with systemic drug violence, as drug dealers use them to eliminate rival drug dealers or buyers who fail to pay for their drug purchases. Although they first gained national notoriety during the 1980’s, drive-by shootings are not a modern development. Indeed, the Prohibition era of the 1920’s is well known for the large numbers of drive-by shootings associated with gangsters. Moreover, even before the invention of the automobile, outlaws simply rode horses when they staged similar hit-and-run attacks on their rivals. Just as prohibition of alcohol was associated with drive-by shootings, drug-related policies are a primary factor in the twenty-first century. Because drive-by shootings allow perpetrators to flee the scene with less chance of identification or immediate retaliation, many drug dealers employ them as low-risk forms of attack on rivals who may themselves be armed. Automobiles provide convenient cover for concealing weapons and surprising victims. Because drug dealing is most commonly done outdoors, on the streets of low-income neighborhoods, drive-by attacks are often effective in achieving their purpose. Drive-by shootings have also provided a popular way for members of street gangs to strike rivals. The public nature of the attacks is an effective way of sending public messages to rival gangs. Indeed, drive-by shootings are predicated on a rationale similar to that used by international terrorists who prefer to make their violent strikes as public as possible. For this reason, drive-by shootings are listed under antiterrorism statutes in a number of states. One ramification of drive-by shootings has been their impact on guncontrol legislation. The use of automatic weapons in drive-by attacks, particularly those in which innocent bystanders are injured or killed, has increased pressure on politicians to eliminate such weapons. Brion Sever
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Drug courts Further Reading Curry, David, and Scott Decker. Confronting Gangs: Crime and Community. Los Angeles: Roxbury, 2003. Egley, Arlen, Jr., et al. The Modern Gang Reader. 3d ed. Los Angeles, Calif.: Roxbury, 2006. Hutson, Range, Dierdre Anglin, and Marc Eckstain. “Drive-by Shootings by Violent Street Gangs in Los Angeles: A Five-year Review from 1989 to 1993.” Academic Emergency Medicine 3 (1996): 300-303. Leet, Duane, George Rush, and Anthony Smith. Gangs, Graffiti, and Violence: A Realistic Guide to the Scope and Nature of Gangs in America. 2d ed. Belmont, Calif.: Wadsworth, 2000. Sanders, William. “Drive-bys.” In The Modern Gang Reader, edited by Jody Miller, Cheryl Maxson, and Malcolm Klein. 2d ed. Los Angeles: Roxbury, 2001. _______. Gangbangs and Drive-bys. New York: Aldine de Gruyter, 1994. See also Drugs and law enforcement; Drunk driving; Juvenile delinquency; Murder and homicide; School violence; Vandalism; Vigilantism; Youth gangs.
Drug courts Definition: Recently developed alternative to traditional prosecution of drug-related offenses that focuses on ending offenders’ drug habits while integrating them into their communities Criminal justice issues: Courts; crime prevention; medical and health issues; substance abuse Significance: Drug courts are a new component of the criminal justice system that try to remove, at least temporarily, cases of drug offenders from traditional criminal processing and to place them in less formal hearings in which judges, prosecutors, public defenders, case workers, and the defendants themselves work together as teams to correct the offenders’ drug and alcohol problems. Drug and alcohol abuse tends to make people more likely to commit crimes for many reasons. Placing drug addicts and alcoholics on probation or incarcerating them in prisons typically does nothing to address the fundamental problems of their substance abuse. Drug courts combine accountability to the criminal justice system and protection of the public with treatment for alcoholism, addiction, and related mental health problems. The first drug 299
Drug courts court was established in Miami, Florida, in 1989. During the first decade of the twenty-first century, more than one thousand drug court programs were in operation throughout the United States, and several hundred more were being planned. Drug Court Processes and Characteristics The drug court process begins when defendants are arrested for drug possession or offenses related to drug or alcohol use, such as committing thefts to buy drugs. After suspects are arrested, prosecutors screen their cases to determine if they are eligible for adjudication in drug courts. In some cases, defendants are not screened until after they are convicted of crimes or they violate the terms of their probation. Drug court participants are usually long-term users of more than one drug. After defendants are classified as being eligible for drug courts, the requirements of the drug court program are explained to them. Depending on how far the judicial processing of their cases has developed, defendants can benefit by having the prosecution, adjudication, or sentencing of their cases postponed until after their successful completion of the drug court program. Defendants who “graduate” from drug court are typically rewarded by having the charges against them dropped, having their cases dismissed, or having their probation ended. Drug courts differ from traditional criminal justice in many ways. For example, they incorporate drug testing into case processing. Participants in the programs may be subjected to random urine testing as often as three times a week. Those who test positive or miss tests may be subject to such penalties as weekend jail stays, increased testing, or restrictions on their freedom to leave their homes. On the other hand, participants who do well may receive such rewards as advancement to the next phase in their treatment, gifts, or tokens. Most often, however, successful participants are rewarded merely by praise from the judges at their court hearings and applause from fellow participants in the programs. Relationships between participants and the courts are nonadversarial. The courts see their mission as assisting participants to recover from alcohol or drug addiction. The courts try to identify defendants in need of treatment and refer them to treatment as soon as possible after their arrests, rather than having them wait several months for trials and sentencing. Participants in drug courts programs are provided with extensive mental and physical health services, job skills training, education, and housing services to help them stay clean, sober, and out of trouble. Participants are usually required to attend meetings of Alcoholics Anonymous or Narcotics Anonymous. 300
Drug courts The Team Approach Judges, prosecutors, public defenders, probation officers, and treatment case managers (usually social workers or counselors) work as teams to monitor and assist participants. They try to agree on how to reward participants who comply with their programs and penalize those who do not. Drug court judges see individual participants as often as every week at court sessions attended by all participants. Every participant is called to the bench by the judges; together, they review their fellow participants’ progress. Judges commend those who are doing well and may warn or penalize those who are not doing well. These proceedings all take place in open courts, before other participants and all members of the drug court teams. Drug court teams seek to continually evaluate their programs’ progress against their goals. They also work to incorporate innovations in substance abuse treatment, the technology of monitoring participants, and lessons learned from the experiences of other drug courts. Drug courts work in partnership with local government, community agencies, businesses, churches, and health professionals. Effectiveness of Drug Courts Several studies have suggested that drug courts are effective in reducing drug use, retaining participants, reducing repeat offending, and costing taxpayers less money than such alternative programs as incarceration. However, these findings must be treated with caution. Many of these studies are not scientifically rigorous, and even the studies that use sound methods shed little light on how drug courts achieve their positive results. Until more research is done, it will not be clear which components of the drug court model—such as drug testing and weekly court appearances—are essential to the court’s success. The successes indicated by early research may have led to unrealistic expectations for drug courts. Most studies of drug court effectiveness have been short term. If drug courts function in ways that are similar to those of other programs that show similar short-term successes, it is probable that as more time passes after participant graduate from the programs, they will become increasingly likely to relapse and commit new crimes. As with vaccinations for diseases, treatments for criminal behavior and addiction tend to weaken over time. Issues and Concerns During the first years of the twenty-first century, jurisdictions were launching new drug courts at an amazing rate. However, it was expected that some 301
Drug courts of these new programs either would not or could not implement the drug court model fully, as the model requires local jurisdictions to abandon their “business as usual” practices and become open to innovation. As jurisdictions move to adapt the drug court model to use with juvenile delinquents and the parents of children who have been abused and neglected, these issues will intensify. Despite their apparent success, drug courts still reach only a small percentage of offenders who might benefit from their programs. Many early drug courts began their operations with the help of generous federal and state grants. However, some local jurisdictions may lack either the will or the means to continue operating their drug courts after their grant money is exhausted. Although drug courts face numerous challenges, they show great promise as alternatives to “revolving door” justice in which the same offenders are repeatedly processed. In some criminal justice circles, the growth of drug courts is referred to as a “movement,” and one that reflects the enthusiasm about this new way of dealing with crime and addiction. Jerome McKean Further Reading Drug Court Programs Office, Office of Justice Programs. Defining Drug Courts: The Key Components. Washington, D.C.: U.S. Department of Justice, 1997. Federal government guide to the organization and administration of drug courts. Gaines, Larry K., and Peter B. Kraska, eds. Drugs, Crime, and Justice. Prospect Heights, Ill.: Waveland Press, 2003. Broad collection of articles addressing drug control, the industry of drug distribution, and law-enforcement strategies. Goode, Erich. Drugs in American Society. Boston: McGraw-Hill, 2005. Complete and up-to-date review of drug use in America, the drug-crime connection, and law-enforcement efforts to control drug abuse and drugrelated crimes. Gray, James P. Why Our Drug Laws Have Failed and What We Can Do About It. Philadelphia: Temple University Press, 2001. Presents a critical analysis of the war on drugs from the personal perspective of a California trial judge. Lee, Gregory D. Global Drug Enforcement: Practical Investigative Techniques. Boca Raton, Fla.: CRC Press, 2004. Comprehensive presentation of investigative techniques used in drug investigations. 302
Drug Enforcement Administration See also Community-based corrections; Court types; Drug Enforcement Administration; Drug testing; Drugs and law enforcement; Mandatory sentencing; Recidivism.
Drug Enforcement Administration Identification: Federal agency responsible for enforcing federal laws and regulations concerning controlled substances Date: Established as a branch of the Bureau of Internal Revenue in 1915; became the Drug Enforcement Administration in 1973 Criminal justice issues: Federal law; law-enforcement organization; medical and health issues; substance abuse Significance: In carrying out its mission, the Drug Enforcement Administration brings to justice organizations involved in producing or distributing controlled substances destined for illicit traffic in the United States. The Drug Enforcement Administration (DEA) proactively investigates and prosecutes major growers, manufacturers, and distributors of controlled substances. It also conducts drug awareness and abuse prevention programs targeted toward demand reduction in the domestic and international illicit drug markets. The DEA, compared to other federal criminal justice agencies, has a brief history. Its origins are traceable to the Harrison Narcotic Drug Act of 1914; it was originally classified as a “miscellaneous division” of the Bureau of Internal Revenue in 1915. In its first year, the agency seized forty-four pounds of heroin and produced 106 convictions. Major expansion and reorganization over the following decades resulted from the Narcotics Drugs Import and Export Act of 1922, legislation establishing the Federal Narcotics Control Board; the Marijuana Tax Act of 1937, which levied a fine of one hundred dollars per ounce on untaxed marijuana; and the Boggs Act of 1956, which made heroin illegal. The Bureau of Narcotics and Dangerous Drugs (BNDD) was created in 1968 through a congressionally approved merger of the older Bureau of Narcotics and the Bureau of Drug Abuse Control. Congress then passed the Controlled Substances Act, known as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, legislation that established consolidated oversight of both narcotics and psychotropic drugs. Rapid growth in the BNDD’s domestic and foreign operations and the rise of recreational 303
Drug Enforcement Administration drug use in the popular culture prompted the creation of the Drug Enforcement Administration in 1973. The DEA engages casework and prepares for the prosecution of major violators of controlled substance laws. Its operations focus on disrupting and dissolving violent drug trafficking organizations. The agency also is responsible for maintaining a national drug intelligence program that collects, analyzes, and disseminates drug intelligence information. Additionally, the DEA serves as the U.S. liaison to the United Nations and Interpol and is responsible for the seizure and forfeiture of assets that are associated with criminal drug enterprises. According to the DEA, in 2004 it had an annual budget of $1,897 million and 9,629 employees (4,680 special agents plus support staff) and operated 237 domestic field offices throughout the United States plus foreign field offices in 58 countries. From 1986 to 2004, the DEA made approximately 443,600 domestic drug arrests and seized nearly 61,594 kilograms of cocaine, 705 kilograms of heroin, 195,644 kilograms of marijuana, and more than 118,049,279 dosage units of methamphetamines. During its brief history, the DEA has established a significant worldwide presence. The agency’s primary mission of drug law enforcement involves coordination and cooperation with federal, state, and regional authorities on mutual drug law-enforcement efforts as well as nonenforcement methods such as crop eradication or substitution, drug resistance education, and awareness efforts. Theodore M. Vestal Further Reading Drug Enforcement Administration. Tradition of Excellence: The History of the DEA from 1973-1998. Washington, D.C.: U.S. Department of Justice, 1999. Lee, Gregory D. Global Drug Enforcement: Practical Investigative Techniques. Boca Raton, Fla.: CRC Press, 2004. Machette, R. B. Guide to Federal Records in the National Archives of the United States. Washington, D.C.: National Archive and Records Administration, 1995. See also Bureau of Alcohol, Tobacco, Firearms and Explosives; Drug courts; Drug testing; Drugs and law enforcement; Federal Bureau of Investigation; Homeland Security Department; Justice Department, U.S.; Law enforcement; Marshals Service, U.S.; Secret Service, U.S. 304
Drug testing
Drug testing Definition: Procedures involving standard sets of guidelines and technologies that are used to examine physical specimens—such as urine, blood, hair, perspiration, and saliva—to detect the presence of illegal psychoactive drugs, such as cocaine, heroin, and marijuana Criminal justice issues: Courts; probation and pretrial release; substance abuse; technology Significance: Drug testing is a tool that can be used at every stage of the criminal justice process; it is an especially useful aid in making decisions about the sentencing, supervision, placement, treatment, and release of offenders. Illegal drug use is common within offender populations, which include arrestees, detainees, probationers, prison inmates, and parolees. During sustained periods of drug use, offenders commit more crimes and commit them at higher rates and severity levels. This fact and the continued national emphasis on the enforcement of drug laws have increased the importance and role of drug testing in criminal justice practices. Drug-Testing Procedures and Accuracy Urinalysis is the oldest and most common type of drug-testing procedure. The two primary methods for detecting drugs in the urine are immunoassay and chromatography. Immunoassay tests use human antibodies to reveal the presence of certain substances in urine. Relatively inexpensive, these tests can be conducted in criminal justice agencies and do not require highly specialized laboratories. Drug-testing experts, known as toxicologists, recommend that positive immunoassay tests be followed by chromatography. The latter is a more costly procedure but is also more reliable and legally defensible test that separates drugs from the biological components of urine specimens. Urinalysis must be performed shortly after suspected use because such tests lose their effectiveness with delays between drug ingestion and drug testing. For example, amphetamines, cocaine, and heroin can be detected by urinalysis for only two or three days following their use. In addition, drug testing has greater deterrent effect on potential offenders when it is conducted frequently and randomly. Urine specimens can be analyzed by instruments in machines or manually, in noninstrument tests. The former methods use machines to sample, 305
Drug testing measure, and produce quantitative results on a numeric scale that specifies the detectable levels of ingested drugs. The latter methods use manual techniques in which specimens are collected by hand. Point-of-contact strips are dipped into the specimens and produce dichotomous results that are either positive or negative. The two possible types of drug-testing errors are false positives and false negatives. False positives occur when tests indicate the use of illegal drugs when none have been ingested. False negatives occur when tests fail to detect drugs that have been ingested. Ingestion of legal drugs, such as ibuprofen and other anti-inflammatory medicines, can lead to false positive findings. False negative results can occur when quantities of ingested drugs are too small to be detected by the tests or when the tests are not sensitive enough to detect the amounts of drugs typically ingested. Confirmation, or follow-up, tests can help avoid drug-testing errors. Newer drug-testing technologies are expected eventually to replace urinalysis as the predominant mode of drug testing for offenders. Among the new technologies are hair analysis, saliva testing, and sweat patches. Compared with urinalysis, newer drug-testing technologies are less invasive, easier to administer, and capable of detecting drug use for much longer periods of time after ingestion. Uses of Drug Testing Drug testing can improve assessment and case-management strategies for drug-using offenders and can be used at the pretrial and post-trial levels, that is, both before and after sentencing. At the pretrial stage, drug testing can be done while arrestees and detainees are awaiting bail, arraignment, or disposition of their cases. Defendants on pretrial release who use illegal drugs are more likely to continue committing crimes and miss their court dates. Hence, drug testing is often used to monitor defendants who participate in pretrial release programs that allow them to remain in their communities under court-ordered conditions of release. Participation in day reporting centers is an example of such a program, in which defendants receive services during the day and return to their residences in the evenings under a curfew restriction. Detection of illicit drug use can help courts determine defendants’ suitability for community supervision. The results can also be used to develop specific service plans for defendants in pretrial programs. Positive test results can hold defendants accountable to the courts when judges have imposed abstinence on them as a condition of their pretrial release. In these situations, the detection of illicit drugs often leads to such sanctions as pre306
Drug testing trial confinement or the imposition of more restrictive conditions of release. After offenders are sentenced to probation or prison or are released on parole, drug testing can be used to achieve different goals, depending on the offenders’ progress in the recovery process. As at the pretrial level, positive drug test results can yield confirmatory evidence that is part of a more comprehensive assessment of drug use. Moreover. the threat of continued testing can increase the honesty and candor of offenders’ self-reports of their illicit drug use. During their early stages of recovery, when offenders’ acceptance of their drug use problems is paramount, drug testing can produce objective evidence of illicit drug use and be another mechanism to confront the offenders’ resistance to treatment. During treatment and relapse prevention, testing can be a barometer of abstinence, encouraging offenders to remain drug free for increasing lengths of time. Drug testing often has been ordered as a condition of release for offenders in intensive probation supervision programs, a popular sentencing option for managing drug-using offenders in the community. Officers who administer intensive probation programs have smaller caseloads than those who manage offenders on standard probation supervision. They use drug testing to evaluate drug problems, monitor offender behavior, and deter continued drug use. The results of drug tests performed at the pretrial and probation stages can be used to make decisions about the placement of incoming prison inmates. For example, offenders who violate their probation and are sent to prison because of positive drug-test results might be housed in special drug treatment units or facilities. In these situations, drug-test results are used to develop drug treatment plans. As with all criminal justice clients, both drug testing and treatment must be mandated to be most effective. Numerous studies have shown that offenders in mandatory treatment programs remain in treatment longer— an essential component of successful recovery. Mandatory testing can exert more leverage over offenders by being a deterrent to continued drug use, but only if positive test results lead to swift, consistent, and meaningful sanctions. Limitations of Drug Testing The current technology of drug testing is limited in several respects. For example, it provides no specific information about the quantity of drugs ingested, the precise times of drug ingestion, the modes of ingestion, the degree of functional impairment experienced by drug users, or the severity of 307
Drug testing the users’ problems. Some offenders who test positive are only occasional or “recreational” drug users who experience few problems from use. Others who test positive may be addicted to drugs and experience intense cravings and an inability to function without the substances. As a general rule, offenders who test positive on multiple occasions are more likely to abuse or be dependent on drugs and should be further assessed. Little evidence suggests that drug testing by itself significantly reduces pretrial arrests or failure-to-appear rates. In addition, drug testing during pretrial release has questionable utility in predicting rearrests before sentencing. The use of drug testing as part of pretrial or post-trial supervision programs might actually increase the sizes of jail populations by giving defendants and offenders additional ways to violate the conditions of their release and to be returned to detention as a consequence. Drug testing is also a costly and sometimes unreliable method of detecting illicit drug use. Moreover, results can infringe on constitutional or due process rights when, for example, persons who test falsely positive for illicit drug use lose their freedom. Because of its limitations, drug testing should be used judiciously. Positive tests should lead to further assessments, increased contacts with case managers, and plans for treatment and other interventions that are designed to reduce drug use. For defendants on pretrial supervision, the lengths of time they spend on release may be too brief to produce lasting benefits from treatment. Therefore, participation in treatment readiness sessions may be a more appropriate option for drug-involved defendants. For probationers, positive test results must be linked to drug treatment services and interventions to reengage them in the recovery process. These same principles apply to parolees with drug-use problems. In short, drug testing and treatment together are more effective than drug testing alone in changing offenders’ drug-using and criminal behaviors. At all stages of the criminal justice system, professionals must recognize that addiction is a chronic brain disease, and relapses are to be expected in the recovery process. For this reason, one or two positive test results should rarely, if ever, be considered sufficiently serious violations of supervised release to justify termination of treatment or other services. Instead, positive drug-test results should be seen as valuable opportunities to identify and challenge the factors in individual offenders’ lives that precipitate relapses, and case workers should refocus the offenders on the elements of their treatment and other community resources that promote sobriety. Drug testing is a useful tool for managing drug-involved offenders at the pre- and postsentencing stages. At the pretrial stage, drug-test results pro308
Drug testing vide objective indicators of the need for further evaluation and placement in treatment readiness programs. At the postsentencing stage, drug-test results confirm the findings of more comprehensive assessments, help motivate offenders to continue their recovery, and identify episodes of relapse that can be exploited as opportunities to facilitate treatment. Arthur J. Lurigio Further Reading Belenko, S., I. Mara-Drita, and J. E. McElroy. “Drug Tests and the Prediction of Pretrial Misconduct: Findings and Policy Issues.” Crime and Delinquency 38 (1992): 557-582. Professional study of correlations between drug-test results and criminal behavior by defendants during pretrial release. Drug Treatment in the Criminal Justice System. Washington, D.C.: Office of National Drug Control Policy, 2001. Federal government report on drugtreatment programs through the criminal justice system. Goldkamp, J. S., M. R. Gottfredson, and D. Weiland. “Pretrial Drug Testing and Defendant Risk.” Journal of Criminal Law and Criminology 81 (1990): 585-652. Insightful study of the connections between drug-test results and pretrial release behavior. Lee, Gregory D. Global Drug Enforcement: Practical Investigative Techniques. Boca Raton, Fla.: CRC Press, 2004. Comprehensive presentation of investigative techniques used in drug investigations. Liska, Ken. Drugs and the Human Body, with Implications for Society. 7th ed. Upper Saddle River, N.J.: Prentice-Hall, 2004. Covers the social, medical, and psychotropic aspects of narcotic drugs. Includes bibliography, illustrations, and index. Mieczkowski, T., and K. Lersch. “Drug Testing in Criminal Justice.” National Institute of Justice Journal 3 (1997): 9-15. Brief but broad overview of the uses of drug testing in the criminal justice system. Wish, E. D., M. Toborg, and J. Bellassai. Identifying Drug Users and Monitoring Them During Conditional Release. Washington, D.C.: National Institute of Justice, 1988. Federal government report on the use of drug testing to monitor defendants in pretrial release. See also Drug courts; Drug Enforcement Administration; Drugs and law enforcement; Parole; Privacy rights; Probation, adult; Sobriety testing.
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Drugs and law enforcement
Drugs and law enforcement Criminal justice issues: Federal law; law-enforcement organization; substance abuse Significance: Drug abuse and drug enforcement are major concerns for law-enforcement agencies and the criminal justice system as a whole. Drug-enforcement activities account for a large portion of federal and state law-enforcement budgets, and drug offenders are a growing population in both state and federal prisons. At the turn of the twentieth century there was a growing concern on the part of many Americans regarding the use of so-called patent medicines, many of which contained opium. One of the most common of the numerous “cures” for various ailments was Laudanum, which was a mixture of opium and alcohol. At that time, drugs were considered a medical issue subject to control at the individual state level, and it was usually left to the determination of the medical community as to what constituted appropriate and inappropriate use. Drugs officially became a national law-enforcement issue in 1914 with the U.S. Congress’s passage of the Harrison Narcotic Drug Act. The Harrison Act made drugs and drug abuse federal law-enforcement concerns with the creation of the Narcotics Division within the U.S. Treasury Department. In 1930, Congress’s passage of the Porter Act created the federal Bureau of Narcotics under the direction of the Treasury Department; it became the predecessor to the modern Drug Enforcement Administration (DEA). Throughout the twentieth century, drug-enforcement efforts changed the focus from one drug of choice to another, and increased authority was granted to law enforcement in attempts to control the illicit importation and distribution of controlled substances. Some of the most significant legislative enforcement efforts include the Comprehensive Drug Abuse Prevention and Control Act of 1970 (also known as the Controlled Substances Act), the Omnibus Crime Control Act of 1984, the Violent Crime Control and Law Enforcement Acts of 1990 and 1994, and the Homeland Security Act of 2002. Each of these federal laws provided additional tools and authority for law enforcement to identify, apprehend, penalize, and incapacitate those involved in the trafficking and use of controlled substances.
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Drugs and law enforcement Types of Drugs In general, law-enforcement efforts in the United States focus primarily on five major categories of what are collectively known as “controlled substances”: stimulants, depressants, narcotics, hallucinogens, and cannabis. Cocaine and methamphetamines are the two primary controlled stimulants that require law-enforcement action. Depressants include barbiturates, rohypnol (“roofies”), methaqualone, and gamma hydroxy butyrate (GHB). Law-enforcement agencies are concerned with both natural and synthetic narcotics. Natural narcotics derive from the opium poppy and include heroin, morphine, and codeine. Synthetic narcotics, which are manufactured from chemicals in laboratories, include such substances as methadone, demerol, and oxyContin. Hallucinogens cover a wide range of naturally occurring substances such as peyote and psilocybin and synthetically produced substances such as lysergic acid diethylamide (LSD), phencyclidine (PCP), methylenedioxymethamphetamine (MDMA or Ecstasy), and ketamine. Finally, the cannabis category of drugs includes marijuana, hashish, and any other substance containing tetrahydrocannabinol (THC). Drug Schedules The federal Drug Enforcement Administration is charged with the responsibility of regulating the manufacture, distribution, and scheduling of controlled substances in the United States. Controlled substances are scheduled according to their potentials for abuse, propensities for user dependency, and levels of accepted medical use within the United States. Drugs are classified in five schedules. Schedule I controlled substances have no currently accepted medical uses within the United States. They also have high potentials for abuse and lack accepted safety for use even under medical supervision. Examples include heroin, LSD, GHB, marijuana, and MDMA. Schedule II substances also have a high potential for abuse, but they differ from Schedule I substances in that they have accepted medical uses in the United States. Despite the latter fact, abuse of these substances can lead to severe physiological or psychological dependence. Schedule II substances include cocaine, methamphetamines, methadone, PCP, and oxyContin. Schedule III substances have less potential for abuse than those on Schedules I and II and also have well-documented and accepted medical uses in the United States. They present low to moderate potentials for physical dependence but high potentials for psychological dependence. Drugs in this schedule include ketamine, codeine, many diet pills, and steroids. Schedules IV and V controlled substances have low potentials for abuse. 311
Drugs and law enforcement They are well known as useful in medical treatments in the United States and present limited potential for either physical or psychological dependence. Federal Drug Law Enforcement The Treasury Department was originally tasked with enforcement of the Harrison Narcotic Drug Act because this act was a taxation measure and fell under the same jurisdiction as other taxation matters. The Federal Bureau of Narcotics was established within the Treasury Department in 1930 to focus specifically on controlled substances and narcotics violations. In 1968, jurisdiction was transferred from the Department of Treasury to the Bureau of Narcotics and Dangerous Drugs within the U.S. Department of Justice. In 1973 the Drug Enforcement Administration was created and charged with primary responsibility for drug and narcotics enforcement within the United States. In 2004, the DEA employed approximately 3,300 agents and 400 intelligence specialists deployed throughout the United States and in fifty foreign countries. In 1982, the Federal Bureau of Investigation (FBI) was given concurrent jurisdiction with the DEA on drug enforcement-related investigations. Since then, the FBI has focused mainly on organized crime’s role in drug trafficking and has employed specific legislative enforcement tools in this effort. Continuing criminal enterprise (CCE) statutes and the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO) laws are two of the primary law-enforcement tools used by the FBI to combat organized crime’s role in drug trafficking. The FBI established the Organized Crime Drug Enforcement Task Force (OCDETF) in 1983 to detect and prosecute large criminal organizations that traffic in drugs. The OCDETF is a multiagency endeavor, with both state and federal participation, that boasts a highly successful record of apprehending and prosecuting large drug trafficking organizations and their associates. Along with law-enforcement efforts to identify, apprehend, and prosecute drug users and distributors at the federal and state levels, federal agencies also focus on the interdiction of drugs prior to their entry into the United States and during their transportation from point of entry to distribution locations. Interdiction efforts attempt to prevent the entry of drugs into the United States by concentrating efforts on the supply routes on land, air, and sea. The United States Coast Guard plays an active role in the identification and interception of drug smugglers on the oceans and in the coastal waters that surround the United States. The Coast Guard employs advanced intelligence systems and utilizes interdiction patrols on known smuggling routes 312
Drugs and law enforcement to profile “mother ships” that may be loaded with drugs being shipped from one of the many source countries. The Bureau of Immigration and Customs Enforcement (ICE) is responsible for securing the nation’s borders and transportation systems and is charged with the prevention of smuggling drugs, weapons, and instruments of terrorism across U.S. borders or through the numerous ports of entry either by air or from the sea. State and Local Drug Law Enforcement State and local drug law enforcement is similar to the federal system in organization. However, most state and local law-enforcement agencies are heavily dependent on federal funding to support their enforcement activities. Drug investigations can be both personnel and time intensive and are often beyond the capability of small local agencies; they can even place severe strains on some state law-enforcement budgets. Federally sponsored multijurisdictional task forces and the involvement of the federal agencies in major cases are frequently utilized techniques at the state and local levels of drug enforcement. A common method of effective drug investigations at both state and fed-
A petty officer looks through bales of more than forty thousand pounds of cocaine, worth about $500 million on the street, that the Coast Guard seized from a ship along the Pacific coast in early 2007. The bust was the largest sea-based seizure of cocaine ever made by a U.S. agency. (AP/Wide World Photos) 313
Drugs and law enforcement
Federal Drug Seizures, 1990-2003 3,300,000 3,000,000 2,700,000 2,400,000
(pounds)
2,100,000 1,800,000 1,500,000
total seizures by agents of the DEA, FBI, U.S. Customs, and U.S. Border Patrol
1,200,000 900,000 600,000
2003
2002
2001
2000
1999
1998
1997
1995
1990
300,000
Source: U.S. Drug Enforcement Administration.
eral levels is drug interdiction. In drug interdiction, law-enforcement agencies attempt to intercept and seize illegal drugs during their transportation from their source locations to their intended distribution sites. Federal efforts focus on intercepting drugs before they enter the United States, while state and local efforts focus on intercepting drugs before, or while, they enter the individual states and before they reach their points of distribution. Interdiction efforts at the state and local levels include highly visible efforts by uniformed officers on major interstates and major routes of travel between source cities and areas of distribution. Another effective interdiction strategy involves the interception of drugs that are being moved from source to distribution locations by means of public transportation, such as buses, railways, and public airlines. Special Operations A highly visible drug investigative effort that is viewed by the general population as an effective strategy is known as the fishnet operation. This type of 314
Drugs and law enforcement operation is a planned and coordinated labor-intensive effort targeting both buyers and sellers of drugs at the street level. This strategy is used most frequently in open-air drug markets that are commonly located in inner cities. Known drug-selling locations are subjected to intense surveillance in this type of operation. Individuals observed selling or purchasing drugs are contacted away from the sites of the sales and are arrested for possession or distribution of controlled substances. This technique is often enhanced by the use of undercover police officers making buys from targeted individuals. As may be expected, these operations receive strong support from local communities and serve as effective public relations strategies for lawenforcement agencies. Fishnet operations are effective in disrupting the flow of illegal drugs for short periods of time but have limited impact on long-term drug control or drug reduction strategies. The most highly publicized drug-enforcement investigative technique involves the use of undercover operatives to make purchases or to infiltrate drug trafficking organizations. There are two primary types of undercover operations employed at the state and local level. The first type involves the use of police officers in undercover roles; the second involves the use of informants to make undercover purchases or gather other evidence. Each type of undercover operation has specific benefits and limitations. When utilizing police officers in undercover roles, the primary concern throughout the operations is focused on the safety of the officers. These operations must be well planned and coordinated with adequate surveillance and “cover” units in place to ensure the safety of the undercover officers. The value of using undercover police officers, instead of informants, is the level of confidence that is obtained in the details of the drug purchases and in the evidence obtained. Basically, judges and juries trust police officers more readily than informants. The use of informants to make undercover purchases or obtain evidence for use in drug prosecution requires detailed efforts to “validate” the information obtained. Since many informants have less-than-credible pasts (some may even be currently involved in illegal activities), it is imperative that interviews and searches of the informants be conducted immediately before and after they make their drug purchases or collect their evidence. Consequently, a primary focus of undercover operations utilizing informants is on the credibility of the evidence the informants obtain. Informants must be kept under constant surveillance during and after their drug purchases to ensure that all collected evidence is recovered and that no evidence is “planted” or stolen by the informants. The primary benefit of using informants is that they can often infiltrate organizations or gain the trust of 315
Drugs and law enforcement individuals to which undercover law-enforcement officers would not have access. Another form of undercover operation used by larger agencies and at the federal and state levels is the “reverse sting.” In a reverse sting, the police are the individuals “selling” drugs. These operations are usually large in scale and target mid- and upper-level dealers who show a predisposition to drug trafficking activities. Reverse sting operations require detailed planning and coordination and can pose serious dangers to the officers involved. There have been reported instances of individual law-enforcement agencies setting up reverse sting operations whose intended drug buyers were from other law-enforcement agencies. Such situations can hold dramatic and unfortunate outcomes when each agency involved believes the other side to be the “bad guy.” Another issue of concern in the reverse sting is the defense of entrapment that is frequently presented at trial. It is important in this type of investigation to establish the predisposition of the targeted individual prior to the actual conduct of the operation. Summary In 2005, law enforcement had been officially fighting the “war on drugs” for three decades, and the battle was still raging on. Strategies have changed over the years, as has the focus on the different types of drugs being smuggled into, or produced within, the United States. Although drug trafficking efforts continually evolve to meet the changing demand for the drugs of choice, law enforcement has rallied to meet this evolution with newer and more effective enforcement strategies. Although many critics of the war on drugs believe that the war has already been lost, law-enforcement agencies at the federal, state, and local levels have neither surrendered nor retreated. Michael L. Arter Further Reading Gaines, Larry K., and Peter B. Kraska, eds. Drugs, Crime, and Justice. Prospect Heights, Ill.: Waveland Press, 2003. Broad collection of articles addressing drug control, the industry of drug distribution, and law-enforcement strategies. Goode, Erich. Drugs in American Society. Boston: McGraw-Hill, 2005. Very thorough review of drug use in America, the drug-crime connection, and law-enforcement efforts to control drug abuse and drug-related crimes. Gray, James P. Why Our Drug Laws Have Failed and What We Can Do About It. 316
Drunk driving Philadelphia: Temple University Press, 2001. Critique of the war on drugs from the personal perspective of a California trial judge. Lee, Gregory D. Global Drug Enforcement: Practical Investigative Techniques. Boca Raton, Fla.: CRC Press, 2004. Comprehensive presentation of investigative techniques used in drug investigations. Liska, Ken. Drugs and the Human Body, with Implications for Society. 7th ed. Upper Saddle River, N.J.: Prentice-Hall, 2004. Textbook that covers both physical and social aspects of drugs. Lyman, Michael D. Criminal Investigation: The Art and the Science. Upper Saddle River, N.J.: Prentice-Hall, 2002. Thorough description of drug abuse and the investigative techniques utilized by law enforcement. Manning, Peter K. The Narcs’ Game: Organizational and Informational Limits on Drug Law Enforcement. Prospect Heights, Ill.: Waveland Press, 2004. Wideranging review of drug control policies and the police role in drug enforcement. See also Coast Guard, U.S.; Drug courts; Drug Enforcement Administration; Drug testing; Entrapment; Federal Bureau of Investigation; Homeland Security Department; Organized crime; Victimless crimes.
Drunk driving Definition: Operating or controlling motor vehicles while under the influence of intoxicants Criminal justice issues: Substance abuse; traffic law Significance: Drunk drivers are involved in accidents that result in more than 600,000 injuries and 17,000 fatalities annually in the United States. The fact that nearly 1.4 million drivers are arrested for drunk driving every year indicates that the criminal justice system is committed to reducing the devastation caused by drunk driving. The term “drunk driver” is loosely applied to all persons who operate motor vehicles on public or private roads while under the influence of alcohol or any other drugs. Motor vehicles are defined by state vehicle codes as vehicles that are propelled by means other than human power. In the broadest sense, therefore, a person could be considered a drunk driver for riding a horse while under the influence of alcohol or any other drug. Some jurisdictions go further by defining drunk drivers to include bicycle and scooter riders and skateboarders. Additionally, operators of road-building equipment 317
Drunk driving have been charged and convicted of drunk driving. It is more generally accepted, however, that the term “drunk driver” applies to persons who drive motor vehicles upon highways while intoxicated. Every U.S. state has a legally defined presumptive limit for determining levels of driver intoxication. Forty-eight states have set 0.08 grams of alcohol per deciliter of blood as the maximum acceptable blood alcohol levels (BAL) for drivers. Delaware and Colorado have set the figure at 0.10. These standards mean that drivers whose blood alcohol levels exceed the acceptable state levels are presumed by the laws of those states to be “driving under the influence” (DUI) of alcohol. California holds drivers of trucks to a more stringent BAL standard of 0.04. Persons of average height and weight generally reach blood alcohol levels of 0.10 after consuming the equivalent of five ounces of alcohol during a one-hour period. Absorption rates vary with body mass and food consumption, but blood alcohol levels tend to drop at the rate of 0.02 per hour after consumption of alcohol stops. History of Drunk Driving Sanctions against drunk driving may be said to have originated during the mid-nineteenth century, when railroads began disciplining employees who operated their locomotives while intoxicated. However, similar sanctions would not be placed on operators of motor vehicles operated on highways until nearly fifty years later. East Coast states such as New York, Pennsylvania, and Massachusetts were the first to adopt drunk-driving laws shortly after the turn of the twentieth century. As motor vehicles became more common on the roadways, other states began following suit. However, most states still lacked basic vehicle codes for drivers. In a trend that moved gradually from the East Coast to the West Coast, states began developing motor vehicle codes. New York was the first, outlawing drunk driving in 1910. At that time, the offense was defined simply as operating a motor vehicle while intoxicated, and there was no set standard by which officers could gauge levels of intoxication. Drunk-driving arrests were thus made strictly at the discretion of the arresting officers. By the mid1930’s, all forty-eight states in the Union had laws on the books prohibiting drunk driving. Many of these laws were adopted in response to the new postProhibition drinking and driving culture. In 1939, Pennsylvania became the first state to implement laws that connected blood alcohol content of drivers to drunk-driving offenses. During those early years, driving while intoxicated was not considered to be a major social concern. Even after V-12 and other high-performance en318
Drunk driving gines began taking to the highways in the 1930’s, law-enforcement officials did not regard drunk driving as a major problem. That attitude changed after American servicemen and women returned following World War II. America’s love affair with the automobile and the wide-open spaces offered by a rapidly expanded network of interstate highways drew more traffic than ever before to the roadways. During the 1940’s and 1950’s, deaths from motor vehicle accidents increased significantly, and the automobile industry worked to improve vehicle safety. Drivers, for the most part, were ignored in assessments of motor vehicle safety. Public awareness of the hazards of driving while intoxicated finally began to develop as the findings of traffic safety studies were published. Federal traffic safety guidelines began to surface in the mid-1960’s as a result of these studies. Law enforcement responded to the problem but generally only passively. During the 1940’s and 1950’s, when police officers cited drunk drivers, they typically parked the drivers’ cars and either took the drivers home or called taxis for them. That practice was socially accepted as good enforcement policy. During the 1960’s, the numbers of arrests for drunk driving increased as federal highway funding became contingent upon state enforcement of DUI laws. Public attitudes toward drunk driving underwent a dramatic change after a young pedestrian was struck and killed by a drunk driver in a Sacramento, California, suburb in 1980. Thirteen-year-old Cari Lightner was hit by a car driven by a drunk driver who was a repeat offender. Cari’s mother, Candace (Candy) Lightner, started a grassroots campaign to increase public awareness of the social harm caused by drunk driving. The organization she founded, Mothers Against Drunk Driving (MADD), developed into a major national force for tougher drunk-driving laws and enforcement. Meanwhile, as public concern over drunk driving increased, so too did law-enforcement response. A new emphasis on arresting suspected drunk drivers replaced the old informal sanction of parking the drivers’ cars and assisting them to get home. The result of tougher enforcement of DUI laws was a notable reduction in alcohol-related traffic fatalities. In 1982, there were 26,173 alcohol-related traffic deaths in the United States. That number would decline over the next two decades. Prevalence of Drunk Driving It is difficult to estimate how many drivers operate motor vehicles while under the influence of alcohol or other drugs. One measure of the prevalence of drunk driving can be found in data on alcohol-related traffic fatalities. According to the National Highway Traffic Safety Administration 319
Drunk driving (NHTSA), 17,419 alcohol-related traffic fatalities occurred in the United States in 2002. That number represents nearly 41 percent of all traffic fatalities nationwide during that year. Between 1982 and 2002, every state in the Union saw a decrease in alcohol-related traffic fatalities. The only increase noted occurred in Washington, D.C. However, alcohol-related traffic fatalities are only one measure of the prevalence of drunk driving. In addition to fatalities, nearly 600,000 injuries occur as a result of alcohol-related accidents each year. Another measure of the prevalence of drunk driving can be found in arrest records. According to the National Hardcore Drunk Driver Project, there were approximately 186.6 million motor vehicle drivers in the United States in 2001. During that same year, approximately 1.4 million persons were arrested for drunk driving. (These figures do not include Wyoming, Ohio, Colorado, and Montana, whose arrest records are maintained at local jurisdictions and are not shared in a centralized database.) According to Bu-
Alcohol-Related Traffic Fatalities in the United States, 1982-2002 27,000 26,000 25,000 24,000
Fatalities
23,000 22,000 21,000 20,000 19,000 18,000
16,000
1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002
17,000
Source: National Center for Statistics and Analysis. Fatality Analysis Reporting System (NARS), 2002.
320
Drunk driving reau of Justice Statistics, approximately 513,000 people were in jails or on probation in 1997 for drunk-driving offenses. That figure compares with nearly 270,000 people in jails or on probation for such offenses in 1986. According to Bureau of Justice Statistics, typical DUI offenders are white, male, and older and better educated than other classes of criminal offenders. In 1983, female drivers represented only about 5 percent of all DUI arrests. That figure rose to nearly 7 percent of all DUI arrests in 1996. The increase may indicate that more women are driving while drunk or that law-enforcement officers (an increasing number of whom are themselves women) are becoming more willing to arrest female offenders than in the past. Even arrest figures do not complete the picture of the prevalence of drunk driving. Those numbers reflect only those offenders who are actually observed and apprehended. It is impossible to know the actual numbers of drunk-driving offenders because many—perhaps most—are not detected. Investigation Almost all drunk drivers enter the criminal justice system through arrests by law-enforcement officers. Some arrests result from police investigations of motor vehicle accidents, but most offenders are arrested in the course of their driving. Patrol officers from sheriffs’ departments, highway patrol agencies, and city police departments are now trained in detecting drunk drivers. There is no one thing that officers look for to detect drunk drivers. Although most offenders are arrested between the hours of 10:00 p.m. and 2:00 a.m., arrests are made at all hours of the day and night. Some lawenforcement agencies have special drunk-driver task forces that work during peak detection periods. Officers watch for cars that are traveling too slowly or too fast, aggressive driving behavior, and other traffic offenses. Many drunk drivers are detected simply because they allow their vehicles to drift from side to side in their traffic lanes. When officers suspect drivers to be under the influence of alcohol or drugs, traffic stops are initiated. If, after stopping the suspect drivers, the officers observe objective symptoms of alcohol or drug consumption, such as slurred speech or bloodshot and watery eyes, they ask the drivers to perform field sobriety tests (FSTs). Every department has policies on the administration of such tests, which may include balance tests, such as standing on one foot or walking in a straight line, and tests involving mental dexterity, such as counting on fingers or reciting the alphabet backward. When drivers fail to perform the tests satisfactorily or refuse to take them, arrests are made. 321
Drunk driving Prosecution After they are arrested, suspected drunk drivers are transported to facilities where chemical tests of their alcohol levels are made. When blood tests are made, they are usually administered at hospitals. Breath and urine tests are usually administered at local jail facilities. When breath tests are taken, the results can be assessed immediately. When test results indicate blood alcohol levels below the acceptable limits, the drivers may be released without undergoing prosecution. However, such decisions are at the sole discretion of the arresting officers and are made when the officers consider all relevant facts in the cases. For example, an officer who suspects that a driver has ingested drugs as well as alcohol may elect to pursue prosecution. The final decisions of whether to prosecute are made by local prosecutors’ offices. Drunk driving is categorized as a misdemeanor in all fifty states, but under some special circumstances it is treated as a felony. Although what constitutes special circumstances varies from jurisdiction to jurisdiction, drunk driving is always a felony when persons other than the drivers are injured as a result of accidents caused by drunk drivers. Felony charges are also pursued against repeat offenders. Punishment Specific laws vary among the states, but most states follow similar general guidelines in the punishments administered to convicted drunk drivers. In the case of first offenses, offenders are generally required to remain in jail a minimum of four hours—the approximate length of time they need to sober up. First-offense fines usually range from two hundred to one thousand dollars. Many jurisdictions allow first-time offenders to go to traffic school to have their arrests expunged from their driving records. Subsequent drunk-driving arrests result in stiffer sanctions. Second and third offenses generally result in fines of more than $1,000 and jail sentences of thirty to ninety days. Offenders who violate DUI laws more than three times are considered habitual and are given six- to nine-month jail sentences and assessed fines of around $2,500. In many jurisdictions, felony charges are brought against offenders with over four drunk-driving arrests. Average jail sentences for DUI offenders are eleven months, with half of all offenders serving at least six months. Those figures suggest that most DUI offenders who serve jail time are repeat offenders. In fact, the BJS also reports that one-third of DUI offenders on probation and nearly one-half of all incarcerated drunk-driving offenders admitted to prior arrests. In addition to fines and jail time, DUI offenders face scrutiny by state departments of motor vehicles. In all fifty states, driving is considered a privi322
Drunk driving lege, and motor vehicle departments reserve the right to suspend the driving privileges of drivers who are stopped for DUI and refuse to complete field sobriety tests. Such suspensions follow administrative hearings at which the drivers may have attorneys present. Driving privileges of drivers who accumulate excessive numbers of DUI arrests are also suspended. A new form of punishment that is gaining favor in America is the forced installation of ignition-locking devices that allow law-enforcement officials to shut down drivers’ vehicles under certain conditions set forth by the courts. Charles L. Johnson Further Reading Jacobs, J. B. Drunk Driving: An American Dilemma. Chicago: University of Chicago Press, 1992. Broad synthesis by a law professor on all aspects of drunk driving in the United States, from myths about the nature of the problem to the trend toward tougher enforcement of drunk-driving laws. Jasper, Margaret, et al. DWI, DUI and the Law. New York: Oceana, 2004. Layperson’s guide to drunk-driving laws in the United States. Covers criminal justice procedures, drunk-driving statistics, and other related subjects. Laurence, Michael D., John R. Snortum, and Franklin E. Zimring, eds. Social Control of the Drinking Driver. Chicago: University of Chicago Press, 1988. Sociological study of the causes and effects of drunk driving. Light, Roy. Criminalizing the Drink-Driver. Brookfield, Vt.: Ashgate, 1994. Study of changing laws regarding drunk driving. Robin, Gerald D. Waging the Battle Against Drunk Driving: Issues, Countermeasures and Effectiveness. Westport, Conn.: Greenwood Press, 1991. Fascinating study of the modern movement against drunk driving, with special attention to such grassroots movements as MADD. Taylor, Lawrence, and Steven Oberman. Drunk Driving Defense. 6th ed. New York: Aspen Publishers, 2006. How-to guidebook written by a lawyer to help people beat drunk-driving charges. While the ethics of publishing such a book may be questionable, the book provides revealing insights into the problems of prosecuting drunk-driving offenses. Watson, Ronald R., ed. Alcohol, Cocaine, and Accidents. Clifton, N.J.: Humana Press, 1995. Collection of ten research papers on the roles of alcohol and cocaine in motor vehicle, aviation, and aquatic accidents that are addressed to policymakers and people in law enforcement. Particular attention is given to the behavior of young people. Wilson, R. Jean, and Robert E. Mann, eds. Drinking and Driving: Advances in 323
Electronic surveillance Research and Prevention. New York: Guilford Press, 1990. Interdisciplinary collection of articles on a wide variety of aspects of drunk driving. The first section covers efforts to understand impaired drivers; the second section examines efforts to deter drunk driving; and the third section examines other preventive measures. See also Disorderly conduct; Fines; Hit-and-run accidents; Sobriety testing; Traffic courts; Traffic fines; Traffic law; Traffic schools.
Electronic surveillance Definition: Investigative technique used to monitor telephone conversations, electronic mail, pagers, wireless phones, computers, and other electronic devices Criminal justice issues: Investigation; privacy; technology Significance: Electronic surveillance significantly increases the ability of law-enforcement officers to conduct investigations of nontraditional or difficult-to-observe criminal targets. Electronic surveillance is a tool utilized by law-enforcement agencies in the course of ongoing criminal investigations. Federal agencies have traditionally had broad legal powers to monitor telephone conversations, electronic mail, pagers, wireless phones, computers, and all other electronic devices. These powers were increased significantly after passage of the USA Patriot Act in 2001. Popularly referred to as “tapping” in general discourse, electronic surveillance is governed by two statutes: the Federal Wiretap Act and the Foreign Intelligence Surveillance Act (FISA). The former, sometimes referred to as Title III, was initially passed in 1968 and expanded in 1986. It set procedures for court authorization of real-time surveillance in criminal investigations of all electronic communications, including voice, electronic mail, fax, and Internet. Typically, before wiretaps can commence, court orders issued by judges must be obtained by the agencies requesting the surveillance. The government is responsible for providing the judges with affidavits detailing probable cause that crimes have been, are being, or are about to be committed. Wiretaps may be ordered for several activities, including but not limited to drug trafficking, child pornography, and terrorist activities. The Patriot Act expanded the list of criminal statutes for which wiretaps can be ordered. 324
Electronic surveillance Wiretaps are used to prevent, as well as punish crimes, as the government can set up wiretaps in advance of crimes being executed. In such instances, the wiretaps are used to identify planning and conspiratorial activities related to criminal acts. Government requests for wiretaps are rarely denied. The Foreign Intelligence Surveillance Act of 1978 allows wiretapping of aliens and citizens in the United States. Again, probable cause must be provided suggesting that the targets of surveillance are members of foreign terrorist groups or are agents of foreign powers. For American citizens and aliens who are permanent residents of the United States, there must also be probable cause to believe that the persons targeted are engaged in activities that may involve criminal violations. Suspicion of possible illegal activity is not required, however, in cases involving aliens who are not permanent residents of the United States. For such persons, membership in terrorist organizations is enough to justify surveillance, even if the activities in which they engage on behalf of their organizations are legal. The Patriot Act and Electronic Surveillance A major change introduced by the Patriot Act was to allow prosecutors to use FISA for the purpose of gathering evidence in criminal investigations of national security crimes. There are also no legislative limits on electronic observation conducted overseas, as neither Title III nor FISA has any application to intelligence collection activities outside the United States. The most common form of electronic surveillance used in the United States is the pen register and trap-and-trace technology. Pen registers record and decode all numbers dialed by electronic devices such as telephones, while trap-and-traces capture the originating sources of incoming calls. Together, these are commonly referred to in law-enforcement jargon as dialed number recorders, or DNR. Standards governing the use of these devices are derived from the 1986 Electronic Communications Privacy Act. The Patriot Act has also expanded permissible uses of traditional pen register and trap-and-trace devices so that they may be used to monitor not only telephonic communications but also Internet communications. Another form of electronic surveillance is the “roving tap.” Court orders permitting roving taps do not require specific telephone lines or electronic mail accounts to be named; they allow the tapping of any phone line, cell phone, or Internet account that the targeted suspects use. Unlike the traditional trap-and-trace and pen register, which numbers thousands of uses each year, roving taps are relatively rare with only six such taps approved during all of 2003. Holly E. Ventura 325
Embezzlement Further Reading Adams, James A., and Daniel D. Blinka. Electronic Surveillance: Commentaries and Statutes. Notre Dame, Ind.: National Institute for Trial Advocacy, 2003. McGrath, J. E. Loving Big Brother: Performance, Privacy and Surveillance Space. New York: Routledge, 2004. Monmonier, M. S. Spying with Maps: Surveillance Technologies and the Future of Privacy. Chicago: University of Chicago Press, 2002. Owen, David. Hidden Secrets: A Complete History of Espionage and the Technology Used to Support It. New York: Firefly Books, 2002. Stevens, Gina Marie, and Charles Doyle. Privacy: Wiretapping and Electronic Eavesdropping. Huntington, N.Y.: Nova Science, 2002. See also Community-based corrections; Computer crime; Espionage; House arrest; Organized crime; Privacy rights; Search and seizure; Shoplifting; Stakeouts; Telephone fraud; Wiretaps.
Embezzlement Definition: Theft or larceny of another’s assets by a person who holds a position of trust Criminal justice issues: Business and financial crime; fraud; robbery, theft, and burglary; white-collar crime Significance: Embezzlement is a widespread crime that involves significant financial loss. Embezzlement was first recognized as a distinct crime to include misdeeds by servants and clerks in England in 1799. Common law had failed to cover instances in which property or financial assets were entrusted to the care of another person or employee by the owner and then stolen or misappropriated. Earlier larceny laws required that the property be removed from another’s possession, which necessitated that the offender take direct possession and walk off with the purloined article. Statutes also were passed in the United States that defined embezzlement as a felony delineated from theft based on the violation of trust that accompanies the conversion of the property. An office worker, for example, stealing supplies to keep and use at home is committing larceny, whereas a bookkeeper in the same office who siphons money from accounts receivable is committing embezzlement. Embezzlement as a traditional white-collar crime is less clearly defined 326
Embezzlement because in many cases the offender may lack a prestigious position and actually holds a lower-level job. The key element in embezzlement that categorizes the act as a white-collar crime is the violation of trust. Collective embezzlement, unlike other schemes, clearly represents a type of white-collar crime that emerged in the savings and loan scandal of the 1980’s and refers to the embezzlement of funds, often with management involvement, from a financial institution for personal gain. Motivations and Offender Characteristics Early attributes and stereotypes for why men committed the crime of embezzlement included the three “W’s”—wine, women, and wagering—or the three “R’s”—rum, redheads, and racehorses. The motivations of embezzlers, however, have come under intense scrutiny, as scholars, legal professionals, and victims attempt to understand why long-term, trusted, often well-paid employees risk their positions for financial gain. Research shows that gambling, extravagant lifestyles, drug addictions, and personal problems often provide the impetus for embezzlement. Donald Cressey’s 1953 study stands out as one of the most respected and cited research efforts on the actions and motives of embezzlers. Cressey interviewed 502 prison inmates who were identified as violators of trust; Cressey identified a specific process that occurs among embezzlers. First, employees are faced with financial problems that they cannot share with family or friends. Second, opportunities present themselves for solving the problems undetected. Third, the embezzlers rationalize their acts as “borrowing” to avoid internalizing a criminal identity. Embezzlement schemes may be seen initially by the employees as borrowing money that they have every intention of repaying. Some embezzlers rationalize their behavior by claiming that their employers owe them money, or they may be disgruntled and seeking revenge against perceived unfairness in the workplace. Lifestyle improvements for most embezzlers create a downward spiral as they continue to steal, and any type of financial recovery or repayment becomes impossible. No business is immune from embezzlement, including small private organizations, major corporations, banks, and charity and nonprofit enterprises. Schemes for carrying out the crime vary tremendously, including, for example, pocketing cash, padding expense accounts, juggling billing, falsifying inventory, or manipulating payroll. The involvement of women in the crime is significant. Statistics show a dramatic increase in the number of women convicted of felonies involving fraud. In 1996, Bureau of Justice Statistics found that women represented 41 percent of all felons convicted of forgery, fraud, and embezzlement. Major 327
Embezzlement studies of women embezzlers suggest that women steal less money and have unique motives compared with men. The justifications used by women embezzlers tend to emphasize less greed, and the crime is more likely committed to meet the needs of family members. In one unusual case, a woman who had embezzled thirty thousand dollars used the ill-gotten gains to give fellow employees raises. The involvement of a high number of women may be related to the shift of family and career responsibilities as more women become sole providers for their children and acquire higher-level positions in the corporate world. In 2004, however, the majority of women embezzlers were likely to hold clerical positions. Prevalence Embezzlement is the fastest-growing crime in the United States and, according to Federal Bureau of Investigation (FBI) reports, showed an increase of 38 percent from 1984 to 1993. Embezzlement is listed as a Type II nonindex offense in the FBI’s Uniform Crime Reports. Consequently, only arrests reported by state and local police departments are counted, and the incident rate includes a variety of trust violators. Losses from embezzlement range from conservative estimates of $4 billion to extreme projections of $400 billion. Less arguable particulars of the crime are that profits are large and risks of apprehension are low. Commentators have compared the average take of a bank robbery of about $3,000, whereas an embezzler averages around $40,000. The National White Collar Crime Center estimates that employee thefts range from $20 billion to $90 billion annually and may account for 30 to 50 percent of all business failures. New technologies offer easier manipulation and have contributed to an increase in embezzlement. The noted 56 percent increase in arrests from 1983 to 1992 is attributed mainly to the use of computers. The average embezzlement is estimated at $25,000, compared to computer-assisted acts at $430,000. Investigation Embezzlement is difficult to detect, and, when successfully prosecuted, the punishment is generally more lenient than that for street-level offenses. Detecting and investigating embezzlement presents a difficult task for employers and law-enforcement agencies. Generally, the suspected employee is trusted and has a long, impeccable history with the company. Additionally, initial suspicions usually are based on circumstantial evidence that may or may not point directly to any one employee. The crime is more likely to be discovered during the later stages, as small amounts of stolen money accumulate into sizable sums. Company executives and business owners, who are 328
Embezzlement often embarrassed by the loss of funds, are reluctant to report the theft to the authorities, and the situation is handled internally. Undetected and unreported incidents contribute to estimates that less than 50 percent of the employees who embezzle are arrested and prosecuted. Initially, companies turn to an internal investigation and may employ legal counsel, forensic accountants, computer data specialists, and auditors. Publicly held companies are under greater scrutiny because executive officers must comply with securities law and fiduciary obligations. The expertise needed to gather evidence varies according to the size and complexity of the crime. Bank embezzlement schemes, which are difficult to unravel, for example, may be committed by nearly two hundred different methods. Investigators rarely are able to find a clear paper trail because records are incomplete, missing, altered, or destroyed. The first step in any investigation is to identify the person with means and opportunity. Employers may use polygraph tests and credit checks, though internal investigators are limited by the Employee Polygraph Protection Act (1988) and the Fair Credit Reporting Act (2003). Unwarranted or unproven accusations of embezzlement can result in defamation claims by the targeted employee. Prosecution and Punishment Civil actions against embezzlers represent an alternative to criminal prosecution and allow businesses to recoup losses. The expensive costs of litigation and limited assets of the wrongdoers, however, are prohibitive. Criminal proceedings are being pursued in a rising number of cases as attitudes toward financial crime become more punitive. Prosecution is a challenge, and many elements of the cases (motive, means, and opportunity) are difficult to prove. Motives are varied and may include nonfinancial reasons. Prosecutors must prove that the defendants fraudulently appropriated money or property that was entrusted to their care for their own benefit. Convicted embezzlers generally face short prison sentences. Often, restitution is part of the sentencing, but the amounts pale in comparison to what was stolen. After submitting phony expense reports and bills from an imaginary contractor, General Telephone and Electronics (GTE) managers were convicted of embezzling $1.3 million. The executives involved were sentenced to forty-one months in a federal prison and ordered to pay restitution of $355,685. An Ohio executive for the American Cancer Society was found guilty of stealing more than $7 million and was sentenced to thirteenand-a-half years and $593,000 in restitution. Mary Dodge 329
Entrapment Further Reading Cressey, Donald. Other People’s Money: A Study in the Social Psychology of Embezzlement. Glencoe, Ill.: The Free Press, 1953. Seminal research study examining the means, motives, and stories of male embezzlers. Rosoff, Stephen M., Henry N. Pontell, and Robert H. Tillman. Profit Without Honor: White-Collar Crime and the Looting of America. 4th ed. Upper Saddle River, N.J.: Pearson/Prentice Hall, 2007. Comprehensive study of whitecollar crimes that includes extensive case study examples. Shichor, David, Larry Gaines, and Richard Ball, eds. Readings in White-Collar Crime. Prospect Heights, Ill.: Waveland Press, 2002. Collected articles that examine a wide range of white-collar crimes, including embezzlement. Sifakis, Carl. Frauds, Deceptions, and Swindles. New York: Checkmark Books, 2001. Recounts a variety of scams, swindlers, and tales of deception. Zietz, Dorothy. Women Who Embezzle or Defraud. New York: Praeger, 1981. Dovetails the work of Cressey with an in-depth examination of female perpetrators. See also Blackmail and extortion; Computer crime; Criminal law; Cybercrime; Felonies; Forgery; Fraud; Money laundering; Private detectives; Theft; White-collar crime.
Entrapment Definition: Legal concept that may be used as a criminal defense by defendants who believe that the government not only has created opportunities for them to commit crimes but also has actually gone so far as to encourage them to do so Criminal justice issues: Defendants; police powers Significance: The defense of entrapment has been created and upheld by court decisions. Although entrapment is not specifically named in the U.S. Constitution, there are constitutional principles that underlie it. Due process implies fairness and notification. Entrapment is viewed as setting up a defendant to become a criminal. To ensure that the government does not abuse its power to arrest and charge citizens with crimes, it is forbidden from implanting or manufacturing crime in innocent minds. If the police do not have evidence of illegal activity, they may not get it by setting up an outrageous set of circumstances that would encourage law-abiding citizens to break the law. 330
Entrapment An example of a successful use of the entrapment defense can be found in the U.S. Supreme Court case of Sherman v. United States (1956). In this case, the defendant was suspected of dealing in heroin. However, the police had no evidence to support their suspicions. To obtain the evidence to make an arrest, they used an informant, who asked Sherman to help him find some narcotics. Both Sherman and the informant were being treated for narcotics addiction. After being ignored on several occasions and persisting in his requests, the informant finally convinced Sherman to obtain narcotics for him. Sherman was arrested. The Supreme Court found that these tactics constituted entrapment and that the police had gone too far in their efforts to enforce the law. In its decision, the Court stated that “the function of law enforcement is the prevention of crime and apprehension of criminals. Manifestly, that function does not include the manufacturing of crime.” Another notable case, Jacobson v. United States (1992), dealt with the purchasing of child pornography through the mail (a federal offense). While it was still legal to do so, Jacobson ordered magazines showing nude teenage boys. The law changed, making it illegal to receive such materials. When Jacobson’s name was found on a mailing list from his previous order, lawenforcement agents encouraged him to purchase child pornography by repeatedly sending ads and solicitations to him. After more than two years of refusing the offers, he finally agreed to order a magazine and was arrested. In this case, the Court found that the defendant was not predisposed to committing the crime but had been lured by agents of the government to do something he would not ordinarily have done. Victims of sting operations, including government officials who feel they have been set up by the police, often raise the defense of entrapment. Since the line between creating an opportunity for a crime to occur and actually inducing an innocent party to commit a crime is often blurry, the use of video cameras in enforcement has helped the courts decide if entrapment has occurred. C. Randall Eastep Further Reading Holmes, Bill. Entrapment: The BATF in Action. El Dorado, Ark.: Desert Publications, 1998. Lassiter, G. Daniel, ed. Interrogations, Confessions, and Entrapment. New York: Kluwer Academic/Plenum, 2004. Marcus, Paul. The Entrapment Defense. 2 vols. Newark, N.J.: LexisNexis, 2002. Mirfield, Timothy. Silence, Confessions, and Improperly Obtained Evidence. Oxford, England: Clarendon Press, 1997. 331
Environmental crimes Rhode, Deborah L., and David Luban. Legal Ethics. 4th ed. New York: Foundation Press, 2004. Rotunda, Ronald D. Legal Ethics in a Nutshell. 3d ed. St. Paul, Minn.: Thomson/West, 2007. See also Bureau of Alcohol, Tobacco, Firearms and Explosives; Conspiracy; Criminal law; Defenses to crime; Drugs and law enforcement; Police; Solicitation to commit a crime; Sting operations.
Environmental crimes Definition: Violations of environmental laws, such as the dumping and discharging of pollutants into the atmosphere and water and the illegal production, handling, use, and disposal of toxic substances and hazardous wastes Criminal justice issues: Business and financial crime; federal law; technology Significance: Modern industrialization, technological advances, overdevelopment, and illegal business activities have contributed to environmental degradation, making enforcement of environmental laws increasingly important to the protection of public health and the preservation of natural resources. In response to modern threats to the natural environment and public health, the U.S. Congress has enacted numerous environmental laws to protect the public health and natural resources. The federal Environmental Protection Agency (EPA), the Federal Bureau of Investigation (FBI), the U.S. Department of Justice Environmental Crimes Section, and state governments enforce these laws. Since 2003, the amounts of fines that are levied and the lengths of prison sentences awarded under the U.S. Sentencing Guidelines for environmental crimes have increased. Air and Water Quality The federal Clean Air Act (CAA) of 1970 and its amendments have two major components: the establishment and enforcement of air-quality standards and the regulation of mobile source emissions. The EPA is responsible for determining which adverse pollutants should be controlled and establishing national ambient air-quality standards to be attained within the hun332
Environmental crimes dreds of air-quality regions in the United States. Each state has responsibility for adopting a state implementation plan, establishing regulations, and enforcing its plan. The CAA requires operating permits for sources of air pollution and places limits on their emissions. The mobile source emissions portion of the CAA requires motor vehicle manufacturers to comply with EPA emission standards. In addition, the EPA requires the fuel industry to reformulate fuel products to reduce air-polluting emissions. Criminal violations under the CAA include failure to obtain or comply with operating permits. Both acts are considered felonies that may subject violators to fines or imprisonment. Civil penalties, injunctive relief, and remedies for criminal negligence are also available under the CAA. Citizens may file actions against violators and are encouraged to report violations to appropriate officials. The most significant water-quality laws include the Clean Water Act (CWA) of 1977 and its amendments, which protect surface waters from pollution, and the Safe Drinking Water Act (SDWA) of 1974, which is designed to ensure safe domestic drinking water through the protection of groundwater. The CWA regulates discharges into surface waters through a permitting process that protects chemical, biological, and physical water quality; fisheries and habitats; and recreational uses of water. Most violations of water-quality laws are failures to obtain discharge permits or violations of such permits. Violators may be subject to civil and criminal penalties including fines, injunctive relief, and imprisonment for criminal negligence and willful violations. An enforcement order may also include recovery of any economic benefit gained through noncompliance.
Toxic Substances The EPA has authority to prohibit or permit development, distribution, and use of substances that may be harmful to humans and wildlife. The Toxic Substances Control Act (TSCA) of 1976 requires companies to provide scientific data and file premanufacturing notices with the EPA before producing toxic substances, while the federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) of 1948 and its amendments require companies to register with the EPA and properly label pesticide products that are used in the United States. Most violations of these laws are falsified records or failures to report to the EPA. In addition to the original registrant, violators might include wholesalers, distributors, retailers, and users of illegal substances. The laws 333
Environmental crimes provide for civil penalties and criminal fines and imprisonment for knowing violations. The EPA may also stop sales of illegal substances and seize them. Resource Protection The Resource Conservation and Recovery Act (RCRA) of 1976 regulates disposal, transportation, storage, and treatment of wastes, including trash and hazardous wastes such as paint products. Regulation of hazardous wastes continues through initial generation to final disposal—a cradle-tograve manifest tracking and management system in which any person coming in contact with the waste can be held liable for illegal handling, even without knowledge of a violation. Any treatment, disposal, or storage facility must also obtain a license to operate. Most RCRA violations involve illegal dumping or operating without, or in violation of, permits. Civil and criminal penalties such as enforcement orders might provide for injunctive relief to stop improper activity. Criminal penalties for knowingly violating RCRA include daily fines, imprisonment,
An Environmental Protection Agency contractor begins dismantling a building at the Cornell-Dubilier Electronics Superfund site in South Plainfield, New Jersey, in early 2007. The site ranked as one of the worst toxic waste sites in the United States. (AP/ Wide World Photos) 334
Environmental crimes or both, and fines and prison terms are increased when there is the potential for immediate death or serious bodily injury to people. Cleanup The purpose of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 is prevention and remediation of hazardous waste sites that might threaten serious harm to human health and the environment. Also known as the “Superfund Law,” the act requires the EPA to establish a national priority list (NPL) of the most dangerous sites. The EPA then develops plans for remediation and assigns liability to potentially responsible parties (PRPs). The PRPs may include present and past owners of contaminated sites, even if they are not responsible for, and have no knowledge of, the disposal of illegal hazardous wastes. All PRPs are subject to monetary penalties under CERCLA in order to replenish the Superfund and are likely to enter into consent decrees with the government to apportion damages and limit liability. Employees who commit environmental crimes subject their companies to liability, and many lawsuits brought under CERCLA encompass multiple PRPs and environmental crimes. Citizens also have the right to file suits under CERCLA and may sue the government and PRPs for environmental violations. The EPA has declared the second full week in April of each year as the National Crime Prevention Week. All citizens, and especially students, are encouraged to take active roles in discovering and reporting environmental crimes to appropriate agencies during that week. Carol A. Rolf Further Reading Burns, Ronald G., and Michael J. Lynch. Environmental Crime: A Sourcebook. New York: LFB Scholarly Pub., 2004. General reference work on environmental crime investigation techniques. Grosz, Terry. Defending Our Wildlife Heritage: The Life and Times of a Special Agent. Boulder, Colo.: Johnson Books, 2001. Memoir of a person who spent his career as a special agent responsible for enforcing federal wildlife protection laws. Hersh, Heather B. Environmental Crimes and Corporate Responsibility: A Legal Research Guide. Buffalo, N.Y.: William Hein, 2001. Manual for legal professionals on environmental crime research methodologies. Nolan, Andrea J. Understanding Garbage and Our Environment. New York: Terrific Science Press, 2004. Reader-friendly exploration of issues surrounding hazardous waste disposal. 335
Espionage Situ, Yingyi, and David Emmons. Environmental Crime: The Criminal Justice System’s Role in Protecting the Environment. Thousand Oaks, Calif.: Sage Publications, 2001. Guide to the enforcement and prosecution of environmental crimes. See also Crime; Criminals; Federal Bureau of Investigation; Felonies; Fines; Reckless endangerment; Regulatory crime; White-collar crime.
Espionage Definition: Attempting to secure secret information from a country or a company, using illegal or covert means Criminal justice issues: Computer crime; espionage and sedition; technology Significance: Protecting data about the military and technological capabilities of the United States and discovering the intentions and capabilities of enemies are vital to defending the national security of the country. Espionage, counterespionage, and secret political intervention overseas are distinct operations. One actively seeks to procure secret information, the second guards against procurement of secrets by enemies, and the third, comprising clandestine operations such as assassinations and sabotage, is actually a political-military intrusion. The three are often confused with one another, a tendency encouraged by the fact that organizations such as the Central Intelligence Agency (CIA) may be concerned with all three, seeking data in foreign countries, carrying out paramilitary operations overseas, and trying to prevent attacks on the United States. Espionage conducted by the CIA and other American government agencies against foreign powers is not a crime in the United States. Spying, sabotage, and terrorist attacks directed against the United States or its citizens are punishable crimes that the Federal Bureau of Investigation (FBI) seeks to discover and prevent as part of its national policing activity. History of the Crime Espionage has a lengthy genealogy. The Bible (Numbers 13) records that Moses sent agents to spy on the land of Canaan. The ancient Greeks and Romans devised ciphers to protect their communications from hostile eyes. George Washington, as commander of the American army during the Revolutionary War, employed numerous spies to keep him informed of British 336
Espionage actions. The capture of British major John André, by alert American militiamen, with the plan of West Point in his boot and the subsequent flight of General Benedict Arnold have passed into legend, with Arnold’s name becoming a synonym for traitor. Modern American espionage and counterespionage techniques and institutions came of age during and shortly after World War II. President Franklin D. Roosevelt used a variety of secret organizations, some of which reported directly to him. William J. Donovan, a personal representative of Roosevelt, went to England in 1940 to study British antisabotage techniques and evaluate the probabilities of that country’s surviving German air attacks. Donovan went on to head the Office of Strategic Services (OSS), which carried out espionage and sabotage missions inside occupied Europe and Germany. The OSS served as model when the CIA was created in 1947. The FBI identified several German spy networks in 1941, aided by an American citizen born in Germany who had been recruited by German military intelligence against his will. The FBI arrested and convicted thirty-three operatives, effectively shutting down most German covert activity in the United States. Two separate attempts to land German saboteurs from submarines in 1942 and 1945 ended with the swift capture of ten agents, the conviction of all, and the execution of eight. The FBI was less successful in detecting atomic espionage for the Soviet Union carried out by members and sympathizers of the American Communist Party, even though the FBI was convinced the party was controlled by Moscow and had planted informants within it. The greatest intelligence successes of the World War II were those of U.S. cryptanalysts who deciphered Japanese diplomatic and naval codes; their example would inspire the creation of the even more technologically adept National Security Agency in 1952. Espionage in Fiction The spy story has become a recognized literary genre. It is both popular with readers and attractive to Hollywood, which regularly creates films based on successful novels. The characters rarely resemble real-life spies. The protagonist of one of the earliest spy novels, John Buchan’s The Thirty-nine Steps (1915, adapted to the screen by Alfred Hitchcock in 1935), is an amateur who stumbles upon a scheme to provoke a European war, which he successfully prevents. Other extremely popular spy stories are often unrealistic, catering to readers’ fantasies. Jack Ryan single-handedly foils a terrorist attack on a member of the British royal family and ends up as a guest in Buckingham 337
Espionage Palace in Tom Clancy’s Patriot Games (1987). Interestingly, Clancy’s Debt of Honor (1994) eerily prefigured the September 11, 2001, terrorist attacks on the World Trade Center, with its climactic description of a jumbo jet crashing into the United States Capitol. In films based on Ian Fleming’s James Bond novels, the spectacular special effects became more and more fantastic as the series progressed. In contrast, novelist John le Carré effectively employed verisimilitude to express his disdain and disgust with Cold War espionage practices. Espionage in the Twentieth Century During World War II, Soviet spies within the United States were motivated by ideology, many being Communist Party members. Disillusionment with communism as an economic system and revelations of the excesses of Stalinism ended the ideological inspiration. Spies caught during the Cold War working for the Soviet Union were primarily motivated by cash, not idealism. The Walker family spy ring operated for sixteen years, receiving money from the Soviet Union without showing any interest in ideology. John Walker, Jr., a U.S. Navy officer, began selling the Soviet Union cipher keys used by the Navy in 1968, as well as descriptions of cryptographic machines, enabling the Russians to decipher American messages using their own versions of the machines. When he retired from the Navy in 1976, Walker recruited his son, his older brother, and Walker’s best friend to steal data on secret American electronic systems, which they did until the spy ring’s members were arrested in 1985. From 1985 to 1994, Aldrich Ames, a senior CIA officer, received more than $4 million from the Soviets for his services. He told the Russians of every active United States espionage and counterespionage operation involving the Soviet Union; the disclosures allowed the Russians to execute at least ten spies working for the United States. He revealed the names of American intelligence officers studying the Soviet Union and described techniques used by the CIA and FBI. By telling the Russians the areas on which the United States particularly wanted data, Ames enabled them to offer false information that the CIA welcomed and presented to the president as fact. Robert Hanssen, an FBI agent who sold the Russians six thousand pages of secret FBI documents, claimed that he acted as a spy because of the psychological pleasure he felt in fooling his coworkers. However, he did not reject the $1.4 million he was offered for his services from 1985 until he was finally apprehended in 2001. 338
Espionage Twenty-first Century Cases The continued employment of Hanssen by the Russian successor organization to the Soviet spy agency testified to the reality that espionage against the American government did not cease with the demise of the Soviet Union and the end of the Cold War. Interest in acquiring military secrets and in penetrating the FBI and CIA continues. However, technological and economic espionage was of increasing importance in the last decades of the twentieth century and the beginning of the twenty-first. Different countries used varying techniques in acquiring information. China focused on ethnic Chinese working for American companies and research institutes, appealing to pride in the resurgence of China to motivate the delivery of documents and data. Japan did not appear to have a government organization coordinating its economic espionage, but each company worked on its own to secure valuable information and patents from its competitors. France preferred using Cold War techniques, including bribery, wiretapping, thefts, and combing through trash. In May, 1991, employees of the French consul in Houston, Texas, were caught stealing garbage bags from behind the house of a technology industry executive. Russia still seemed most interested in military technology, but France, Israel, and Germany spread their efforts much wider. The International Business Machines (IBM) company and Texas Instruments complained of attempts by foreign governments to steal their technology for the benefit of competitors. Corning found its fiber optics proprietary information under attack by France. Foreign governments were not the only culprits. Domestic corporations employed espionage techniques against one another in the search for competitive advantage. A major scandal rocked the aerospace industry in July, 2003, when the U.S. Air Force discovered that Boeing Corporation had stolen thousands of documents from Lockheed Martin when the two companies competed for a rocket-launch contract. Corporate espionage cases rarely involve criminal proceedings. Many instances never become public knowledge; companies involved often prefer to suffer losses rather than admit to security failures that might adversely affect their reputations and stock prices. If diplomats are implicated, the normal procedure is simply to declare the offenders unwelcome and expel them. The Boeing-Lockheed affair was unique in that two accused employees were actually indicted under the 1996 Economic Espionage Act and faced trial for theft of trade secrets. The Air Force punished Boeing by withdrawing contracts worth $1 billion and awarding them to Lockheed. However, Boeing’s disgrace did not keep it from winning an even more valuable bid to build air tankers. 339
Espionage Counterespionage within the United States is formally part of the internal police work of the FBI, with the CIA responsible for overseas activity. Detection of espionage is difficult. Investigations can run for years without uncovering definitive answers, and success can hinge on accidental discovery of long-running penetrations of American security. Prosecution of spies sometimes becomes impossible, as the display of convincing evidence in open court conflicts with the need to avoid revealing sensitive information. Electronic counterespionage has become increasingly useful in the struggle against terrorism. Investigation The successful Soviet penetration of American atomic bomb research was not discovered until after the war. Information about Soviet spies came from the defection in 1945 of Igor Gouzenko, a Soviet consular official in Canada, from the testimony of Elizabeth Bentley and Whittaker Chambers in 1946 and from the partial decipherment of intercepted Soviet diplomatic messages. American code breakers had begun working on Soviet communications during World War II, but it was not until the late 1940’s that they had any success. Called the Venona archive, the dispatches revealed the existence of at least two Los Alamos security breaches—one involving the Rosenberg spy ring, the other the physicist Theodore Hall. Judith Coplon, identified as a Soviet spy in the Venona transcripts, was arrested with secret documents in her possession. The activities of the U.S. naval officers who made up the Walker family spy ring were not discovered by counterespionage detective work but were disclosed by John Walker’s estranged wife. Word of Hanssen’s betrayal came from a source within the Russian intelligence community. The openly flamboyant lifestyle of Ames provided the decisive clues to his treachery; however, critics wondered why it took the CIA nine years to question how one of its employees making less than $70,000 a year got the money to charge more than $20,000 a month on his credit cards and to buy a $450,000 suburban Washington house with cash. Prosecution and Punishment Use of illegal wiretaps, break-ins, and mail openings by the FBI under its director J. Edgar Hoover created difficulties in securing espionage convictions. Such evidence was inadmissible in court. Of more than one hundred people named by Bentley and Chambers, only two (William Remington and Alger Hiss) were indicted and convicted—of perjury, not espionage. The Rosenbergs were prosecuted when members of their ring agreed to testify 340
Espionage against them. Hall was never indicted because he refused to confess, and there were no witnesses to his activity; both the FBI and military intelligence objected to use of the Venona decipherment, which was not publicly disclosed until 1995. Successful prosecution of the Walkers and Hanssen involved plea bargains. Julius and Ethel Rosenberg were convicted of espionage and executed by electrocution on June 19, 1953. David Greenglass and Harry Gold testified against the Rosenbergs; Greenglass was sentenced to fifteen years in jail, Gold to thirty. Judith Coplon escaped any jail time. Her conviction in June, 1949, was overturned on appeal because of use of illegal wiretap evidence. The FBI opposed a retrial, which would reveal that its agents had not detected Coplon’s treason, instead learning of her spying through the Venona decodes. John Walker agreed to plead guilty in exchange for lighter punishment for his son Michael, who received a sentence of twenty-five years and was paroled in February, 2000, after fifteen years in prison. John Walker, his brother, and Walker’s friend Jerry Whitworth all received life sentences. Ames was convicted and sentenced to life in prison; his wife was jailed for five years for her share in his activity and deported in 1999. Hanssen hired a celebrity attorney who negotiated a plea bargain with the Department of Justice. In return for his wife’s receiving a widow’s pension of $38,000 a year, Hanssen agreed to accept a sentence of life without parole and take polygraph tests while describing all of his transactions with the Soviets. Counterespionage activity designed to combat terrorism is even more difficult than traditional spy catching. The FBI successfully pursued and convicted those responsible for the first World Trade Center attack in 1993. Detecting and preventing planned attacks is a much more challenging assignment, however, as the 9/11 Commission Report (2004) demonstrated. Solving that problem will be a major concern of American security and intelligence agencies in the twenty-first century. Milton Berman Further Reading Brzezinski, Matthew. Fortress America: On the Frontline of Homeland Security— An Inside Look at the Coming Surveillance State. New York: Bantam Books, 2004. Offering both hypothetical and real stories about the war on terror since September 11, 2001, this book takes a critical look at the Department of Homeland Security, the sacrificing of civil liberties, and damage done to international alliances. Fialka, John. War by Other Means: Economic Espionage in America. New York: 341
Espionage W. W. Norton, 1997. Detailed descriptions of how foreign countries and businesses spy on the American government and companies. Gannon, James. Stealing Secrets, Telling Lies: How Spies and Codebreakers Helped Shape the Twentieth Century. Washington, D.C.: Brassey’s, 2001. Credits cryptanalysis with playing a major role in military and counterespionage successes. Includes an excellent chapter on Venona transcripts. Hitz, Frederick P. The Great Game: The Myth and Reality of Espionage. New York: Alfred A. Knopf, 2004. Compares espionage in fiction with real-life examples and concludes that the actual behavior of spies is stranger than that of their fictional counterparts. Jeffreys-Jones, Rhodri. Cloak and Dollar: A History of American Secret Intelligence. New Haven, Conn.: Yale University Press, 2002. Critical examination of American espionage from the time of George Washington to 2001. Very skeptical of self-promotion and exaggerated claims by the CIA and FBI. Monmonier, M. S. Spying with Maps: Surveillance Technologies and the Future of Privacy. Chicago: University of Chicago Press, 2002. Examination of privacy rights issues arising from modern high-tech police surveillance of suspects. Owen, David. Hidden Secrets: A Complete History of Espionage and the Technology Used to Support It. New York: Firefly Books, 2002. Lavishly illustrated history of spying from ancient Greece to the modern-day challenge of gathering intelligence on terrorists. Persico, Joseph E. Roosevelt’s Secret War: FDR and World War II Espionage. New York: Random House, 2001. How Franklin D. Roosevelt used information from spies and code breakers to shape the American war effort during World War II. Theoharis, Athan. Chasing Spies: How the FBI Failed in Counterintelligence but Promoted the Politics of McCarthyism in the Cold War Years. Chicago: Ivan R. Dee, 2002. A skeptical account of FBI activities reveals the difficulty of securing convictions in espionage cases. See also Capital punishment; Cybercrime; Electronic surveillance; Federal Bureau of Investigation; Justice; Justice Department, U.S.; Terrorism; Treason.
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Evidence, rules of
Evidence, rules of Definition: Rules governing the admissibility of all forms of evidence at trial Criminal justice issues: Evidence and forensics; testimony; trial procedures; witnesses Significance: Proper application of the rules of evidence ensures that trials proceed in an orderly and predictable manner that best serves the goal of achieving just verdicts. The rules of evidence evolved along with the jury trial system, which itself developed through history from a system in which jurors made their own findings of fact or based their decisions on their own knowledge, to the present system in which jurors are sworn to make decisions based solely on evidence presented at trial. To achieve that goal, it has been necessary to develop rules so that untrained jurors are not misled. Rules regulating various forms of evidence began to develop during the seventeenth and eighteenth centuries and continued developing thereafter.
The rules of evidence apply to all forms of evidence presented at trial, including oral testimony from witnesses. (Brand-X Pictures) 343
Evidence, rules of The rules of evidence long existed independently in the form of judicial decisions, mandates, and separate statutes until 1975, when they were codified or brought together as statutes under the Federal Rules of Evidence. These rules govern procedures in the federal courts but are inapplicable in state court proceedings. The states have their own rules of evidence but frequently use the federal rules as their models. Types of Evidence The two basic types of evidence are direct and circumstantial. Direct evidence tends to show the existence of facts in question without additional proof. Establishment of a fact is based on the credibility or value of the evidence. Circumstantial evidence requires that fact finders make inferences or draw conclusions. An example of circumstantial evidence is snow on the ground that one sees after waking on a morning after a clear and dry day. Although the observer did not actually see the snow fall, it would be reasonable for the observer to infer that a snowfall occurred during the night. Testimonial evidence is based on the testimony of witnesses; nontestimonial evidence is based on physical objects presented as exhibits. Nontestimonial evidence may be real—actual physical objects from crime scenes—or
Circumstantial vs. Direct Evidence If valuable assets were stolen from a company safe that opened without the use of force at a time when no company employees have any business on the premises, evidence for the crime would fall into two categories. Direct evidence might include fingerprints on the safe, trace evidence inside the safe, a videotape of the thief opening the safe made by a surveillance camera, an eyewitness sighting of the thief entering and leaving the premises, or discovery of stolen assets in someone’s possession. If no such evidence were available, investigators would turn their attention more closely to circumstantial evidence. Suspicion might then fall on a company employee who knows the combination to the safe, who shortly after the robbery quits his job and leaves the area, and who cannot account for his whereabouts at the time of the theft. None of those facts would directly link the employee to the crime, but in combination such circumstantial evidence could be used to build a case against him.
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Evidence, rules of demonstrative—objects used to assist fact finders understand other testimony, such as maps or diagrams of crime scenes. Admissibility of Evidence The admissibility of evidence at trial depends on the rules. Fact finders are permitted to evaluate only admissible evidence. Moreover, relevant evidence is admissible only if it is deemed competent. Relevant evidence must tend to prove or disprove disputed issues of consequence. Irrelevant evidence wastes time, confuses juries, and is often prejudicial. Instances sometimes occur when relevant evidence is ruled inadmissible because its probative value is outweighed by the danger of unfair prejudice or confusion. Probative evidence tends to prove something of importance to the case. Relevant evidence that has little probative value is immaterial and should be excluded. Materiality is part of the concept of relevancy under the federal rules but is defined as evidence tending to make the existence of facts more probable or less probable than it would be without the evidence. Evidence must also be competent (legally adequate) to be admissible. For example, for the evidence of witnesses to be considered competent, the witnesses must swear oaths affirming that they will testify truthfully. Nonexpert witnesses are limited to testimony about what they have personally seen or heard. Any opinions or conclusions they may express are considered incompetent. Witnesses who are experts through special training, knowledge, or experience may offer opinions or conclusions based on their expert knowledge. It is for juries to determine what value, if any, to place upon the testimony of competent witnesses, lay or expert. Character Evidence Human character is a collection of traits and features that makes up an individual’s disposition or nature, evidenced by consistent patterns of behavior. Character traits include positive qualities such as honesty, courage, and integrity as well as negative traits such as dishonesty, violence, and recklessness. In criminal cases, character evidence is generally not admissible to prove conduct to show that a person has acted in conformity on a particular occasion. The prosecution cannot introduce evidence of a defendant’s bad character, such as violent tendencies. By contrast, the defense has the option to introduce evidence of good character, such as a history of honest behavior. However, once the defense elects to introduce a character witness to testify about a defendant’s good character, such an action is said to “open the door” for the prosecution to provide rebuttal evidence. On the other hand, 345
Evidence, rules of when the defense does not elect to introduce character witnesses, the prosecution may not comment on that fact to the jury. Since their adoption in 1995, rules 413 and 414 of the Federal Rules of Evidence contradict the basic principles of character evidence. These new rules assert that evidence of similar crimes in sexual assault cases is admissible on any matter to which it is relevant. The same holds true in child molestation cases. However, such evidence must be examined privately, at “in camera” (in chambers) hearings, so that determinations about its admissibility can be made prior to its introduction at trial. Evidence about particular character traits of victims may be admissible to prove conformity of the victims’ actions. For example, defendants claiming self-defense in murder trials may introduce evidence of their victims’ violent tendencies to support their claims that their victims were the aggressors during the incidents in question. In sex offense cases, the federal rules prevent use of evidence about the reputations and past sexual behavior of the victims. Evidence of specific instances of sexual behavior is also inadmissible, except in three special circumstances. The first is cases in which it is constitutionally required, as in the right to confront adverse witnesses. The second circumstance may arise when the accused need to submit evidence on their alleged victims’ earlier past sexual relationships with others to show that they, the accused, were not the sources of the semen or injuries to the victims. A third circumstance permitting the accused to submit evidence about their victims’ past sexual behavior occurs when such evidence is offered to show the victims’ consent. Despite the existence of one of these circumstances, the evidence will be reviewed privately to determine whether the probative value outweighs the danger of any unfair prejudice to the victims. In 1978, rule 412 was added to the Federal Rules of Evidence to limit the use of evidence of prior sexual experiences of victims of sexual assault. Up until that time, victims of sexual assault had traditionally been harshly cross-examined and had their morality called into question. In 1994, the rules were further amended to enhance the protections given to victims of sexual assault and were applied to all criminal cases, not merely sex offenses cases, and to civil cases. Rule 412 generally excludes evidence of both the past sexual behavior and the sexual predispositions of victims. Evidence of “other crimes, wrongs, or acts” is not admissible to prove character in order to show conformity but may be admissible to establish “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” For example, proof of a defendant’s past crimes may be used to establish a pattern or manner of committing offenses 346
Evidence, rules of (modus operandi). When the prosecution introduces evidence of a defendant’s past crimes, the defense is permitted to introduce rebuttal evidence. Hearsay Evidence Hearsay evidence is defined in rule 801(c) of the federal rules as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay is excluded because the witnesses are not testifying from personal knowledge, but from repetition of what was said or written outside court by other persons who are not present to be cross-examined. Even if the witnesses report what they have heard accurately, it is possible that the out-of-court declarants may have been lying, joking, or speaking carelessly. The latters’ statements have not been made under oath and thus have been expressed without fear of perjury. There is no opportunity to cross-examine the declarants in order to impeach their credibility. Additionally, since the hearsay statements are made out of court, the demeanor of the declarants cannot be observed by the fact finders. Additional problems of hearsay evidence are the possibilities that the testifying witnesses may have faulty memories, poor hearing, or other infirmities that may have impeded their ability to report what they have heard accurately. For all these reasons, hearsay tends to lack reliability. Exclusion of hearsay testimony from trials prevents unreliable evidence from being considered. It should be noted that statements that would otherwise qualify as hearsay are admissible if they are introduced not to prove the truth of a matter asserted but merely to show that a statement was made. Numerous exceptions to the hearsay rule make otherwise inadmissible hearsay evidence reliable and admissible. One of the most common exceptions is the so-called present-sense impression—a statement describing or explaining an event or condition made while a declarant is perceiving an event or condition or immediately thereafter. Such statements are admissible because they are believed to have been made instinctively. The “excited utterance” exception is considered trustworthy because a statement made under stress of a startling event allows no time for fabrication. A statement dealing with a person’s “then existing mental, emotional, or physical condition” can be reported by anyone who heard the statement. Likewise, “statements for purposes of medical diagnosis or treatment” describing pain, symptoms, sensations, and the like are admissible because it is assumed that patients have strong motives to tell the truth. Statements made by declarants who believe that their deaths are imminent are also admissible. Admissibility of so-called dying declarations, or 347
Exclusionary rule death-bed statements, is based on the presumption that people do not lie when confronted with imminent death. This exception applies in homicide cases and civil actions. Hearsay within hearsay, also called “multiple hearsay” or “totem pole hearsay,” occurs in situations in which hearsay statements contain other hearsay statements and a chain of hearsay exists. In such situations, every link must be examined separately to determine whether each part conforms with an exception to the hearsay rule. This is common in the area of business records and reports. Marcia J. Weiss Further Reading McCormick, Charles Tilford. McCormick on Evidence. Kenneth S. Broun, general editor. 6th ed. St. Paul, Minn.: Thomson/West, 2006. Part of a law school hornbook series, this treatise is considered by many to be the bible of the law of evidence and contains detailed explanations and case references. Pelliocciotti, Joseph M. Handbook of Basic Trial Evidence: A College Introduction. Bristol, Ind.: Wyndham Hall Press, 1992. Concise but nevertheless comprehensive text outlining the rules of evidence with examples. Schubert, Frank A. Introduction to Law and the Legal System. 9th ed. Boston: Houghton Mifflin, 2007. General college textbook with cases and explanations of evidentiary issues. Stopp, Margaret T. Evidence Law in the Trial Process. Albany, N.Y.: West/ Delmar, 1999. Comprehensive text outlining the rules of evidence with examples, explanations, and case excerpts. See also Acquittal; Crime scene investigation; Discovery; Exclusionary rule; Expert witnesses; Eyewitness testimony; Grand juries; Jury system; Murder and homicide; Testimony; Trials; Witnesses.
Exclusionary rule Definition: Legal principle requiring the exclusion of evidence obtained by means of unlawful police conduct Criminal justice issues: Evidence and forensics; government misconduct; legal terms and principles Significance: The exclusionary rule provides incentive for law-enforcement officers to honor citizens’ civil liberties and helps deter police misconduct. 348
Exclusionary rule In a 1914 case titled Weeks v. United States, the U.S. Supreme Court created a rule of evidence, designed to deter overzealous federal police officers from violating citizens’ rights. The Court refused to permit prosecutors to use unlawfully obtained evidence at trial, even if that evidence was relevant to the matter at hand. This became known as the “exclusionary rule.” The rule generally applies only in criminal trials, not in most civil trials. Although the rule requires the exclusion of evidence obtained by police misconduct, evidence obtained as the result of the independent actions of private citizens is generally admissible, even if the citizen has acted in violation of the law. Changing Court Interpretations At the time of its creation, this judicial construction was lauded by civil liberties advocates as an important step to deter police misconduct. Lawenforcement supporters warned that the exclusion of important but unlawfully obtained evidence would permit otherwise guilty defendants to go free. The rule was of limited effect, however, because it applied only to criminal cases tried in federal courts. It did not apply to criminal cases tried in state courts. After 1914, various state supreme courts considered employing the exclusionary rule in their own jurisdictions. Some rejected the rule outright; they agreed with Supreme Court justice Benjamin Cardozo, who complained that “the criminal goes free because the constable has blundered.” Other state supreme courts embraced the rule and mandated its application in their states. By 1949, sixteen states had adopted the exclusionary rule; thirty-one states had rejected it. In that year, the U.S. Supreme Court was asked to consider a case titled Wolf v. Colorado and the issue of whether the exclusionary rule should be mandated in all state courts. The defendant in that case argued that all states were bound to provide criminal defendants with due process, or “fundamental fairness,” under the Fourteenth Amendment. He reasoned that the admission of unlawfully obtained evidence in state criminal trials was fundamentally unfair. Justice Felix Frankfurter, writing for the majority, declared that the exclusionary rule was not essential to the notion of due process and refused to mandate it in state prosecutions. The Court reasoned that states should be free to determine for themselves the best way to address police misconduct and should not be forced by the U.S. Supreme Court to adopt a rule they found repugnant. 349
Exclusionary rule MAPP V. OHIO In 1961, the Court was again asked to consider whether the exclusionary rule represented a right so essential to fundamental fairness that it should be mandated in all state courts. The case was Mapp v. Ohio. By this time, the Court had become concerned about the disparities among criminal trial outcomes caused by the uneven application of the exclusionary rule. In similar cases with similar evidence, criminal defendants in areas where the exclusionary rule was applied were more likely to be acquitted, while defendants in jurisdictions without the rule were more likely to be found guilty. In a 5-4 decision, the Supreme Court reversed its earlier decision in Wolf and concluded that exclusion of unlawfully obtained evidence was a right that all defendants should possess, whether they were tried in a federal or state court. Thus, the exclusionary rule became mandatory in all state courts. This decision significantly expanded the application and reach of the rule and served to increase the controversy surrounding its implementation. In the years following the Mapp case, legal scholars posed persuasive arguments defending and criticizing the effects of the exclusionary rule. The purpose of the rule, as stated by the Court, was to deter police misconduct. The operative effect of the rule, however, was to permit some guilty defendants to go free. Those supporting the rule argued that the rule does what it was intended to do: deter police misconduct. This was substantiated by the fact that prior to the Mapp case, in states without an exclusionary rule, police officers rarely obtained a search warrant before conducting a search. In those cases, even if the court ruled that the evidence had been obtained illegally, there were simply no consequences for this behavior, and the evidence was admitted against the defendant. After Mapp, however, it became routine police procedure in all states to obtain search warrants whenever possible before conducting a search. Failure to do so could easily result in the exclusion at trial of the unlawfully obtained evidence and the subsequent acquittal of the defendant. Proponents further argued that the exclusionary rule gave vitality to the protections promised to all citizens in the Bill of Rights. With the rule, there are protections for an aggrieved citizen and consequences for the misbehaving officer. The rule thereby not only deters police misconduct but also serves to protect civil liberties. Opponents argued forcefully that the exclusionary rule results in the withdrawing of valuable evidence. If judges and juries are charged with the task of determining the truth, the exclusion of evidence that is both relevant and reliable is likely to result in a miscarriage of justice: An otherwise guilty defendant would go free because of a technicality. Others argue that the 350
Exclusionary rule rule does not effectively deter police misconduct and may actually encourage it. These critics point to instances where officers may fabricate reasons for a stop or a search, simply to avoid the sometimes egregious effects of an unbendable exclusionary rule. Otherwise respectable officers may even lie on the witness stand if they feel that dangerous defendants would otherwise go free. An additional criticism of the rule is that U.S. laws and their interpretations have become so complex that even police officers trying their very best cannot possibly be expected to know and follow them all the time. The exclusionary rule, under those circumstances, is applied even when there is really no police misconduct to deter. Later Supreme Court Rulings These criticisms resulted in three 1984 U.S. Supreme Court decisions that modified the rule. In Segura & Colon v. United States, the Court adopted the “independent source” exception to the exclusionary rule. This exception states that if the police come by the same evidence in two ways, one legal and the other illegal, the evidence will be admissible even though there has been some police misconduct. That is, as long as the police come by the evidence in at least one legal way, the fact that there has been some police misconduct will not cause the evidence to be excluded. In the case of Nix v. Williams, the “inevitable discovery” exception to the exclusionary rule was delineated. The U.S. Supreme Court held that evidence that inevitably would have been found by the police would be admitted in court. The Court reasoned that the purpose of the exclusionary rule was to put the police in the same position they would have been in had they not engaged in any misconduct—not to withhold from them evidence they would have found lawfully in a matter of time. The most widely applied exception to the exclusionary rule, the “good faith doctrine,” was created in two U.S. Supreme Court cases handed down on the same day. Those cases are United States v. Leon and Massachusetts v. Sheppard. In both of those cases, the Court found that when police have first obtained a judicially approved search warrant, and executed the warrant in accordance with the law, the evidence seized will be admitted, even if there were infirmities in the warrant. This exception recognized the fact that police are entitled to rely on determinations made by a judge as to the sufficiency and lawfulness of a search warrant. If the judge who approved the warrant was in error, the police should not be punished by excluding the evidence seized pursuant to the warrant. Essentially, the fault lies with the judge, and there is no police misconduct to deter. By the year 2000, the exclusionary rule was widely accepted among law351
Exclusionary rule enforcement officers and constitutional scholars. While the rule occasionally permits a criminal to go free, there is general agreement that the benefits of the rule greatly outweigh its weaknesses. Police have become more professional in their investigations and prosecutions, and individual rights have been given much stronger protections. Jana Nestlerode Further Reading Alderman, Ellen, and Caroline Kennedy. The Right to Privacy. New York: Alfred A. Knopf, 1995. A layperson’s guide to the Bill of Rights. Barnett, Randy. “Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive Principles of Justice.” Emory Law Journal 32 (1983). For students seeking an advanced analysis of the rule and its implications. Lynch, Timothy. “In Defense of the Exclusionary Rule.” Harvard Journal of Law and Public Policy 23 (2000). Advanced study of the rule that should be understandable to undergraduate college students. McWhirter, Darien A. Search, Seizure, and Privacy. Phoenix, Ariz.: Oryx Press, 1994. Written to make subjects such as search and seizure and the exclusionary rule interesting for high school and undergraduate college students. Mason, Alpheus T., and Donald Grier Stephenson. American Constitutional Law: Introductory Essays and Selected Cases. 14th ed. Englewood Cliffs, N.J.: Prentice-Hall, 2005. A readable primer designed for undergraduate college students. Mirfield, Timothy. Silence, Confessions, and Improperly Obtained Evidence. Oxford, England: Clarendon Press, 1997. An engaging discussion of the admissibility of evidence at criminal trials. Osborne, Evan. “Is the Exclusionary Rule Worthwhile?” Contemporary Economic Policy 17 (1999). A readable article presenting multiple views of the subject. See also Criminal prosecution; Defenses to crime; Probable cause; Search and seizure; Search warrants; Supreme Court, U.S.
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Execution, forms of
Execution, forms of Definition: State-sanctioned ending of a condemned prisoner’s life Criminal justice issues: Capital punishment; medical and health issues; punishment; technology Significance: As the legality of capital punishment in the United States drew increasing criticism during the twentieth century, technological innovations were sought in order to carry out executions in more humane and dignified manners. Executions were once conducted in public and in ways intended to be both brutal and disrespectful of the accused. Burnings, crucifixions, and dismemberments sought not only death but also the total annihilation of the condemned through the destruction of the body. Societies of the past two centuries have shown increasing concern for the dignity of the individual, extending this concern even to those convicted of heinous crimes. Where capital punishment remains a part of the legal regime, the state has faced the issue of how to take a convict’s life in a way that is different from—and morally superior to—the crime for which the prisoner stands condemned. Resolution of this question has involved searching for a method of execution that inflicts a minimum of physical pain upon the condemned and that respects human dignity by avoiding spectacle and disfigurement of the body. This concern also extends to execution-team members who perform the act of terminating a life and to the community at large, in whose name the execution will be carried out. Critics charge that this has been a futile pursuit and that the only way human dignity can be honored is by eliminating capital punishment altogether. Hanging and Firing Squads Death by the hangman’s noose was the dominant form of execution in colonial America, and it remained the most common method used until the turn of the twentieth century. Hangings could be conducted at the local level of government. At first, they were elaborately staged public events. The execution process included a ritualized procession from the jail to the nearby gallows, speeches by local officials, and a sermon on the depravity of human nature and the wages of sin from the local clergy. The condemned was offered a chance to make a public statement, with the expectation of a demonstration of contrition, although not all prisoners performed according to script. 353
Execution, forms of Finally, the condemned would be hooded and the noose affixed to the neck. A trapdoor was sprung from beneath the prisoner, causing him to drop until his fall was arrested by the rope. Death came through the severance of the spinal cord and was thought to be fast and painless. However, all executions involve some risk of error. Calculating the proper drop of the prisoner turned out to be an imperfect science, and botched executions were common. Too short a drop produced a slow death by strangulation, with its accompanying struggle, while too long a drop resulted in decapitation of the prisoner. Largely for this reason, states began to remove hangings from public view, and by the late nineteenth century, these acts were more often carried out behind prison walls by a centralized and professional state bureaucracy. In 2004, hanging was an option in only three states, and only three state-sanctioned hangings were conducted from 1977 to 2004. Death by shooting has played a minor role in American executions because of its inevitable disfigurement of the body and the significant possibility of botched executions. Only two state-sanctioned executions between 1977 and 2004 were by firing squad. Twentieth Century Innovations The possibility of botched executions and a growing public discomfort with capital punishment in general led states to seek more technologically advanced methods of execution that promised to be fast, painless, and reliable. They turned to electricity and chemistry. New York carried out the first electrocution in 1890, and the electric chair was soon found throughout the United States. Prisoners were strapped to wooden chairs, and current was passed through their bodies in sufficient quantities to cause death by cardiac arrest. This technology was expensive and required expertise in the new science of electricity, resulting in the further centralization of executions. Executions were later conducted indoors, usually at night, deep within state penitentiaries and at the hands of a professional bureaucracy. The public in whose name executions were carried out was by now insulated from the process. The few witnesses permitted by officials continued to report gruesome errors, however, and it became apparent that electrocutions did not guarantee a speedy and painless death as had been promised. Nevada, in 1921, became the first state to employ lethal gas. The condemned was secured to a seat inside a small, airtight chamber. Pellets of sodium cyanide were dropped into a small container of sulfuric acid, producing cyanide gas. The gas blocked the ability of the body to absorb oxygen, producing unconsciousness followed by death from asphyxiation. Even 354
Execution, forms of
Methods of Execution by Jurisdiction Method (executions, 1976-2004)
Jurisdictions
Lethal Injection (780)
Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York (state death penalty was declared unconstitutional on June 24, 2004), North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming, U.S. military, federal government
Electrocution (152)
Alabama, Arkansas, Florida, [Illinois], Kentucky, Nebraska (only state that mandates electrocution), [Oklahoma], South Carolina, Tennessee, Virginia
Gas chamber (11)
Arizona, California, Maryland, Missouri, [Wyoming]
Hanging (3)
New Hampshire, Washington
Firing squad (2)
Idaho, [Oklahoma], Utah (only for inmates who chose this method prior to its elimination as an option)
Source: Death Penalty Information Center, February 2005. States in brackets authorize the listed methods only if their current methods are found to be unconstitutional. All states that use the gas chamber, hanging, and firing squads offer lethal injections as an alternative.
when carried out properly, prisoners were frequently observed to struggle, sometimes violently, as they reacted to the gas. This method never spread beyond a small number of western and southern states. Eleven executions between 1977 and 2004 were by lethal gas. The current mode of execution dates from 1982, when Texas carried out the first lethal injection. Its apparent effectiveness in delivering a humane execution resulted in its rapid spread, and lethal injection was in 2004 the sole method of capital punishment in most states and the preferred option in the rest, except for Nebraska. The condemned is strapped to a gurney, and deadly chemicals are injected intravenously. Sodium pentothal, a fast355
Execution, forms of acting sedative, is administered first, followed by pancuronium bromide, which paralyzes the muscles and causes the collapse of the lungs. Finally, potassium chloride is administered to stop the prisoner’s heart. Death comes within minutes, and the convict does not struggle, whether because of the loss of consciousness or because of paralysis. The procedure is clinical, even to the point of applying alcohol to the prisoner’s skin before inserting the needle, to avoid infection. Whether death by injection is, in fact, painless is hotly contested, as observers have no way of knowing. Critics charge that the process is meant to cloak the killing of the prisoner in the trappings of medicine—to anesthetize a society no longer comfortable with state-sanctioned homicide—yet risks silent suffering by the condemned. It has not escaped their notice that several states that employ lethal injection to execute prisoners forbid the use of pancuronium bromide by veterinarians to euthanize pets. Whatever the merits of this debate, lethal injection is not likely to be replaced by any further innovation in the near future. In any case, the U.S. Supreme Court upheld the constitutionality of this method of execution in April, 2008. John C. Hughes Further Reading Banner, Stuart. The Death Penalty. Cambridge, Mass.: Harvard University Press, 2002. A comprehensive cultural history of American executions. Bohm, Robert M. Deathquest III: An Introduction to the Theory and Practice of Capital Punishment in the United States. 3d ed. LexisNexis/Anderson Publishing/Matthew Bender, 2007. Introductory textbook on capital punishment. Constanzo, Mark. Just Revenge. New York: St. Martin’s Press, 1997. An overview of all aspects of capital punishment. Johnson, Robert. Death Work: A Study of the Modern Execution Process. 2d ed. Belmont, Calif.: West/Wadsworth, 1998. Examines death row and its effect on prisoners and personnel. See also Capital punishment; Cruel and unusual punishment; False convictions; Murder and homicide; Murders, mass and serial; Punishment; Sentencing; Solitary confinement; Terrorism.
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Expert witnesses
Expert witnesses Definition: Qualified witnesses, considered experts in their fields, provide scientific, technical, medical, or other specialized testimony Criminal justice issues: Technology; trial procedures; witnesses Significance: Testimony by expert witnesses can aid jurors in comprehending complex evidence; however, there are also risks that jurors may overvalue such testimony because of the professional positions of the witnesses or will completely dismiss the testimony because of its complexity. In the second half of the twentieth century, case complexity within criminal and civil trials dramatically increased. As a result, reliance on expert witnesses and their role in the court system has also greatly increased. Within the adversarial trial system, the objective of expert testimony is to explain or clarify scientific, technical, or medical evidence for the benefit of the jury. Product liability, medical malpractice, antitrust, and many other issues arise in cases that require the testimony of an expert witness. Rules and guidelines place limits on the types of witnesses who may be considered experts. It is the judge’s responsibility to decide, first, if the testimony of the expert will assist the jury in understanding the evidence or in determining a fact that is at issue. Second, guidelines help judges ensure that any testimony heard is from a witness who is appropriately qualified to speak on the subject. As more expert witnesses are brought into courtrooms to comment on various complex subjects, concerns arise that experts are merely “hired guns.” Private Versus Court-Appointed Experts One important issue to consider is how an expert witness is selected. Due to the adversarial nature of trials, each side may present an expert witness of its own choosing. Privately appointed experts have the potential of being biased in favor of the attorney who hired them. In addition, attorneys also have the opportunity to shop around until they find an expert who agrees to or is willing to present testimony in their favor. Privately appointed experts can be quite expensive, meaning that those with greater wealth may have an advantage in affording a helpful expert witness over those who lack financial resources. An alternative to the privately appointed expert is the court-appointed expert. Although court-appointed experts are more common in other coun357
Expert witnesses tries, some venues within the United States, such as family court in Texas, use them extensively. The benefit associated with using a court-appointed expert is that the witness is known to hold an objective position and is not perceived as having a hidden agenda. Although approved of by judges and experts themselves, research has shown that attorneys are the least likely to favor using court-appointed experts. Not only do attorneys fear losing control over the trial process, there is also relatively little communication between court-appointed experts and attorneys. Court-appointed and privately retained experts both have their benefits and drawbacks; however, privately retained experts are most likely to be used in the U.S. justice system. The next important issue to consider is how jurors perceive and evaluate expert witnesses and their testimony. The Influence of Expert Testimony on the Jury Once the judge has ruled on the admissibility of expert witness testimony, it becomes the jury’s responsibility to weigh and evaluate the testimony. An important issue that continues to arise is the potential confusion of jurors that may result from a “battle of the experts.” Many court actors express apprehension at how the jury may interpret expert witness testimony. Some claim the intellectual incompetence of jurors will interfere with their ability to understand most expert testimony. This juror incompetence is said to result in one of two outcomes. In the first, jurors may simply rely on the superficial characteristics or credentials of the expert, taking the testimony for fact and not critically evaluating it. In the second, the expert testimony and evidence may be too complex for jurors, and they will simply disregard it. In other words, there is a perception that jurors will either undervalue or overvalue the expert testimony. Research has been able to assuage many of the concerns regarding jurors’ interpretations. Although studies have revealed that jurors do have difficulty understanding complex expert testimony, research has also shown that jurors not only critically evaluate the quality of an expert’s testimony but also critically evaluate the witness’s credentials. In addition, difficulty in understanding and adequately evaluating expert testimony has been linked more often to the poor presentation of the evidence and testimony than to intellectual inadequacies among jurors. Jurors themselves have revealed that they are not passive receptors, simply accepting expert testimony and complex evidence in an uncritical manner. To the contrary, jurors actively and critically evaluate and discuss complex evidence and testimony. Although there always stands a risk that jurors 358
Extradition will misunderstand or undervalue complex expert testimony, it has been established that jurors take their responsibility quite seriously and adequately evaluate and integrate complex expert testimony. As science, medicine, and technology continue to advance, the role of the expert witness will continue to be relied upon to assist jurors in adequately comprehending important yet complex evidence. Erin J. Farley Further Reading Anderson, Patrick R., and Thomas L. Winfree, Jr. Expert Witnesses: Criminologists in the Courtroom. Albany: State University of New York Press, 1987. Billings, Paul R., ed. DNA on Trial: Genetic Identification and Criminal Justice. Plainville, N.Y.: Cold Spring Harbor Laboratory Press, 1992. Freeman, Michael D. A., and Helen Reece. Science in Court: Issues in Law and Society. Brookfield, Vt.: Ashgate/Dartmouth, 1998. Huber, Peter W. Galileo’s Revenge: Junk Science in the Courtroom. New York: Basic Books, 1991. Smith, Roger, and Brian Wynne. Expert Evidence: Interpreting Science in the Law. New York: Routledge, 1989. Weiss, K. “Confessions and Expert Testimony.” Journal of the American Academy of Psychiatry and Law 31 (2003): 451-458. See also Cross-examination; Evidence, rules of; Eyewitness testimony; False convictions; Subpoena power; Testimony; Trials; Witnesses.
Extradition Definition: Legal procedure requiring one jurisdiction to surrender persons charged with crimes to another jurisdiction Criminal justice issues: International law; jurisdictions; terrorism Significance: In a federal system such as that of the United States, extradition plays an important role in connections among different jurisdictions. The fundamental principle defining the procedure of extradition is provided in the U.S. Constitution. In 1793, shortly after the Constitution was adopted, the U.S. Congress passed a law charging the governors of the states with the duty of delivering up fugitives from justice found in their states. This law also gives the governors of territories the same responsibilities. 359
Extradition There are certain exceptions to the requirement that fugitives be surrendered to the states from which they fled. For example, if suspects are imprisoned in the states to which they travel, if they face charges there, those charges take precedence. The fugitives must stand trial and serve sentences if necessary in the states in which they currently reside before being sent back. Sometimes an extradition will be delayed for months or years while the state in which an alleged offender is apprehended processes the person through its own criminal justice system. In the 1861 case of Kentucky v. Dennison, the U.S. Supreme Court stated that although the governor of the state to which the suspect fled had a “moral duty” to return the fugitive, the federal government or the federal courts could not require him to do so. Congress addressed this problem in 1934 by making it a crime for a person to escape from one state to another for the purpose of avoiding prosecution for certain crimes. In 1987, the Supreme Court overruled parts of Kentucky v. Dennison in a case involving a suspect who had fled from Puerto Rico to Iowa after being charged with a felony. Extradition Within U.S. Territories In Puerto Rico v. Branstad, the Supreme Court justices reconsidered whether the federal courts had the power to order governors of states to fulfill their duties under the extradition clause of the U.S. Constitution. The case involved Ronald Calder, who worked in Puerto Rico. Calder was charged with first-degree murder and released on $5,000 bail after his arraignment. When the suspect failed to appear at two preliminary hearings, he was declared a fugitive from justice. The police in Puerto Rico believed that Calder had returned to his family in Iowa, and they notified the authorities there that he was wanted on murder charges. The suspect surrendered to local police in Iowa, posted bond, and was released. The governor of Puerto Rico requested that the governor of Iowa extradite Calder. When an extradition hearing was held in Iowa, the suspect and his attorney testified that Calder could not receive a fair trial in Puerto Rico because he was white and because he feared that witnesses in Puerto Rican courts were often corrupt. Discussions about reducing the charges against Calder were held among the parties. When those negotiations broke down, the Iowa governor refused the request for extradition. At that point the governor of Puerto Rico went to federal court, in which he filed a complaint that the refusal to return Calder violated the extradition clause of the U.S. Constitution and the 1793 Extradition Act. He asked 360
Extradition
Article IV, Section 2 of the U.S. Constitution A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
that the federal court require the Iowa governor to comply with the request to return the fugitive. The U.S. Supreme Court agreed that the federal courts have the power to compel a governor to deliver a suspect. They found it one of many constitutional duties imposed on the states that must be enforceable in federal courts. Extradition is a duty imposed directly on the states by the Constitution. Governors do not have any discretion in determining whether to comply, and if they refuse to comply, they could be ordered to do so by federal courts. The courts have considered the question of when an accused person who leaves the state in which a crime was committed becomes a fugitive from justice. They have determined that it is not necessary that an indictment be issued or that the accused leave for the purpose of escaping prosecution that is anticipated or has begun. The accused is considered eligible for extradition once the criminal justice process begins. The motive for fleeing is immaterial. The law mentions treason, felony, or other crimes as offenses for which a suspect may face extradition. This has been interpreted to mean any act prohibited in the original state, including misdemeanors. Procedures for Extradition Governors may demand the return of fugitives from justice only after the fugitives have been formally charged with crimes. Requisition warrants must be issued requesting the return of the accused. At that point, the governors of the asylum states may issue warrants for the arrest of the suspects until agents of the demanding states arrive to remove them. The accused, however, do not have the right in all states to hearings before the governors of the asylum states to determine whether the charges are valid. Also, suspects cannot prevent extradition by predicting what will happen at their trials. Suspects may not delay or prevent extradition by asking for investigations of the motives of either the governors of the states that demand their return or the governors of the asylum states. 361
Extradition After suspects have been informed of the charges and of their rights, including the right to counsel, they may sign waivers of extradition by which they voluntarily consent to be transported back to the demanding states. If the accused wish to raise questions such as whether the statute of limitations on the crimes in question has expired or whether incarceration in the prisons of the demanding states constitutes cruel and unusual punishment, they must wait until returning to the demanding states and then raise such questions in court. At that time, all parties may be heard, testimony may be given, and appropriate relief may be determined. If the accused can demonstrate that they were not in the states in which the crimes were committed at the times they occurred, it is possible to raise habeas corpus claims—that is, claims that their detention or incarceration would be illegal and thus not subject to extradition. If there is a dispute about the alibis of the accused, the suspects may not have the matters resolved through habeas corpus. Court proceedings after extradition would be the proper place to determine the validity of their alibis. Even if accused persons are brought back by unlawful violence or by abuses of the legal processes to the states in which the alleged crimes have occurred, they are subject to trial and punishment. Once returned to the original states, the suspects may be tried for offenses other than, or in addition to, those for which they are extradited. Fugitives to and from the United States The United States has treaties with most nations providing for international extradition procedures. When foreign nationals charged with crimes flee to the United States, both state and federal judges may issue warrants to arrest them. The fugitives are then brought before the judges, who hear and consider the evidence against them. If the judges deem the evidence sufficient to meet the requirements of an appropriate treaty, they certify that fact to the U.S. secretary of state. The proper foreign authorities may then issue warrants of requisition to have the accused handed over to them. Meanwhile, until the suspects are formally surrendered, they must be properly incarcerated. If the suspects are believed to be in the United States but their whereabouts are unknown, or if it is believed that the suspects are in the process of fleeing to the United States, judges from the District of Columbia may issue the original arrest warrants. Treaties also provide for the return to the United States by foreign governments of fugitives from justice who have left the United States. Procedures are included in bilateral treaties, which are negotiated country by country. Issues such as international drug trade, terrorism, and opposition 362
Extradition by many governments to the death penalty in the United States complicated extradition negotiations during the late twentieth century. For example, in 1997, drug-related crimes led to an agreement between the United States and Mexico providing that even persons who are sentenced and serving time in one of the countries may be extradited to the other for trial. The U.S. Justice Department estimates that there are hundreds of pending extradition warrants between the two countries at any time, because individuals often commit crimes on both sides of the border. Postponing extradition until suspects serve their sentences in one country may make prosecution in the other country difficult, as witnesses forget the facts of cases or become unavailable. After facing prosecution in the requesting country, prisoners are returned to complete their original sentences. A notable extradition case occurred in 1997 when seventeen-year-old Samuel Sheinbein, who was accused of first-degree murder in Maryland and faced charges as an adult, fled to Israel. The Federal Bureau of Investigation (FBI) faxed a copy of a federal warrant for unlawful flight to avoid prosecution and asked that Sheinbein be extradited under a U.S.-Israeli treaty. However, Israel had a law prohibiting it from extraditing its own nationals. Sheinbein claimed Israeli citizenship because his father had been an Israeli citizen. The dispute lasted almost a year, while some members of the U.S. Congress threatened to cut off aid to Israel unless the young man was returned. Although an Israeli court ultimately ordered that Sheinbein be sent back for trial, the case highlighted two questions about international extradition. The nationality defense (laws that prohibit a country from surrendering its citizens for trials abroad) may complicate and sometimes thwart prosecutions of criminals. Some treaties provide for the nationality defense while others do not. Also, international human rights provisions allow a requested state the right to deny extradition if the accused would be subject to the death penalty in the requesting state but not in the requested state. As the United States is among a minority of nations that continues to execute offenders and among an even smaller minority that permits the execution of juveniles, death-penalty issues may complicate extradition proceedings. Mary Welek Atwell Further Reading Blakesley, Christopher L. Terrorism, Drugs, International Law, and the Protection of Human Liberty. Ardsley-on-Hudson, N.Y.: Transnational, 1992. Considers extradition in the context of contemporary issues. 363
Eyewitness testimony Cassese, Antonio. International Criminal Law. New York: Oxford University Press, 2003. Introduction to international criminal law examining the substantive aspects of the law and the procedural dimensions of state practice, including extradition. McDonald, W. F., ed. Crime and Law Enforcement in the Global Village. Cincinnati: Anderson Publishing, 1997. Collection of essays on issues of international law, including extradition. Preston, William, Jr. Aliens and Dissenters: Federal Suppression of Radicals, 1903-1933. 2d ed. Urbana: University of Illinois Press, 1994. Study of the federal government campaign against foreign radicals during the early twentieth century that considers the role of extradition. Shearer, I. A. Extradition in International Law. Manchester, England: Manchester University Press, 1971. Older study that discusses principles of extradition across national borders. See also Arrest; Criminal justice system; Deportation.
Eyewitness testimony Definition: Accounts given by persons who have directly observed crimes or actions related to crimes Criminal justice issues: Evidence and forensics; witnesses Significance: The description of criminal activities by an eyewitness has long been accepted by judges and juries as convincing. Psychological tests have repeatedly shown, however, that human perception and memory are flawed and that testimony is not always reliable. In this way, innocent people are sometimes incorrectly identified and convicted. An eyewitness to an event is someone who has observed that event directly. Accounts by eyewitnesses are given special importance in criminal trials. Frequently, such testimony is the single largest determinant of a trial’s outcome. Research by psychologists, however, suggests that testimony describing crimes and identifying perpetrators can be flawed by limitations in human perception and memory. Since psychologist Hugo Munsterberg began staging mock robberies in 1908, hundreds of crimes have been simulated for the purpose of psychological experiments. Such experiments have demonstrated that people, in remembering events they have witnessed, can unwittingly distort facts, resulting in mistaken testimony. 364
Eyewitness testimony Perceiving and Remembering Perception of any event can be influenced by the perceiver’s expectations. Many aspects of a street crime, for example, make accurate identification of the offender difficult: The crime occurs quickly, the offender has probably never before been seen by the witness, the witness is under great stress, and distracting stimuli (such as a gun) are often present. In addition, studies have shown that a witness is less likely to notice identifying features of an offender whose race is different from that of the witness. Folk wisdom and the law both assume that memories are stored like photographs and that somewhere in the brain lie exact images of past events, which can be later retrieved. This assumption is inaccurate. Experimental work by psychologist Elizabeth Loftus has documented how easily incidents occurring after an event are incorporated into memories of that event. For example, she introduced to children totally fictitious stories of being lost in a supermarket. These stories are later accepted by some of the children as personal memories. She modified memories of a video-presented traffic accident by introducing into her inquiry vivid words like “crash” and found that damage from the accident is thereafter remembered as more severe. Loftus cautioned that people’s memories of a real crime can easily be modified as media accounts, suggestions by police officials, or imagined distortions slip into one’s memories of the original event. Such effects can be magnified with the passage of time. Retrieving One’s Memory of the Crime The retrieval task typically presented to witnesses after a crime is to try to identify the offender from a book of suspects’ photographs or from a police lineup. A common assumption among witnesses is that the offender is among those in the lineup staged by the police. This subtly transforms the identification task into the multiple-choice quiz of selecting from the lineup whatever option is most similar to that stored in memory. If the police have erred by apprehending a suspect with superficial similarities to the real offender, the witness’s choice will confirm the police error. Police officials may subtly, or sometimes explicitly, reinforce the witness’s choice by their reaction. Even initially hesitant witnesses may become convinced of the accuracy of their memories and, by the time of the trial, exude confidence. Most studies have found little relationship between the accuracy of testifying witnesses and the confidence they project. Special retrieval problems are presented by witnesses testifying about such activity as sexual abuse that occurred during their childhood. While 365
Eyewitness testimony children rarely concoct detailed descriptions of such abuse without a basis of fact, child witnesses are particularly susceptible to suggestive questioning by adults. Testimony by adults based on repressed memories from their childhood and later “recovered” in therapy is particularly suspect of having been contaminated by suggestion. Impact on the Justice System Mistaken eyewitness identification by confident witnesses has been shown to be the primary source of wrongful conviction. Anecdotal accounts of such wrongful convictions have been cited by many observers. In 1996 the National Institute of Justice collected cases of people convicted of a crime who had later been conclusively exonerated by DNA evidence. Seventy-five percent of the one hundred clearly wrongful convictions studied were based on mistaken eyewitness identification, which offers systematic proof of the fallibility of eyewitness testimony. Encouraged by recommendations from the institute, efforts were begun during the late 1990’s to improve the gathering of eyewitness evidence by many police departments. These included the use of open-ended, nonsuggestive interview questions; better constructed lineups, with foils all generally similar to the description of the offender; and presenting suspects to the witness in succession, thus avoiding the forced-choice implications of the common simultaneously presented lineup. Police officials were cautioned
Eyewitness Testimony and False Convictions The 1988 film The Thin Blue Line is a documentary about Randall Dale Adams, who was wrongly convicted of killing a police officer. As a result of public attention raised by the documentary, and the evidence developed in the course of making it, a Texas criminal court ordered Adams released pending a new trial. However, the state of Texas eventually decided not to retry the case. The film, made more powerful because it dramatizes a true story, meticulously documents evidence to suggest that Adams had been framed. Its depiction of why the key witnesses had reason to lie helped to free Adams and provides a useful counter to the popular conception that eyewitness testimony is the most reliable testimony in criminal cases. Timothy L. Hall
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Eyewitness testimony against reinforcing witness responses and of the importance of remaining noncommittal. The American system of justice must necessarily rely upon the reports of eyewitnesses. This is not always a problem. In some crimes the offender is well known to the victim. Often, major features of a crime are confirmed by concurring witnesses. Yet identification by those who experience a fleeting contact with a criminal-stranger or testimony by those whose memories have been contaminated with distorting suggestions must be viewed with caution. A mandate of forensic science is that of distinguishing valid from flawed eyewitness accounts and establishing procedures for collecting such accounts that ensure their reliability. Thomas E. DeWolfe Further Reading Greene, Edie, et al. Wrightsman’s Psychology and the Legal System. 6th ed. Belmont, Calif.: Thomson/Wadsworth, 2007. One chapter of this textbook reviews the work on conditions that influence the reliability of eyewitness testimony. Loftus, Elizabeth F., James M. Doyle, and Jennifer E. Dysart. Eyewitness Testimony Civil and Criminal. 4th ed. Newark, N.J.: LexisNexis/Matthew Bender, 2007. A psychologist discusses research upon conditions influencing the reliability of eyewitness testimony. Wells, G. L., and Elizabeth F. Loftus. “Eyewitness for People and Events.” In Handbook of Psychology, edited by A. M. Goldstein and I. B. Weiner. New York: John Wiley & Sons, 2003. Outlines factors that affect event memory and result in mistaken identification. Wells, G. L., and Elizabeth A. Olson. “Eyewitness Testimony.” Annual Review of Psychology 54 (2003): 277-295. This review discusses cases of convicts cleared by DNA evidence. Wells, G. L., et al. “From the Lab to the Police Station: A Successful Application of Eyewitness Research.” American Psychologist 55 (2000): 581-598. Account of the national guidelines for collecting and using eyewitness testimony. See also Criminal prosecution; Cross-examination; Evidence, rules of; Expert witnesses; False convictions; Perjury; Testimony; Trials; Witnesses.
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False convictions
False convictions Definition: Occasions in which innocent persons are convicted of crimes that they have not committed Criminal justice issues: Appeals; convictions; defendants; verdicts Significance: In addition to being grossly unfair to defendants who are erroneously convicted, false convictions damage public confidence in the criminal justice system. Moreover, public safety becomes an issue when convictions of the wrong persons allow guilty criminals to remain at large. The criminal justice system is designed to protect society by identifying and bringing to justice individuals who have violated the law. Determining guilt or innocence requires the services and expertise of police officials, prosecutors, defense attorneys, judges, and jurors. The system, therefore, contains numerous decision points involving human judgment and, because fallible human beings are involved in the process, errors can sometimes occur which produce a false conviction. False convictions have long been a concern of responsible members of the criminal justice community. In the eighteenth century, British theorist and philosopher Jeremy Bentham, whose ideas influenced the U.S. Constitution and the American criminal justice system, called false convictions “mis-seated punishment.” Modern research concerning the causes and frequency of false convictions did not begin until the early twentieth century, when Yale law professor Edwin Borchard published case studies of sixtyfive false convictions that occurred in the United States between 1812 and 1930. Borchard’s pioneering work was followed, from the 1950’s through the early 1980’s, by a small number of other publications identifying additional cases. During the mid-1980’s the topic of false convictions began receiving increased attention from both researchers and the popular media—primarily as a result of the unprecedented availability of DNA testing. Because each person’s DNA is unique, it has become possible for some prisoners to have old evidence that was used to convict them—such as specimens of blood, hair, tissue, semen, or other body fluids—reexamined in order to determine if the results of earlier, less accurate tests were misleading or faulty. Between 1989—when the first DNA exoneration occurred—and 2004, at least 145 falsely convicted individuals were cleared using DNA testing. Additionally, several hundred other cases of false conviction have come to light using 368
False convictions other investigative techniques. Many of these cases have received widespread newspaper and television coverage. Repercussions of False Convictions False convictions in the criminal justice process carry high personal and social prices. First, they compromise public safety. When a falsely accused person is convicted of a crime, that individual is punished in place of the one who actually committed the offense. Therefore, for virtually every person falsely convicted of a crime, there is a corresponding guilty person who has not been brought to justice and who may be continuing to commit crimes in the community. False convictions also undermine the public’s confidence in the judicial system. Every year, stories are published in the media concerning individuals who have languished in prison for years and are later found to have been falsely convicted. Stories of this nature can shake citizens’ faith in the ability of the criminal justice system to separate the innocent from the guilty and to do justice. False convictions can, therefore, damage the symbolic status of the criminal justice process—a process that symbolizes the United States’ moral stance against crime and the desire to achieve justice. A loss of confidence in the criminal justice system can have serious and widespread negative consequences. For example, if jurors become skeptical of police testimony or prosecutorial judgment, they are more likely to acquit a guilty individual. A loss of confidence in the criminal justice system can also lead to vigilante-style justice. Additionally, when an innocent person is falsely convicted, several separate injustices occur. Primarily, the falsely convicted persons unjustly suffer. They are often subjected to the horrors of prison life, are denied freedom (often for several years), and possibly face execution. Death-penalty opponents are quick to point out that individuals falsely convicted of capital crimes may be executed before they can be exonerated. The average time between sentencing and exoneration in false-conviction cases is slightly more than ten years. By contrast, the average time between sentencing and execution of death penalties is also approximately ten years. The families of the falsely convicted also unjustly suffer when there are separations of husbands from wives, parents from children, and brothers from sisters, as well as possibly substantial losses in income and public shame. Moreover, family members typically exhaust all their available resources when attempting to correct their relatives’ false convictions. Other participants in the criminal justice process may also suffer. Often jury mem369
False convictions bers, witnesses, police officers, prosecutors, defense attorneys, and judges are distressed when they discover their actions have contributed to sending innocent persons to prison or, worse, to death row. Dysfunctions in the Criminal Justice System False convictions allow researchers opportunities to analyze system dysfunctions. Once victims of false conviction are identified, details of their cases can be examined from the moments when they enter the system until their convictions, in order to determine where the system has failed. For example, analysis of a false-conviction case may reveal flawed procedures used by police in the handling of eyewitnesses. Evidence of police or prosecutorial overzealousness or corruption may be exposed. Errors by defense attor-
Inmates on Death Row in the United States in 2004 WA 11 OR 31
ID 20
NV 86
ND 0
MT 4 WY 2 UT 10
CA 638 AZ 128
NM 2
WI 0
SD 4 IA 0
NE 7 CO 3
VT 0 ME 0
MN 0
KS* 7
IL 9
MO 58
OK 97
AR 39 LA 91
TX 455
NY* 2
MI 0 OH 206
IN 37
KY 35 TN 108 MS 69
AL 199
GA 114
PA 232 WV 0 VA 23 NC 201 SC 74
NH 0 MA 0 RI 0 CT 8 NJ 15 DE 19 MD 9
FL 384 AK 0
Federal government 34 U.S. military HI 0
7
States with no inmates awaiting execution
Source: Death Penalty Information Center, February, 2005. *Kansas and New York declared their death penalties unconstitutional in 2004. Inmates on death row in 2004 totaled 3,479.
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False convictions neys or forensic experts might be discovered. Knowledge of this kind can be used to improve the criminal justice process through implementation of better procedures and increased training, accountability, and funding. Ultimately, this information should lead to improvements in the criminal justice process that will reduce false convictions and advance the system of justice. How frequently false convictions occur is unknown. The hidden nature of so many aspects of false convictions creates numerous challenges to researchers attempting to determine the true extent of the problem. In the past, criminal justice professionals tended to believe that false convictions only rarely occurred. Edwin Borchard’s 1932 book Convicting the Innocent was written in response to a local district attorney who had commented, “Innocent men are never convicted. . . . It’s a physical impossibility.” Even as late as the mid-1980’s, some members of the criminal justice system were stating that false convictions never occurred. However, such notions have now been largely dispelled because hundreds of individuals have been proved to be victims of false convictions since 1989. Many researchers believe that the recently revealed cases represent only the “tip of the iceberg.” Cases that have been discovered are often the result of modern DNA testing, which is only available in a small percentage of criminal cases in which evidence such as hair, tissue, or body fluids is present. Also, the great majority of false convictions exposed since 1989 have involved only two types of cases: rape—in which DNA testing has unique detection power—and death-penalty cases—in which intense appellate court review is most likely to occur. It is probable that many false convictions involving other types of offenses such as theft, assault, or drug crimes would be uncovered if similar appellate efforts were expended or if powerful tools similar to DNA testing could be used. Why False Convictions Occur Research has isolated many factors associated with false convictions. These factors generally fall into the categories of unintentional error or misconduct. Every major study of false convictions has concluded that unintentional eyewitness error is the primary factor associated with false convictions. Crime witnesses or victims are notoriously unable to provide precise accounts of what they see. Mistaken identification is particularly harmful to innocent defendants because judges and jurors tend to believe the veracity of eyewitnesses’ claims over those of accused defendants. Another type of unintentional error associated with false convictions is 371
False convictions the presentation of evidence by prosecution “expert” witnesses that is later found to be misleading or erroneous. Unintentional errors by criminal justice officials often occur because of heavy caseloads. Judges, in order to move cases and relieve heavy dockets, encourage plea bargaining instead of full fact-finding trials. Police and prosecutors, without the time and financial resources necessary to properly process cases, can take part in rushes to judgment that ultimately result in false convictions. Poorly trained or underprepared defense attorneys also contribute to the incidence of false conviction. Competent counsel can uncover police practices responsible for misidentifications, coerced or false confessions, and faulty forensic science. Because falsely convicted individuals are usually indigent, even competent attorneys may not have the necessary financial resources or time to investigate and defend their clients’ claims of innocence properly. Of the false convictions uncovered by DNA testing, 25 percent have involved innocent people who confessed to crimes they did not commit—usually because they were overwhelmed by the criminal justice system. Young offenders and individuals with diminished mental capacity are especially vulnerable to system pressures. Some of the more unsettling findings in cases of false convictions are incidents of intentional misconduct by police, prosecutors, defense attorneys, and judges. All members of the criminal justice profession are subject to biases, prejudices, and personal ambitions that may affect their judgment and decision making. Police, in order to bolster their cases, have been found to suppress exculpatory evidence or to make unduly suggestive comments to witnesses during pretrial identification procedures. In some cases, police officers have been found to have planted evidence on innocent people in order to gain convictions. For example, between 1999 and 2000, the Rampart scandal in Los Angeles involved police officers who planted evidence or otherwise framed nearly one hundred suspects. In 2003, a dishonest undercover police officer from Tulia, Texas, was found to have framed thirty-nine innocent people during a drug-operation investigation. False convictions involving prosecutorial misconduct most often entail the suppression of exculpatory evidence and the deliberate use of false testimony. When prosecutors have weak cases, they may also elicit testimony from so-called jailhouse snitches, who are willing to testify that they overheard other inmates confess to crimes in return for reduced sentences. Several cases of false conviction have occurred because of the use of these snitches. Although errors can be categorized as unintentional or intentional, the 372
False convictions practice of listing cases by a single type of error can be misleading and can present an oversimplification of the dynamics of false conviction. In most cases of false conviction, multiple factors are simultaneously at work. Robert J. Ramsey Further Reading Christianson, Scott. Innocent: Inside Wrongful Conviction Cases. New York: New York University Press, 2004. Investigative reporter’s account of forty-two wrongful conviction cases. Connors, E., T. Lundregan, N. Miller, and T. McEwen. Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial. Alexandria, Va.: National Institute of Justice, 1996. Close examination of some of the first cases of false convictions that were overturned by DNA evidence. Gross, S., et al. Exonerations in the United States: 1989-2003. New York: Open Society Institute, 2004. Study of the first fourteen years of post-DNA exonerations of falsely convicted persons. Huff, C. R., A. Rattner, and E. Sagarin. Convicted but Innocent: Wrongful Conviction and Public Policy. Thousand Oaks, Calif.: Sage Publications, 1996. Examination of the implications of false convictions on government policies and law enforcement generally. Radelet, Michael L., Hugo A. Bedau, and Constance E. Putnam. In Spite of Innocence: Erroneous Convictions in Capital Cases. Boston: Northeastern University Press, 1992. Review of four hundred wrongful convictions in capital cases by dedicated opponents of capital punishment. An engaging book for both scholars and lay readers. Scheck, Barry, Peter Neufeld, and Jim Dwyer. Actual Innocence: Five Days to Execution, and Other Dispatches from the Wrongly Convicted. New York: Random House, 2000. Case studies of the exoneration of wrongfully convicted defendants by the Innocence Project, which is dedicated to overturning convictions of innocent prisoners through DNA testing. See also Appellate process; Confessions; Convictions; Expert witnesses; Eyewitness testimony; Justice; Pardons; Plea bargaining; Police corruption.
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Federal Bureau of Investigation
Federal Bureau of Investigation Identification: Primary investigative and enforcement arm of the federal government’s Department of Justice Dates: Established in 1908; renamed the Federal Bureau of Investigation (FBI) in 1935 Criminal justice issues: Federal law; investigation; law-enforcement organization Significance: As a division of the U.S. Department of Justice, the Federal Bureau of Investigation (FBI) has seen its investigative and other powers greatly expanded as Congress has gradually added one duty after another. The FBI has been engaged in combating many forms of interstate and international criminal activity. It has also strived to raise the standards of regional police units, which the FBI frequently assists in training. The forerunner of the Federal Bureau of Investigation (FBI) was established in 1908 by U.S. attorney general Charles J. Bonaparte, who hired nine former Secret Service agents on a permanent basis in the U.S. Department of Justice. This investigative division was first funded from “miscellaneous expenses” without specific mandate from Congress. Bonaparte actually opposed legislation to specify this new investigative division’s authority, assuring congressmen that personal and political activities would not be investigated but that the new division’s responsibilities would focus on interstate commerce and antitrust violations. History The period of the attorney general’s direct supervision was rather short. By 1910 the unit’s dictate was to enforce the new Mann (White Slave Traffic) Act, which made it a federal crime to transport women across state lines for illicit purposes. Now, as personal and commercial activities increasingly projected themselves across state lines with the creation of nationwide transportation systems and national markets—together with the crimes that go with them—the investigative arm of the Department of Justice acquired an expanded role mandated by Congress, together with additional personnel and funds. Thus, in 1919, Congress passed the Dyer (Motor Vehicles Theft) Act to combat automobile theft, which the unit was assigned to investigate, while the Volstead Act, also of 1919, gave the “Feds” the power to investigate and prosecute violations of the Constitution’s Eighteenth Amendment, prohib374
Federal Bureau of Investigation iting the manufacture, transportation, sale, import, and export of alcoholic beverages. Even before that time, the early bureau was involved in internal security matters—at first because of the opposition to World War I, as well as possible espionage and sabotage. Thus, the agency had to investigate cases arising from the Espionage Act of 1917, the Selective Service Act (draft dodgers) of that same year, the Sedition Act of 1918, and the Immigration Act of 1918. Simultaneously and thereafter, radicals of all kinds became the focus of the bureau’s investigation: labor union leaders, members of the Socialist Party, those sympathetic to the Bolshevik (communist) Revolution in Russia in 1917, pro-Irish activists supporting the rebellion for independence from Britain (1916-1922), black militants such as Marcus Garvey, and others. The head of the antiradical alien enemy unit was J. Edgar Hoover, one of the architects of the 1920 Palmer Raids against suspected radicals and leftists during the so-called Red Scare. Following that period, often viewed as one involving abuse of power and scandal (including the Teapot Dome scandal of 1923-1924), the bureau witnessed a few years of administrative reform and retrenchment coinciding with the early years of Hoover’s directorship (1924-1972). The New Deal era (1932-1939) was to see the naming of additional federal crimes, thus empowering the bureau. These included kidnappings—mostly involving Prohibition-connected gangsterism—and the use of the U.S. mail for extortion, the robbing of federally chartered banks, and, with the growth of fascism and Nazism, espionage. The bureau’s detentive, wiretapping, and break-in powers were also extended. By that time the bureau had become the FBI, and its agents were now authorized to carry weapons and to make arrests independently of state and local law enforcement. A broad surveillance program was instituted against subversives in 1936.
The FBI’s Changing Names Date
Official name
July, 26, 1908 March 16, 1909 July 1, 1932 August 10, 1933 March 22, 1935
(No official name) Bureau of Investigation U.S. Bureau of Investigation Division of Investigation Federal Bureau of Investigation (FBI)
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Federal Bureau of Investigation During World War II, curbing German espionage and communist activity became the FBI’s major focus, and its internal security investigative powers grew even more. Especially with the passage of the McCarran (Internal Security) Act of 1950 and the Communist Control Act of 1954, during the Cold War period (1947-1991), the FBI sustained its emphasis on the containment of communism (especially during the witch-hunt orchestrated by Senator Joseph R. McCarthy of Wisconsin) and various types of radical activism. In the meantime, there was additional targeting of organized crime (and enlarged empowerment of the FBI) with the passage of legislation such as the Omnibus Crime Control and Safe Streets (OCCSS) Act of 1968 and the Racketeer Influenced and Corrupt Organizations (RICO) Acts of 1970 and 1986. However, the Watergate scandal of 1972-1974 and legislative disclosure of abuse of power by several federal agencies, including the FBI, led to new guidelines, reorganization, and reform to make the agency more accountable to Congress and the general public. After the terrorist attacks of September 11, 2001, terrorism and counterterrorism have occupied center stage amid the concerns and activities of the FBI. The dynamic nature of American society and its evolving views of crime— the new forms that it took, novel threats to internal security, and Congress’s response to these—have, in part, accounted for the changing role and powers, even abuses of power, of the FBI. Another factor was the nature and character of the man with whom the agency had become so closely identified for much of its history: director J. Edgar Hoover. Hoover’s obsession with “security” investigations helped to provide a particular bias to the agency’s activities for much of his nearly fifty-year tenure. To this day, the public is divided in its assessment of the FBI. Some recall the heroic role played by the “G-men,” by “The Untouchables,” immortalized by the media, while others dwell on the high-handed nature of some of the agency’s operations and the autocratic nature and tactics of its bestknown director. Organization The FBI is the principal investigative arm of the U.S. Department of Justice, headed by the attorney general, who is therefore the bureau’s nominal head. It is a field-oriented organization in which eleven divisions and four offices at FBI headquarters in Washington, D.C., provide program direction and support services to fifty-six field offices, some four hundred satellite offices known as resident agencies, four specialized field installations, and more than forty foreign liaison posts, each of which is headed by a legal 376
Federal Bureau of Investigation attaché (legate) or legal liaison officer who works abroad with American and local authorities on criminal and civil matters within FBI jurisdiction— that is, on cases not assigned by law to another federal agency. Accordingly, the FBI has priority in such matters as national security, counterintelligence, counterterrorism, cybercrime, international and national organized crime or drug matters, and financial crimes. To implement these functions, the FBI is primarily charged with gathering and reporting facts, locating witnesses and alleged perpetrators, and compiling evidence in federal cases. Among the services the FBI provides are fingerprint identification; laboratory examinations; police training; the Law Enforcement Online communications, information services for use by the law-enforcement community; and administration of the National Crime Information Center and the National Center for the Analysis of Violent Crimes. Also, the bureau provides law-enforcement leadership and assistance to state and international lawenforcement agencies. The organization is headed by a director, now appointed by the U.S. president with the advice and consent of the U.S. Senate. The term is currently limited to ten years. There is a deputy director and thirteen assistant directors, who supervise deputy assistant directors. Each assistant is in charge of one of the eleven headquarters divisions, the Office of Congressional Affairs, and the Office of Professional Responsibility. The Office of the General Counsel is headed by the FBI’s general counsel, while the Office of Equal Employment Opportunity is administered by the equal employment manager. The FBI has about 11,400 special agents (diversified in every way but with a predominance of white males) and some 16,400 support employees, of whom about 10,000 are at FBI headquarters. Nearly 18,000 are assigned to field installations. In 1911, the original bureau had 81 agents and 33 support staff members, with an appropriation of $329,984. During the early twentyfirst century, the FBI had an annual budget of some $3.5 billion. Programs The FBI’s programs include background checks on federal job applicants and appointees slated for sensitive federal agencies as well as those of presidential nominees to executive or judiciary positions. Other programs involve the investigation of civil rights violations, domestic terrorism, national foreign intelligence (foreign espionage and foreign counterintelligence within the United States), and drug trafficking by organized groups, as well as racketeering, violent crimes, kidnapping, sexual exploitation of children, extortion, bank robbery, consumer product tampering, crimes on 377
Federal Bureau of Investigation Indian reservations, unlawful flight to avoid prosecution, and threats—or other harm to—the president, vice president, or members of Congress. Finally, the FBI’s white-collar crime program targets such criminal activity as money laundering, bank fraud and embezzlement, public corruption, environmental crimes, fraud against the government and health care, election law violations, and telemarketing fraud. The FBI’s strategic plan prioritizes combating threats to national and economic security or to U.S. citizens and their property as well as criminal enterprises. Notable FBI Cases During the early years of the FBI’s predecessors (1908-1924), high-profile cases involved violations of the Mann (White Slave Traffic) Act of 1910, focusing on the likes of Jack Johnson, a black heavyweight champion accused of eloping with and seducing a white woman, whom he later married. There was also the case of Edward Y. Clarke, at one time the acting imperial wizard of the Klu Klux Klan. Under the authority of the Espionage and Sedition Acts of 1917 and 1918 during World War I, the bureau prosecuted the likes of William D. “Big Bill” Haywood of the Industrial Workers of the World (IWW, or Wobblies), Jacob Abrams, and Emma Goldman of the Union of Russian Workers, all held to be radicals, anarchists, or subversives. The Hoover years opened with the tracking down of “bad guys,” as the age of Prohibition-driven gangsterism and kidnappings, corruption, and rackets of all kinds had arrived. Cases involving the likes of Al “Scarface” Capone, John Dillinger, Clyde Barrow and Bonnie Parker (popularly known as Bonnie and Clyde), George “Machine Gun” Kelly, Alvin “Creepy” Karpis, Charles “Pretty Boy” Floyd, Louis “Lepke” Buchalter, and Willie “the Eel” Sutton catapulted the FBI and its director to fame. Two famous kidnapping cases in that era were those of the twenty-monthold child, eventually found dead, of hero-aviator Charles Lindbergh (for which Bruno Hauptmann was executed in 1936) and of wealthy Oklahoma City oilman Charles F. Urschel. Most of the perpetrators ended up in prison or were killed in shoot-outs with the G-men, as agents were now known. Even more important, the favorable publicity moved Congress to empower the bureau to intervene in additional crimes formerly considered to be regional or where local law enforcement proved itself unable to cope. Even before World War II’s outbreak in Europe in 1939, the FBI became involved in German espionage cases such as that of Guenther Gustav Rumrich and Frederick (“Fritz”) Joubert Duquesne and in sabotage cases such as that involving George John Dasch and the Long Island (Nazi) Saboteurs. The Smith Act of 1940, outlawing advocacy of the violent overthrow of 378
Federal Bureau of Investigation the government, had given the “Feds” additional authority to pursue radicals. Even before the Japanese attack at Pearl Harbor in 1941, the FBI was again responsible for locating draft evaders and deserters. Overlapping these mandates was the ferreting out of communists and other leftists, increasingly emphasized after the advent of the Cold War in 1947. Thus, there was the case of the Amerasia journal and the trials of William Remington, Alger Hiss, and Judith Coplon. With the surrender of the tripartite Axis powers, communist espionage and subversion became a major issue. Witness the 1957 trial of Colonel Rudolf I. Abel, a Soviet Committee for State Security (KGB) intelligence officer, and most notably of the American “atomic spies,” Julius and Ethel Rosenberg, executed in 1953 for giving the Soviet Union classified information. There was then a recurrence of targeting organized crime, with the trials of Joseph P. Valachi (1963), who later cooperated with the FBI, and the Mafia (La Cosa Nostra). This was to continue through the 1970’s, 1980’s, and 1990’s, with the Pizza Connection case, the Commission case, the Patriarca case, and that of John Gotti. Notorious crime “families” such as the Profacis, Luccheses, Genoveses, Bonannos, Trafficantes, Magaddinos, and Zerillis were not neglected. Neither were civil rights cases such as those of Medgar Evers and the three civil rights workers Michael Schwerner, Andrew Goodman, and James E. Chaney, all murdered in Mississippi; of Viola Liuzzo, murdered in Alabama; and of Martin Luther King, Jr., murdered in Tennessee. The postWorld War II years also involved a new crop of radicals such as Patricia Hearst and others of the Symbionese Liberation Army and of Leonard Peltier of the American Indian movement. The FBI was also involved in the militia cases (Randall “Randy” Weaver’s Christian white supremacists at Ruby Ridge, Idaho, in 1992, and the Freemen at Jordan, Montana, in 1996) and cases involving religious groups (such as the Branch Davidians at Waco, Texas, in 1993). Last but not least was terrorism, whether by individuals such as Theodore J. Kaczynski, the Unabomber (1978-1996), or groups of Muslim fundamentalists at the World Trade Center in New York City (1993 and 2001). Espionage cases also continued—not only those involving Soviet operatives but also U.S. government employees of agencies outside the FBI—for example, John A. Walker and Jonathan Jay Pollard, both of the U.S. Navy; Ronald Pelton of the National Security Agency; and Aldrich H. Ames of the Central Intelligence Agency (CIA). There were additional cases of double agents in the FBI itself. Undoubtedly, with the advent of weapons of mass destruction—especially 379
Federal Bureau of Investigation biological and chemical—the FBI will be involved, as it was in the anthrax scare on the East Coast in 2001. Since its origins, the FBI’s investigations have intersected with major events and public issues in American life and have thus been equally controversial. Moles and Double Agents There was considerable mumbling about director J. Edgar Hoover’s supposed eccentricities and idiosyncrasies when it came to the behavior of his special agents. According to stories, true or apocryphal, he would not tolerate homosexuals or adulterers, mandated formal dress even before airconditioning was available in district offices, and had a phobia about overweight men or even those with sweaty palms. Unquestionably, during his near half-century at the helm, there were extremely few cases of disloyalty, such as that of William G. Sebold in 1941. Things changed, however, after Hoover’s death. One of the most notable—indeed, notorious—cases of disloyalty within the agency was that of FBI special agent Robert Philip Hanssen. Hanssen’s clearances allowed him to access classified information at the CIA, the National Security Agency, the White House, and the defense department. They also enabled Hanssen to check an FBI database that would show any possible investigation of himself by his employer. Hanssen, a computer whiz who had majored in chemistry, spoke Russian, had a master’s degree in business, and had helped the FBI create a database of Soviet intelligence officers, including their addresses, appearances, likes, and dislikes. He was also involved with anti-Soviet electronic bugs and video surveillance. In 1979, Hanssen started working for the GRU (Soviet military intelligence), blowing the cover on Soviet double agent General Dmitri F. Polyakov. The latter, like several others who had worked undercover for the United States and were compromised by Hanssen, was executed in Russia. Back in New York in 1985 after a stint at FBI headquarters, Hanssen returned to spying for the Soviets, this time for the more prestigious KGB. After that, he worked for the Russian SVR, the successor to the KGB’s foreign intelligence unit, sporadically until 2001. But on February 18 of that year, Hanssen was arrested at a dead drop (a drop used for the clandestine exchange of intelligence information) in Foxstone Park, Vienna, Virginia, close to where he lived with his wife and six children. Another team of agents at a second drop site found $50,000 in $100 bills left for him. The damage Hanssen had caused was incalculable. Over twenty-one years of spying for the Soviets and then for the Russians, he transferred to them six thousand pages of classified documents and twenty-seven com380
Federal Bureau of Investigation puter discs cataloging secret and top-secret programs, including one on how to ensure the survival of the U.S. government in the event of a nuclear attack. Instead of the death penalty, which Attorney General John Ashcroft had sought for him, in exchange for continuing debriefings about Russian undercover operations and FBI countermeasures, Hanssen got a life sentence in prison without parole in July, 2001, and his wife was allowed to collect some of his pension. He admitted getting a kick from outwitting the intelligence communities, both the FBI and the KGB, because it gave him a sense of power, of control. Peter B. Heller Further Reading Brzezinski, Matthew. Fortress America: On the Frontline of Homeland Security— An Inside Look at the Coming Surveillance State. New York: Bantam Books, 2004. Critical examination of the new Department of Homeland Security and the post-September 11, 2001, sacrificing of civil liberties in the name of national security. Churchill, Ward, and Jim Vander Wall. The COINTELPRO Papers: Documents from the FBI’s Secret Wars Against Dissent in the United States. 2d ed. Cambridge, Mass.: South End Press, 2002. Purports to show through documentary evidence (including deletions) how the FBI in such case studies as that of the Puerto Rican Independence Movement was willing to sacrifice (according to the bureau’s director) more than a small measure of American liberties in order to preserve the great bulk of them. Bibliography, index. De Loach, Cartha “Deke.” Hoover’s FBI: The Inside Story by Hoover’s Trusted Lieutenant. Washington, D.C.: Regnery, 1995. A sympathetic “insider” assessment by the bureau’s number three man, including interesting reminiscences about the difficulties of trying to “terminate” Hoover’s tenure. Bibliographical notes, index. Kessler, Ronald. The Bureau: The Secret History of the FBI. New York: St. Martin’s Press, 2002. A critical assessment, especially during the “dirty years,” of the FBI’s abuse of power. Bibliography, index. Mitgang, Herbert. Dangerous Dossiers. New York: Penguin/Primus, 1996. The FBI’s secret war against prominent intellectuals, domestic and foreign, in all art forms. Bibliography, index. Reebel, Patrick A., ed. Federal Bureau of Investigation: Current Issues and Background. New York: Nova Science, 2002. A series of essays to support the conclusion that the FBI is a “first-rate organization with a mission impossible.” The case studies include those of the Oklahoma City bombing 381
Felonies (1995), the Montana “Freemen” standoff (1996), and the Branch Davidian siege (1993). Exhaustive bibliography; author, title, and subject indexes. Whitnah, Donald R., ed. Government Agencies. Westport, Conn.: Greenwood Press, 1983. Includes a succinct history of the FBI. Chronology, genealogy, and other appendixes; index. See also Bank robbery; Drugs and law enforcement; Espionage; Justice Department, U.S.; Law enforcement; Motor vehicle theft; Organized crime; Skyjacking; Treason.
Felonies Definition: Serious criminal offenses, such as murder, rape, kidnapping, arson, embezzlement, or armed robbery, that, according to federal guidelines, are punishable by imprisonment of a year or more or by death Criminal justice issues: Law codes; legal terms and principles; violent crime Significance: Federal and state definitions of felonies and misdemeanors vary somewhat, but in all jurisdictions the distinction is an important one. Criminal offenses are often grouped into two major categories, felonies and misdemeanors, which indicate the seriousness of the crime. Misdemeanors are less serious offenses, such as disorderly conduct; felonies are more serious crimes, such as murder, rape, and armed robbery. Federal guidelines define a felony as any crime “punishable by death or by imprisonment for a term exceeding one year.” Most states maintain similar definitions, although some states classify crimes according to the place of incarceration for offenders. If incarceration is to be in a state prison, the offense is a felony; if it is punishable by a term in a local jail, it is considered a misdemeanor. (There are further complications in some areas; in Michigan, a few misdemeanors are deemed serious enough to warrant time in a state penitentiary.) In some jurisdictions an offense may be considered either a felony or a misdemeanor depending on a number of factors. Larceny (theft), for example, may be classified as a felony (grand larceny) if the value of the item or items stolen is sufficiently high or a misdemeanor (petty larceny) if their value is relatively small. Most states maintain separate court systems for felonies and misdemean382
Felonies
During the fall of 2007, O. J. Simpson (left) was arrested in Las Vegas, Nevada, on robbery charges. The former football star, who a decade earlier had been acquitted of the murder of his former wife and another man, was charged with entering the hotel room of a sport memorabilia dealer, along with several accomplices, in an effort to recover items he claimed belonged to him. At issue in his case was the question of whether a gun was used during the robbery attempt—a point that would compound the felony charges against him. (AP/Wide World Photos)
ors. Felonies are tried in county courts, or courts of general jurisdiction. Misdemeanors are handled by local courts with limited jurisdiction. By far, most criminal cases are handled by local (minor) courts, partly because so many charges are only misdemeanors and partly because felony charges are sometimes reduced to misdemeanor charges before a trial begins. Because the charges and punishments meted out to convicted felony offenders are significantly more serious, the handling of felony cases by the courts is much more complex than the handling of misdemeanors. Felony cases involve pretrial, trial, and post-trial proceedings, and they can take a year or more. In 1963, in the landmark case Gideon v. Wainwright, the U.S. Supreme Court held that defendants charged with serious crimes must be provided with a state-appointed attorney if they cannot afford to hire their own attor383
Fines ney. At first this requirement was applied only to felony cases, but in Argersinger v. Hamlin (1973) the Court extended the protection to people accused of misdemeanors if the misdemeanor charge could result in imprisonment. The exact origin of the term “felony” is unknown, but many scholars trace it to the Latin words felonia and fallere, meaning “to deceive.” In England, a felony originally was a breach of the feudal bond resulting in either the temporary or permanent forfeiture of the guilty party’s assets. Gradually the definition expanded. In the twelfth century, Henry II attempted to codify the laws of the realm, and he established forfeiture as one of the penalties for murder, theft, forgery, arson, and other similar criminal acts. Soon all crimes punishable in England by forfeiture of property (eventually abolished in 1870), physical mutilation, burning, or death were considered felonies. In 1967, England replaced the former distinctions with the categories of arrestable and nonarrestable offenses, but the felony/misdemeanor distinction remains important in the United States. Donald C. Simmons, Jr. Further Reading Dix, E. G., and M. M. Sharlot. Criminal Law: Cases and Materials. 5th ed. St. Paul, Minn.: West Group, 2002. Dubber, Markus Dirk. Criminal Law: Model Penal Code. New York: Foundation Press, 2002. Flemming, Roy B. Punishment Before Trial: An Organizational Perspective of Felony Bail Processes. New York: Longman, 1982. Uggen, Christopher, and Jeff Manza. Locking Up the Vote: Felon Disenfranchisement and American Democracy. New York: Oxford University Press, 2004. See also Crime; Criminal law; Criminal records; Mandatory sentencing; Misdemeanors; Punishment; Three-strikes laws.
Fines Definition: Monetary payments required of defendants that provide compensation to either the government or the victim Criminal justice issues: Punishment; restorative justice; sentencing; whitecollar crime Significance: Fines are popular sanctions that have been used as alternatives to probation and prison. They are also imposed on defendants 384
Fines when restitution is to be made to the victims of the crimes. Fines are not as popular in the United States as in European countries but are commonly used in the United States as punishments for traffic violations and white-collar crimes. Monetary punishments have a long history in criminal justice, dating back to before ancient Rome. Through succeeding centuries, their use decreased as prisons were used more frequently to punish criminals, and as belief in the effectiveness of deterrence-based policies grew. While deterrence policies focus on decreasing the likelihood that convicted criminals will repeat their crimes, fines fulfill the goals of greater efficiency and restitution. Indeed, fines are currently becoming more popular again in the United States, through the expansion of restitution programs and increasingly critical concern about the budgets of criminal justice correctional programs. Fines provide a number of cost-effective advantages for criminal justice while also providing alternatives to overburdened correctional programs, such as incarceration and probation. The financial cost of prison and probation programs has been a source of controversy, and some claim that these programs can increase the criminal tendencies of nonviolent criminals. By contrast, fines can provide a sense of justice whereby victims and governments are repaid for the offenders’ crimes, while sheltering nonviolent offenders themselves from more hardened criminals in the correctional system. Fines are now most commonly used in the United States for minor offenses and for white-collar crime. This contrasts with their use in Europe, where fines are the preferred method of punishment for most offenses, particularly property crimes. The distinction between Europe and the United States may in part be due to the greater retributive desires of the American populace. Fines are viewed by many in the United States as too lenient to be assessed as punishments for most crimes and ineffective as deterrents. The use of fines for punishment also generates much controversy because of the disproportionate punitive impact that they have on the rich and the poor. Brion Sever Further Reading Burns, Ronald, and Michael Lynch. “Another Fine Mess . . . The Preliminary Examination of the Use of Fines by the National Highway Traffic Safety Administration.” Criminal Justice Review 27 (2002): 1-25. Raine, John, Eileen Dunstan, and Alan Makie. “Financial Penalties as a Sentence of the Court: Lessons of Policy and Practice from Research Magis385
Forensics trates Courts of England and Wales.” Criminal Justice 3 (2003): 181-197. Waldfogel, Joel. “Are Fines and Prison Terms Used Efficiently? Evidence on Federal Fraud Offenders.” Journal of Law and Economics 38 (1995): 107-139. Waring, Elin. “Incorporating Co-offending in Sentencing Models: An Analysis of Fines Imposed on Antitrust Offenders.” Journal of Quantitative Criminology 14 (1996): 283-305. See also Animal abuse; Contempt of court; Drunk driving; Environmental crimes; Jaywalking; Misdemeanors; Punitive damages; Regulatory crime; Sentencing; Traffic fines; Traffic law; Trespass.
Forensics Definition: Applications of science to the legal arena, particularly criminal investigations Criminal justice issues: Evidence and forensics; investigation; technology Significance: Forensic science and forensic medicine, as they relate to the processing of crime scene evidence, have become increasingly important to the resolution of cases within the criminal justice system, particularly as evolving technologies have allowed forensics to make ever greater contributions to criminal investigations. Forensic science broadly encompasses the use of science in both criminal and civil courts. The types and variety of forensic evidence that can be presented in courtrooms are almost limitless. In criminal courts, forensic evidence is essential in drug cases. Forensic medicine is especially valuable in the handling of evidence relating to bodies in homicide and rape cases. In civil courts, forensic evidence is often presented in product-liability and injury cases. Forensic Specialties The field of forensic science includes a variety of subdisciplines. These include forensic medicine, forensic anthropology, forensic entomology, forensic odontology, forensic palynology, forensic serology, and criminalistics. Forensic medicine is further divided into the areas of forensic pathology, forensic toxicology, forensic odontology, and forensic psychiatry. Forensic pathology studies how and why people die and concentrates on sudden, unexpected, and violent deaths. During homicide investigations, forensic pathologists frequently perform autopsies. Forensic toxicology is 386
Forensics
After sealing off access to crime scenes, police investigators photograph evidence. Photography is important not only for preserving evidence for later study but also for capturing transitory evidence, such as wet prints and liquid spills, before they disappear. (Brand-X Pictures)
concerned with chemicals—especially drugs and poisons—found in human bodies. During death investigations, forensic toxicologists may make determinations on whether victims have been killed by poisons, such as lead. Toxicology analyses can also be used to determine whether a drug such as rohypnol—the so-called date-rape drug—has been used in sexual assaults. Forensic odontology, which is also known as forensic dentistry, deals with dental evidence. It is usually used to identify bodies or to link bite marks on victims to dental impressions of suspects. Forensic psychiatrists combine knowledge and practical experience in medicine, mental health, and the neurosciences and are called upon to testify in the courtroom regarding psychological disorders and disabilities. Forensic anthropologists are most frequently called upon when human skeletal remains are found. Anthropologists use the remains to assist in identifying victims. They may also provide approximate dates and causes of death. Forensic entomology studies how insects colonize dead bodies. On the basis of examination of insects, estimates of times of death can be made. Forensic serologists specialize in identifying and processing blood, semen, saliva, and other body fluids. They may also be involved in analyses of bloodstains, blood spatters, and DNA specimens. Such evidence is often crucial in sexual assault cases and homicide investigations. 387
Forensics Criminalistics Criminalistics is a broad area of forensics that is concerned with analyses of a wide variety of evidence. It encompasses questioned documents; voice examinations; ballistics and firearms; tool marks; fingerprints; tire tracks and shoe prints; paint and glass fragments; hair, fibers, and soil; and arson and explosives. The area of questioned documents includes all types of possible forgeries of documents, papers, inks, computer copies, and handwriting analysis. Voice examination is employed to identify speakers and to ascertain whether speakers are telling the truth. Ballistics is the study of the physics of objects in flight. In forensics, it is primarily concerned with bullets and other projectiles used as weapons. Ballistics experts can determine the angles at which projectiles strike surfaces and the damage that the projectiles cause. Experts in firearms study all types of guns, shotguns, bullets, cartridges, and cases. Tool marks are most often found at the scenes of burglaries and other crimes at which criminals gain forcible entry into secured areas. Fingerprint experts dust for, lift, and interpret fingerprint evidence left at crime scenes. Tire tracks and shoe prints, like fingerprints, are impressions that are often left at crime scenes and can be lifted or copied in castings made with plasterlike materials. Many experts deal with fragment and fiber evidence and examine the microscopic differences in paints, glass, hairs, fibers, and soils. For example, through thorough examination, it may be possible to match minute samples from a crime scene with the paint or glass on a suspect’s car. Paint and glass examination are frequently important in the prosecution of hit-and-run cases.
“Criminalistics” vs. “Forensic Science” It is common for the terms “criminalistics” and “forensic science” to be used interchangeably. Although there is considerable overlap between the terms, they do not mean exactly the same thing. Criminalistics is used specifically for those areas that deal with the processing of crime scene evidence, such as fingerprinting, ballistics, and tool-mark investigation. Forensic science encompasses criminalistics but also encompasses other, more general, scientific knowledge that has become useful to the legal system, such as DNA analysis.
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Forensics Affiliated Fields Areas related to forensic science include forensic psychology, forensic nursing, forensic accounting, forensic engineering, and forensic computer analysis. Forensic psychology includes such activities as criminal personality profiling, child-custody evaluations, and litigation consultation. Forensic nursing is an emerging specialization within nursing that concentrates on working with sexual assault and domestic violence victims. It also contributes to evidence collection for law enforcement. Forensic accounting utilizes accounting principles to evaluate the financial paperwork of organizations to determine if fraud is present. This specialization within accounting has become increasingly important due to highly publicized increases in financial wrongdoing among large corporations. Forensic engineering studies how structures respond to stresses. Forensic engineers explained how and why the Twin Towers of the World Trade Center collapsed during the terrorist attacks of September 11, 2001. Forensic computer analysis is the specialty within computer science that deals with analyses of computer evidence for the prosecution of individuals who steal or alter computer data. History of Forensic Science There are two distinct historical threads within forensic science. The first is the history of the development of law-enforcement and investigation techniques. The second is the history of a variety of scientific advances that have been useful to solve cases. The techniques used by investigators and detectives to solve cases have traditionally been called criminalistics. Has Gross, who is credited as the founder of modern criminalistics, worked as a prosecutor and judge in Austria. He was responsible for publishing the first professional paper on the application of the sciences to criminal investigation during the 1890’s. Locard’s Exchange Principle, named for the French criminalist Edmond Locard, is the guiding principle behind all forensic science. It states that whenever two objects come into contact with each other, there is an exchange of materials between them. In other words, when crimes are committed and the offenders are at the crime scenes, the offenders invariably leave behind material—which may be microscopic—that can be traced back to them. Locard established an early crime laboratory in Lyons, France, in 1910. Alphonse Bertillon developed the first system of person identification, based on body measurements, in Paris during the mid-nineteenth century. His system was soon replaced by fingerprints, which were found to be more individual than the body measurements. 389
Forensics The first forensic laboratory in the United States was opened by the Los Angeles Police Department during the early 1920’s. During the 1930’s, several state laboratories were set up throughout California. California’s early start in forensics gave it an edge in the field that it retained into the twentyfirst century. Meanwhile, the Federal Bureau of Investigation (FBI) established its first forensic laboratory in 1932. Since the field of forensics was founded, it has seen numerous scientific advances. These include developments in microscopy—from Galileo’s invention of the first microscope in the sixteenth century to the invention of the electron microscope during the 1930’s—chemistry, biology, biochemistry, optics, microbiology, molecular biology, and DNA analysis. Forensic Medicine Forensic medicine—the use of medicine to determine cause and manner of death—dates back to ancient Greece and the birth of medicine. From the inception of this discipline, medical practitioners have mastered techniques for determining the time and manner of human deaths. Forensic medical testimony is one of the oldest forms of scientific testimony and has been widely accepted in courts and legal systems across the world. With the advent of modern medicine in the sixteenth and seventeenth centuries, forensic medicine became irrevocably entrenched in the investigative process. In modern criminal justice, forensic medicine is a necessary part of any death investigation. Medical examiners oversee death investigations and may be called upon to testify in court regarding the facts surrounding deaths. The Importance of Crime Scenes The role of forensic science and medicine in the criminal justice system is to aid in the arrest and prosecution of criminals. When law-enforcement officers witness crimes, making arrests is easy. However, in real life, that rarely happens. Arrests that lead to successful convictions are dependent upon three things: witnesses who can testify well, crime scene evidence that can be processed and presented at court, and voluntary confessions by perpetrators. Not all three components need be present for convictions, but each component helps build the state’s case against criminal defendants. Forensic science is most concerned with the processing of crime scenes. The importance of this work cannot be overstated. Criminal investigations begin at crime scenes; if they are not handled properly, the investigations may not progress any further. All the modern scientific advances available to law enforcement cannot make up for what is lost when crime scenes are not 390
Forensics properly guarded and preserved for forensic analysis. Crime scenes must be kept and processed in as pristine a condition as possible. Depending upon the size of the law-enforcement departments responding to crimes, the responsibility for collecting evidence from crime scenes may fall to the responding officers, the lead detectives, or crime scene technicians. In large jurisdictions, specialists may collect different types of evidence. For example, fingerprint specialists dust for and lift fingerprints. Evidence from crime scenes may be examined in three different ways. Physical methods, which are often used, include measuring sizes of objects and where they are in relation to one another; physical matching and comparisons, which are common with glass fragments; and photography. Since the advent of digital photography, the first responders have been able to photograph evidence and make prints quickly and easily, thereby helping to ensure that even transitory evidence, such as wet shoe prints, can be preserved. Chemical methods are often used—especially in the processing of drug evidence. Before convictions can be obtained in drug cases, techniques such as chromatography and spectrography are employed to determine the chemical makeup of evidence at the scenes. Chemical analyses are also performed on blood-alcohol evidence. Biological methods, including microscopy, may also be used, especially when the evidence consists of minute fibers and fragments. Training Training within forensic medicine and forensic science is very diverse, depending upon the particular job descriptions. Forensic medicine requires medical degrees and advanced training. Crime scene technicians generally have college degrees or certificate training. Police officers who work at crime scenes may have on-the-job-training or take specific classes. Individuals who work in crime labs generally have either master’s or doctoral degrees in chemistry, biology, or other natural sciences. Ayn Embar-Seddon Allan D. Pass Further Reading Bass, William M., and Jon Jefferson. Death’s Acre: Inside the Legendary Lab— the Body Farm—Where the Dead Do Tell Tales. New York: Putnam, 2003. Tells the story of the Body Farm at the University of Tennessee, with only a bit too much about Bass’s own life apart from forensic entomology. Ellen, David. Scientific Examination of Documents: Methods and Techniques. 3d 391
Forgery ed. Boca Raton, Fla.: Taylor & Francis, 2006. Guide to methods of examining handwritten, printed, typed, and photocopied documents. Written for lawyers, law-enforcement professionals, and others who investigate the authenticity of documents but accessible to general readers. Evans, C. The Casebook of Forensic Detection: How Science Solved One Hundred of the World’s Most Baffling Crimes. New York: John Wiley & Sons, 1998. Fascinating account of some of the most interesting and sensational achievements of forensic science and medicine. Genge, N. The Forensic Casebook: The Science of Crime Scene Investigation. New York: Ballantine Books, 2002. Exploration of forensics for lay readers. Lee, Henry C., Timothy M. Palmbach, and Marilyn T. Miller. Henry Lee’s Crime Scene Handbook. New York: Academic Press, 2001. Lee is the most widely recognized crime scene expert in the world. This book is a handson guide that covers in detail how to manage crime scenes; collect information; find, collect, and preserve physical evidence; conduct field tests; and reconstruct the sequences of events. Owen, David. Hidden Evidence. Willowdale, Ontario, Canada: Firefly Books, 2000. Another popular treatment of the contributions of forensics to criminal investigations. See also Coroners; Crime labs; Crime scene investigation; Medical examiners.
Forgery Definition: Illegal alteration of documents Criminal justice issues: Business and financial crime; fraud Significance: Forgery cheats individuals, corporations, and nations in a number of ways, including major losses of personal property. Forgery is often defined as any deliberate tampering with a written legal paper for the purpose of deceit or fraud. It may start with a blank piece of paper and involve the production of entire forged documents. In most cases, however, forgery involves merely the signing of another person’s name to a check or other legal document, such as a contract or a will. In some cases, it also entails altering the language or monetary values on such documents. Forgery is a close cousin of counterfeiting, the wholesale manufacture of imitation documents—most often currency. Laws against forgery date back to the Rome of the first century b.c.e. 392
Forgery
The eighteenth century author of a lucid survey of the principles of common law as derived from important decisions in British case history, William Blackstone declared all forgery a capital crime in England. (Courtesy of Art & Visual Materials, Special Collections Department, Harvard Law School Library)
More recent attempts to codify such law arose in Elizabethan England during the late sixteenth century. By the middle of the eighteenth century, William Blackstone had declared that all forgery in England was a capital crime. In the United States, federal law codifies forgery; however, it may be handled by either state or federal courts, depending on its substance. Forged items are not considered illegal until their possessors attempt to use them. When caught, perpetrators may invoke any of several lines of defense against the charges brought against them. The first is that authority was granted to them to sign documents for other persons. Another is that the alterations performed were genuine efforts to correct perceived errors in the documents. Yet another argument frequently invoked is that the accused did not forge the items in question. Forgers have even been known to insist that their forged documents are genuine and to attempt to impeach the experts brought in to verify their forgeries. This approach sometimes works, as even the most advanced modern techniques of scientific document examination are not infallible. In the United States, forgery is punishable by fines or by imprisonment, the extent of which depends on local and federal laws. However, intent to defraud must be proved before sentences can be passed. Sanford S. Singer 393
Fraud Further Reading Brayer, Ruth. Detecting Forgery in Fraud Investigations: The Insider’s Guide. Alexandria, Va.: ASIS International, 2000. Dines, Jess E. Document Examiner Textbook. Irvine, Calif.: Pantex International, 1998. Ellen, David. Scientific Examination of Documents: Methods and Techniques. 3d ed. Boca Raton, Fla.: Taylor & Francis, 2006. Slyter, Steven A. Forensic Signature Examination. Springfield, Ill.: C. C. Thomas, 1995. See also Counterfeiting; Embezzlement; Felonies; Fraud; Identity theft; Insurance fraud; Money laundering; Private detectives; Secret Service, U.S.; White-collar crime.
Fraud Definition: Intentional deceptions or misrepresentations undertaken to deprive others of money, property, or other valuable assets Criminal justice issues: Business and financial crime; computer crime; fraud; white-collar crime Significance: Although frauds are by their nature difficult to identify and quantify, it is clear that fraud constitutes one of the most pervasive and costly crime problems in the United States. Throughout history, the term “fraud” has undergone a series of transformations. The earliest recorded definition of fraud was made during the early fourteenth century, when it was defined as deceit, trickery, or intentional perversion for the purpose of inducing others to part with something of value. During the eighteenth century, England’s Parliament added the concept of false pretenses to the definition of fraud to cover an area of law previously untouched by larceny statutes. The modern American definition of fraud, as used in the Uniform Crime Reports and local law-enforcement agencies throughout the country, calls it deceitful conversion and the obtaining of money or property by false pretenses. Despite disparities in definitions of fraud, it generally is agreed that four elements must be present for fraud to occur: a material false statement, knowledge of the statement’s falsity, reliance on the false statement by a victim, and damages suffered by the victim. 394
Fraud Prevalence Collectively, fraud costs Americans hundreds of billions of dollars every year, and fraud, by its very nature, presents difficult challenges for law enforcement. One of the difficulties in countering fraud is that there are no discernible typologies among either its perpetrators or its victims. Perpetrators range from lower- and middle-class persons to corporate titans. In addition, fraud is rarely perpetrated by lone offenders; it generally relies on collusion between two or more parties. Among victims, the only distinguishable characteristics of victims are age and levels of education. The young, the elderly, and persons with at least some college education are the most likely targets of fraud. The average victim spends in excess of 150 hours and nearly eight hundred dollars repairing the damage caused by fraud. Most victims are unaware of how perpetrators of the frauds against them get their information about them. However, they generally know a few things about the perpetrators themselves, such as names, addresses, and phone numbers. Law enforcement uses such information to apprehend the perpetrators. Consumer reporting agencies such as the Federal Trade Commission and Social Security Administration and federal law-enforcement report an estimated 125,000 to 175,000 victims annually. Approximately 15 percent of the victims of fraud have reported that the suspects are persons whom they personally know, such as relatives, friends, neighbors, and coworkers. Roughly the same percentage of victims believe they have been victims of fraud because of lost or stolen purses and wallets, mail theft, or telephone solicitations. Fraud takes many forms but is generally divided into three basic categories: fraud against the government, corporate and financial fraud, and consumer fraud. Fraud Against the Government Among the most common forms of fraud perpetrated against the government are tax fraud, health care fraud, child-support fraud, bankruptcy fraud, social security fraud, and housing and welfare fraud. Of these types, the most important are tax and health care fraud. Simple tax evasion is the most costly type of fraud against the government. It is practiced in a variety of ways—through deliberate underreporting of income, keeping multiple sets of account books, maintaining false records, claiming personal expenditures as business expenses, and concealing assets and income. One of the challenges faced by agencies responsible for combating such frauds is separating honest errors from willful violations. During the first years of the 395
Fraud twenty-first century, the Internal Revenue Service estimated that it was losing about $28 billion per year in uncollected taxes. Since the early 1990’s, health care fraud, which includes frauds against Medicare and Medicaid, has reached epidemic proportions. It usually takes the form of submission of deliberately claims to tax-funded health insurance programs. Several million health insurance benefit transactions every year are believed to be fraudulent. Examples of health care fraud include billing for medical services never rendered, billing for services or procedures that are more expensive than those actually performed, double billing by misrepresenting uncovered treatments as covered ones, falsifying patient diagnoses, promoting of fraudulent and unproven devices for treatment, and misrepresentations of identity by switching identification cards. Health care fraud has drawn many criminals away from other types of crime because it is viewed as both safer and more lucrative. After tax evasion, health care fraud is the second most costly white-collar crime in the United States, costing citizens an average of more than $50 billion per year. However, the impact of health care fraud extends far beyond its purely financial costs. Falsifying patient diagnoses and histories for financial gain also poses physical risks to patients as well as theft of benefits for those who have lifetime limits on their insurance. Despite the magnitude of health care fraud on a variety of levels, the government has been reluctant to prosecute this type of fraud, thereby perpetuating the problem. Corporate and Financial Fraud A host of subcategories can be identified under the guise of corporate crime. These include securities, mail, wire, bank, mortgage, loan, check, credit card, and private health care fraud. Securities and credit card fraud are the most common types of corporate and financial fraud. Securities frauds include the deliberate falsifying of statements or omission of documents filed with the Securities and Exchange Commission (SEC), insider trading, buying and selling of securities that are not registered with the SEC, and engaging in interstate communications with potential buyers. Securities fraud has been statutorily regulated since the passage of the federal Securities Act of 1933. That law was enacted to prohibit deceit, misrepresentation, and fraud in the sale of securities and to require that investors receive financial and other information regarding the sale of public securities. The National White Collar Crime Center has estimated that securities and commodities fraud totals $40 billion annually. Credit card frauds include unauthorized use of credit cards, reproduc396
Fraud tion of credit card strips, and reproduction of credit cards to utilize the balances for the purpose of obtaining financial gain. In 2005, about 1.2 billion credit cards were in circulation in the United States, and nearly 190 million Americans were credit card holders. Card issuers lose about $1 billion annually to credit card fraud, and merchants lose significantly more. Consumer Fraud Consumer fraud’s main components include telemarketing fraud, Internet fraud, and identity theft. The latter two are the most common types of consumer fraud. Consumer Sentinel is an investigative cybertool, created by various public and private partners to collect and share information pertaining to fraud with all law-enforcement agencies. Its database is maintained by the Federal Trade Commission, which received 516,740 fraud complaints in 2003 alone. Identity theft constituted 214,905 of those complaints. These figures include only the incidents of fraud reported by consumers during that year. Unknown numbers of fraudulent incidents go unreported. Internet fraud is becoming increasingly common as the World Wide Web emerges as a powerful medium for conducting business. This type of fraud encompasses all schemes using components of the Internet to conduct fraudulent transactions, such as work-at-home schemes, phony credit card offers, fraudulent investment opportunities, electronically mailed advertisements known as “spam,” and the use of legitimate business names to persuade computer users to disclose passwords to obtain financial information. The single largest category of Internet-related complaints—80 percent— is online auction fraud. This occurs when victims win auctions but either never receive the products for which they pay or find that the quality of the goods they receive has been misrepresented. There are many completely honest dealers on the Internet, but it is almost impossible for buyers to distinguish between them and the criminals who use the Internet for exploitation. Although current research indicates that incidents of fraud are declining, an important new type of fraud, identity theft, is rapidly expanding. One-half of all fraud complaints reported to the Federal Trade Commission relate to identity theft. A 2003 survey found that over the previous five years, one in eleven people fell victim to identity theft. However, it is difficult to quantify this crime accurately because it is estimated that more than 60 percent of its victims fail to report their bad experiences. Identity theft involves the taking of personal information to use for some type of financial gain. Such information can be taken from many different sources, ranging from the contents of mailboxes and garbage cans to utility bills and even eavesdropping on conversations. Occasionally, employees of 397
Fraud banks, retails stores, and restaurants take account numbers from credit card strip readers. Some perpetrators get information by telephoning their victims and pretending to be representatives of legitimate businesses who are asking to verify information. With the personal information they collect, criminals can apply for credit cards or make withdrawals from bank accounts in their victims’ names. Investigation Fraud investigations are both unusually time-consuming and labor-intensive. The nature of frauds and their ability to remain undetected for extended periods pose special hurdles to investigators, and partly for this reason law-enforcement agencies make fraud investigations a low priority and focus their resources on investigations of other types of crime. The reluctance of law enforcement to go after perpetrators of fraud has reinforced the perception among criminals that fraud is safer and more lucrative to practice than other crimes, such as drug trafficking. According to the Federal Bureau of Investigation’s Uniform Crime Report (UCR), the number of arrests for fraud in 2002 was 233,087—up from the previous year’s 211,177 cases. Since these numbers are based on the numbers of cases that law-enforcement agencies actually report to the FBI, the increase may be due, in part, simply to an increase in the number of agencies reporting fraud. For example, 9,511 agencies reported their arrest rates in 2001, and 10,372 agencies reported their arrest rates in 2002. The majority (54 percent) of fraud offenders in 2002 were men between the ages of twenty-five and twenty-nine. There were no demonstrable differences in race or ethnicity among offenders. Prosecution The main law-enforcement agency responsible for protecting U.S. financial institutions is the Federal Bureau of Investigation (FBI), which is charged with identifying and disassembling criminal organizations and individuals that target financial institutions. Between 2000 and 2004, FBI investigations led to more than eleven thousand convictions for fraud and more than $8 billion in restitution orders. Multiagency task forces have been established in the hope that collaborative efforts will aid in capturing, prosecuting, and punishing fraud offenders. Operation Continued Action, created in 2004, marked the beginning of the largest nationwide law-enforcement initiative in history. The program was initiated by the FBI and involved the U.S. Attorney’s Office, as well as many federal, state, and local law-enforcement agencies. Its main goal was to 398
Fraud counter financial frauds, such as mortgage and loan fraud, identity theft, check kiting, insider trading, and internal theft. Another effort to foster national cooperation among law-enforcement entities is the Internet Fraud Complaint Center (IFCC). This came about as part of the initiative by the U.S. Department of Justice in combating the problem of Internet fraud. This joint venture between the FBI, Internal Revenue Service, and Postal Inspection Service was designed to provide law enforcement with a single point of contact for identifying Internet fraud schemes. As strides in technological advancements continue, Internet fraud is expected to continue to soar. Punishment The Department of Justice prosecutes cases of identity theft under a wide array of federal statutes, including the Identity Theft and Assumption Deterrence Act of 1998. In most instances, identity-theft convictions carry maximum sentences of fifteen years imprisonment, fines, and forfeiture of any personal property used to commit the offenses. It should be noted that identity theft is often coupled with violations of other forms of fraud, including computer, mail, wire, and financial. Those offenses are felonies, and convictions can carry penalties as high as thirty-year prison sentences. In 1996, the Health Insurance Portability and Accountability Act made health care fraud a federal criminal offense. In addition to substantial fines, convictions for this crime can carry sentences to federal prisons of up to ten years. Moreover, the sentences can be doubled when fraudulent acts result in harm to patients. When patients die as a direct result of health care fraud, offenders can be sentenced to life in prison. Lisa Landis Murphy Further Reading Abagnale, Frank. The Art of the Steal: How to Protect Yourself and Your Business from Fraud, America’s Number-One Crime. New York: Broadway, 2002. Authoritative guide to fraud prevention by the former check forger and hoaxer whose career was dramatized in the 2002 film Catch Me If You Can, in which Leonardo DiCaprio played Abagnale. Albrecht, W. Steve, and Chad Albrecht. Fraud Examination and Prevention. Mason, Ohio: Thomson/South-Western, 2004. Examination of methods of detecting, investigating, and preventing fraud. Anastasi, John. The New Forensics: Investigating Corporate Fraud and the Theft of Intellectual Property. Hoboken, N.J.: John Wiley & Sons, 2003. Using actual case studies, Anastasi describes the use of computer forensics to detect 399
Gambling and prosecute a multitude of different types of fraud. Friedrichs, David O. Trusted Criminals: White Collar Crime in Contemporary Society. 3d ed. Belmont, Calif.: Thomson Higher Education, 2007. Comprehensive overview of ways to control white-collar crime, including fraud. Hammond, Robert J., Jr. Identity Theft: How to Protect Your Most Valuable Asset. Franklin Lakes, N.J.: Career Press, 2003. Practical guide to techniques for protecting oneself from various crimes. Identity Theft: How to Protect Your Name, Your Credit Card, Your Virtual Information, and What to Do When Someone Hijacks Any of These. Ada, Ohio: Silver Lake Publishing, 2004. Combines law-enforcement and security personnel interviews with case studies to provide practical advice on avoiding identity theft. Pickett, K. H. Spencer, and Jennifer Pickett. Financial Crime Investigation and Control. New York: J. Wiley, 2002. Useful handbook for law-enforcement personnel involved in financial crime investigations. Swierczynski, Duane. Complete Idiot’s Guide to Frauds, Scams, and Cons. Indianapolis, Ind.: Alpha Books, 2003. Simplified and entertaining guide to the elements of confidence games, consumer scams, and popular frauds. Wells, Joseph T. Corporate Fraud Handbook: Prevention and Detection. 2d ed. Hoboken, N.J.: J. Wiley, 2007. Examines an array of fraud schemes and provides insights on prevention and detection. _______. Principles of Fraud Examination. Hoboken, N.J.: John Wiley, 2005. Employs the use of actual case studies to examine fraud schemes by employees, owners, managers, and executives and discusses how to develop preventive measures. See also Bigamy and polygamy; Cable and satellite television signal theft; Computer crime; Consumer fraud; Embezzlement; Forgery; Identity theft; Insurance fraud; Internal Revenue Service; Mail fraud; Tax evasion; Telephone fraud; Theft; White-collar crime.
Gambling Definition: Playing of games and placing of bets to win money or other prizes Criminal justice issues: Morality and public order; organized crime; victimless crimes Significance: American attitudes toward gambling have shifted back and forth throughout history; however, since the mid-twentieth century, all 400
Gambling forms of gambling, including state-run lotteries, have spread throughout the United States. By late 2004, Hawaii and Utah were the only remaining states that prohibited all forms of gambling. Gambling appears to have existed as long as civilization itself. Archaeologists have uncovered objects used in gambling games that date back as 2,300 b.c.e. in China. Additionally, anthropologists and archaeologists have found evidence of gambling in almost all ancient cultures. However, although gambling has always been a part of human civilization, it has not always been an accepted practice. During the fourteenth century, for example, England’s King Henry VIII criminalized gambling when he found that the men in his armies were spending more time playing games of chance than they were in their studies and training. The history of gambling in the United States has followed a similar course. Although gambling clearly is an integral part of American culture, public acceptance of gambling and gamblers has historically been at the whim of ever-changing social and political winds and influences. Gambling in Early North America The first American settlers had divergent views on the appropriateness of gambling in the New World. As would come to be a common conflict regarding many social issues, English settlers to North America brought with them English traditions and beliefs and viewed gambling primarily as harmless entertainment. The Puritans, on the other hand, viewed gambling in a much less benign manner and enacted prohibitory laws to reflect their beliefs. Thus, while gambling was primarily considered a proper gentleman’s diversion in most English colonies, it was strictly forbidden in the Puritan settlements. Despite the toleration of gambling among early English colonists, many colonists came to blame gambling for the ills of colonial life. In addition, monetary interests in Great Britain began to blame gambling for the perceived laziness and idleness of colonial settlers. During the early eighteenth century, Britain was still financially supporting its colonies, and its leaders were growing impatient waiting for the colonies to become self-sustaining. Although the monetary interests viewed gambling as a problem in the English settlements, they did not disregard the potential to raise revenue through gambling. By the time of the American Revolution in the 1770’s, all thirteen British colonies had instituted government-run lotteries to raise revenue. Lottery revenue contributed to the establishment of some of the most prestigious institutions of higher learning—Columbia, Yale, Harvard, 401
Gambling Princeton, and Dartmouth. During the Revolution itself, the Continental Congress voted to hold a $10 million lottery to fund the war; however, the lottery was never held. After the Revolution, extravagant casinos arose throughout the new country. As the United States expanded west, so did gambling. Gambling houses and establishments were started in the river towns of the South, and gambling moved west as the nation expanded to the Pacific Ocean. However, due to lottery scandals and public disdain for the professional gamblers who preyed on the weak, public attitudes toward gambling gradually shifted. This shift led to changes in many state gambling laws. By 1840, most U.S. states had banned the lotteries, gaming houses, and riverboats that had come to represent gambling in the young nation. The Next Wave In many ways, the frontier spirit of American settlers paralleled the spirit of gaming enthusiasts. Similar to California gold prospectors, gamblers sought adventure and quick wealth. It was thus no surprise that gambling followed the mass movement to the West. During the California gold rush of 1849, San Francisco became the new capital of gambling in the country. Throughout California, gambling thrived among those seeking adventure and fortune in a still untamed territory. Meanwhile, public feeling against gambling—and particularly professional gamblers—spread in the West. Leaders of the new settlements desired national respectability, which the wild nature of the frontier gambling culture did not provide. As in the East, gambling was increasingly blamed for social ills, such as drug abuse, drunkenness, and sexual promiscuity. By the 1860’s, professional gamblers were being lynched in San Francisco. By 1910, gambling was largely outlawed throughout the United States. Antigambling laws sent an official message of morality and abstinence to the citizenry but did little to curb actual gambling. From private games of poker and craps to illegal lotteries and “numbers game” rackets and illegal casinos and gambling houses, gambling continued to flourish within the United States. Whether through paying protection money to law-enforcement officers or simply keeping illegal gambling activities sufficiently quiet, gambling remained integral to American culture. The Twentieth Century and Beyond The Great Depression of the 1930’s ravaged both the U.S. economy and the morale of American citizens. As public officials became desperate to stimulate the economy, attitudes toward legalized gambling again shifted. 402
Gambling During the 1930’s, legal horse racing returned to twenty-one states. By the 1950’s, bingo was legal in eleven states, and the public sentiment again approved some certain levels of legalized gambling. As public officials changed their views on certain types of legalized gambling, law-enforcement agencies in the eastern United States began cracking down hard on illegal private casinos, sports betting, and numbers games controlled by organized crime groups. Crime families then began seeking more hospitable locations for their gambling operations. They initially turned to California, where they opened floating casinos in the Pacific Ocean, just beyond the three-mile limit of government jurisdiction. While organized crime groups were making money off the coast of California, a neighboring state, Nevada, was struggling with its recent decision to legalize gambling. In 1931, partially as a result of flourishing illegal gambling and the view that antigambling laws were unenforceable, Nevada legalized most forms of gambling. However, cutbacks in consumer spending as a result of the Great Depression caused Nevada’s new gaming industry to struggle. It was only after California began suppressing gambling within its borders that Nevada’s modern legal gambling empire began to grow. Intensified enforcement of gambling laws in California pushed organized crime groups to Nevada, where they financed most of the early casinos. Though these people remained criminals, they also had well-developed business skills and access to large sums of money—both of which were scarce in Depression-weary Nevada. By the 1950’s, gambling was flourishing in Nevada, particularly in Las Vegas. However, it was dominated by organized crime families. This fact was well known to anyone with even a passing knowledge of the industry. As the illegitimacy of gambling was again becoming a blight on respectable society, the authorities began once more to crackdown on the criminal underbelly of the gambling world. During the 1950’s, the U.S. Senate found rampant levels of criminality within the hierarchy of the Las Vegas casinos. Such activities included money laundering, prostitution, and sheltering profits from taxes and led to a federal crackdown on gaming interests. As a result of federal and state pressures, organized crime families were forced to sell off their Nevada casino interests. Nevada’s casinos are now highly regulated and closely scrutinized by both federal and state authorities. Nevertheless, organized crime remained involved in many of the casino world’s satellite activities, such as prostitution. Lotteries At the end of the nineteenth century, no state-sponsored lotteries existed in the United States. This fact, however, did not stop most Americans from 403
Gambling
Gross Legal Gambling Revenue in the United States in 2003 Industry Card rooms Commercial casinos* Charitable games and bingo Indian casinos Legal bookmaking Lotteries Pari-mutuel wagering Total
Gross revenue (billions of dollars) 0.85 28.69 2.67 16.82 0.13 19.93 3.79 $72.88
*Figure for commercial casino gambling includes deepwater cruise ships, cruises-to-nowhere, and noncasino devices. Source: Christiansen Capital Advisors LLC. Figures are for most recent year available. Gross gambling revenue (GGR) is the amount wagered minus winnings returned to players; it is the figure used to determine what a casino, racetrack, lottery, or other gaming operation earns before taxes, salaries, and other expenses are paid out.
participating in such games of chance. With millions of Americans playing various forms of illegal lotteries on a weekly basis, several problems arose. First, law-enforcement officers did not want, and did not have the ability to enforce, laws against lotteries. With so many Americans playing the numbers, few officers wanted to be involved in restricting such a popular entertainment source. Whether buying tickets in legal lotteries in other nations—such as the Irish Sweepstakes—or playing illegal numbers games, many otherwise lawabiding Americans were knowingly breaking the law regularly. This led to another problem: If playing in illegal lotteries was a crime, then the country was teeming with criminals. Moreover, there was the danger that the disrespect showed for lottery prohibition could develop into a general disrespect for the law. Such problems led to the general acceptance of numbers games by local authorities and law-enforcement officers. When law-enforcement officers cracked down on numbers games, they did so mostly to send warn404
Gambling ings to criminals about their other illegal activities. The first half of the twentieth century saw a thriving numbers industry in the United States. However, government needs for new sources of revenue soon changed that situation. By the 1960’s, the public’s growing opposition to rising taxes and state needs for new sources of funding combined with the unenforceability of laws against numbers games led to reconsideration of state-sponsored lotteries. By 1971, New Hampshire, New York, and New Jersey had state-run lotteries. In 1974, Massachusetts became the first state to offer “scratcher” lottery tickets. In 1978, New Jersey went a step further by legalizing casino gambling in its then-dilapidated resort town of Atlantic City. These developments were merely the beginning of major changes, and gambling has developed into a growth industry in the United States. By the year 2000, thirty-seven states and the District of Columbia were operating state-sponsored lotteries, and that number continued to grow. Additionally, casino gambling has also rapidly expanded. In 1993, only ten states allowed any form of legal casino gambling. By the late 1990’s, that number had grown to twenty-seven states. In addition, Indian reservations have been permitted to make their own laws regarding gambling on their lands because of their sovereign status. By 2002, 330 of the 558 recognized reservations in the United States were operating casinos in twenty-eight different states. Indian casinos have expanded so rapidly in California that by 2004 the state was poised to pass Nevada in total gambling revenues. In 2003 alone, the gambling industry in the United States took in revenues of over $72 billion, including a significant amount of money that is now generated via Internet gambling. Theodore Shields Further Reading Cook, Philip J., and Charles T. Clotfelter. Selling Hope: State Lotteries in America. Cambridge, Mass.: Harvard University Press, 1991. Comprehensive study of the history and current state of government-run lotteries. Contains extensive statistical data. Fromson, Brett Duval. Hitting the Jackpot: The Inside Story of the Richest Indian Tribe in History. New York: Grove Press, 2004. Fascinating account of how Connecticut’s nearly extinct Mashantucket Pequot Indians parlayed their legal status as an Indian tribe into a major land-owning community with a casino that generates more than $1 billion a year in revenue. Gordon, John S. “Born in Iniquity.” American Heritage 45, no. 1 (February/ March, 1994): 14-16. Survey of the history of gambling in the United States. 405
Graffiti International Gaming Institute. The Gaming Industry: Introduction and Perspectives. New York: John Wiley & Sons, 1996. Industry-sponsored book on all aspects of gambling, from its history to inside looks at how casinos are operated and explanations of the technology of the games. Mason, W. Dale. Indian Gaming: Tribal Sovereignty and American Politics. Norman: University of Oklahoma Press, 2000. Scholarly study of the rise of Indian casinos. O’Brien, Timothy L. Bad Bet: The Inside Story of the Glamour, Glitz, and Danger of America’s Gambling Industry. New York: Random House/Times Business, 1998. The nature of compulsive gambling and its regulation. Includes bibliography and index. Pavalko, Ronald M. Risky Business: America’s Fascination with Gambling. Belmont, Calif.: Wadsworth/Thomson Learning, 2000. Sober, unbiased, and comprehensive study of the social, economic, and legal impacts of gambling in the past and present. Walker, Michael B. The Psychology of Gambling. New York: Pergamon Press, 1997. Broad examination of the behavior of gamblers, with some attention to the treatment of problem gambling, which the author, a psychologist, sees as a function of irrational thinking that can be corrected. See also Commercialized vice; Cybercrime; Embezzlement; Multiple jurisdiction offenses; Organized crime; Police corruption; Public-order offenses; Sports and crime; Sting operations; Victimless crimes.
Graffiti Definition: Unauthorized drawing, writing, or painting on a surface in a public space Criminal justice issues: Juvenile justice; vandalism Significance: There is considerable disagreement about the damage to society caused by graffiti. Some argue that graffiti is simply a form of vandalism whose appearance erodes public perception of an area in a manner similar to that of abandoned buildings, outward prostitution, drug use, and other incivilities. Others contend that many forms of graffiti can be classified as significant pieces of artwork and add to the culture of an area. Graffiti is drawing, writing, or painting on a public surface without permission of the owner of the object or surface. By 2004, graffiti had become common in nearly all major urban areas throughout the world. Although many 406
Graffiti
Graffiti on a school wall. (© Radosuaw Noga/Dreamstime.com)
consider it vandalism, the creation of graffiti is a complex phenomenon that is difficult to encompass with one simple label. There are noticeable differences not only among the different groups of people who create graffiti but also in their artistic abilities and the motives behind their graffiti. Graffiti’s existence may parallel the origins of human existence, as cave drawings and paintings can be traced back to the earliest known communication between humans. This provides evidence for the historical nature of public self-expression through drawing, writing, and painting and suggests that graffiti is a more deeply rooted movement than the mere rebellious destruction of property. Indeed, the use of caves, walls, or other surfaces to describe political ideology and to identify boundaries of territory seems to be a natural part of human existence. Modern graffiti can be traced to urban areas in the northeastern United States. During the 1960’s and 1970’s, graffiti became a popular method by which urban youth in Philadelphia and New York left their marks or identification around their neighborhoods. This process quickly became known as “tagging,” or leaving one’s signature or initials in as many places as possible. Tagging eventually became a competition between individuals and gangs, and the sophistication of the tags grew with the competition. Graffiti tags have caused graffiti to develop a negative stereotype, and 407
Graffiti they are often viewed as senseless vandalism and a sign of urban decay. Some criminological theories have depicted graffiti as incivilities that increase the amount of crime in an area as well as the perception of crime. Accordingly, graffiti signifies a competition for territory between gangs, vandalism created by rebellious and misguided youth, and an overall breakdown in the values and organization of the community. Graffiti as Art Other sociologists contend that some graffiti has artistic value and actually adds to the cultural backdrop of a community. Accordingly, much of the graffiti in an area represents a yardstick of artistic acceptance and ability in the community and a tolerance of the diversity and free speech within. Although graffiti may be considered a sign of urban decay by some, it can also be seen as an extension of the artistic community and a complex device through which nonconventional artists speak to one another. Whether graffiti is a political statement, an artistic message, or some other form of communication, many argue that it should have a welcomed and natural place in society. The contradicting views surrounding graffiti are understandable considering the diverse nature of graffiti itself. Although many serious artists do create graffiti, particularly the multicolored pieces by hip-hop artists, there are undoubtedly many whose markings have less artistic value and are performed with an intention to destroy property. Moreover, the surfaces on which graffiti is placed differ greatly, and all present different challenges. Graffiti is often found on buildings, billboards, subway cars, and subway station walls. Graffiti artists have even begun to target trains that travel to other cities and states in an attempt to extend their messages beyond their local communities. Responses to graffiti have depended largely on the type of graffiti and the policymakers’ perspectives on graffiti. Some communities have treated graffiti as a vandalism or crime problem and have relied solely on traditional lawenforcement strategies. Popular law-enforcement methods include greater numbers of real and simulated patrols, increased lighting, and surveillance cameras in the areas of concern. Along with increasing the certainty of capture for undertaking graffiti, increases in the severity of sentences for those apprehended are common. Graffiti Removal Graffiti removal procedures are critical to any graffiti reduction plan. Because most removal chemicals have difficulty avoiding a “ghosting effect” whereby the old image is still slightly visible after removal, more focus is be408
Grand juries ing placed on the production of paints that are easy to remove. In addition, antigraffiti surfaces are becoming more popular in areas where graffiti is a known problem. These surfaces often employ special paints on which paint used to create graffiti has difficulty sticking. Finally, because police and removal efforts often fail to decrease graffiti, some communities work with graffiti artists in an attempt to strike a middle ground. A number of communities provide areas for legal graffiti in a manner similar to “tolerance zones” for drug use in some European countries. The rationale is that the respect and attention shown toward the work of graffiti artists will result in a mutual benefit to both the artists and the community. Ideally, the artists will enjoy the attention to their work and will, in turn, place their art in areas that are less destructive to the property and natural beauty of the community. Brion Sever Further Reading Coffield, F. Vandalism and Graffiti: The State of the Art. London: Calouste Gulbenkian Foundation, 1991. Leet, Duane, George Rush, and Anthony Smith. Gangs, Graffiti, and Violence: A Realistic Guide to the Scope and Nature of Gangs in America. 2d ed. Belmont, Calif.: Wadsworth, 2000. MacDonald, Nancy. The Graffiti Subculture: Youth, Masculinity and Identity in London and New York. Basingstoke, England: Palgrave, 2001. Phillips, Susan A. Wallbangin’: Graffiti and Gangs in L.A. Chicago: University of Chicago Press, 1999. See also Contributing to delinquency of minors; Cruel and unusual punishment; Juvenile courts; Juvenile delinquency; Public-order offenses; Vandalism; Youth gangs.
Grand juries Definition: Legal bodies formally charged with determining if there is sufficient evidence in criminal investigations to proceed to trials Criminal justice issues: Arrest and arraignment; investigation; prosecution; trial procedures Significance: Grand juries, unlike trial juries, do not determine the guilt or innocence of the accused but assess whether the government has enough evidence to advance to a criminal trial (grand juries do not oper409
Grand juries ate in civil proceedings). In this way the grand jury is intended, in the words of the Supreme Court, to “serve as a buffer or referee between the government and the people who are charged with crimes.” The grand jury was imported to the American context as part of English law and was originally meant to protect the colonies against capricious actions of royalist courts. Grand juries were explicitly recognized in the U.S. Constitution’s Fifth Amendment, which specifies that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury” while laying out a limited number of exceptions for those engaged in military or militia service. Operation and Composition Grand jury proceedings, which occur as part of the criminal process at both the state and federal levels, usually begin when a “bill of indictment,” a written accusation of a crime, is submitted to the jury by a prosecutor. The grand jury then examines the government’s case, conducting hearings in which witnesses are called and evidence presented. Again, in contrast with trial proceedings, these hearings are conducted in secret, the public is excluded from attendance, and the accused has no right to present evidence, although the jury may grant this right. Grand juries operate without the direct supervision of a judge—who still exercises some oversight outside the jury chamber—and proceedings are usually dominated by the prosecution, in part because defense attorneys are generally excluded from participation. Although grand juries are normally formed to assess evidence presented by prosecutors, at times they are constituted as independent investigative bodies, the basic function of which is to determine whether there is enough evidence of a crime to proceed to trial. Federal grand juries have twenty-three members, while state grand juries vary in size from five to twenty-three members. If a legally specified number of jurors from this group believes that the evidence is sufficient to continue prosecution, the grand jury issues an indictment, also known as a “true bill,” to the court with jurisdiction over the case. If a true bill is not returned, the case is dismissed and a “no bill” or “ignoramus” rendered. At the federal level, twelve jurors are needed to return an indictment or ignoramus, and in the states the number varies depending on the juries’ overall size. In any event, unanimity is not required; by some estimates grand juries issue indictments 95 percent of the time. Grand jury members are usually selected at random from voting rolls, although the process varies somewhat at the state level. Grand jurors generally 410
Grand juries serve for three to eighteen months, although the terms of service can run shorter or longer. Thus, a single grand jury typically reviews a large number of cases. Powers of the Grand Jury Witnesses who appear before grand juries possess few procedural rights. Prosecutors are not required to consider or present evidence that might demonstrate the innocence of the accused. In Williams v. United States (1992), the U.S. Supreme Court ruled that federal prosecutors need not present evidence favorable to the defense in seeking indictments. Moreover, although the accused may know the names of those testifying before the grand jury, they have no right to confront and cross-examine them. Some evidence inadmissible before trial juries is acceptable in the context of a grand jury inquiry, including hearsay. Those appearing before a grand jury have no right to representation by counsel, although they may request to consult with an attorney outside the grand jury chamber. Some states permit attorneys to be brought into the jury room. The courts have consistently upheld the broad powers and prerogatives of the grand jury, including the secrecy of its proceedings and its power to compel witnesses to appear, testify, and provide evidence. However, in Kastigar v. United States (1972), the U.S. Supreme Court found that grand juries’ power to subpoena witnesses and compel testimony must be balanced against constitutional protections against self-incrimination found in the Fifth Amendment to the U.S. Constitution. The Court ruled that compelled testimony and any information or evidence directly derived therefrom cannot be used in subsequent criminal proceedings against the testifying individual—who might still be prosecuted through evidence obtained independently from the grand jury. The Court has consistently avoided insisting that the grand jury is constitutionally required at the state level, making the grand jury provisions of the Fifth Amendment one of the few portions of the Bill of Rights that has not been applied to the states. In Hurtado v. California (1884), the Court held that the grand jury protections of the Fifth Amendment need not be extended to the states. Informations and Presentments While numerous states authorize the grand jury system, many others use an alternate process known as an “information” to determine whether the prosecution’s case should proceed to trial. In an information, a prosecutor provides a written accusation of a crime to the court with the initial authority 411
Grand juries to hear the case. Usually the prosecution’s accusation is initially inspected by a magistrate to ensure its propriety. On occasion, grand juries go beyond simply determining the sufficiency of the evidence before them by offering “presentments.” Although not quite indictments, presentments draw attention to alleged illegal or corrupt activities. In 1974, for example, a grand jury presentment identified President Richard M. Nixon as an “unindicted coconspirator” for his role in the Watergate scandal. Grand juries are used in most federal felony prosecutions, although the information is employed in noncapital criminal cases at the district court level and in some civil cases. The state use of grand juries varies widely, with some states employing them optionally and others relegating them to certain classes of investigations, such as in the event of corruption charges against public officials. Grand juries are no longer employed in England; their importance in the U.S. legal system is unique. The grand jury has been the object of frequent criticism, both from those who find it a cumbersome element of the legal system and from those who consider it a menace to criminal rights and civil liberties in general. The former critics often point to the “information” as a preferable, more efficient procedure for advancing the course of a criminal investigation. Those who object that grand juries have great potential for abuse argue that prosecutors’ unbridled authority within the grand jury chamber allows them to intimidate witnesses and cajole jurors, so that the indictment becomes more of a foregone conclusion than an actual check against improper investigations. Defenders of the existing grand jury insist that it serves a critical function in ensuring that the charges against a suspect stem from well-considered evidence rather than from malice, haste, or expedience. Bruce G. Peabody Further Reading Abraham, Henry. The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France. 7th ed. New York: Oxford University Press, 1998. Includes a concise account of the historical roots of the grand jury. Clark, Leroy D. The Grand Jury: The Use and Abuse of Political Power. New York: Quadrangle, 1975. Critical examination of problems in the grand jury system arising from political influences. Del Carmen, Rolando V. Criminal Procedure: Law and Practice. 7th ed. Belmont, Calif.: Thomson/Wadsworth, 2007. Comprehensive and readable 412
Halfway houses review of criminal procedure that includes a solid discussion of the grand jury in the broader context of criminal procedure. Frankel, Marvin E., and Gary P. Naftalis. The Grand Jury: An Institution on Trial. New York: Hill & Wang, 1977. Another critical study of grand juries in practice. Younger, R. D. The People’s Panel: The Grand Jury in the United States, 16341941. Providence, R.I.: Brown University Press, 1963. Detailed study of grand juries in U.S. legal history. See also Criminal procedure; Criminal prosecution; Defense attorneys; Indictment; Jury duty; Jury system; Organized crime; Public prosecutors; Testimony; Trials.
Halfway houses Definition: Use of supervised living arrangements, usually in urban areas, as an alternative to prisons Criminal justice issues: Probation and pretrial release; punishment; rehabilitation Significance: The use of halfway houses as an alternative to incarceration is on the rise. Halfway houses have many different forms and treatment philosophies and serve different populations. Offenders on probation and those facing potential prison sentences are referred to as “halfway in,” while offenders planning to be released into the community soon after serving prison time are referred to as “halfway out.” A structured living environment is provided to halfway-in offenders in the attempt to remove bad influences that may lead to more criminal behavior. Residents are held accountable for their time. Frequently, they are required to work or at least look for a job, be drug free, obey curfew hours, and perform duties around the halfway house. Offenders create a life for themselves in a community, but they are also held accountable for their activities and are supervised under specific house rules. In addition to room and board, they are frequently given vocational training, treatment for substance abuse, anger management therapy, and other assistance. Leaving prison may lead to the so-called revolving door of recidivism because former convicts often lack social support and ties to conventional society. For the halfway out, halfway houses are successful at offering support for 413
Halfway houses individuals lacking family and friends willing to support and sponsor them as they return from prison. Halfway house programs are frequently criticized for coddling inmates and for punishing them too lightly for their crimes. Observers frequently criticize the nature of room and board, which is less institutional than that of a jail, and the benefits offenders receive of free education, vocational training, and health care. Most often, halfway houses are located in urban settings with good access to public transportation, flexible job opportunities, social services, and health care facilities. In order to keep costs down, the homes are usually located in lower-income neighborhoods. Residents of neighboring communities are frequently concerned that the residents of halfway houses are criminal offenders living in neighborhoods already facing significant crime and declining property values. The phrase “not in my backyard” has been popularized to describe a situation in which citizens see the overall benefit of specific programs such as halfway houses but claim that those programs should exist in some other community. Zoning boards and town councils frequently attempt to stifle the growth of local halfway houses by refusing accommodations for building changes or creating rules that limit the number of unrelated individuals residing in one residence. This leads to communities getting several smaller operations housing five to eight people instead of a larger operation with many people under one roof. It is difficult to assess the success or failure of halfway houses as a general concept because there is a great deal of variability among the services offered, types of staffing, rules, location of the building, and general community support for the house residents. This variability results in ample support for and against the development of these facilities. However, the number of halfway houses is expected to increase because of a number of factors, including the substantial overcrowding in prisons and jails, the cost savings of halfway houses over traditional incarceration, the popular acceptance of alternative sanctions for nonviolent offenders, and the promise of greater reintegration into the community. John C. Kilburn, Jr. Further Reading Clear, Todd R., and Harry R. Dammer. The Offender in the Community. 2d ed. Belmont, Calif.: Wadsworth/Thomson Learning, 2003. Petersilia, Joan, ed. Community Corrections: Probation, Parole, and Intermediate Sanctions. New York: Oxford University Press, 1998. 414
Hate crime See also Community-based corrections; Criminal justice system; House arrest; Parole; Prison escapes; Recidivism; Rehabilitation; Restitution; Work camps; Work-release programs.
Hate crime Definition: Crime committed because of the victims’ race, ethnicity, religion, sexual orientation, or other group characteristic Criminal justice issues: Civil rights and liberties; constitutional protections; hate crime Significance: Hate crime is not new, but it has only been since the late decades of the twentieth century that it has received extensive scholarly and legal attention. Studying and preventing hate crime has proved to be a challenging task. During the 1980’s, states began passing laws against what became known as hate, or bias, crime. Although these laws differed considerably from jurisdiction to jurisdiction, most of them worked by adding additional penalties when offenders chose their victims because of their membership, or presumed membership, in certain racial, ethnic, religious, or sexual orientation groups. By the end of the twentieth century, nearly every state had some form of hate crime law, as did many nations. The U.S. federal government also passed a law requiring the Department of Justice to collect hate crime data from local law-enforcement agencies. Proponents of hate crime laws argued that special legislation was needed for several reasons. Existing laws, such as those in some states that prohibited desecrating cemeteries and places of worship, covered only a small proportion of bias-motivated crime. Many people and groups believed that the frequency of hate crimes was increasing. Furthermore, it was argued, hate crimes are worse than “ordinary” crimes because they have a greater impact on victims and communities. Hate crime laws have been challenged on a number of constitutional grounds. The U.S. Supreme Court has ruled on them in such cases as Wisconsin v. Mitchell (1993), R.A.V. v. City of St. Paul (1992), and Virginia v. Black (2003). These rulings have made it permissible to punish offenders when their crimes are motivated by their victims’ group membership. Moreover, bias may be considered as an aggravating circumstance in death-penalty cases. However, laws that seek to punish expressions of bias, such as cross 415
Hate crime burning, must be drafted carefully to avoid infringing on First Amendment rights. Aside from the constitutional issues, the other major debate concerning hate crime has centered on what kind of groups to include within the protection of the laws. All hate crime statutes include race, religion, and ethnicity, but other categories have been more controversial. Many hate crime laws do not include crimes on the basis of sexual orientation, even though gays and lesbians are frequent targets. States are also split as to whether they include gender and disability. Police and Hate Crimes It has proven to be difficult to enforce hate crime laws effectively. Few of these crimes—probably less than one-third—are reported to police. This is due to a number of factors, including victims’ fears and lack of understanding of the law, as well as poor relations between some communities and their police. Attempts have been made to improve police handling of hate crimes. Some states, such as California, require training on hate crimes in their police academies. Many jurisdictions have created special bias crime units, although the effectiveness of these units varies widely. Despite these efforts, arrests for hate crimes remain uncommon, and successful prosecutions are even rarer. This is because convicting offenders on hate crime charges requires proving their biased motive beyond a reasonable doubt, which is often difficult. Even California, which has the largest number of reported hate crimes in the nation—around one-quarter of the total—usually has only about two hundred hate crime convictions a year. The Impact of Hate Crime The most common victims of hate crimes in virtually every jurisdiction are African Americans. Gays and lesbians and Jews are also frequent targets. However, members of virtually every ethnic group, including whites, experience hate c