Crime and Punishment in American History - Lawrence M. Friedman [364]
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The homicide rate for children less than one year old, according to a study published in 1983, was 5.3 per 100,000 live births in the United States—slightly below England and Wales (5.5), much below Japan (8.6), but much higher than most other countries in a group of developed countries (for example, the rate in Israel was 1.4, in France 1.9, in Norway and Sweden 0). But there is no indication that these killings were infanticide in the sense used here: killed by a mother at birth. Most were probably cases of child abuse. And there is absolutely no way of knowing whether this is more or less than the rates in the nineteenth century.86
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The Massachusetts law on rogues, vagabonds, idlers, “night-walkers,” and the like, included “stubborn children” in the list of ne’er-do-wells.102 When Massachusetts authorized a woman’s reformatory prison, the statute was amended to allow a judge, at his discretion, to send a female offender to the “reformatory prison for women for not more than two years.”103 There were some men, too, in the men’s reformatory whose crime was “stubbornness.”
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Thus, in Massachusetts, police courts and justices of the peace could hear, in addition to the petty cases that were the staple of such courts, all other criminal cases except the most serious felonies. These crimes could also be tried in the Court of Common Pleas (after 1859, the Superior Court). And the highest court, the Supreme Judicial Court, sat as a trial court in capital cases. For the organization of Massachusetts courts, see Laws of Massachusetts 1859, chapter 196, page 339.
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In Rhode Island, it was “local legal tradition” to ask prospective jurors in a capital case three questions: Was the juror a relative of one of the principals in the case? Did he have “scruples about convicting a man of a capital crime”? And: “Had he already formed an opinion of the merits of the case?”4
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A khadi is a Moslem judge; Weber used the expression “khadi justice” to describe a system in which the judge decides cases not according to formal doctrines but on the basis of ethical ideas, common sense, or religious notions.9
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In Hurtado v. California (1884), the U.S. Supreme Court upheld this change in California law; the due-process clause of the Fourteenth Amendment did not force states to stick to the method of indictment by grand jury.23
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Nor could the state call him to the stand against his will. This was because of the privilege against incrimination guaranteed by the Fifth Amendment and its state counterparts.
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Between 1880 and 1899, at least one-quarter of the defendants in felony cases in Alameda County, California, had appointed counsel. These lawyers received no money for their pains; many of them were apparently young lawyers who were hanging around the courtroom anyway, hoping to pick up a crumb or two of business.38
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In a later case in Tennessee, whose facts were amazingly similar, a juror said, inside the jury room, that “he had been on criminal juries before, and it was usual and the custom” to do it that way and to “return the result” of this adding and dividing as the “verdict of the jury.” The appeals court reversed the conviction.49
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In theory, this was supposed to be entirely for the defendant’s benefit. As Francis Wharton put it, “in a criminal prosecution, the State is arrayed against the subject; it enters the contest with a prior inculpatory finding of a grand jury in its hands; with unlimited command of means; with counsel usually of authority and capacity, who are regarded as public officers, and therefore as speaking semi-judicially; and with an attitude of tranquil majesty, often in striking contrast to that of a defendant engaged in a perturbed and distracting struggle for liberty if not for life.”51 Of course, like so much else in criminal law and procedure, the full beauty of the