Crime And Punishment In American History Part 24

76 Ostrander, Ostrander, Nevada, Nevada, p. 207; see Laws Nev. 1913, chap. 149, p. 235; Laws Nev. 1931, chap. 99, p. 165. p. 207; see Laws Nev. 1913, chap. 149, p. 235; Laws Nev. 1931, chap. 99, p. 165.

77 Henry Chafetz, Henry Chafetz, Play the Devil: A History of Gambling in the United States from 1492 to 1955 Play the Devil: A History of Gambling in the United States from 1492 to 1955 (1960), pp. 452-53. The quote is from the columnist Red Smith. (1960), pp. 452-53. The quote is from the columnist Red Smith.

78 See, in general, Jerome H. Skolnick, See, in general, Jerome H. Skolnick, House of Cards: The Legalization and Control of Casino Gambling House of Cards: The Legalization and Control of Casino Gambling (1978). (1978).

79 Fortieth Annual Report, Munic.i.p.al Court of Philadelphia (1953), Fortieth Annual Report, Munic.i.p.al Court of Philadelphia (1953), p. 245. p. 245.

80 William Seagle, "The Twilight of the Mann Act," William Seagle, "The Twilight of the Mann Act," American Bar a.s.sociation Journal American Bar a.s.sociation Journal 55:641 (1969). 55:641 (1969).

81 Grittner, Grittner, White Slavery, White Slavery, pp. 149-50. pp. 149-50.

82 U.S. v. McClung, 187 Fed. Supp. 254 (D.C.E.D. La., 1960). The judge, Skelly Wright, read the Mann Act as condemning only immorality that was "habitual . . . an immoral U.S. v. McClung, 187 Fed. Supp. 254 (D.C.E.D. La., 1960). The judge, Skelly Wright, read the Mann Act as condemning only immorality that was "habitual . . . an immoral status status of some duration." (Ibid., at 258.) He also tried, somewhat feebly, to distinguish the of some duration." (Ibid., at 258.) He also tried, somewhat feebly, to distinguish the Caminetti Caminetti case. case.

83 Grittner, Grittner, White Slavery, White Slavery, p. 163. p. 163.

84 Nevertheless, Beckman reports that 439 defendants were committed to prison between 1970 and 1982 for violating the Mann Act-presum-ably all for commercialized vice offenses. "White Slave Traffic Act," p. 1134. Nevertheless, Beckman reports that 439 defendants were committed to prison between 1970 and 1982 for violating the Mann Act-presum-ably all for commercialized vice offenses. "White Slave Traffic Act," p. 1134.

85 92 Stats. 7, 8-9 (act of Feb. 6, 1978); 18 U.S. C. A. 2423. 92 Stats. 7, 8-9 (act of Feb. 6, 1978); 18 U.S. C. A. 2423.

86 The new t.i.tle of the law was Transportation for Illegal s.e.xual Activity and Related Crimes. The new t.i.tle of the law was Transportation for Illegal s.e.xual Activity and Related Crimes.

87 100 Stats. 3511 (act of Nov. 7, 1986); 18 U.S. C.A. 2421. 100 Stats. 3511 (act of Nov. 7, 1986); 18 U.S. C.A. 2421.

88 Third Annual Report, Munic.i.p.al Court of Chicago (1908-1909), Third Annual Report, Munic.i.p.al Court of Chicago (1908-1909), p. 80. p. 80.

89 Lawrence R. Murphy, "Defining the Crime Against Nature: Sodomy in the United States Appeals Courts, 1810-1940," Lawrence R. Murphy, "Defining the Crime Against Nature: Sodomy in the United States Appeals Courts, 1810-1940," Journal of h.o.m.o-s.e.xuality Journal of h.o.m.o-s.e.xuality 19:49, 63 (1990). 19:49, 63 (1990).

90 State v. Start, 65 Ore. 178, 132 P. 512 (1913); for the statute, see Rev. Stats. Ore., 1909, Vol. 1, p. 929, simply referring to "sodomy or the crime against nature." State v. Start, 65 Ore. 178, 132 P. 512 (1913); for the statute, see Rev. Stats. Ore., 1909, Vol. 1, p. 929, simply referring to "sodomy or the crime against nature."

91 Start's conviction, however, was reversed on other grounds. For a similar reading of a statute, see State v. Guerin (51 Mont. 250, 152 P. 747 [1915]). The court said: "Every intelligent adult person understands fully what the ordinary course of nature demands or permits for the purpose of procreation . . . [and] any departure from this course is against nature." Start's conviction, however, was reversed on other grounds. For a similar reading of a statute, see State v. Guerin (51 Mont. 250, 152 P. 747 [1915]). The court said: "Every intelligent adult person understands fully what the ordinary course of nature demands or permits for the purpose of procreation . . . [and] any departure from this course is against nature."

92 Murphy, "Defining the Crime," p. 61. Apparently, there is no reported case before the Second World War in which a lesbian was convicted under a sodomy statute, according to Murphy. Some statutes plainly excluded this possibility, by referring exclusively to crimes against nature committed with men. The other sort of crime against nature was, apparently, totally unthinkable. Murphy, "Defining the Crime," p. 61. Apparently, there is no reported case before the Second World War in which a lesbian was convicted under a sodomy statute, according to Murphy. Some statutes plainly excluded this possibility, by referring exclusively to crimes against nature committed with men. The other sort of crime against nature was, apparently, totally unthinkable.

93 Alfred C. Kinsey, Wardell B. Pomeroy, and Clyde E. Martin, Alfred C. Kinsey, Wardell B. Pomeroy, and Clyde E. Martin, s.e.xual Behavior in the Human Male s.e.xual Behavior in the Human Male (1948), p. 392. (1948), p. 392.

94 Alfred C. Kinsey et al., Alfred C. Kinsey et al., s.e.xual Behavior in the Human Female s.e.xual Behavior in the Human Female (1953). (1953).

95 Ibid., pp. 673-74. Ibid., pp. 673-74.

96 Ibid., p. 453. Ibid., p. 453.

97 John D'Emilio and Estelle B. Freedman, John D'Emilio and Estelle B. Freedman, Intimate Matters: A History of s.e.xuality in America Intimate Matters: A History of s.e.xuality in America (1988), p. 294. (1988), p. 294.

98 See John Gera.s.si, See John Gera.s.si, The Boys of Boise: Furor, Vice, and Folly in an American City The Boys of Boise: Furor, Vice, and Folly in an American City (1966). (1966).

99 State v. Saunders, 75 N.J. 200, 381 Atl. 2d 333 (1977). The Connecticut repeal is Laws Conn. 1967, p. 1618. State v. Saunders, 75 N.J. 200, 381 Atl. 2d 333 (1977). The Connecticut repeal is Laws Conn. 1967, p. 1618.

100 On Texas: See Jeremy D. Weinstein, "Adultery, Law and the State," On Texas: See Jeremy D. Weinstein, "Adultery, Law and the State," Hastings Law Journal Hastings Law Journal 38:195, 230-36 (1986); the Ma.s.sachusetts case is Commonwealth v. Stowell, 389 Ma.s.s. 171, 449 N.E. 2d 357 (1983). The Texas statute was repealed in 1973 (Laws Tex. 1973, chap. 399), as part of a general reform and reenactment of the Penal Code. 38:195, 230-36 (1986); the Ma.s.sachusetts case is Commonwealth v. Stowell, 389 Ma.s.s. 171, 449 N.E. 2d 357 (1983). The Texas statute was repealed in 1973 (Laws Tex. 1973, chap. 399), as part of a general reform and reenactment of the Penal Code.

101 New York Times, New York Times, April 30, 1990, p. A1. April 30, 1990, p. A1.

102 D'Emilio and Freedman, D'Emilio and Freedman, Intimate Matters, Intimate Matters, p. 223. p. 223.

103 State v. Saunders, 75 N.J. 200, 381 Atl. 2d 333 (1977). State v. Saunders, 75 N.J. 200, 381 Atl. 2d 333 (1977).

104 State v. Saunders, 75 N.J. 200, 381 Atl. 2d 333, 335 (1977). State v. Saunders, 75 N.J. 200, 381 Atl. 2d 333, 335 (1977).

105 Quoted in Richard Green, "Fornication: Common Law Legacy and American s.e.xual Privacy," Quoted in Richard Green, "Fornication: Common Law Legacy and American s.e.xual Privacy," Anglo-American Law Review Anglo-American Law Review 17:226 (1988). 17:226 (1988).

106 See Andrew J. Cesare, "Updating California's s.e.x Code: The Consenting Adults Law," See Andrew J. Cesare, "Updating California's s.e.x Code: The Consenting Adults Law," Criminal Justice Journal Criminal Justice Journal 1:65 (1976); the law is Laws Cal. 1975, chap 71, p. 131. Under this statute, sodomy remained illegal for anyone in jail or prison, despite consent. Ibid., at 133. 1:65 (1976); the law is Laws Cal. 1975, chap 71, p. 131. Under this statute, sodomy remained illegal for anyone in jail or prison, despite consent. Ibid., at 133.

107 478 U.S. 186, 106 S. Ct. 2841 (1986). The background of the case is discussed in Peter Irons, 478 U.S. 186, 106 S. Ct. 2841 (1986). The background of the case is discussed in Peter Irons, The Courage of Their Convictions The Courage of Their Convictions (1988), chap. 16. (1988), chap. 16.

108 "I think I probably made a mistake in that one," said Justice Powell in a discussion with a group of students at New York University Law School, October 18, 1990. ( "I think I probably made a mistake in that one," said Justice Powell in a discussion with a group of students at New York University Law School, October 18, 1990. (National Law Journal, Nov. 5, 1990, p. 3.) Nov. 5, 1990, p. 3.) 109 Commonwealth v. Jeffrey Wa.s.son, 842 S.W. 2d 487 (Ky., 1992). Commonwealth v. Jeffrey Wa.s.son, 842 S.W. 2d 487 (Ky., 1992).

110 See Lawrence M. Friedman, See Lawrence M. Friedman, The Republic of Choice: Law, Authority, and Culture The Republic of Choice: Law, Authority, and Culture (1990), pp. 152-53. (1990), pp. 152-53.

111 381 U.S. 479 (1965). A number of states had recently joined the decriminalization parade, including Colorado, Indiana, and Kansas. Laws Colo. 1961, p 327; Laws Ind. 1963, chap. 12, sec. 9; Laws Kans. 1963, chap. 222. 381 U.S. 479 (1965). A number of states had recently joined the decriminalization parade, including Colorado, Indiana, and Kansas. Laws Colo. 1961, p 327; Laws Ind. 1963, chap. 12, sec. 9; Laws Kans. 1963, chap. 222.

112 Ibid., at 485. Ibid., at 485.

113 405 U.S. 438 (1972). 405 U.S. 438 (1972).

114 Ibid., at 440. Ibid., at 440.

115 James C. Mohr, James C. Mohr, Abortion in America: The Origins and Evolution of National Policy Abortion in America: The Origins and Evolution of National Policy (1978), p. 254. (1978), p. 254.

116 Leslie J. Reagan, "'About to Meet Her Maker': Women, Doctors, Dying Declarations, and the State's Investigation of Abortion, Chicago, 1867-1940," Leslie J. Reagan, "'About to Meet Her Maker': Women, Doctors, Dying Declarations, and the State's Investigation of Abortion, Chicago, 1867-1940," Journal of American History, Journal of American History, 77:1240 (1991). 77:1240 (1991).

117 Mohr, Mohr, Abortion in America, Abortion in America, pp 252-53. pp 252-53.

118 Roe v. Wade, 410 U.S. 113 (1973). Roe v. Wade, 410 U.S. 113 (1973).

119 Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992). Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992).

120 Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Peter Irons, Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Peter Irons, The Courage of Their Convictions The Courage of Their Convictions (1988), chap. 13. (1988), chap. 13.

121 See Lawrence M. Friedman, "Limited Monarchy: The Rise and Fall of Student Rights," in David L. Kirp and Donald N. Jensen, eds., See Lawrence M. Friedman, "Limited Monarchy: The Rise and Fall of Student Rights," in David L. Kirp and Donald N. Jensen, eds., School Days, Rule Days: The Legalization and Regulation of Education School Days, Rule Days: The Legalization and Regulation of Education (1986), pp. 238, 244-45. (1986), pp. 238, 244-45.

122 Felice F. Lewis, Felice F. Lewis, Literature, Obscenity and Law Literature, Obscenity and Law (1976), pp. 54-57. (1976), pp. 54-57.

123 New York Times, New York Times, Sept. 17, 1913, p. 9. Sept. 17, 1913, p. 9.

124 Lewis, Literature, Obscenity and Law, Lewis, Literature, Obscenity and Law, pp. 125-31. pp. 125-31.

125 Commonwealth v. Delacey, 271 Ma.s.s. 327, 171 N.E. 455 (1930). The name of the book is not even mentioned in the case. The court agreed that the book was "obscene, indecent and impure", and utterly tended "to corrupt the morals of youth." Laurence H. Tribe, Commonwealth v. Delacey, 271 Ma.s.s. 327, 171 N.E. 455 (1930). The name of the book is not even mentioned in the case. The court agreed that the book was "obscene, indecent and impure", and utterly tended "to corrupt the morals of youth." Laurence H. Tribe, American Const.i.tutional Law American Const.i.tutional Law (1978, p. 659.) (1978, p. 659.) 126 Commonwealth v. Friede, 271 Ma.s.s. 318, 171 N.E. 472 (1930). Commonwealth v. Friede, 271 Ma.s.s. 318, 171 N.E. 472 (1930).

127 Lewis, Lewis, Literature, Obscenity and Law, Literature, Obscenity and Law, p. 44. p. 44.

128 354 U.S. 476 (1957). 354 U.S. 476 (1957).

129 335 U.S. 848 (1948). 335 U.S. 848 (1948).

130 A Book Named "John Cleland's Memoirs of a Woman of Pleasure" et al. v. Attorney General of Ma.s.sachusetts, 383 U.S. 413, 419 (1966). A Book Named "John Cleland's Memoirs of a Woman of Pleasure" et al. v. Attorney General of Ma.s.sachusetts, 383 U.S. 413, 419 (1966).

131 Ibid., at 425-26. Justice Clark, dissenting, was less tolerant: "I have 'stomached' past cases for almost 10 years without much outcry. Though I am not known to be a purist-or a shrinking violet-this book is too much even for me" (Ibid., at 441). Ibid., at 425-26. Justice Clark, dissenting, was less tolerant: "I have 'stomached' past cases for almost 10 years without much outcry. Though I am not known to be a purist-or a shrinking violet-this book is too much even for me" (Ibid., at 441).

132 Quoted in American Booksellers a.s.sociation v. Hudnut, 771 F. 2d 323 (C.A. 7, 1985). The Indianapolis ordinance was in form Quoted in American Booksellers a.s.sociation v. Hudnut, 771 F. 2d 323 (C.A. 7, 1985). The Indianapolis ordinance was in form civil civil rather than rather than criminal, criminal, somewhat like the red-light abatement ordinances discussed earlier in this chapter. somewhat like the red-light abatement ordinances discussed earlier in this chapter.

133 American Booksellers a.s.sociation v. Hudnut, at 328. American Booksellers a.s.sociation v. Hudnut, at 328.

134 Laws N.Y. 1905, chap. 442, p. 977. Laws N.Y. 1905, chap. 442, p. 977.

135 35 Stats., Part 1, chap. 100, p. 614 (act of Feb. 9, 1909); it was unlawful under this act to import opium or any opium derivative except for "medicinal purposes." 35 Stats., Part 1, chap. 100, p. 614 (act of Feb. 9, 1909); it was unlawful under this act to import opium or any opium derivative except for "medicinal purposes."

136 38 Stats. 785 (act of Dec. 17, 1914). 38 Stats. 785 (act of Dec. 17, 1914).

137 David F. Musto, David F. Musto, The American Disease: Origins of Narcotic Control The American Disease: Origins of Narcotic Control (1973), p. 65. (1973), p. 65.

138 Webb v. United States, 249 U.S. 96 (1919). Webb v. United States, 249 U.S. 96 (1919).

139 See, for example, See, for example, Brooklyn Daily Eagle, Brooklyn Daily Eagle, Dec. 1, 1918, p. 6. Dec. 1, 1918, p. 6.

140 Laws Minn. 1915, chap. 260. A doctor, however, could prescribe whatever he wished, "in good faith," for the "treatment of a drug habit." The Minnesota statute was upheld by the U.S. Supreme Court in Whipple v. Martinson 249 U.S. 86 (1921). Laws Minn. 1915, chap. 260. A doctor, however, could prescribe whatever he wished, "in good faith," for the "treatment of a drug habit." The Minnesota statute was upheld by the U.S. Supreme Court in Whipple v. Martinson 249 U.S. 86 (1921).

141 Blackburn, Blackburn, Criminal Justice in Franklin County, Criminal Justice in Franklin County, p. 237. p. 237.

142 Mary B. Harris, Mary B. Harris, I Knew Them in Prison I Knew Them in Prison (1936), p. 260; there were thirteen women in the inst.i.tution for Mann Act violations. (1936), p. 260; there were thirteen women in the inst.i.tution for Mann Act violations.

143 On Anslinger, see Musto, On Anslinger, see Musto, The American Disease, The American Disease, pp. 210-14. pp. 210-14.

144 50 Stats. 551 (act of Aug. 2, 1937). 50 Stats. 551 (act of Aug. 2, 1937).

145 See, for example, Franklin E. Zimring and Gordon Hawkins, See, for example, Franklin E. Zimring and Gordon Hawkins, The Search for Rational Drug Control The Search for Rational Drug Control (1992); John Kaplan, (1992); John Kaplan, Marijuana-the New Prohibition Marijuana-the New Prohibition (1970); John Kaplan, (1970); John Kaplan, The Hardest Drug: Heroin and Public Policy The Hardest Drug: Heroin and Public Policy (1983); Ethan A. Nadelmann, "Thinking Seriously About Alternatives to Drug Prohibition," (1983); Ethan A. Nadelmann, "Thinking Seriously About Alternatives to Drug Prohibition," Daedalus Daedalus 121:85 (1992). 121:85 (1992).

146 For example, Ore. Rev. Stats., sec. 135.907, offering "diversion"-sending a defendant to some program not involving jail-for defendants charged with possession of less than one ounce of marijuana. For example, Ore. Rev. Stats., sec. 135.907, offering "diversion"-sending a defendant to some program not involving jail-for defendants charged with possession of less than one ounce of marijuana.

147 See See California Prisoners, 1952 California Prisoners, 1952 (1953), p. 11; (1953), p. 11; California Prisoners and Parolees, 1990 California Prisoners and Parolees, 1990 (1991), pp. 2-6. (1991), pp. 2-6.

CHAPTER 16. THE MECHANICS OF POWER: SOME TWENTIETH-CENTURY ASPECTS.

1 David R. Johnson, David R. Johnson, American Law Enforcement: A History American Law Enforcement: A History (1981), pp. 112-13. (1981), pp. 112-13.

2 William J. Bopp and Donald O. Schultz, William J. Bopp and Donald O. Schultz, A Short History of American Law Enforcement A Short History of American Law Enforcement (1972), p. 110. (1972), p. 110.

3 Eugene J. Watts, "Police Response to Crime and Disorder in Twentieth-Century St. Louis," Eugene J. Watts, "Police Response to Crime and Disorder in Twentieth-Century St. Louis," Journal of American History Journal of American History 70:340, 356 (1983). 70:340, 356 (1983).

4 Samuel Walker, Samuel Walker, Popular Justice: A History of American Criminal Justice Popular Justice: A History of American Criminal Justice (1980), pp. 190-91. (1980), pp. 190-91.

5 Ibid., pp. 208-9. Ibid., pp. 208-9.

6 Robert M. Fogelson, Robert M. Fogelson, Big-City Police Big-City Police (1977), pp. 142-43. (1977), pp. 142-43.

7 Walker, Walker, Popular Justice, Popular Justice, p. 211. p. 211.

8 Samuel Walker, Samuel Walker, A Critical History of Police Reform: The Emergence of Professionalism A Critical History of Police Reform: The Emergence of Professionalism (1977), p. 74. (1977), p. 74.

9 Leonard V. Harrison, Leonard V. Harrison, Police Administration in Boston Police Administration in Boston (1934), pp. 31, 38. (1934), pp. 31, 38.

10 Bopp and Schultz, Bopp and Schultz, Short History, Short History, pp. 108-9; Morris Ploscowe, "Some Causative Factors in Criminality," in vol 1. pp. 108-9; Morris Ploscowe, "Some Causative Factors in Criminality," in vol 1. Report of the U.S. National Commission on Law Observance and Enforcement Report of the U.S. National Commission on Law Observance and Enforcement (1931). (1931).

11 Brooklyn Daily Eagle, Brooklyn Daily Eagle, Dec. 4, 1914, p. 3. The mayor's comment was reported in the paper on Dec. 3, p. 2. Dec. 4, 1914, p. 3. The mayor's comment was reported in the paper on Dec. 3, p. 2.

12 Zechariah Chafee, Jr., Walter H. Pollak, and Carl S. Stem, Zechariah Chafee, Jr., Walter H. Pollak, and Carl S. Stem, Ma.s.s Violence in America: The Third Degree Ma.s.s Violence in America: The Third Degree (1931; reprint ed., 1968), p. 19. (1931; reprint ed., 1968), p. 19.

13 Emanuel H. Lavine, Emanuel H. Lavine, The Third Degree: A Detailed and Appalling Expose of Police Brutality The Third Degree: A Detailed and Appalling Expose of Police Brutality (1930), pp. 62-64. (1930), pp. 62-64.

14 The account is taken from Ernest J. Hopkins, The account is taken from Ernest J. Hopkins, Our Lawless Police: A Study of the Unlawful Enforcement of the Law Our Lawless Police: A Study of the Unlawful Enforcement of the Law (1931), pp. 61-64. (1931), pp. 61-64.

15 Ibid., p. 64. Ibid., p. 64.

16 Cornelius W. Willemse, Cornelius W. Willemse, Behind the Green Lights Behind the Green Lights (1931), p. 30. (1931), p. 30.

17 Leonard F. Fuld, Leonard F. Fuld, Police Administration: A Critical Study of Police Organisations in the United States and Abroad Police Administration: A Critical Study of Police Organisations in the United States and Abroad (1909), pp. 136-37. (1909), pp. 136-37.

18 Indeed, the chief of police of San Diego suggested that the city create an "Inebriate Farm" for "common drunks, and persons who neglect their families." (San Diego Police Department, Annual Report, 1915 [Mss., San Diego Public Library].) Indeed, the chief of police of San Diego suggested that the city create an "Inebriate Farm" for "common drunks, and persons who neglect their families." (San Diego Police Department, Annual Report, 1915 [Mss., San Diego Public Library].) 19 Walker, Walker, Popular Justice, Popular Justice, p. 168. p. 168.

20 See, in general, Francis Russell, See, in general, Francis Russell, A City in Terror: 1919, the Boston Police Strike A City in Terror: 1919, the Boston Police Strike (1975). (1975).

21 Ibid., p. 169. Ibid., p. 169.

22 Walker, Walker, Police Reform, Police Reform, pp. 110-20. pp. 110-20.

23 Ibid., pp. 84-94. Ibid., pp. 84-94.

24 Annual Report, Police Department of the City of Los Angeles (year ending June 30, 1915), Annual Report, Police Department of the City of Los Angeles (year ending June 30, 1915), p. 59. p. 59.

25 Quoted in Walker, Quoted in Walker, Police Reform, Police Reform, p. 90. p. 90.

26 Raymond B. Fosd.i.c.k, Raymond B. Fosd.i.c.k, American Police Systems American Police Systems (1921), p. 376n. (1921), p. 376n.

27 Ibid., p. 94. Ibid., p. 94.

28 Walker, Walker, Popular Justice, Popular Justice, p. 243. p. 243.