Why The American Legal System Is Unique

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I presented this presentation to the Fatih University in Istanbul Turkey. I discussed why the American legal system is unique by giving the history behind our government and laws.


1. Why the American Legal System is Unique Presented byRobert S. Bob Bennett 2. History of the Government and Laws 3. Branches of Government 4. History of the American Legal System The thirteen original colonies had separate charter governments, but instituted customs learned in Great Britain. All colonies had local legislatures, but being dependent colonies, they could not make laws repugnant to those of Parliament. Continental Congress -Declaration of Independence, April 15, 1783. Separate Church and State. 5. American Legal System Common law Severed from the English system by the Revolution Federal law Constitution State law Louisiana exception Local law 6. Moving A Case Through The Supreme Court Petition for writs of certiorari. Original Jurisdiction. when two states have a dispute against each other, or when there is a dispute between the United States and a state.A cert petition is voted on at a session of the Court called a conference. If four Justices vote to grant the petition, the case proceeds to the briefing stage; otherwise, the case ends.Need compelling reasons.Cert Pool. Two-week oral argument sessions each month from October through April. Each side has thirty minutes to present its argument, and during that time the Justices may interrupt the advocate and ask questions.Cases are decided by majority vote of the Justices. It is the Court's practice to issue decisions in all cases argued in a particular Term by the end of that Term.No binding precedent if there is a tie. 7. American Precedent 8. June 21, 1788 U.S. Constitution Is RatifiedThe Constitutional Convention, meeting in Philadelphia, had produced the charter on Sept. 17, 1787, after four months of debate. John Adams described those sessions as the greatest single effort of national deliberation that the world has ever seen. Opponents of the Constitution were outmaneuvered by promises of amendments to the document. The worlds oldest written constitution still in use today has been altered 18 times, including the package of 10 amendments known as the Bill of Rights, which were ratified as a group in 1791. 9. February 24, 1803 Marbury v. Madison Decided After his defeat by Thomas Jefferson in 1800, President John Adams used his last days in office to secure government posts for fellow Federalists. Among the midnight judges Adams appointed was William Marbury, who was named one of 42 justices of the peace for the newly designated District of Columbia. Though signed and sealed, Marburys commission was never delivered, as required, by Secretary of State John Marshall. For two years Marbury begged, cajoled and finally sued for the commission. By the time he filed for a writ of mandamus at the U.S. Supreme Court, Marshall was chief justice. Instead of protecting a fellow Federalist, Marshall used the case to assert the courts power of judicial review, ruling that while Marbury was entitled to the commission, the provision authorizing the mandamus remedy was unconstitutional. Marbury Madison 10. March 6, 1819McCulloch v. Maryland The Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government.State action may not impede valid constitutional exercises of power by the Federal government. 11. March 6, 1857Dred Scott v. Sandford Dred Scott traveled with his owner,Dr. John Emerson, who was in the army andwas often transferred. Scott's extended staywith his master in Illinois, a free state, gavehim the legal standing to make a claim forfreedom, as did his extended stay atFort Snelling, Wisconsin Territorywhere slavery was also prohibited. The United States Supreme Court that ruledthat people of African descent imported intothe United States and held as slaves, or their descendantswhether or not they were slaveswere not legal persons and could never be citizens of the United States, and that the United States Congress had no authority to prohibit slavery in federal territories.The sons of Peter Blow, Scott's first owner, purchased emancipation for Scott and his family on May 26 1857. Scott died eighteen months later of tuberculosis on November 7, 1858. 12. April 27, 1861 Lincoln Suspends Habeas Corpus After the Confederate capture of Fort Sumter barely five weeks into his presidency, Abraham Lincoln called for 75,000 volunteers for active military duty. On April 19, en route to defend the nations capital, the 6th Massachusetts Regiment was attacked by a mob of 20,000 Southern sympathizers in Baltimore. Four soldiers and 12 civilians were killed, and scores were injured in what marked the Civil Wars first bloodshed. With supply lines disrupted and no additional troops arriving, Washington appeared to be cut off from the rest of the North. Congress was not in session, so Lincoln reluctantly assumed the authority to suspend habeas corpus along the rail route between Philadelphia and Washington. Openly challenged by Chief Justice Roger B. Taney, Lincoln justified the action as vital to the nations immediate survival. Putting his case before Congress on July 4, Lincoln asked rhetorically: Are all the laws, but one, to go unexecuted and the government itself go to pieces lest that one be violated? 13. February 25, 1870 First Black U.S. Senator Is Sworn In Hiram R. Revels was born a free man in 1827 inFayetteville, N.C. An ordained minister, heattended Knox College in Illinois before settling in Baltimore, where he worked as a pastor and school principal. During the Civil War, Revels helped formtwo black Union regiments in Maryland.At wars end, he moved to Natchez, Miss.,and, became an alderman and state senator. In 1870, Revels was elected tofill the U.S. Senate seat vacated nine yearsearlier by Confederate leader Jefferson B. Davis.Sixteen blacks, including one othersenator from Mississippi, Blanche K. Bruce,served in Congress during Reconstruction. Black participation in post-bellum Southern politics all but ended after 1877, whenRepublicans relinquished control of the regionto ensure Rutherford B. Hayes election as president.Not until 1966 would another black, Massachusetts Republican Edward W. Brooke III, be elected to the Senate. 14. May 18, 1896 Plessy v. FergusonIn July 1890, the Louisiana General Assembly passed a law requiring railroads to provide equal but separate accommodations for the white and colored races. A citizens group determined to challenge the act enlisted a 29-year-old shoemaker, Homer Plessy, to initiate the effort. Plessy appeared to be white but was of one-eighth African ancestry, which made him colored under Louisianas one drop racial code.As planned, Plessy declared his race to a conductor; after refusing to move to a railcar reserved for blacks, he was arrested and jailed. Four years later, the U.S. Supreme Court upheld Louisianas statute, validating state-sponsored segregation that endured in the South well into the 20th century. In the sole dissent, Justice John Marshall Harlan argued for a color-blind Constitution that neither knows nor tolerates classes among citizens. 15. August 2, 1921 Baseball's 'Black Sox' Acquitted 1919 World Series between the Chicago White Sox and the Cincinnati Reds A year later, grand jury testimony confirmed that several White Sox players, driven by resentment toward tightfisted team owner Charlie Comiskey, had conspired with gamblers to hand the best-of-nine series to the underdog Reds. Eight players were indicted with five gamblers on charges of conspiracy to defraud the public.After a two-week trial marked by the revelation of several missing confessions, all eight were acquitted. In an effort to shore up baseballs credibility, owners persuaded Kenesaw Mountain Landis, a federal judge in Chicago, to become the games first commissioner. Landis banished the eight from baseball, leaving them forever known as the Black Sox. 16. May 25, 1925 Evolution Teacher John Scopes Indicted Known as the Scopes monkey trial.The fledgling American Civil Liberties Union put an ad in a Chattanooga, Tenn., newspaper, offering to support anyone accused under the states new law banning the teaching of evolution.Dayton businessman George Rappelyea saw a chance to put his town (population 1,800) on the map and recruited schoolteacher John Scopes to serve as defendant. Some 3,000 visitors descended on Dayton in July 1925 to see famed defense lawyer Clarence Darrow square off against three-time presidential candidate William Jennings Bryan, who served as both prosecutor and expert witness on the Bible. Darrow asked the jury to return a guilty verdict so the law could be challenged on appeal, and he got his wish after only nine minutes of deliberation. The state supreme court later reversed the conviction but upheld the law, which remained on the books for 40 years. 17. December 5, 1933 Prohibition Repealed The 1919 ratification of the 18th Amendment, which created a nationwide ban on the manufacture, sale and transportation of intoxicating liquors. The rise of organized crimesyndicates, spurred by aflourishing bootleggingindustry, gave momentum forthe 21st Amendment repealing the noble experiment. December 5, 1933- Utahbecame the 36th state toapprove the 21st Amendmentand Prohibition came to an end. 18. October 8, 1934 Bruno Hauptmann Indicted Charles Lindbergh became a worldwide celebrity after he became the first person to fly solo across the Atlantic.The kidnapping of his 20-month-old son, Charles Jr., on March 1, 1932, thus set off a media circus. The babys body was found 10 weeks later a few miles from Lindberghs New Jersey estate; he had died of a head injury likely incurred the night of the abduction. Nearly $14,000 in gold certificatespart of a $50,000 ransomwas found in the garage of the Bronx home of Bruno Hauptmann, a German-born carpenter. A piece of floorboardfrom Hauptmanns attic was alleged to havebeen part of the ladder used in the crime. Found guilty after a six-week trial,he was offered life imprisonment in return for a confession. However, Hauptmannsteadfastly claimed innocence and,on April 3, 1936, was put to death n the electric chair. 19. February 5, 1937 FDR Unveils Court Packing Plan Only weeks into his second term, President Franklin D. Roosevelt took on the U.S. Supreme Court--which had invalidated a series of New Deal programs--by offering a plan to ease the load of the aged, overworked justices, whom critics derided as the nine old men. The plan would have allowed the president to nominate an additional justice whenever one over age 70 did not resign, until the court had 15 members. And it just so happened that six of the nine justices were already over 70. The proposal was roundly denounced, going down to defeat in Congress. But soon the court began upholding New Deal programs, muting calls for its radical restructuring. Seven justices left the bench over the next four and a half years, allowing Roosevelt to remake the court through traditional means. 20. June 14, 1943 Flag Day Reversal Jehovahs Witnesses have been involved in more than 70 Supreme Court cases. InWest Virginia State Board of Education v. Barnette , the court overturned a state law compelling schoolchildren to salute the U.S. flag each morning. Jehovahs Witness families had refused, citing their faiths prohibition against the worship of graven images. Announcing the decision on Flag Day during wartime, Justice Robert H. Jackson declared that no patriotic creed should usurp civil liberty: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion. 21. December 18, 1944 Korematsu Conviction Upheld About two months after Pearl Harbor, President Franklin D. Roosevelt issued Executive Order9066, authorizing the designation of domesticmilitary areas from which anyone deemeda threat could be excluded. By late 1942, more than 110,000Japanese-Americans had been ordered fromtheir West Coast homes and placed in detention camps like Manzanar in California. Bay Areawelder Fred Korematsu, who twice tried to enlist,defied the order. He briefly avoided custody but was arrested, convicted and sent to a Utah camp. Korematsu asked the U.S. Supreme Court to review his case. In a 6-3 decision, issued the day after plans were announced to end the internment, the court upheld the conviction, arguing that security concerns justified the race-based incarceration. It was later revealed that military officials had exaggerated the domestic threat. Korematsus conviction was vacated in 1984, but the ruling in Korematsu v. U.S. still stands. 22. November 20, 1945 Nuremberg War Crimes Trial Begins An international tribunal was established commissioned to try Germanofficials accused of war crimes andcrimes against humanity. Meticulous Nazi record-keepingprovided much of the evidence againstthe 22 defendants. Official documents,along with wrenching eyewitnesstestimony, opened the worlds eyes tothe horrors of the Holocaust. After 11 months, 12 defendantswere sentenced to death, seven toprison terms ranging from 10 yearsto life, and three were acquitted.Adolf Hitlers No. 2, Hermann Gring,remained unrepentant throughout,and he committed suicide the nightbefore he was to be executed. 23. May 17, 1954 Brown v. Board of Education Warren Court made a unanimous (9-0) decision that "separate educational facilities are inherently unequal. De jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.Integration of schools changedPlessysseparate but equal. 24. December 1, 1955 Rosa Parks Sparks the Civil Rights Movement Riding home from work, Rosa Parks was arrested for refusing to give up her seat to a white man on a Montgomery, Ala., city bus. Civil rights activists had been looking for a case with a sympathetic defendant to challenge segregation laws, and Parks a seamstress and secretary for the local chapter of the National Association for the Advancement of Colored People provided it. Her arrest triggered a yearlong black boycott of Montgomery buses, and Parks became the unofficial mother of the civil rights movement. When Parks died in 2005, she became the first woman to lie in honor in the U.S.Capitol. Her legal legacy is still being written. Herheirs and the executors of her estate arebattling over what constitutes appropriate commercial use of her likeness. 25. March 18, 1963 Gideon v. WainwrightIn June 1962, the U.S. Supreme Court agreed to review the felony conviction of a 51-year-old drifter, Clarence Earl Gideon, who had filed a handwritten petition from a Florida prison cell. Gideon, who had an eighth-grade education and four previous felony convictions, claimed in blunt terms hed been denied a fair trial. The question is very simple. I requested the court to appoint me attorney and the court refused. Future Justice Abe Fortas presented a powerful oral argument on Gideons behalf. In a unanimous opinion, the court reversed Gideons conviction and overturned a 1942 ruling,Betts v. Brady , that had limited the right to court-appointed counsel. Gideon was retried five months later and acquitted; he died in 1972 and was buried in an unmarked grave in his hometown of Hannibal, Mo. 26. March 21, 1963 Alcatraz Closes A mile and a half off the coast of San Francisco, and surrounded by icy waters and treacherous currents, Alcatraz served as an Army fortress and prison before it was turned over to the Justice Department in 1934. Completed in 1912, the original cell house was upgraded to a maximum-security facility that took in high-profile gangsters and lesser-known incorrigibles. Among the rogues gallery of public enemies who did time on the Rock were Al Capone, George Machine Gun Kelly, Arthur Doc Barker and Robert Birdman Stroud. In its storied 29-year history,34 inmates attempted escape;a few managed to get off the island, but all were either recaptured orthought to have drowned. Facing high operating expenses and acostly renovation, Alcatraz was closedand later replaced by a more modernprison in Marion, Ill. Alcatraz is now apopular tourist attraction run by theNational Park Service, as well as afavored location forHollywood filmmakers. 27. September 15, 1963 Church Bombing Kills Four With more than 45 racially motivated bombings since the end of World War II, Birmingham, Ala., had earned the nickname Bombingham. But none of the attacks was more haunting than the Sunday morning bombing of the 16th Street Baptist Church, the oldest black congregation in the city. Four girlsthree age 14, one 11were killed and more than 20 people injured in what was the deadliest act of terror during the civil rights era. Justice came slowly for the families of the victims, in part because FBI Director J. Edgar Hoover refused to let his agents share the results of their investigation with state or federal prosecutors. Eventually, three members of the Ku Klux Klan were convicted for the murdersthe first in 1977. The last, Bobby Frank Cherry, was convicted in May 2002, almost 39 years after the attack. 28. April 20, 1971 School Busing Gets the Green LightSeventeen years after its landmark desegregation ruling inBrown v. Board of Education , the U.S. Supreme Court unanimously affirmed the constitutionality of school busing to achieve that end inSwann v. Charlotte-Mecklenburg Board of Education . Subsequent decisions imposeddesegregation orders onschools nationwide. The line of cases sparkedheated political debate andoccasional violence at a 1976 anti-busing rally outsideBoston City Hall. 29. March 22, 1972 Senate Approves Equal Rights Amendment After it was approved by the Senate, the Equal Rights Amendment was sent to the states for ratification. Congress set a seven year deadline for the ratification process. Within a little more than a year, 30 state legislatures had signed on to the ERA, and it seemed likely to become the 27th Amendment. A three year extension was granted in 1979, but the ERA fell three states short of the needed 38 for ratification. The ERA has beenreintroduced before Congressevery year since 1982, but ithas never regained theplace at the center of Americanpolitical debate that it hadin 1980, when 90,000supporters marched in Chicago. 30. January 22, 1973 Roe v. Wade It was arguably the most controversial high court decision of the 20th century. The justices, in a 7-2 vote, held that a womans right to choose to have an abortion was constitutionally protected. The ruling struck down prohibitions on abortion in 46 states and drew vehement opposition as well as ardent support.In his dissent, Justice Byron White noted that this was an issue over which reasonable men may easily and heatedly differ.More than 30 years later, abortion remains among the most divisive issues on the domestic political landscape, prompting protests on the rulings anniversary, including the one in 2006 pictured above. This past November, the justices heard arguments inGonzales v. Carharton the issue of so-called partial-birth abortion. A decision is expected by June. 31. January 17, 1977 Gary Gilmore Executed InFurman v. Georgia , the U.S. Supreme Court suspended the use of the death penalty. The 5-4 ruling extended a de facto moratorium on capital punishment that had been in effect since 1967, but divisions within the majority opinion opened the way to its reinstatement. Two justices held that the penalty itself was inherently cruel and unusual punishment, while the remaining three held that state capital statutes, as then written, led to arbitrary, often discriminatory application of the death penalty. State legislatures quickly began revising their statutes and four years later, inGregg v. Georgia , the high court allowed executions to resume. In 1976, Gary Gilmore murdered two people in Utah shortly after being paroled from federal prison. Convicted and sentenced to death, Gilmore became the first to die under the reinstituted penalty after refusing all efforts to appeal or postpone his execution.Given the choice of a firing squad or the hangmans noose, he said hed rather be shot. His final words: Lets do it. 32. August 10, 1977 Son of Sam is Arrested Over the course of a year, Yonkers postal workerDavid Berkowitz went on a murder spree thatclaimed six lives, left seven injured and set offthe most extensive manhunt inNew York City history. He killed after dark, targeting brown-hairedwomen and couples sitting in cars. Using the pseudonym Son of Sam, he wroteletters that taunted the police while hintingat demonic possession, satanic cults and anynumber of psychosexual obsessions. After his arrest and confession, the New Yorkstate legislature took note of reports of a possible publishing deal for Berkowitz and passed the nations first law to bar criminals from profiting from the sale of their stories. The law was overturned in 1991 by the U.S. Supreme Court, but a more narrowly tailored version has survived judicial scrutiny. More than 40 states now have similar Son of Sam laws. Berkowitz resides in the Sullivan Correctional Facility, where he is serving six life sentences. 33. July 7, 1981 O'Connor Nominated to High Court Ranked third in her Stanford Law class of 1952, the only law firm offer Sandra Day OConnor received was as a legal secretary. She turned to the public sector and took a job as a deputy county attorney in San Mateo, Calif. After marrying a Stanford classmate, she resettled in Arizona to raise a family and start a private practice. In 1965, OConnor became an assistant state attorney general and four years later was appointed to the Arizona Senate, eventually becoming the first woman to serve as majority leader of a state legislature. After a short stint as an appellate judge, she was tapped by President Reagan to replace retiring Justice Potter Stewart, fulfilling a campaign promise to name the first woman to the Supreme Court. OConnor stepped down in 2006, having served 24 years as a pivotal voice on an often divided court. 34. April 19, 1995 Terror in the Heartland The bombing of the Alfred P. Murrah Federal Building in Oklahoma City remains the deadliest act of domestic terrorism in U.S. history.The explosion left 168 dead, including 19 children, and more than 500 injured. Army vet Timothy McVeigh had worked for months to gather materials for a massive bomb fueled by more than 5,000 pounds of ammonium nitrate fertilizer and nitromethane racing fuel. McVeigh detonated the bomb in front of the Murrah building on the second anniversary of the federal raid on the Branch Davidian compound. He was arrested 90 minutes after the blast on a routine traffic stop. An accomplice, Terry Nichols, surrendered himself after hearing he was considered a suspect. He is now serving a life sentence for conspiracy and involuntary manslaughter.In June 2001, four years after his conviction, McVeigh became the first federal prisoner to be executed in 38 years. 35. January 11, 2003 Ryan Empties Death Row Since Illinois reinstated capital punishment in 1977, 18 men sentenced to death have been exonerated. Several exonerations occurred early in Gov. George Ryans term, including one involving an inmate who came within 48 hours of execution for a murder he did not commit. Declaring the system broken, Ryan issued a moratorium on the death penalty in early 2000 and convened a commission to study the issue. Its report, released in April 2002, called for a sweeping overhaul of the system. A narrow majority favored abolition. Just days before leaving office, Ryan granted four outright pardons and commuted the sentences of the states 167 remaining death row inmates to life without parole.Ryan was convicted in 2006 on corruption charges tied to his tenure as secretary of state and is currently serving a 6-year term in federal prison. 36. Turkey and United States Legal Systems Contrasted Turkey general law courts; specialized heavy penal courts; military courts; the Constitutional Court, the nation's highest court; and three other high courts.Courts of justice and courts with special functions Legislature and Executive Importance of Constitution Verdicts are reached by judges or a panel of judges, who have to base their verdicts on the law and their conviction. United States state county courts; state circuit courts, state court of appeals; state supreme court; federal courts of general jurisdiction; federal courts of specific subject matter jurisdiction; supreme court; specialized courts. legislative, executive, and a judicial branch. Verdicts are reached by judges or a panel of judges or a jury depending on the case 37. TURKEY 38. UNITED STATES 39. What Makes the American Legal System UniqueGun Control Jury Trials Punitive Damages Accomplice Convictions High Prison Population Writ of Habeas CorpusBondsmen Capital Punishment Assisted Suicide Illegal Immigration Motion to Suppress Evidence Freedom of Speech 40. Guns in America 2 ndAmendment: 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. Germany: "there is no constitutional right to self-defense"Right for only militia, or individuals? Recently decided: individuals Houston Gun Show at the George R. Brown Convention Center 41. From Individual Necessity to Regulated, Controversial Item George Washington: A free people ought ... to be armed Protection against tyranny Early 1800s only whites To keep tyranny over blacks Reconstruction (after Civil War) Blacks technically citizens, still had to register guns 1930s taxes, registration added for whites to fight gang violence 1941 -ruled registration was only to check-up on colored people, not applicable to whites To late, registrations already formally initiated for all 1968 Congress set minimum purchasing age, required all imported guns be intended only for sport, expanded list of people prohibited from owning weapons Germany: the only reason for guns in civilian hands is sporting purposes" 1986, 1994, and 1996 continued narrowing of restrictions 2008 InDistrict of Columbia v. Heller , the United States Supreme Court ruled gun ban unconstitutional 42. Case in Point: Joe Horn Shot burglars robbing neighbors house, killed both Went out in front yard with gun, claims he shot in self-defense when one robber ran at him Castle doctrine in Texas allows protection of property; Horn not indicted Resistance to sudden violence, for the preservation not only of my person, my limbs, and life, but of my property, is an indisputable right of nature which I have never surrendered to the public by the compact of society, and which perhaps, I could not surrender if I would. -John Adams 43. Jury Trials Recognized in Common Law countries only. Not practiced outside of U.S. Experimentation: South Korea- Jurors: Currently play an advisory role to Judges. Verdicts and sentences by jurors are non-binding. No jury trials in Germany- Single judge resides over cases. Extreme offenses warrant a panel of judges. 44. Punitive Damages Necessary or Unnecessary? German courts believe compensation for actual physical loss is all that is necessary. Sometimes reasonable punitive damages awarding in serious criminal suits. Some it is impossible to compensate for suffering.Reduction of another persons income makes punitive damages seem highly justifiedEx: Exxon oil spill in the Prince William Sound area of the Gulf of Alaska reduced fisherman income Damage awards in this case reduced from 2.5 billion to 500 million dollars 45. Opinions from the Government Governor Schwarzenegger believes most punitive damage rewards should go to more than just the person that files the complaint Argues that most of the reward should aid in tax relief Many believe this is beyond the governors power to enforce.He is not allowed to reform the system could create a conflict of interest among jurors might feel obligated to decide in favor of extreme punitive damage rewards 46. Other Opinions George W. Bush believes that large malpractice awards drive healthcare costs up.Therefore, the economy suffers greatly. punitive damages are rarely awarded in medical malpractice cases 47. Accomplice Rule In the United States, accomplices are just as liable as the actual killer for murders committed during the act of a felony. In favor Looked at as morally justifiable when someone enters into a crime with a good possibility of someone being killed or hurt. Against Completely ignores the concept of determination of guilt on the basis of individual misconduct. 48. The Country With the Most Prisoners The United States has less than 5 percent of the worlds population. But it has almost a quarter of the worlds prisoners. Liptak Germany has 88 per 100,000 people imprisoned, the U.S. has 751 the highest in the worldVaries between states Per 100,000 in the population, Minnesota incarcerates about 300; and Texas, almost 1,000 49. Why are American Prisons so Packed? More violent crime than other countries Less non-violent crimes though Some point to right to keep an bear arms Political riots less common and less violent in U.S.American character Focused on individual freedoms, including to do things wrong Emphasis on responsibility Judges elected so American tough punishment mindset prevails The war on non-violent crimes Bad checks Illegal drugs Long jail sentences If all countries gave same length in prison, the US would not be first Murderers in Germany can be and often are paroled after 15 years 50. Implications of the U.S. Prison Population Is this new? Can we blame Bush? From 1925 to 1975 the U.S. incarcerated 110 people per 100,000 population -Thomas Ulen Crime wave in the 1970s pushed prison population upward 1990s harsher drug penalties, three-strikes laws, less power to parole boards Does it work? There is little question that the high incarceration rate here has helped drive down crime, though there is debate about how much. Liptak 51. Writ of Habeas Corpus Meaning: A judicial mandate to a prison official ordering a prisoner be brought to court in order to determine imprisonment or a release from legal custody. Originated in 14 thCentury England. Thought to have been Common Law by the time of Magna Carta. Formalized in the Habeas Corpus Act of 1679 Usually filed by the person serving the prison sentence Exercised by those who feel they were wrongfully accused. Protection of individual rights 52. Permanence of Habeas Corpus Britain and America have both suspended the Act at times British suspended it for Germans during World War II Reduced rights for fear of uprising within Great Britain by Germans Americans suspended it for Japanese during World War II Japanese Americans sent to internment camps. 53. Case in Point: Anthony Graves Accused in 1994 of participating in the murder of 6 Pointed to by confessed murderer, Carter Claimed innocence, sentenced to death Carter changed his story day before testimony, prosecution kept quiet Waiting for re-trial or dismissal due to lack of due process 54. Ongoing American Controversy Guantanamo Bay: Habeas Corpus an issue for terrorists?? Boumediene v. Bush Supreme court has given prisoners the right to request a hearing. U.S. presidential issue in 2008 Supporters of the ruling- In order to preach constitutional rights, presidential nominees and American citizens must support the ruling. Habeas Corpus may not be suspended unless in case of rebellion or invasion of the public safety as outlined in the constitution. Opposition to the ruling- Terrorists are not U.S. citizens and/or soldiers and these particular laws dont apply to them. Costs tax payer money for all terrorist habeas corpus requests. Treating terrorists as regular prisoners leads to a September 10 thmindset. 55. Making Bail Bond concept borrowed from England In medieval England, methods to insure the accused would appear for trial began as early as criminal trials themselves. (History of Bail) Sheriff would judge Statute of Westminster in 1275: specified bailable and non-bailable expenses Judiciary Act Habeas Corpus Act of 1677: reason must be specified 16th Amendment America added in its own special touch Protection from outrageous bails 18 thAmendment Bondsmen 56. American Bondsmen Downsides: No market competition (price is set) so it can go corrupt quickly and easily Considered an international non-example Seen as profiting from the release of prisoners Upsides: The system costs taxpayers nothing, Mr. Kreins said, and it is exceptionally effective at ensuring that defendants appear for court. -Liptak Bondsmen are able to track down no-shows with bounty hunters, state could not keep up Access to pretrial release is available to both the rich and the poor 57. Capital Punishment The U.S. is the only industrial, fully developed, Western country that uses the death penalty. 74% of Americans approve of capital punishment when the crime is murder. ~15,000 people have been legally executed in the U.S. from 1608-1991 31 U.S. states allow the death penalty 58. Trends in Death Sentences Racial Lines: Racial disparity among U.S. courts involving capital punishment for many years. Between 1930 and 1990, African Americans had a 22% chance of receiving capital punishment,whites had an 8% chance Death for Non-Killers?? No executions for a non-lethal crime in 44 years. Kennedy v. Louisianaoutlawed capital punishment for child rape not resulting in death Ignored the ruling in 2006 which made child rape by military personnel a capital crime - Uniform Code of Military Justice. 59. Capital Punishment for Juveniles 364 juvenile offenders have been put to death in the U.S. Youngest person ever executed was 14 years old in 1944 Opposition: Sending a harsher punishment signal to young people doesnt solve the problem adults dont respond to it, so why should juveniles? 60. The Politics of Capital Punishment Texas has more legal executions than any other state. Why? Judges may look at capital punishment as an advantageous chance to appeal to conservative voters in order to help their chances of reelection. National Impact: Ex: Execution of Mexican illegal aliensWorld court ordered review of cases. Medelln v. Texas - Texas refusal erodes ability of U.S. in helping those accused of crimes abroad. 61. Assisted Suicide Process by which an individual, who may otherwise be incapable, is provided the means to commit suicide Mostly illegal in U.S. Regulated by the States. Legal in Germany. Doctors may provide but not administer drugs. 62. Promotion and Restriction of Assisted Suicide Swiss group Dignitas promoting aide in suicide all over Europe. Protected in U.S. by The Death With Dignity Act. Dont want federal government to ban it outright. Latest case occurring in July 2008. HEALTHY 79 year old Ms. Schardt choosing to die rather than going into a nursing home. Dr. Roger Kusch assisted legally. German State of Bavaria pushing for legislation to ban activities when circumstances resemble these. U.S. to possibly do the same? 63. Illegal Immigration Unions are claiming job loss due to illegal immigrants. The U.S. removed 276,912 immigrants in 2007. Expansion of legal immigrant programs are progressing. Not allowing legal contract business workers could bankrupt many companies.Much larger guest worker program needed. 175 bills introduced last year for immigration reform. 64. ICE Raids in U.S. Elected officials have begun lobbying against raids on small businesses. Critics claim raids are targeting successful business owners. Penalties in some states are harsher than others. Ex: Felony in Mississippi to employ illegal immigrants. 80% of detainees captured by ICE are criminals. Outcry of mistreatment by detainees at holding centers. Since 2004, 69 detainees have died during containment. 65. Disadvantaged Immigrant Groups Mexicans in United States Turkish in Germany Includes Education, finances, racial discrimination. Both are largest immigrant groups in respective countries. Citizens are lawfully put at the front of the line for jobs before immigrant workers. Effort of multiculturalism. Many citizens feel forced to assimilate; others see progressive open process with host country in control. 66. Motion to Suppress The U.S. is the only country with evidence exclusion rules for police misconduct. Reduces 4 thAmendment violations. Evidence admitted unlawfully encourages further misconduct. Deters high crime rates not found in other countries. Foreign Nations: Ex: Canada -Exclusion of evidence not justified when evidence gathered causes harm to others. (Common perception worldwide). Criticism of U.S.: Unique to American jurisprudence. No other civilized country has adopted it. 67. Freedom of Speech The First Amendment of the Constitution distinguishes the U.S. Government from the rest of the world. Journalists can say whatever they please. U.S. Free Speech laws scrutinized by many governments. Several countries limit free speech: Ex: Canadian government recently filed suit against a journalist expressing hate speech towards Islam. 68. Germany is one of many countries outlawing hate speech. Denial of Nazi crimes is also forbidden. Foreigners are denied the right of hate speech while in Germany. Harvey A. Silvergate, a radical lawyer of the ACLU, believes that sending Hitler on a speaking tour of the U.S. would have been a good idea. The problem with so-called hate speech laws is that theyre not about facts; theyre about feelings. 69. References Special thanks to Adam Liptak of The New York Times A Brief History of Habeas CorpusBBC News.March 9, 2005.. Abrahams Bail Bonds.. Aizenman, N.C. New High in U.S. Prison Numbers.Washingtonpost.com. . Boldt, Axel. A subjective comparison of Germany and the United States. 12 August 2007.. Boumediene v. Bush , 553 U.S. ___ (2008). Boyes, Roger. Two years in prison for downloading latest film.The Times .. Champion, Dean J. Prison.MSN Encarta .. Cindy, George. Operation FALCON nets 363 suspects in the Houston area.The HoustonChronicle.July 4, 2008. Copyranter. 7 June 2006. . Constitution: Second Amendment.FindLaw.com .. Cramer, Clayton E. The Racist Roots of Gun Control. 1993.. Cruz, Ted. Supreme Court Ruling Scored a Bulls-Eye. 28 June 2008.. Currie, Elliot. Assessing the Prison Experiment. Metropolitan Books. (1998). Vidmar, Neil, Dale T.Miller. Social Psychological Processes Underlying Attitudes Toward Legal Punishment.Law and Society Review, vol. 14, NO. 3. (1980). 70. References cont District of Columbia v. Heller , 554 U.S. ___ (2008). Dog the Bounty Hunter on A&E. TV guide. . Elder, Larry. Why Do We Keep and Bear Arms? 3 July 2008.Townhall.com .. Foremski, Tom. US = Five Percent Global Population And 25 Percent Global Prison Population More Than China.. Gamboa, Suzanne. Immigration Firm Under Scrutiny.The Houston Chronicle . June 25, 2008. German Mother Sentenced to 15 Years in Prison for Killing 8 of Her Babies.FOXNews.com . 7April 2008. . Gettings, John. Milestones in Federal Gun Control Legislation.. Graves, Anthony. Anthonys Web Page.. Greenhouse, Linda. In Weighing Death Penalty, A Flaw in Fact.The New York Times.June 10,2008. Gun Control Timeline. 26 September 1999.. Gun Laws, Culture, Justice & Crime In Foreign Countries. NRA-ILA.http://www.nraila.org/issues/FactSheets/Read.aspx?ID=78 History of Bail.Bail Bonds US . . Incarceration Rates.Economists View . 23 May 2006.. 71. References cont Image:Houston Gun Show at the George R. Brown Convention Center.jpg..Kennedy v. Louisiana , 554 U.S. ___ (2008). Kettmann, Steve. German Hate Law: No Denying It. Wired.com. December 15, 2000.. LaRue, Janet M. Celebrating the Second on the Forth. Townhall.com. 4 July 2008. Lee, Su-Hyun. Justice is Swift for Novice Korean Jurors.The New York Times.July, 20, 2008. Liptak, Adam. Illegal Globally, Bail for Profit Remains in the U.S. 29 January 2008.The NewYork Times. . Liptak, Adam. Inmate Count in U.S. Dwarfs Other Nations.The New York Times .. Liptak, Adam. Foreign Courts Weary of U.S. punitive damages.The New York Times.March 26,2008. . Liptak, Adam. When Lawyers and Juries Mete Out Punishment.The New York Times.February19, 2007..Liptak, Adam. Go Ahead. Test a Lawyers Ingenuity. Try to Limit Damages.The New YorkTimes.March 6, 2005. . Liptak, Adam. Schwarzenegger Sees Money for State in Punitive Damages.The New YorkTimes.May 30, 2004.. 72. References cont Liptak, Adam. 4.5 Billion Award Set for Spill of Exxon Valdez.The New York Times.January 29,2004.. Liptak, Adam. New Look at Death Sentences and Race.The New York Times.April 29, 2008.. Liptak, Adam. Does Death Penalty Save Lives? A New Debate.The New York Times.November18, 2007. . Liptak, Adam. Serving Life for Providing Car to Killers.The New York Times.December 4, 2007.. Liptak, Adam. Judges Say U.S. Cant Hold Man as Combatant.The New York Times.June 12,2007. . Liptak, Adam. U.S. Stands Alone in Rejecting All Evidence When Police Err.The New YorkTimes.July 20, 2008. Man Kills Suspects While on Phone with 911. 17 Nov. 2007. CBS News.. Mass, Warren. U.S. Leads World in Prison Population.The John Birch Society . 25 April 2008.. Medelln v. Texas , 552 U.S. ___ (2008). Melbourne Bail Bonds. . Park, Haeyoun, Vu Nguyen, and Shan Carter.Prison Population Around the Globe.The NewYork Times. . 73. References cont Pinkerton, James. Illegal Immigrants Last Stop.The Houston Chronicle.July 8, 2008. Preston, Julia. Employers Fight Tough Measures on Immigration.The New York Times.July 6,2008. Reynolds, Glenn Harlan. Lessons From History.FoxNews.com . 8 August 2002.. Reynolds, Morgan O. Myths about gun control. Dec. 1992.National Center for Policy Analysis. . Rogers, Brian, Ruth Rendon and Dale Lezon. Joe Horn cleared by grand jury in Pasadenashootings. 30 June 2008. The Houston Chronicle.. S. B. No. 378. . Schaefer, Sarah. Turks in Europe: Why We Are Afraid?Politei News.2005. The Columbia Encyclopedia , Sixth Edition. 2008. . Ulen, Thomas S. U.S. Prison Population.Law & Econ Prof Blog.24 April 2008..U.S. Immigration and Customs Enforcement, FY07 Accomplishment (2008). Whitley,Glenna.Texas Concealed Gun Laws Loosen. . 74. Additional Resources Amy Powell,Note: Three Angry Men: Juries in International Criminal Adjudication , 79N.Y.U.L. Rev. 2341 (2004). Charles Hirschman, Philip Kasinitz, Josh DeWind, The Handbook of InternationalMigration: The American Experience (1999). Francis G. Jacobs & Shelley Roberts, The Effect of Treaties in Domestic Law (1987). G. Tunkin & R. Wolfrum, International Law and Municipal Law (1988). Glendon, Carozza, Picker, Law in a Nutshell: Comparative Legal Traditions (2008). L. Wildhaber & S. Breitenmoser, The Relationship Between Customary InternationalLaw and Municipal Law in Western European Countries (1988). Louis Henkin,International Law as Law in the United States , 82 Mich.L.Rev. 1555(1984). William B. Ewald, What's So Special About American Law? at the Quinlan Lecture(Mar. 29, 2001),in26 Okla. City U.L. Rev. 1083, Fall, 2001. Wayne R. LaPierre, The Global War on Your Guns: Inside the U.N. Plan to Destroythe Bill of Rights (2006). Yitiha Simbeye, Immunity and International Criminal Law (2004).