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Vocapedia > USA > Law, Justice > State justice


Bill, Law, Act, Lawsuits, Courts,

State attorney general





President Obama Speaks on Trayvon Martin

Video        White House        Jul 19, 2013


President Obama

makes a statement about Trayvon Martin

and the verdict of the court trial

that followed the Florida teenager's death




















Jeff Parker

editorial cartoon

Florida Today


15 September 2010




















constitutional right to a lawyer
















good and evil







jefferson-parish-louisiana-three-strikes-habitual-offender-jeff-landry - September 8, 2023







petty crime






hate crime








hate crimes legislation / law









crime and punishment


































In legal terms,

the differences between what a law is

and what an act is does not differ much.


The difference between a law and an act

is that a law is any system of regulations

(better known as laws),

that govern, or rule the conduct of the people

of society or community usually for protection.


Whereas an act

is a constitutional plan

passed by Congress

or any legislature

that is referred to as a “bill”

until ratified and becomes a law.

- 26 August 2014

what-is-the-difference-between-an-act-and-a-law/ - broken URL





















slavery > 19th century "Pig Laws"

- designed to re-enslave African Americans

for committing minor crimes.













slavery > 19th century enslavement laws










































state law
























be prosecuted

under Louisiana's controversial habitual offender law,

sometimes known as

a “three strikes and you're out” rule.


three-strikes-habitual-offender-jeff-landry - September 8, 2023















the rule of law










government based on the rule of law










"no one is above the law"












anti-gays law






California > law






pro-labor laws

passed by cities and counties






instructions on the law













Patriot Act 2001 > Freedom Act 2015












Domestic Violence    Act        USA


Violence Against Women Act,

the landmark 1994 law

that is key to efforts

against domestic violence,

sexual assault and stalking.






















The Foreign Intelligence Surveillance Act of 1978    FISA










federal act > Major Crimes Act - enacted in 1885













under the law






case law






human rights law > Eliezer Henkin        1917-2010














have run-ins with the law






hate crime laws






the right to vote > disenfranchise > felon disenfranchisement laws






USA > self-defence laws / Stand your Ground laws        USA/UK        2000s-2010s


Many states in the last decade

have adopted so-called

Stand Your Ground laws,

which codified the right of a person

to use deadly force in self-defense

even outside their homes.













































challenge the law

under the Fifth and First Amendments to the Constitution












under public corruption laws




















"... all citizens are bound by the law"






criminal law






law of the land






rule of law
















State Secrets Privilege


The state secrets privilege

allows the government

to shut down litigation

simply by invoking

national security.


The privilege

was a particular favorite

of the Bush administration,

which asserted it

in dozens of cases,

including ones challenging

the legality of extraordinary renditions

and warrantless surveillance.





















Texas > law > law of parties





Texas >  law > insanity        2006





Washington Assisted-Suicide Law        2009






Washington > animal cruelty law > bestiality


























USA > trial lawyer > Clarence Darrow        UK










lawyers in the case








lawyers involved in the case








ask a judge to throw out the case

on the grounds that...
















Woman Burned by McDonald's Hot Coffee,

Then the News Media

NYT    21 October 2013





Woman Burned by McDonald's Hot Coffee, Then the News Media

Video    Retro Report    The New York Times    21 October 2013

In 1992, Stella Liebeck

spilled scalding McDonald's coffee in her lap

and later sued the company,

attracting a flood of negative attention.

It turns out there was more to the story.




































































































file a wrongful death suit against N










wrongful death lawsuit against N










file a civil lawsuit against N










civil suit against N












class action lawsuit
























file-sharing lawsuit








abuse suit










class-action lawsuits filed by N






















litigation nation

















U.S. Constitution > First Amendment > Free speech


Congress shall make no law

respecting an establishment of religion,

or prohibiting the free exercise thereof;

or abridging the freedom of speech,

or of the press;

or the right of the people peaceably to assemble,

and to petition the Government

for a redress of grievances.


























defamation lawsuit










defamation lawsuit > defamatory Internet posts








defamation suit > claim for libel and invasion of privacy

























be accused

of attempting to get around the law

by laundering corporate donations

through the Republican National Committee





Texas law forbids

the use of corporate money in political campaigns































USA > American justice        UK










USA > American criminal justice system / US justice system        UK / USA


















American juvenile justice system










equal justice under the law










USA > travesty of justice        UK










restore faith in justice










USA > racial justice        UK










USA > ultimate justice        UK










USA > restorative justice        UK


restorative justice

emphasises accountability and reconciliation

over punishment.










face justice


























deliver justice










obstruct justice










obstruction of justice










be convicted of obstruction of justice













a justice






American justice





the judiciary















legal sources close to N





legal jeopardy




















legal action





legal battle





legal feud












court fight





legal drama





court battle










legal wrangling





violations of rights such as due process

























sheriff > law > enforce




















Dale S. Hausner,

one of two arrested in the serial shooter case,

is seen during his initial court appearance

Friday in Phoenix.


Photograph: Jack Kurtz, pool


Friends of Phoenix suspect shocked


Updated 8/6/2006    12:43 AM ET

phoenix-friends_x.htm - broken link















file divorce papers


























dismiss rape charges








drop the case








bribery case










civil case










file the first criminal charges

against N








criminal charge








carry a penalty of N


















Representative Tom DeLay (L)

speaking to one of his attorneys during his appearance today

at the Travis County Courthouse in Austin, Tex.,

where he has been accused of conspiracy and money-laundering.


Pool photo by Jay Janner 


DeLay, in First Court Appearance, Seeks a New Judge


October 21, 2005
























criminal affidavit





complaint and affidavit > be charged with N

















California's attorney general










Georgia attorney general

















Attorneys for the parents of a brain-damaged Florida woman








an attorney for the plaintiffs








lead attorney















waive an attorney-client privilege










continue testifying under limited waiver





waive extradition





waive one's right to a jury trial
























America's courts


we-dont-talk-about-leonard-podcast - September 29, 2023








Washington Courts






Manhattan Criminal Court





New Jersey Superior Court in Newark






Maricopa County Superior Court





City Council > court system






clerical court





USA > 'kangaroo court'        UK





















in the court





in court





appear in court





appear in court on robbery charges





wearing handcuffs and jail-issue clothing











at a status hearing






court hearing























rights to remain silent












court stenographer





enter the courtroom

in handcuffs, chains and leg shackles

a white jail shirt

that labeled [...] an “ultra security inmate”










be released on his/her own recognizance















waive a hearing





waive one's right to a hearing





waive one's right to a preliminary hearing






waive his right to a speedy preliminary hearing






the court system





court clerk





New York Times > One in 8 Million > The Jury Clerk > Louise Nicholas






court security officer










court session





at the courthouse






in the jury box





at the defense table



































court ruling








rural courthouse
















family court


parental-responsibility-evaluators-colorado - Septemnber 30, 2022








ancillary courts like traffic court and family court








family court judge
















the New York State Unified Court System















U.S. Senate >

the Senate Judiciary Committee / Committee on the Judiciary

















judicial process


























rest case


































civil litigant




















mental health expert / forensic psychiatrist








be legally sane
























be under investigation







insider trading investigation

































making false statements




















file charges against N





file motions to dismiss the charges










absence of malice






act maliciously















face four felony charges:

using fraud to obtain

confidential information from a public utility,

unauthorized access to computer data,

identity theft

and conspiracy to commit those crimes

hp-charges_x.htm - broken link











felony > selling drugs, a Class B felony






lower felony > possession of heroin






felony > bestiality





felon > white-collar felon registry






















misdemeanor battery case










cocaine conspiracy
















request a gag order








hearing on the gag motion



















Witness, punched by Mr. Blount prior to the shooting.

Aug. 6, 1993

The New York Times


Accusers Recant, but Hopes Still Fade in Sing Sing,

NYT, 13 April 2007




































a doctor's affidavit















USA > subpoena        UK












be subpoenaed

to turn over personal records

in an investigation

into possible insider trading















order prison time















a string of back-and-forth rulings

























award $437,000 in damages





pursue damages






award $1.7 million


















NYP        17 July 2004
















testify in court





remain under a contempt-of-court order





be clear of legal jeopardy















juvenile justice










juvenile court system










juvenile offender








juvenile court judge










people sentenced

to life in prison without the opportunity for parole

when they were juveniles












Corpus of news articles


USA > Law, Justice > State justice >


Bill, Law, Act, Lawsuits, Courts,


State attorney general




Addressing the Justice Gap


August 23, 2011

The New York Times

Most low-income Americans cannot afford a lawyer to defend their legal interests, no matter how urgent the issue. Unless they are in a criminal case, most have no access to help from government-financed lawyers either.

In civil proceedings like divorces, child support cases, home foreclosures, bankruptcies and landlord-tenant disputes, the number of people representing themselves in court has soared since the economy soured. Experts estimate that four-fifths of low-income people have no access to a lawyer when they need one. Research shows that litigants representing themselves often fare less well than those with lawyers. This “justice gap” falls heavily on the poor, particularly in overburdened state courts.

There is plenty the government, the legal profession and others can do to improve this shameful state of affairs. With the economic downturn, only around two-thirds of law school graduates in 2010 got jobs for which a law degree is required, the lowest rate since 1996. That leaves the other third — close to 15,000 lawyers — who, with financial support from government and the legal profession, could be using their legal expertise to help some of those who need representation.

While the Constitution requires that defendants in criminal cases be provided a lawyer, there is no such guarantee in civil cases. The Legal Services Corporation, created by Congress, gives out federal grants that provide the bulk of support for legal aid to the poor. Over the decades, that budget has shrunk — it was $404 million in 2011, about one-third less than it was 15 years ago, adjusted for inflation. The House Appropriations Committee has proposed reducing that to $300 million for 2012. The cut would be devastating; the budget should, instead, be increased.

Half of the people who seek help from legal aid offices are already turned away. Some offices are so understaffed that they must engage in triage, so that in, say, domestic abuse cases, they will only assist someone seeking a restraining order against a violent partner if that person is in immediate danger of being hurt again.

State bar associations could help address these needs by requiring lawyers to report their pro bono service — such disclosure would likely increase many lawyers’ service to the recommended 3 percent to 5 percent of their paid work. Another step is to allow nonlawyers into the mix. The American Bar Association has insisted that only lawyers can provide legal services, but there are many things nonlawyers should be able to handle, like processing uncontested divorces.

Legal education must also change. The Carnegie foundation recommends that all law students be given experience in public advocacy, of which providing legal services is one kind. At the same time, law schools should expand loan forgiveness programs for legal services lawyers. A few have such programs, but most schools do not — and not enough schools view tuition as a source to help support future legal-services lawyers.

The justice gap is widening. Government, law schools and the profession need to work together to redesign and fortify the grossly deficient legal services system.

Addressing the Justice Gap,






Reflecting on a Lawsuit

Against a 4-Year-Old

October 29, 2010

The New York Times



That children under the age of 5 make it through the day, more often than not, without grievous bodily injury is something of a miracle, one of the many that present themselves to people once they become parents. But even young children have an instinct for self-preservation, which is why I find it even more mystifying how rarely those creatures — stick-wielding, stone-chucking, body-flinging — actually harm others.

The inevitable close calls leave even watchful parents in a guilty cold sweat, praying in gratitude to whatever playground deity intervened before push turned to shove-that-preschooler-right-off-the-slide.

And then, every once in a while, the magic of close calls fails. The stick meets eye, the sled careens into shins — or, as happened in April 2009 on East 52nd Street, a 4-year-old on training wheels collides with a woman using a walker. That woman, Claire Menagh, broke her hip (and, several months later, died of unrelated causes, at age 87). Her estate sued not only the two mothers whose 4-year-olds had been riding their bicycles on the sidewalk, but the children as well, for negligence.

This month, a judge ruled that the case against the 4-year-old girl involved could proceed (the family of the boy named in the suit did not file a motion for dismissal). Reading the judge’s ruling — which cites cases dating to 1928, and suggests that a 4-year-old could be held to the standard of some mythical “reasonable child” of that age — I kept flashing back to images from my college-era art history class: medieval baby Jesus, looking more like miniature adult Jesus, a representation of children as small adults so outdated as to seem almost incomprehensible through the lens of modernity.

Even as we expect our children to be ever more precocious — bilingual before kindergarten; too old at 4 for picture books, thank you; capable of showing us around our iPhones — somehow we never expect them to be ever more adult; certainly not so adult as to be potentially liable for negligence. One of my own 4-year-old twin sons not only believes Batman lives and breathes, but assumes he will someday grow up to be Batman. I have little fantasy that he is “reasonably” anything in particular when it comes to his judgment.

On Friday, parents and others in the neighborhood where the accident occurred shook their heads at the absurdity of suing someone so young, even as they acknowledged that the sidewalk was, as Meg Chamberlin, who lives on the block, put it, “a gray zone.”

In the condensed spaces of New York, where bedrooms double as playrooms and kitchens as home offices, the sidewalk is both throughway and backyard, which city officials recognize: it is indeed legal for children 12 and younger to ride bikes on the sidewalk. One resident of the apartment complex, who said she did not want to be quoted because of tensions there, said the community had long been divided between parents and nonparents over issues like how late children could play in the back of the building and how loudly.

Ms. Chamberlin, a mother of children ages 3 and 5, said the lawsuit had only heightened her own sensitivities about how she parents in the city.

“You don’t want to be superhovering parents,” she said; but she no longer feels she can take the chance that her child will veer unexpectedly into those shared spaces. Caught up in conversation, Ms. Chamberlin did not notice that an older woman and her companion had halted, blocked in their path by her stroller. “Excuse me,” the older woman said loudly, at which point Ms. Chamberlin hastily stepped aside, pulling the stroller. Resolution reached; lawsuit avoided.

The sheer density of New York — all that crowding, all those eyes — is what makes parenting often feel like a hotly contested performance. “On playgrounds, I mostly spend my time having imaginary arguments with other parents who are secretly judging me,” the singer Jonathan Coulton, a Brooklyn parent, recently posted on Twitter.

Self-consciously, a mother or father intervenes in children’s disputes at the risk of being deemed a helicopter parent; or maybe that parent does not hover, indulging in a rare moment of conversation, or God forbid, a complete train of thought, at the risk of being judged a bad caregiver — or, worse, having a child sued for negligence.

At MacArthur Park on East 49th Street, the closest playground to where the accident occurred, a yellow ribbon had been strung around the gate on Friday, with a surprisingly lawyerly caveat: Enter at Your Own Risk. The ribbon had a Halloween twist — spooky images in black were printed there as well — but it seemed, that day, appropriate for any playground at any time of year. Young children, so fragile, so tender, can also be a menace, a force of nature, like a tornado — and wholly unpredictable, like tornadoes.

Accidents happen; we all try not to get carried away.

    Reflecting on a Lawsuit Against a 4-Year-Old, NYT, 29.10.2010,






First Death

for Washington Assisted-Suicide Law


May 23, 2009
The New York Times


SEATTLE — A woman with pancreatic cancer has become the first person to die under a law passed last year allowing doctor-assisted suicide in Washington, according to an advocacy group that pushed for the law.

The woman, Linda Fleming, 66, of Sequim, Wash., died Thursday evening after taking lethal medication prescribed by a doctor under the law, according to a news release by the group, Compassion and Choices of Washington. The release said Ms. Fleming received a diagnosis of Stage 4 pancreatic cancer a month ago, and “she was told she was actively dying.”

Ms. Fleming was quoted in the release as saying: “I am a very spiritual person, and it was very important to me to be conscious, clear-minded and alert at the time of my death. The powerful pain medications were making it difficult to maintain the state of mind I wanted to have at my death.”

In November, voters approved the Death with Dignity Act, 58 percent to 42 percent, making Washington the second state — after Oregon — to allow assisted suicide. The laws in both states have been deeply controversial, particularly among religious groups. Washington passed its law after the United States Supreme Court in 2006 rejected an effort by the Justice Department to block Oregon’s law, which took effect in 1998.

In Montana, a state judge ruled in December that doctor-assisted suicide was legal under the state’s Constitution, but the state is appealing that decision.

Steve Hopcraft, a spokesman for Compassion and Choices, said the group was “not leading a campaign in any other state right now.”

The Washington and Oregon laws allow terminally ill patients who are at least 18 and have been found mentally competent to self-administer lethal drugs under the prescription of a doctor.

In Oregon, 401 people used the law through 2008. Since the law took effect in Washington in March, six prescriptions for lethal medication have been dispensed, but a spokesman for the State Department of Health, Donn Moyer, said it had not received any forms saying a patient had used the medication. Under the law, doctors who write such a prescription have 30 days to report that it had been used.

Mr. Moyer, saying privacy laws prevented the state from providing information about a specific death, said he could not confirm Ms. Fleming’s death.

In Oregon, not everyone who received a prescription has taken the drugs.

Some critics fear that physician-assisted suicide will pressure people with terminal illnesses who have low incomes or are disabled to end their lives to avoid becoming a financial burden to loved ones. Supporters cite studies that they say have refuted that idea.

Ms. Fleming, who was divorced, filed for bankruptcy in 2007 with $5,800 in credit card debt, according to court records and a lawyer who had represented her, Hugh Haffner.

Mr. Haffner said that when she filed for bankruptcy, Ms. Fleming, a former social worker, had been unable to work because of a disability and lived in subsidized housing on $643 in monthly disability checks.

Virginia Peterhansen, who said she had befriended Ms. Fleming about six months ago through a book group, said Ms. Fleming bought a 1982 Oldsmobile station wagon days before she was told she had cancer and that she had hoped to learn to contra dance.

Robb Miller, the executive director of Compassion and Choices of Washington, said that he had spoken to Ms. Fleming and that, although he was unaware of her bankruptcy filing, her situation presented “none of the red flags” that might have given his group pause in supporting her. He said Ms. Fleming’s two children and her former husband “were involved and supported her choice.”

The family could not be reached for comment.


Alain Delaquérière contributed research.

    First Death for Washington Assisted-Suicide Law, NYT, 23.5.2009,






American Exception

Foreign Courts

Wary of U.S. Punitive Damages


March 26, 2008
The New York Times


In the late summer of 1985, Kurt Parrott, a 15-year-old who loved baseball and Pac-Man, was thrown from his motorcycle in Opelika, Ala. The buckle of his helmet failed, and he died when his bare head hit the pavement. Mr. Parrott’s mother sued the Italian company that made the helmet, and an Alabama court awarded her $1 million.

The company refused to pay. And last year, when lawyers for the Parrott family tried to collect in Italy, they were blocked by the Italian Supreme Court.

The court said that a peculiarity of American law — punitive damages — was so offensive to Italian notions of justice that it would not enforce the Alabama judgment.

Most of the rest of the world views the idea of punitive damages with alarm. As the Italian court explained, private lawsuits brought by injured people should have only one goal — compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.

Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators.

Some common-law countries do allow punitive damages, though in limited circumstances and modest amounts. In the United States, by contrast, enormous punitive awards are relatively common, although they are often reduced or eliminated on appeal. Last month, for instance, the United States Supreme Court heard arguments in the Exxon Valdez case, where a jury’s initial award of $5 billion was later reduced to $2.5 billion.

Still, such awards terrify foreign courts.

“The U.S. practice of permitting a lay jury to exercise largely discretionary judgment with limited constraints in awarding punitive damages is regarded almost universally outside the U.S. with a high degree of disfavor,” said Gary Born, an American lawyer who works in London.

Foreign lawyers and judges are quick to cite particularly large American awards. Julian Lew, a barrister in London, recalled a Mississippi court’s $400 million punitive award against a Canadian company in 1995 with scorn. “It did bring America into total and utter contempt around the world,” Mr. Lew said.

Yet there are signs that the gap between the United States and the rest of the world is narrowing, as American courts and legislatures start to limit punitive awards and other countries start to experiment with them.

Punitive damages have deep roots in American and English common law, but their nature has changed here over time. “Until well into the 19th century,” Justice John Paul Stevens of the Supreme Court wrote in 2001, “punitive damages frequently operated to compensate for intangible injuries” like pain and suffering or emotional distress.

These days, driven by the structure of the American civil justice system, entrepreneurial plaintiffs’ lawyers and the populism they embrace, punitive damages are used to send messages to large corporations, to fill gaps in regulation and to reward successful plaintiffs with multiples of what they have lost. Distinctive features of the American legal system — civil juries, class actions, contingency fees and the requirement that each side bear its own lawyers’ fees — all play a role in amplifying punitive damages.

Punitive damages are so embedded in the American legal system that the rationale for them is rarely explored. One of the best explanations came from a German Supreme Court decision in 1992, which said the concept had four main purposes: to punish the offender for “uncivilized conduct,” to deter the offender and others from doing similar things, to reward the plaintiff for enforcing the law and so improve “general law and order,” and to supplement inadequate compensatory damages.

The case decided by the German court, like the one involving Kurt Parrott, was an effort to enforce a judgment from an American court against a defendant who had no assets in this country and refused to pay. Ordinarily, it is a relatively routine matter to ask a foreign court to enforce an American court judgment. Not so when punitive damages are involved, even where the conduct in question is shocking.

The German case, for instance, involved sexual abuse. In 1985, a state court in Stockton, Calif., entered a $750,000 judgment, including $400,000 in punitive damages, against Eckhard Schmitz for abusing a 13-year-old boy. Mr. Schmitz would not pay, and he fled to Germany while he was appealing a 13-year criminal sentence for engaging in sex with other teenage boys.

But the German court nonetheless said that the dangers of allowing punitive awards outweighed the benefits. The plaintiff should not get a windfall, the court said, and should not be allowed to act as a “ ‘private public prosecutor’ infringing the German state’s monopoly on punishment with its associated safeguards.”

The German court did enforce the $350,000 compensatory award. The Italian court, by contrast, refused to enforce any of the $1 million award to Kurt Parrott’s mother because the Alabama judge had not said how much of it was for compensation and how much for punishment.

But “the tide may be about to change,” John Y. Gotanda, a law professor at Villanova, wrote last year in The Columbia Journal of Transnational Law. “Traditional hostility to American awards of such damages may be dissipating.”

That is partly a consequence of changes here. American courts and legislatures are experimenting with ways to limit punitive damages, often in response to lobbying and litigation from business groups that say huge punitive awards are arbitrary, unfair and hurt the American economy.

Five states — Louisiana, Massachusetts, Nebraska, New Hampshire and Washington — ban or severely limit punitive damages. Others restrict the amounts awarded. Some states, responding to the criticism that the awards are a windfall for the plaintiffs, require that a part be turned over to the states.

The United States Supreme Court has in the last decade or so started to impose its own limits. In 1996, it ruled that a $2 million punitive award in an Alabama consumer fraud case involving a $4,000 compensatory award was excessive, given that the harm was merely economic, far exceeded the maximum punishment the state could have imposed and was disproportionate to the compensatory award.

In 2003, the court said that the ratio between punitive and compensatory awards must typically be in the single digits to be constitutional. It struck down a $145 million punitive award in an insurance fraud case where the compensatory damages had been $1 million.

At the same time, courts in a few countries around the world are expanding the availability of punitive damages.

The Tribunal Supremo in Spain, for instance, enforced a $1.3 million punitive award in a Texas trademark and unfair competition case in 2001. The Supreme Court of South Australia in 2005 indicated that it would consider enforcing American punitive awards where they involved “brazen and fraudulent conduct.”

Perhaps most notably, the Canadian Supreme Court in 2003 upheld a $50,000 punitive award in a Florida land dispute, saying it “does not violate our principles of morality.”

Justice Louis LeBel explained, with an air of resignation, why this was so, saying there was nothing in the American approach that was inherently offensive to Canadian ideas of basic fairness.

“It is simply a different policy choice,” he wrote, “and it affords U.S. plaintiffs a level of protection of which they ought not necessarily to be deprived just because the defendant’s assets are here.”

Even in Germany, which flatly rejected an American punitive award in 1992, there are signs of change, said Franco Ferrari, a law professor at the University of Verona in Italy. “The traditional compensatory regime has been permeated by punitive elements,” he said.

In cases involving a fake interview with Princess Caroline of Monaco, intellectual property and employment discrimination, he said, German courts have started to award damages that seem to be meant to punish as well as compensate.

Kurt Parrott’s mother, Judy Glebosky, learned about the Italian Supreme Court’s decision from a reporter. Her lawyers had turned the matter over to an international collection agency and had not bothered to tell her that she had lost.

The case seemed simple to her.

“I bought Kurt a helmet that was supposed to be the best,” Ms. Glebosky said. “It did not perform, and I lost Kurt.”

Questions about punitive damages seemed academic to her, if not heartless.

“A million-dollar award is really nothing,” she said. “It’s really not enough to punish any large company in this day and age, and it certainly does not bring back Kurt.”

    Foreign Courts Wary of U.S. Punitive Damages, NYT, 26.3.2008,






Lifers as Teenagers,

Now Seeking Second Chance


October 17, 2007
The New York Times


American Exception
Without Parole

This is the first in an occasional series of articles that will examine commonplace aspects of the American justice system that are actually unique in the world.


BIRMINGHAM, Ala. — In December, the United Nations took up a resolution calling for the abolition of life imprisonment without the possibility of parole for children and young teenagers. The vote was 185 to 1, with the United States the lone dissenter.

Indeed, the United States stands alone in the world in convicting young adolescents as adults and sentencing them to live out their lives in prison. According to a new report, there are 73 Americans serving such sentences for crimes they committed at 13 or 14.

Mary Nalls, an 81-year-old retired social worker here, has some thoughts about the matter. Her granddaughter Ashley Jones was 14 when she helped her boyfriend kill her grandfather and aunt — Mrs. Nalls’s husband and daughter — by stabbing and shooting them and then setting them on fire. Ms. Jones also tried to kill her 10-year-old sister.

Mrs. Nalls, who was badly injured in the rampage, showed a visitor to her home a white scar on her forehead, a reminder of the burns that put her into a coma for 30 days. She had also been shot in the shoulder and stabbed in the chest.

“I forgot,” she said later. “They stabbed me in the jaw, too.”

But Mrs. Nalls thinks her granddaughter, now 22, deserves the possibility of a second chance.

“I believe that she should have gotten 15 or 20 years,” Mrs. Nalls said. “If children are under age, sometimes they’re not responsible for what they do.”

The group that plans to release the report on Oct. 17, the Equal Justice Initiative, based in Montgomery, Ala., is one of several human rights organizations that say states should be required to review sentences of juvenile offenders as the decades go by, looking for cases where parole might be warranted.

But prosecutors and victims’ rights groups say there are crimes so terrible and people so dangerous that only life sentences without the possibility of release are a fit moral and practical response.

“I don’t think every 14-year-old who killed someone deserves life without parole,” said Laura Poston, who prosecuted Ms. Jones. “But Ashley planned to kill four people. I don’t think there is a conscience in Ashley, and I certainly think she is a threat to do something similar.”

Specialists in comparative law acknowledge that there have been occasions when young murderers who would have served life terms in the United States were released from prison in Europe and went on to kill again. But comparing legal systems is difficult, in part because the United States is a more violent society and in part because many other nations imprison relatively few people and often only for repeat violent offenses.

“I know of no systematic studies of comparative recidivism rates,” said James Q. Whitman, who teaches comparative criminal law at Yale. “I believe there are recidivism problems in countries like Germany and France, since those are countries that ordinarily incarcerate only dangerous offenders, but at some point they let them out and bad things can happen.”

The differences in the two approaches, legal experts said, are rooted in politics and culture. The European systems emphasize rehabilitation, while the American one stresses individual responsibility and punishment.

Corrections professionals and criminologists here and abroad tend to agree that violent crime is usually a young person’s activity, suggesting that eventual parole could be considered in most cases. But the American legal system is more responsive to popular concerns about crime and attitudes about punishment, while justice systems abroad tend to be administered by career civil servants rather than elected legislators, prosecutors and judges.

In its sentencing of juveniles, as in many other areas, the legal system in the United States goes it alone. American law is, by international standards, a series of innovations and exceptions. From the central role played by juries in civil cases to the election of judges to punitive damages to the disproportionate number of people in prison, the United States is an island in the sea of international law.

And the very issue of whether American judges should ever take account of foreign law is hotly disputed. At the hearings on their Supreme Court nominations, both John G. Roberts Jr. and Samuel A. Alito Jr. said they thought it a mistake to consider foreign law in constitutional cases.

But the international consensus against life-without-parole sentences for juvenile offenders may nonetheless help Ms. Jones. In about a dozen cases recently filed around the country on behalf of 13- and 14-year-olds sentenced to life in prison, lawyers for the inmates relied on a 2005 Supreme Court decision that banned the execution of people who committed crimes when they were younger than 18.

That decision, Roper v. Simmons, was based in part on international law. Noting that the United States was the only nation in the world to sanction the juvenile death penalty, Justice Anthony M. Kennedy, writing for the majority, said it was appropriate to look to “the laws of other countries and to international authorities as instructive” in interpreting the Eighth Amendment’s prohibition of cruel and unusual punishment.

He added that teenagers were different from older criminals — less mature, more susceptible to peer pressure and more likely to change for the better. Those findings, lawyers for the juvenile lifers say, should apply to their clients, too.

“Thirteen- and 14-year-old children should not be condemned to death in prison because there is always hope for a child,” said Bryan Stevenson, the executive director of the Equal Justice Initiative, which represents Ms. Jones and several other juvenile lifers.

The 2005 death penalty ruling applied to 72 death-row inmates, almost precisely the same number as the 73 prisoners serving life without parole for crimes committed at 13 or 14.

The Supreme Court did not abolish the juvenile death penalty in a single stroke. The 2005 decision followed one in 1988 that held the death penalty unconstitutional for those who had committed crimes under 16.

The new lawsuits, filed in Alabama, California, Florida, Missouri, North Carolina and Wisconsin, seek to follow a similar progression.

“We’re not demanding that all these kids be released tomorrow,” Mr. Stevenson said. “I’m not even prepared to say that all of them will get to the point where they should be released. We’re asking for some review.”

In defending American policy in this area in 2006, the State Department told the United Nations that sentencing is usually a matter of state law. “As a general matter,” the department added, juvenile offenders serving life-without-parole terms “were hardened criminals who had committed gravely serious crimes.”

Human rights groups have disputed that. According to a 2005 report from Human Rights Watch and Amnesty International, 59 percent of the more than 2,200 prisoners serving life without parole for crimes they committed at 17 or younger had never been convicted of a previous crime. And 26 percent were in for felony murder, meaning they participated in a crime that led to a murder but did not themselves kill anyone.

The new report focuses on the youngest offenders, locating 73 juvenile lifers in 19 states who were 13 and 14 when they committed their crimes. Pennsylvania has the most, with 19, and Florida is next, with 15. In those states and Illinois, Nebraska, North Carolina and Washington, 13-year-olds have been sentenced to die in prison.

In most of the cases, the sentences were mandatory, an automatic consequence of a murder conviction after being tried as an adult.

A federal judge here will soon rule on Ms. Jones’s challenge to her sentence. Ms. Poston, who prosecuted her, said Ms. Jones was beyond redemption.

“Between the ages of 2 and 3, you develop a conscience,” Ms. Poston said. “She never got the voice that says, ‘This is bad, Ashley.’ ”

“It was a blood bath in there,” Ms. Poston said of the night of the murders here, in 1999. “Ashley Jones is not the poster child for the argument that life without parole is too long.”

In a telephone interview from the Tutwiler Prison for Women in Wetumpka, Ala., Ms. Jones said she did not recognize the girl who committed her crimes. According to court filings, her mother was a drug addict and her stepfather had sexually molested her. “Everybody I loved, everybody I trusted, I was betrayed by,” Ms. Jones said.

“I’m very remorseful about what happened,” she said. “I should be punished. I don’t feel like I should spend the rest of my life in prison.”

Mrs. Nalls, her grandmother, had been married for 53 years when she and her husband, Deroy Nalls, agreed to take Ashley in. She was “a problem child,” and Mr. Nalls was a tough man who took a dislike to Ashley’s boyfriend, Geramie Hart. Mr. Hart, who was 16 at the time of the murders, is also serving a life term. Mrs. Nalls said he deserved a shot at parole someday as well.

    Lifers as Teenagers, Now Seeking Second Chance, NYT, 17.10.2007,















(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
(b) Each party to an offense may be charged with commission of the offense.
(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER. (a) A person is criminally responsible for an offense committed by the conduct of another if:
(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or
(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.03. DEFENSES EXCLUDED. In a prosecution in which an actor's criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense:
(1) that the actor belongs to a class of persons that by definition of the offense is legally incapable of committing the offense in an individual capacity; or
(2) that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.



Sec. 7.21. DEFINITIONS. In this subchapter:
(1) "Agent" means a director, officer, employee, or other person authorized to act in behalf of a corporation or association.
(2) "High managerial agent" means:
(A) a partner in a partnership;
(B) an officer of a corporation or association;
(C) an agent of a corporation or association who has duties of such responsibility that his conduct reasonably may be assumed to represent the policy of the corporation or association.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.22. CRIMINAL RESPONSIBILITY OF CORPORATION OR ASSOCIATION. (a) If conduct constituting an offense is performed by an agent acting in behalf of a corporation or association and within the scope of his office or employment, the corporation or association is criminally responsible for an offense defined:
(1) in this code where corporations and associations are made subject thereto;
(2) by law other than this code in which a legislative purpose to impose criminal responsibility on corporations or associations plainly appears; or
(3) by law other than this code for which strict liability is imposed, unless a legislative purpose not to impose criminal responsibility on corporations or associations plainly appears.
(b) A corporation or association is criminally responsible for a felony offense only if its commission was authorized, requested, commanded, performed, or recklessly tolerated by:
(1) a majority of the governing board acting in behalf of the corporation or association; or
(2) a high managerial agent acting in behalf of the corporation or association and within the scope of his office or employment.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 4, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.23. CRIMINAL RESPONSIBILITY OF PERSON FOR CONDUCT IN BEHALF OF CORPORATION OR ASSOCIATION. (a) An individual is criminally responsible for conduct that he performs in the name of or in behalf of a corporation or association to the same extent as if the conduct were performed in his own name or behalf.
(b) An agent having primary responsibility for the discharge of a duty to act imposed by law on a corporation or association is criminally responsible for omission to discharge the duty to the same extent as if the duty were imposed by law directly on him.
(c) If an individual is convicted of conduct constituting an offense performed in the name of or on behalf of a corporation or association, he is subject to the sentence authorized by law for an individual convicted of the offense.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.24. DEFENSE TO CRIMINAL RESPONSIBILITY OF CORPORATION OR ASSOCIATION. It is an affirmative defense to prosecution of a corporation or association under Section 7.22(a)(1) or (a)(2) that the high managerial agent having supervisory responsibility over the subject matter of the offense employed due diligence to prevent its commission.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 5, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

    TEXAS PENAL CODE > LAW OF PARTIES, copie 1.9.2007,







Justice Denied


July 5, 2007
The New York Times


In the 1960s, Chief Justice Earl Warren presided over a Supreme Court that interpreted the Constitution in ways that protected the powerless — racial and religious minorities, consumers, students and criminal defendants. At the end of its first full term, Chief Justice John Roberts’s court is emerging as the Warren court’s mirror image. Time and again the court has ruled, almost always 5-4, in favor of corporations and powerful interests while slamming the courthouse door on individuals and ideals that truly need the court’s shelter.

President Bush created this radical new court with two appointments in quick succession: Mr. Roberts to replace Chief Justice William Rehnquist and Samuel Alito to replace the far less conservative Sandra Day O’Connor.

The Roberts court’s resulting sharp shift to the right began to be strongly felt in this term. It was on display, most prominently, in the school desegregation ruling last week. The Warren court, and even the Rehnquist court of two years ago, would have upheld the integration plans that Seattle and Louisville, Ky., voluntarily adopted. But the Roberts court, on a 5-4 vote, struck them down, choosing to see the 14th Amendment’s equal-protection clause — which was adopted for the express purpose of integrating blacks more fully into society — as a tool for protecting white students from integration.

On campaign finance, the court handed a major victory to corporations and wealthy individuals — again by a 5-4 vote — striking down portions of the law that reined in the use of phony issue ads. The ruling will make it easier for corporations and lobbyists to buy the policies they want from Congress.

Corporations also won repeatedly over consumers and small stockholders. The court overturned a jury’s award of $79.5 million in punitive damages against Philip Morris. The Oregon Supreme Court had upheld the award, calling Philip Morris’s 40 years of denying the connection between smoking and cancer “extraordinarily reprehensible.”

In a ruling that will enrich companies at the expense of consumers, the court overturned — again by a 5-4 vote — a 96-year-old rule that manufacturers cannot impose minimum prices on retailers.

The flip side of the court’s boundless solicitude for the powerful was its often contemptuous attitude toward common folks looking for justice. It ruled that an inmate who filed his appeal within the deadline set by a federal judge was out of luck, because the judge had given the wrong date — a shockingly unjust decision that overturned two court precedents on missed deadlines.

When Chief Justice Roberts was nominated, his supporters insisted that he believed in “judicial modesty,” and that he could not be put into a simple ideological box. But Justice Alito and he, who voted together in a remarkable 92 percent of nonunanimous decisions, have charted a thoroughly predictable archconservative approach to the law. Chief Justice Roberts said that he wanted to promote greater consensus, but he is presiding over a court that is deeply riven.

In the term’s major abortion case, the court upheld — again by a 5-4 vote — the federal Partial-Birth Abortion Ban Act, even though the court struck down a nearly identical law in 2000. In the term’s major church-state case, the court ruled 5-4 that taxpayers challenging the Bush administration’s faith-based initiatives lacked standing to sue, again reversing well-established precedents. In a few cases, notably ones challenging the Bush administration’s hands-off approach to global warming and executions of the mentally ill, Justice Anthony Kennedy broke with the conservative bloc. But that did not happen often enough.

It has been decades since the most privileged members of society — corporations, the wealthy, white people who want to attend school with other whites — have had such a successful Supreme Court term. Society’s have-nots were not the only losers. The basic ideals of American justice lost as well.

    Justice Denied, NYT, 5.7.2007,






Court Rejects Interpretation

of Immigration Drug Law


December 6, 2006
The New York Times


WASHINGTON, Dec. 5 — The Supreme Court rejected the government’s interpretation of immigration law on Tuesday, ruling that a noncitizen is not subject to mandatory deportation for a drug crime that, while a felony in the state where the crime was prosecuted, is only a misdemeanor under federal law.

The 8-to-1 decision restored to one category of immigrants, caught in the nearly impenetrable maze where immigration law and criminal law meet, the ability to avoid automatic deportation and the other dire consequences of being guilty of an “aggravated felony.”

The category is made up of immigrants convicted of simple drug possession in states that treat those offenses as felonies. Federal law treats possession in most instances as a misdemeanor. But in the government’s view, possession when deemed a felony under state law became a “drug trafficking crime,” which under federal immigration law is an “aggravated felony” that strips an immigrant of the right to seek relief from automatic deportation, to seek asylum, or ever to return legally to the United States.

Writing for the majority on Tuesday, Justice David H. Souter said the government’s interpretation was based on a strained and implausible reading of the definition of “drug trafficking crime” in the federal criminal code.

Thousands of immigrants every year might benefit from the ruling, according to Jayashri Srikantiah, a law professor who heads the Immigrants’ Rights Clinic at Stanford Law School and who filed a brief on behalf of Jose Antonio Lopez, the immigrant whose Supreme Court appeal led to the decision, Lopez v. Gonzales, No. 05-547.

In an interview, Ms. Srikantiah said the decision was informed by “a sense of proportionality” and of the “real world consequences” of subjecting legal residents convicted of minor offenses to automatic deportation.

The Immigration and Nationality Act contains a list of aggravated felonies that includes “a drug trafficking crime.” This phrase, in turn, is defined not in the immigration law, but in the criminal code as “any felony punishable under the Controlled Substances Act,” the basic federal narcotics law.

The government’s position was that “any felony” meant any crime that was considered a felony either under federal law or in the state where the prosecution took place. In this way, a conviction for simple possession could become a drug trafficking offense and hence an aggravated felony, which is what happened to Mr. Lopez.

A Mexican who was a permanent legal resident of the United States, Mr. Lopez pleaded guilty in a South Dakota state court to aiding and abetting another person’s possession of cocaine. That crime is a felony in South Dakota, although the analogous offense is a misdemeanor under federal law.

Mr. Lopez served 15 months in state prison and was then placed in federal deportation proceedings as an aggravated felon. After unsuccessfully contesting the designation before the immigration service and the United States Court of Appeals for the Eighth Circuit, in St. Louis, he was deported to Mexico.

The Supreme Court’s decision makes Mr. Lopez eligible to apply for the administrative relief from deportation known as “cancellation of removal,” an option that was foreclosed by his designation as an aggravated felon.

In analyzing the government’s position that any offense “punishable” under the Controlled Substances Act therefore became a “drug trafficking” felony, Justice Souter said that “there are a few things wrong with this argument, the first being its incoherence.” While “trafficking” ordinarily meant “some sort of commercial dealing,” he said, “commerce, however, was no part of Lopez’s South Dakota offense of helping someone else to possess.”

Justice Souter continued that while the government’s argument appeared implausible, that was “not to deny that the government might still be right; Humpty Dumpty used a word to mean ‘just what he chose it to mean — neither more nor less,’ and legislatures, too, are free to be unorthodox.”

But in this instance, he said, if Congress meant to define drug trafficking in such an “unexpected” way, “Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.”

Justice Souter said that under the government’s interpretation, a central part of federal immigration law, deportation, would depend not on a federal judgment about the seriousness of an offense, but on “varying state criminal classifications.” He added, “We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors if it meant courts to ignore it whenever a state chose to punish a given act more heavily.”

The court’s conclusion was that “a state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.”

Justice Clarence Thomas was the lone dissenter, observing in his opinion that “without doubt, Congress could have written the definition with this limitation, but it did not.”

This was not the first time the Supreme Court has resisted a categorical interpretation of immigration law by the executive branch. In a unanimous opinion two years ago, the court ruled that contrary to the government’s view, driving under the influence of alcohol was not a “crime of violence” for which an immigrant could be subjected to automatic deportation.

    Court Rejects Interpretation of Immigration Drug Law, NYT, 6.12.2006,






Op-Ed Contributor

The G.O.P.’s Bad Bet


October 19, 2006
The New York Times


Las Vegas


LAST week President Bush signed a law that will try to impede online gambling by prohibiting American banks from transferring money to gambling sites. Most Americans probably didn’t notice or care, but it may do significant political damage to the Republicans this fall and long-term damage to Americans’ respect for the law.

So, a month before a major election, the Republicans have allied themselves with a scattering of voters who are upset by online gambling and have outraged the millions who love it. Furthermore, judging from many hours of online chat with Internet poker players, I am willing to bet (if you’ll pardon the expression) that the outraged millions are disproportionately electricians, insurance agents, police officers, mid-level managers, truck drivers, small-business owners — that is, disproportionately Republicans and Reagan Democrats.

In the short term, this law all by itself could add a few more Democratic Congressional seats in the fall elections. We are talking about a lot of people (an estimated 23 million Americans gamble online) who are angry enough to vote on the basis of this one issue, and they blame Republicans.

In the long term, something more ominous is at work. If a free society is to work, the vast majority of citizens must reflexively obey the law not because they fear punishment, but because they accept that the rule of law makes society possible. That reflexive law-abidingness is reinforced when the laws are limited to core objectives that enjoy consensus support, even though people may disagree on means.

Thus society is weakened every time a law is passed that large numbers of reasonable, responsible citizens think is stupid. Such laws invite good citizens to choose knowingly to break the law, confident that they are doing nothing morally wrong.

The reaction to Prohibition, the 20th century’s stupidest law, is the archetypal case. But the radical expansion of government throughout the last century has created many more.

For example, all employers are confronted with rules and regulations from Occupational Safety and Health Administration and the Equal Employment Opportunity Commission that they regard with contempt — not because they cut into profits, but because they are, simply, stupid. They impede employers yet provide no collateral social benefit. And so employers treat the stupid regulations as obstructions to be fudged or ignored. When they have to comply, they do not see compliance as the right thing to do, but as placating an agency that will hurt them otherwise.

The same thing applies to lesser degrees to all of us who find ourselves doing things that we know are pointless (think of various aspects of tax law) only because we fear attracting a bureaucracy’s attention. For millions of Americans, our day-to-day relationship with government is increasingly like paying protection to the Mafia — keeping it off our backs while we get on with our lives.

The temptation for good citizens to ignore a stupid law is encouraged when it is unenforceable. In this, the attempt to ban Internet gambling is exemplary. One of the four sites where I play poker has blocked United States customers because of the law, but the other three are functioning as usual and are confident that they can continue to do so. They are not in America, and it is absurdly easy to devise ways of transferring money from American bank accounts to institutions abroad and thence to gambling sites.

And so the federal government once again has acted in a way that will fail to achieve its objective while alienating large numbers of citizens who see themselves as having done nothing wrong. The libertarian part of me is heartened by this, hoping that a new political coalition will start to return government to its proper functions. But the civic-minded part of me is apprehensive. Reflexive loyalty to the rule of law is an indispensable cultural asset. The more honest citizens who take for granted that they are breaking the law, the more their loyalty to the law, and to the government that creates it, is eroded.


Charles Murray is a scholar

at the American Enterprise Institute.

    The G.O.P.’s Bad Bet, NYT, 19.10.2006,






The Nation:

O. J. Simpson and Susan Smith;

Two Crimes, Two Punishments


January 22, 1995

The New York Times



ATLANTA— ON different sides of the country, in different worlds of power and influence, Susan V. Smith and O. J. Simpson are accused of murder by unspeakable means. The difference is in the price the criminal-justice system will exact if they are convicted, in a nation where the application of the death penalty is inconsistent.

In Union, S.C., prosecutors say Mrs. Smith, 23, a woman once unknown outside the little mill town where she was born, drowned her two young sons in a dark lake and lied to the outside world for nine days in October, claiming a young black man stole her babies as she stood screaming at the side of the road. She made about $17,000 a year, worked as a secretary in a textile mill and drove a Mazda. Prosecutors want her to die in the electric chair.

In Los Angeles, prosecutors say the famous Mr. Simpson, who once ran untouched through N.F.L. defenses and television rent-a-car commercials, stalked and viciously cut and stabbed to death his former wife and her companion. He had assets of about $10 million, in mansions, beachfront condos and Ferraris. Mr. Simpson, whose trial begins tomorrow, does not face California's death penalty.

At first glance, or sniff, it smells. Why is a rich and famous person spared the ultimate penalty, yet it looms over a relatively poor, obscure one?

Somewhat surprisingly, respected legal experts on either side of the capital punishment debate say that while money is often an issue, it was not the driving influence in the prosecutorial decisions in how to proceed against Mr. Simpson and Ms. Smith.


The 'Mirror Theory'

This time, they say, the key factor is what prosecutors see in the faces of their communities, what law professors and lawyers call "the mirror theory."

"The life-and-death decision is made on trivial grounds, and tends to reflect the community's prejudices," said Franklin Zimring, director of the Earl Warren Legal Institute at the University of California at Berkeley.

In the past, the mirror has borne a predictable image. People on death row are still disproportionately poor and black. But this time the black defendant is wealthy and famous, and it is the white female defendant who is on trial for her life -- a rare prospect for execution, since only one woman has been put to death since the Supreme Court allowed executions to resume in 1976.

To make a death-penalty case forcefully, prosecutors still have to pursue a strategy not entirely unlike those of race-baiting prosecutors in the past. They have to transform a client from one of "us," a member of the human community, to one of "them," the predators who would destroy it.

That is hard to do with a football hero, and much easier with a mill worker accused of drowning her babies, even if she was an honors student voted "most friendly" in high school, said lawyers who specialize in death penalty cases.

"Simpson is like a member of the family, so much a part of American life," said Stephen Bright, an Atlanta attorney and expert on capital murder trials. "As a result, it is much more like having a friend or family member accused of a crime. Susan Smith is defined publicly only by the crime."

There are other factors, said Mr. Bright, not the least of which is geography. South Carolina, which leads the nation in incarcerations per capita, has a reputation as a law-and-order state. When Mrs. Smith was formally charged, a bloodthirsty crowd outside the courthouse screamed its outrage, saying she should be locked in a car and drowned in the same lake where her children, 3-year-old Michael and 14-month-old Alex, died.

"This is an opportunity for national publicity," said Mr. Bright, "to exploit the death penalty politically."

Even though capital punishment statistically appears to be no real deterrent to crime, and even though it has wrecked county budgets -- some counties have had to raise taxes to finance capital murder trials, which are more expensive that other criminal trials -- the embrace of the death penalty is driven by "the passion of the moment," said Mr. Bright.

The prosecutor, Thomas Pope, said last week he decided to seek the death penalty after hearing the views of hundreds of people, including the family of Mrs. Smith and her estranged husband, David.

Not everyone in Union County clamored for retribution in kind. Sheriff Howard Wells took a political risk when he said it would be better to spare his county the media spotlight and expense, emotional and financial, of a capital trial.

"What the Los Angeles prosecutor did was, on balance, braver than what the South Carolina prosecutor did," said Mr. Zimring.

But politics was also a driving force in the Simpson case. Los Angeles County prosecutors knew that putting a national hero on trial for his life might alienate the public and the jury that is drawn from it. The Los Angeles County Prosecutor, Gil Garcetti, "engaged in damage control," said Mr. Bright, explaining that if Mr. Garcetti had pushed for the death penalty, he might have guaranteed an acquittal.

Choosing not to seek the death penalty against Mr. Simpson, however, was not a departure from the norm in Los Angeles County. His case -- loosely defined as "domestic," involving a defendant with no felony convictions -- did not fit the profile for successfully prosecuted capital crime in California.

The decision was made by a prosecutors' screening committee that looked at all aspects of the case. Some prosecutors also discussed the matter with black leaders in Los Angeles. Mr. Garcetti's office issued a short statement acknowledging the concerns of the community, but said the decision not to seek the death penalty came "independent of those concerns." Mr. Simpson instead faces life in prison if convicted.


The Family of 'Us'

In the South Carolina case, Mrs. Smith said she was distraught over personal problems and close to suicide, and planned to die with her children. Somewhere, somehow, she supposedly changed her mind, but not soon enough to save her children.

But many in Union believe she killed her children because a man she had been dating said he was not ready for "a ready-made family."

It is her attorney's job to humanize her, to bring her back into the family of "us," and in that she has an expert in David Bruck, one of the nation's most respected defense attorneys in capital cases.

"It's very frustrating that I can't tell her story now," said Mr. Bruck, who will wait for the trial. "If I could, the public would take a different view."

Ernest van den Haag, a retired professor of law and public policy at Fordham University, believes in the death penalty and says both crimes are brutal enough to warrant it. But he does not believe Mr. Simpson, because of who he is, was ever in any real danger of getting the death penalty. And he thinks it is a tactical mistake to seek the death penalty in the Smith case, as it would have been in the Simpson case. "Public opinion is against Mrs. Smith now," he said, "but it will shift in her favor."

Mr. van den Haag added that the death penalty, like any form of punishment, is never exact. "It's a lottery," he said.


Photos: O. J. Simpson does not face execution.

(Reuters); Susan V. Smith does. (Associated Press)

The Nation: O. J. Simpson and Susan Smith;
Two Crimes, Two Punishments,










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