Chapter 3

 The Courts 

·          Legislature passed laws

·         high courts (Superior Courts) handled criminal and civil trials

·        lower courts handled most and levied and collected taxes

·        same kinds of courts found today 

Justice of the Peace (county courts) 

         justice of the peace was the key person in these county courts

        Handled probate, allocated money on road and bridge repairs, licensing, maintenance of the local ministry, regulation of wages, and criminal cases

         In colonial days they handled mostly minor criminal and civil cases, and many were religious-influenced cases

 Religion – again! 

         "Profane swearing," "profane cursing" (it is not clear what the difference was) and "profaning the Sabbath,” fornication, disobeying your husband, etc.

         Constituted about 1/3 of all cases

         In Mass. Bay Colony the legal code contained a list of “capital laws” and each one came with citations from the Bible

 Federal court system emerges 

         Debate about a federal court system and debate about a central government in the first place ("anti-federalists" v. "federalists”)

         Federalist won, with a compromise in “district courts” and eventually state courts were set up

         Supreme Court was established in 1789 with the passage of the Judiciary Act.

        Members of this court came mostly from the upper class

 Post-Civil War Changes 

         Big changes came after Civil War –

        small claims courts, so-called "lower courts" (often called "municipal courts" or "justice of the peace courts," which handle misdemeanors, including traffic citations)

        Felony courts (often called "Superior Courts,"  "District Courts, etc." and juvenile courts (begun in 1899).

 Elite Dominance of the Legal Profession in Colonial America 

         most lawyers worked on a part-time basis, as they usually were men of considerable means and thus had to spend a lot of their time managing their property

         Few went to college at first, then only Harvard and Yale

         Most “founding fathers” were lawyers

         Note the two studies in this chapter

         Lawyers in Mass reads like a "who's who" in Massachusetts society

 Obsession with “order” and “morality 

         Note the kinds of cases routinely processed in colonial courts

         Why the obsession over “order” and “morality”?

        sexual behavior of colonial citizens was often quite loose.

        Also, there was much drinking and carrying on.

        Many women were pregnant at time of marriage

         Note the “public” forms of punishment

        Stocks, pillory, whipping, branding, etc.

        Few went to jail and there were no prisons

        Many were ordered to leave – banishment common penalty as were fines

         “Bark” louder than “bite” – most cases dismissed

 Hunting for Witches and Religious Dissidents  

         Women were often singled out for the prosecution of these offenses – why?

        Considered “property” and lived an existence of servitude and compliance. 

        When they failed to comply with these rigors, they were brought before the court.

        Social control of women very important in colonial society where, ironically, men eventually rebelled against their own kind of submission – to the “mother country”

         Witch trials in Salem classic illustration of this

        Most were women and young girls – why?

 Witches 

         The significance of these trials champions the notion that women were obviously persecuted

         In times of social peril, looking for scapegoats proved an adequate distraction. 

         It was the court, in all of its legal splendor, that legitimated the persecution and scapegoating

         Twenty-nine people were convicted.  Nineteen people were hanged, and the remaining convicted persons were released over a period of years

Side Bar

The Corporation as a “Person”  

      The idea of the corporation as a “person” emerged during this era

     Had same rights as people in general, as noted in the 14th Amendment guaranteeing that all "persons" have the right to due process.

     Santa Clara County v. Southern Pacific Railroad – in this case the Supreme Court did not specifically rule that corporations were “persons” but the Chief Justice made a statement that the members of the Court did in fact believe this was true

      Chief Justice Waite: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.”

      Even though the Court did not specifically rule on this, the court reporter made note of this statement and subsequent cases cited this case as a precedent that corporations are legally “persons” and thus protected by the 14th Amendment.

      http://reclaimdemocracy.org/personhood/   

Why is this important?  

      The courts have since ruled that since corporations are “persons” they have the same constitutional protections as real people

      As will be noted in chapter 3, between 1890 and 1910, of all the 14th Amendment cases brought before the Supreme Court, 288 dealt with corporations and only 19 dealt with black citizens

14th Amendment  

         No person shall be deprived of property, "nor shall any State deprive any person of life, liberty, or property without due process of law."

         The courts began to interpret this not as a protection for blacks, but as a protection for corporations, ruling on many occasions that a corporation was a "person.“

         Between 1890 and 1910, of all the 14th Amendment cases brought before the Supreme Court, 288 dealt with corporations and only 19 dealt with black citizens

         Justice Samuel Miller said in 1875 that it was useless to "contend with judges who have been at the bar the advocates for forty years of railroad companies..."

         The idea of the corporation as a “person” emerged during this era

         Had same rights as people in general, as noted in the 14th Amendment guaranteeing that all "persons" have the right to due process.

         Santa Clara County v. Southern Pacific Railroad – in this case the Supreme Court did not specifically rule that corporations were “persons” but the Chief Justice made a statement that the members of the Court did in fact believe this was true

         Chief Justice Waite: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does.”

         Even though the Court did not specifically rule on this, the court reporter made note of this statement and subsequent cases cited this case as a precedent that corporations are legally “persons” and thus protected by the 14th Amendment.

 Jails and Bail 

         Managing the “rabble” is main function

         Jails emerged from “poorhouses,” “debtors’ prisons,” etc.

         Bail became a method of securing one’s release from jail

         Today it remains a sort of “temporary housing for the poor”

         Note the case of the Hispanic man reported by the New York Times

        He was unable to raise the $5,000 for his bail. 

        Spent 19 months in jail awaiting his trial

        He was finally found not guilty. 

        Ironically he spent more time in jail awaiting this decision than he would have spent had he pled guilty to a lesser charge

 The Warren Court and the Right to Counsel 

         Gideon v. Wainwright (1963) - Court ruled that a defendant accused of a felony even in a non-capital ease should be provided counsel.

         It was a clear case of the fact that being poor (which Gideon was) led to a denial of due process

         Indigents accused of misdemeanors must also be provided with counsel in cases which can lead to imprisonment (Argersinger v. Hamlin, 1972).

         Right to counsel extended to various "critical stages" of the criminal justice process

        custodial interrogation (Miranda v. Arizona, 1963)

        preliminary hearing (Coleman v. Alabama, 1970)

        police lineups (United States v. Wade, 1972).

 Competent Counsel 

         Court never addressed the competency of lawyers

         Mockery of justice standard -only circumstances so shocking that they reduce the trial to a farce satisfied defendants' claim of ineffective counsel."

         But under this guideline even defense lawyers "who appeared in court drunk did not violate this standard"

         But "critical stages" only include those that occur after formal charges have been filed.

        Do not include the "investigative stop," the actual arrest, a search following an arrest and even custodial interrogation.

 Assigned counsel system  

         The judge usually has a list of lawyers in private practice in a particular county or a list of those who have volunteered to serve as counsel for indigents.

        Such lawyers are typically young and inexperienced and take the cases because they need the money or the experience or both.

        Hourly fees generally range from $25 to $40.

         Similar to "managed care" in the health system, where in cases of psychotherapy, therapists are hired by insurance companies to see eight to ten clients each day for a much lower rate. 

         Not surprisingly, the "care" received by clients in each case suffers.

 Radical-Criminal Trials  

         Political and social events often end up in the courts

         The courts have always been in the middle of race, class and gender conflicts and with few exceptions they have sided with those in power

        Sacco & Vanzetti is a case in point

        Courts ruled in favor of corporations against unions during the labor movement

         Radical trials of the 1960s often ended with hung juries and court rulings being overturned, due largely to the Vietnam War

 The Modern Era: The "War on Drugs" and Racial Minorities 

         In Chicago there is a separate courtroom for drug cases

         While during the day, it is mostly white defendants, at night it is almost all black

         Table 3.1 - from 1950 to 2004 the proportion of those going to prison for federal drug offenses rose from 77 percent to 93 percent, while the average sentence has risen by 277 percent.  

Drug War & Race 

         Figures 3.1 to 3.3 illustrate racial differences in drug sentences

         Table 3.2 shows few racial differences in drug use

         Note the study of 1994 court cases around the country and the role of race and drug cases

 Three Strikes 

         An example of “habitual offender” laws

         While supporters said the law would target only serious violent offenders, the results have been far different

        Mostly minor offenders and of course drug offenders have been targeted

         Note the impact on black defendants

        43% of 3 strike defendants in Calif.

The Death Penalty  

         Furman v. Georgia (1972) and Gregg v. Georgia (1976) were key cases that opened the floodgates of death penalty cases

        Since 1976 more than 5,000 have been sentenced to death

        The US has used the death penalty more than any other democracy

 Race & the Death Penalty 

         Disproportionate numbers of blacks have received this penalty

         Studies consistently proving racial bias

        Whites accused of murder more likely to be charged with a lesser crime like manslaughter

        Whites more likely to receive life

        Race of victim important (if victim is white and offender is black the defendant is 12 X more likely to get the death penalty)

 McCleskey v. Kemp (1987) 

         Here the Supreme Court ruled that there was no way to prove prosecutors had it in for the defendant because he was black

        Concluded that at best, all that could be shown was a "discrepancy that appears to correlate with race."

         Yet, look what Justice Powell had to say

         Powell noted that such evidence "throws into serious question the principles that underlie our entire criminal justice system...if we accepted McCleskey's claim that racial bias impermissibly tainted the capital sentencing decision, we would soon be faced with similar claims as to other types of penalty."  

Can we prove Prosecutor bias? 

         Nearly impossible to prove that a prosecutor and a jury have imposed the death penalty in a particular case because of the defendant's race.

         However, note there have been a few cases where there was obvious racism by the jury

 Dobbs v. Zant 

         A 1989 case (in Georgia again), the Court rejected the appeal even though several jurors referred to African-Americans as "coloreds" and two admitted using "nigger" in their conversations. 

         Even the defense attorney (a court-appointed attorney) admitted using "nigger" and believed that African-Americans make good basketball players, but not teachers

 The Innocent 

         The use of DNA testing has resulted in 107 persons being released between 1989 and 2002, twelve of whom were on death row. Total error rates have reached as high as 70 percent in some courts

         Columbia Univ. study of 4,578 cases between 1973 and 1995 found that there were serious “reversible errors” in almost 70 percent of capital cases that were reviewed