Crime and Punishment in American History - Lawrence M. Friedman [370]
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Out of 678 cases tried in Multnomah County, Oregon, for 1927—28, about one-quarter of the defendants (166) changed their plea from not guilty to guilty of the offense charged—many of these were surely the result of a plea bargain; and 12.4 percent (84) changed their plea from not guilty to guilty of a lesser offense, an almost invariable sign of a plea bargain.25
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In the District of Columbia in 1966, the guilty plea accounted for nearly 80 percent of the convictions for serious crime in the General Sessions Court.31
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Santobello thought he had a deal with the prosecutor, but at the sentencing stage, a new prosecutor recommended the maximum sentence. The judge threw the book at Santobello (claiming, however, that he was not influenced by the prosecutor’s recommendation). Santobello, naturally, tried to withdraw his guilty plea, but was told it was too late. On appeal, the Supreme Court insisted that the prosecution had to stick to its bargain. The Court vacated the judgment against Santobello and sent it back for “further consideration.” What that consideration would be, the Court did not specify; but Chief Justice Burger, who wrote the majority opinion, did say that “when a plea rests in any significant degree on a promise or agreement of the prosecutor ... such promise must be fulfilled.”
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Since Gideon (see chapter 14) all states are obliged to do this, in felony cases at least; but most states had much earlier moved to this position as we saw.
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In the 1927 trial of Harry Sinclair, which arose out of the famous Teapot Dome scandal, Sinclair hired detectives to shadow the members of the jury—to find out what they did between the time the trial let out until they were safely in bed. The point was to gather material for a possible mistrial. But one of the detectives snitched; the plan became public knowledge, and Sinclair faced a sentence for contempt of court.45
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This fell on deaf ears; the southern states continued to exclude blacks from their juries, although they were careful to repeal any actual laws that said so.
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In 1968 the Supreme Court put an end to what had been called the “death qualified” jury, which was standard practice before. The prosecution could not systematically exclude, “for cause,” jurors who were against the death penalty. This would produce a jury “uncommonly willing to condemn a man to die.” Justice Stewart referred to those who favored capital punishment as a “dwindling minority,” words that seem ironic today.47
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In recent years, a “science” of jury selection has developed. The jury is sifted through the use of the most modem tools of demography and psychology. The object is not to ensure fairness, but to replace lawyers’ hunches and rules of thumb about good jurors and bad jurors (from the defense or prosecution points of view), with something more solidly grounded. The process is extremely expensive; consequently, it is used only in very special cases. Whether it works or not has never satisfactorily been proven.49
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The case came up on a writ of habeas corpus. The Supreme Court remanded the case to the District Court, “with instructions to issue the writ and order that Sheppard be released from custody unless the State puts him to its charges again within a reasonable time.”64
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Darrow argued, as we saw, for a kind of “diminished responsibility” in the Leopold-Loeb case.
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Judge Lewis remarked, in court, that “state prisons are not suitable places for the reformation of young men” who go wrong. This was true enough; but the system’s sympathies were heavily influenced by class considerations: Banks’s father was a “prominent contractor of San Francisco,” and he came from a good family. This surely was a factor in his lenient disposition.
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Interestingly, 47 percent of the women convicted of felonies in