West''''s encyclopedia of American law 2ND EDITION Volume 10 docx

Territorial courts are legislative courts ated by Congress pursuant to its constitutionalpower under Article I, Section 8, Clause 9, tocreate tribunals inferior to the Supreme Court.. Su

2ND EDITION

❚ 1 ❚ Article Title

❚ 2 ❚ Definition in italics with Latin

translation provided

❚ 3 ❚ First-level subhead

❚ 4 ❚ Timeline for subject of biography,

including general historical events

and life events

❚ 5 ❚ Sidebar expands upon an issue

addressed briefly in the article

❚ 6 ❚ Quotation from subject of biography

❚ 7 ❚ Biography of contributor to

American law

❚ 8 ❚ Internal cross-reference to entry

within WEAL

❚ 9 ❚ In Focus article examines a

controversial or complex aspect

of the article topic

❚10 ❚ Cross-references at end of article

❚11❚ Full cite for case

❚ 1 ❚ Article Title

❚ 2 ❚ Definition in italics with Latin

translation provided

❚ 3 ❚ First-level subhead

❚ 4 ❚ Timeline for subject of biography,

including general historical events

and life events

❚ 5 ❚ Sidebar expands upon an issue

addressed briefly in the article

❚ 6 ❚ Quotation from subject of biography

❚ 7 ❚ Biography of contributor to

American law

❚ 8 ❚ Internal cross-reference to entry

within WEAL

❚ 9 ❚ In Focus article examines a

controversial or complex aspect

of the article topic

❚10 ❚ Cross-references at end of article

❚11❚ Full cite for case

2ND EDITION

Volume 10 Ter to Z

West’s Encyclopedia of American Law, 2nd Edition

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Jeffrey Lehman

Shirelle Phelps

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West’s encyclopedia of American law / Jeffrey Lehman, editor, Shirelle Phelps, editor.— 2nd ed.

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VOLUME 1

Preface ix

Contributors xiii

A–Ba 1

Abbreviations 507

VOLUME 2 Preface ix

Contributors xiii

Be–Col 1

Abbreviations 511

VOLUME 3 Preface ix

Contributors xiii

Com–Dor 1

Abbreviations 509

VOLUME 4 Preface ix

Contributors xiii

Dou–Fre 1

Abbreviations 509

VOLUME 5 Preface ix

Contributors xiii

Fri–Jam 1

Abbreviations 501

VOLUME 6 Preface ix

Contributors xiii

Jap–Ma 1

Abbreviations 469

VOLUME 7 Preface ix

Contributors xiii

Mc–Pl 1

Abbreviations 467

VOLUME 8 Preface ix

Contributors xiii

Po–San 1

Abbreviations 461

VOLUME 9 Preface ix

Contributors xiii

Sar–Ten 1

Abbreviations 465

VOLUME 10 Preface ix

Contributors xiii

Ter–Z 1

Abbreviations 459

VOLUME 11 Milestones in the Law

VOLUME 12 Primary Documents

VOLUME 13 Dictionary of Legal Terms Cases Index

General Index

Contents

The U.S legal system is admired aroundthe world for the freedoms it allows the

individual and the fairness with which it

attempts to treat all persons On the surface, it

may seem simple, yet those who have delved

into it know that this system of federal and

state constitutions, statutes, regulations, and

common-law decisions is elaborate and

com-plex It derives from the English common law,

but includes principles older than England,

along with some principles from other lands

The U.S legal system, like many others, has a

language all its own, but too often it is an

unfa-miliar language: many concepts are still

phrased in Latin The second edition of West’s

Encyclopedia of American Law (WEAL) explains

legal terms and concepts in everyday language,

however It covers a wide variety of persons,

entities, and events that have shaped the U.S

legal system and influenced public perceptions

movements, cases, and persons significant to

U.S law Entries on legal terms contain a

defini-tion of the term, followed by explanatory text if

necessary Entries are arranged alphabetically in

standard encyclopedia format for ease of use A

wide variety of additional features, listed later in

this preface, provide interesting background and

supplemental information

Definitions Every entry on a legal term is

followed by a definition, which appears at thebeginning of the entry and is italicized The Dic-tionary and Indexes volume includes a glossary

containing all the definitions from WEAL.

Further Readings To facilitate further

research, a list of Further Readings is included atthe end of a majority of the main entries

Cross-References WEAL provides two types

of cross-references, within and following entries

Within the entries, terms are set in small capitalletters—for example, LIEN—to indicate thatthey have their own entry in the encyclopedia

At the end of the entries, related entries thereader may wish to explore are listed alphabeti-cally by title

Blind cross-reference entries are alsoincluded to direct the user to other entriesthroughout the set

In Focus Essays

In Focus essays accompany related entriesand provide additional facts, details, and argu-ments on particularly interesting, important, orcontroversial issues raised by those entries Thesubjects covered include hotly contested issues,such as abortion, capital punishment, and gayrights; detailed processes, such as the Food andDrug Administration’s approval process for newdrugs; and important historical or social issues,such as debates over the formation of the U.S

complement regular entries and In Focus essays

by adding informative details Sidebar topicsinclude the Million Man March and the branches

of the U.S armed services Sidebars appear at thetop of a text page and are set in a box

Biographies

WEAL profiles a wide variety of interesting

and influential people—including lawyers,judges, government and civic leaders, and his-torical and modern figures—who have played apart in creating or shaping U.S law Each biog-raphy includes a timeline, which shows impor-tant moments in the subject’s life as well asimportant historical events of the period

Biographies appear alphabetically by the ject’s last name

sub-ADDITIONAL FEATURES OF THIS SET

Enhancements Throughout WEAL, readers

will find a broad array of photographs, charts,graphs, manuscripts, legal forms, and othervisual aids enhancing the ideas presented in thetext

Indexes WEAL features a cases index and a

cumulative index in a separate volume

Appendixes

Three appendix volumes are included with

WEAL, containing hundreds of pages of

docu-ments, laws, manuscripts, and forms tal to and characteristic of U.S law

fundamen-Milestone Cases in the Law

A special Appendix volume entitled stones in the Law, allows readers to take a closelook at landmark cases in U.S law Readers canexplore the reasoning of the judges and thearguments of the attorneys that produced majordecisions on important legal and social issues.Included in each Milestone are the opinions ofthe lower courts; the briefs presented by the par-ties to the U.S Supreme Court; and the decision

Mile-of the Supreme Court, including the majorityopinion and all concurring and dissenting opin-ions for each case

Primary Documents

There is also an Appendix volume ing more than 60 primary documents, such asthe English Bill of Rights, Martin Luther KingJr.’s Letter from Brimingham Jail, and severalpresidential speeches

contain-Citations

Wherever possible, WEAL entries include

citations for cases and statutes mentioned in thetext These allow readers wishing to do addi-tional research to find the opinions and statutescited Two sample citations, with explanations ofcommon citation terms, can be seen below andopposite

1 Case title The title of the case is set in i and

indicates the names of the parties The suit

in this sample citation was between Ernesto

A Miranda and the state of Arizona

2 Reporter volume number The number

pre-ceding the reporter name indicates thereporter volume containing the case (Thevolume number appears on the spine of thereporter, along with the reporter name)

3 Reporter name The reporter name is

abbrevi-ated The suit in the sample citation is from

the reporter, or series of books, called U.S.

Reports, which contains cases from the U.S.

Supreme Court (Numerous reporters lish cases from the federal and state courts.)

pub-4 Reporter page The number following the

reporter name indicates the reporter page onwhich the case begins

5 Additional reporter page Many cases may be

found in more than one reporter The suit inthe sample citation also appears in volume

86 of the Supreme Court Reporter, beginning

on page 1602

6 Additional reporter citation The suit in the

sample citation is also reported in volume 16

of the Lawyer’s Edition, second series,

begin-ning on page 694

7 Year of decision The year the court issued its

decision in the case appears in parentheses atthe end of the cite

Miranda v Arizona, 384 U.S 436, 86 S.Ct 1602, 16 L.Ed 2d 694 (1966)

1 Statute title.

2 Public law number In the sample citation,

the number 103 indicates this law waspassed by the 103d Congress, and the num-ber 159 indicates it was the 159th law passed

by that Congress

3 Reporter volume number The number

pre-ceding the reporter abbreviation indicatesthe reporter volume containing the statute

4 Reporter name The reporter name is

abbre-viated The statute in the sample citation is

from Statutes at Large.

5 Reporter page The number following the

reporter abbreviation indicates the reporterpage on which the statute begins

6 Title number Federal laws are divided into

major sections with specific titles The ber preceding a reference to the U.S Codestands for the section called Crimes andCriminal Procedure

num-7 Additional reporter The statute in the ple citation may also be found in the U.S.

Lynne CristPaul D DaggettSusan L DalhedLisa M DelFiaccoSuzanne Paul Dell’OroDan DeVoe

Joanne EngelkingSharon FischlowitzJonathan FlandersLisa FloreyRobert A FrameJohn E GisselquistRussell L Gray IIIFrederick K GrittnerVictoria L HandlerHeidi L HeadleeJames HeidbergClifford P HookerMarianne Ashley JerpbakAndrew Kass

Margaret Anderson KelliherChristopher J KennedyAnne E KevlinAnn T LaughlinLaura Ledsworth-WangLinda Lincoln

Gregory LuceDavid LuikenJennifer MarshSandra M OlsonAnne Larsen OlstadWilliam OstremLauren PacelliRandolph C ParkGary PeterMichele A PottsReinhard PriesterChristy RainBrian RobertsDebra J RosenthalMary Lahr SchierMary ScarbroughTheresa L SchulzJohn ScobeyJames SlavicekScott D SlickDavid StromWendy TienDouglas TuetingRichard F TysonChristine Ver PloegGeorge E WarnerAnne WelsbacherEric P WindLindy T Yokanovich

Contributors

An expression, word, or phrase that has a fixed

and known meaning in a particular art, science, or

profession A specified period of time.

The term of a court is the legally prescribedperiod for which it may be in session Although

the session of the court is the time that it

actu-ally sits, the words term and session are

fre-quently used interchangeably

In reference to a lease, a term is the periodgranted during which the lessee is entitled to

occupy the rented premises It does not include

the period of time between the creation of the

lease and the entry of the tenant Similarly when

used in reference to estates, the term is the

period of time for which an estate is granted An

estate for five years, for example, is one with a

five-year term

A term of office is the time during which anofficial who has been appointed or elected may

hold the office, perform its functions, and

par-take of its emoluments and privileges

law For example, the phrase double jeopardy can

be used in common parlance to describe any uation that poses two risks In the law,DOUBLE

second trial of a defendant for the same offensethat gave rise to the first trial

The classification of a word or phrase as a

term of art can have legal consequences In

Mol-zof v United States, 502 U.S 301, 112 S Ct 711,

116 L Ed 2d 731 (1992), Shirley M Molzofbrought suit against the federal governmentafter her husband, Robert E Molzof, sufferedirreversible brain damage while under the care

of government hospital workers The federalgovernment conceded liability, and the partiestried the issue of damages before the U.S Dis-trict Court for the Western District of Wiscon-sin Molzof had brought the claim as executor ofher husband’s estate under the FEDERAL TORT

2671–2680 [1988]), which prohibits the ment ofPUNITIVE DAMAGES against the federalgovernment The court granted recovery toMolzof for her husband’s injuries that resultedfrom the NEGLIGENCEof federal employees, but

assess-it denied recovery for future medical expensesand for loss of enjoyment of life According tothe court, such damages were punitive damages,which could not be recovered against the federalgovernment

The U.S Court of Appeals for the SeventhCircuit agreed with the trial court, but the U.S.Supreme Court disagreed According to theCourt, punitive damages is a legal term of art

that has a widely accepted common-law ing under state law Congress was aware of thismeaning at the time it passed the FTCA Undertraditional common-law principles, punitivedamages are designed to punish a party Sincedamages for future medical expenses and forloss of enjoyment of life were meant to compen-sate Molzof rather than punish the government,the Court reversed the decision and remandedthe case to the Seventh Circuit.

mean-TERMINATION

Cessation; conclusion; end in time or existence.

When used in connection with litigation, theterm signifies the final determination of theaction

The termination or cancellation of a tract signifies the process whereby an end is put

con-to whatever remains con-to be performed der It differs from RESCISSION, which refers tothe restoration of the parties to the positionsthey occupied prior to the contract

thereun-The termination of a lease refers to the erance of the LANDLORD AND TENANT relation-ship before the leasehold term expires throughthe ordinary passage of time

Mary Eliza Church Terrell was an influentialAfrican American writer, lecturer, and socialactivist, whose work began when the SEPARATE-

adopted by the U.S legal system and ended asthe U.S Supreme Court, in BROWN V BOARD OF

74 S Ct 686, 98 L Ed 873 (1954), rejected thedoctrine of state-sponsored segregation Terrellwas also an advocate of WOMEN’S RIGHTS,including the right to vote

Mary Church was born on September 23,

1863, in Memphis, Tennessee She was raised in

a middle-class family and attended OberlinCollege in Ohio, graduating in 1884 She taught

at Wilberforce University in Xenia, Ohio, in

1863 Born, Memphis, Tenn.

◆

1884 Graduated from Oberlin College in Ohio

1895 Appointed to the District

of Columbia Board of Education

◆

1909 Became a charter member of the NAACP

1914–18 World War I

◆

1896 Published the pamphlet "The Progress of Colored Women"; founded the National Association of Colored Women

1939–45 World War II

◆

1940 Published

autobiography A

Colored Woman in a White World

◆ ❖

1954 Died, Annapolis, Md.

◆

1954 U.S Supreme Court outlawed,

"separate but equal" education in

Brown v Board of Education

1961–73 Vietnam War 1950–53

1885 and at a secondary school in Washington,

D.C., in 1886 before taking a two-year tour of

Europe In 1888 she obtained a master’s degree

from Oberlin and married Robert Heberton

Terrell, an attorney who would become the first

African American municipal judge in

Washing-ton, D.C

Terrell became an active member of theNational American Suffrage Association and

focused her attention on the special concerns of

African American women In her 1896

pam-phlet, “The Progress of Colored Women,” Terrell

noted the “almost insurmountable obstacles”

that had confronted African American women

Not only were “colored women with ambition

and aspiration handicapped on account of their

sex, but they are everywhere baffled and mocked

on account of their race.”

In 1896 Terrell founded the National ciation of Colored Women and established its

Asso-headquarters in Washington, D.C As the first

president, Terrell used the association as a

means of achieving educational and social

reform and bringing an end to racial and SEX

District of Columbia Board of Education in

1895, the first African American woman to hold

such a position

Terrell became a charter member of theNational Association for the Advancement of

Colored People (NAACP) in 1909 and continued

She worked for the end of racial segregation and

other barriers that affected the rights of African

Americans In 1949 Terrell was admitted to the

Washington chapter of the American

Associa-tion of University Women, ending the

associa-tion’s all-white membership policy In 1950, at

age eighty-seven, Terrell began a campaign to

end segregation in restaurants and hotels in

Washington, D.C Three years later she achieved

her goal

Terrell published her autobiography, A

Col-ored Woman in a White World, in 1940 She died

on July 24, 1954, in Annapolis, Maryland

FURTHER READINGS

Fradin, Dennis B., and Judith Bloom Fradin 2003 Fight On!:

Mary Church Terrell’s Battle for Integration New York:

Clarion Books.

Jones, Beverly Washington 1990 Quest for Equality: The Life

and Writings of Mary Eliza Church Terrell, 1863–1954.

Brooklyn, N.Y.: Carlson.

Terrell, Mary Church 1996 A Colored Woman in a White

World New York: G.K Hall.

Territorial courts are legislative courts ated by Congress pursuant to its constitutionalpower under Article I, Section 8, Clause 9, tocreate tribunals inferior to the Supreme Court

cre-They are not constitutional courts created byArticle III of the Constitution Congress veststerritorial courts with jurisdiction comparable

to that exercised by federal district courts gress can, however, impose restrictions andduties on territorial courts that cannot beimposed on federal district courts, such as limit-ing the tenure of the members of the bench

Con-Once a territory is admitted to the Union as astate, the jurisdiction of its territorial court isextinguished Pending cases are transferred tothe appropriate tribunals according to thenature of the particular action

The Supreme Court reviews decisions dered by territorial courts if they satisfy certainrequirements

ren-TERRITORIAL WATERS

The part of the ocean adjacent to the coast of a state that is considered to be part of the territory of that state and subject to its sovereignty.

waters refers to that part of the ocean

immedi-ately adjacent to the shores of a state and subject

to its territorial jurisdiction The state possessesboth the jurisdictional right to regulate, police,and adjudicate the territorial waters and theproprietary right to control and exploit naturalresources in those waters and exclude othersfrom them Territorial waters differ from thehigh seas, which are common to all nations andare governed by the principle of freedom of theseas The high seas are not subject to appropria-tion by persons or states but are available toeveryone for navigation, exploitation ofresources, and other lawful uses The legal status

of territorial waters also extends to the seabedand subsoil under them and to the airspaceabove them

From the eighteenth to the middle of thetwentieth century, international law set thewidth of territorial waters at one league (three

TERRITORIAL WATERS 3

nautical miles), although the practice was neverwholly uniform The United States established athree-mile territorial limit in 1793 Internationallaw also established the principle that foreignships are entitled to innocent passage throughterritorial waters.

By the 1970s, however, more than fortycountries had asserted a twelve-mile limit fortheir territorial waters In 1988 President

5928, which officially increased the outer limit

of U.S territorial waters from three to twelvemiles (54 Fed Reg 777) This limit also applies

to Puerto Rico, Guam, American Samoa, theU.S Virgin Islands, and the Northern MarianaIslands The Reagan administration claimed theextension of the limit was primarily motivated

by national security concerns, specifically tohinder the operations of spy vessels from theSoviet Union that plied the U.S coastline

Another reason for the extension was the nition that most countries had moved to atwelve-mile limit In 1982, at the Third UnitedNations Conference on the Law of the Sea, 130member countries ratified the Convention on

recogni-tion of the twelve-mile limit as a provision ofcustomary international law Although theUnited States voted against the convention, 104countries had officially claimed a twelve-mileterritorial sea by 1988

TERRITORIES OF THE UNITED STATES

Portions of the United States that are not within the limits of any state and have not been admitted

as states.

The United States holds three territories:

American Samoa and Guam in the PacificOcean and the U.S Virgin Islands in theCaribbean Sea Although they are governed bythe United States, the territories do not havestatehood status, and this lesser legal and politi-cal status sets them apart from the rest of theUnited States

The three U.S territories are not the onlyU.S government land holdings without state-hood status These various lands fall under thebroad description of insular political communi-ties affiliated with the United States Puerto Rico

in the Caribbean and the Northern MarianaIslands in the Pacific Ocean belong to the UnitedStates and have the status of commonwealth, alegal and political status that is above a territorybut still below a state

The United States also has a number ofislands in the Pacific Ocean that are called vari-ously territories and possessions U.S posses-sions have the lowest legal and political statusbecause these islands do not have permanentpopulations and do not seek self-determinationand autonomy U.S possessions include Baker,Howland, Kingman Reef, Jarvis, Johnston, Mid-way, Palmyra, and Wake Islands

Finally, land used as a military base is sidered a form of territory These areas areinhabited almost exclusively by military person-nel They are governed largely by military laws,and not by the political structures in place forcommonwealths and territories The UnitedStates has military bases at various locationsaround the world, including Okinawa, Japan,and Guantanamo Bay, Cuba

con-A precise definition of territories and torial law in the United States is difficult to fash-ion The U.S government has long been in thehabit of determining policy as it goes along TheUnited States was established through a defen-sive effort against British forces and thenthrough alternately defensive and offensive bat-tles against Native Americans From this chaoticbeginning, the United States has struggled tofashion a coherent policy on the acquisition andpossession of land

terri-The U.S Constitution does not state exactlyhow the United States may acquire land Instead,the Constitution essentially delegates the power

to decide the matter to Congress Article IV, tion 3, Clause 1, of the Constitution providesthat “New States may be admitted by the Con-gress into this Union; but no new State shall beformed by the Junction of two or more States,

Sec-or Parts of States, without the Consent of theLegislatures of the States concerned as well as ofthe Congress.” The same section of the Consti-tution gives Congress the “Power to dispose ofand make all needful Rules and Regulationsrespecting the Territory or other Propertybelonging to the United States.”

Under INTERNATIONAL LAW the UnitedStates and other nation-states may acquire addi-

tional territory in several ways, including

occu-pation of territory that is not already a part of a

state; conquest, where allowed by the

interna-tional community; cession of land by another

nation in a treaty; and accretion, or the growth

of new land within a nation’s existing

bound-aries

Through various statutes and court ions, Congress and the U.S Supreme Court have

opin-devised a system that gives Congress and the

president control over U.S territories Congress

delegates some of its policy-making and

admin-istrative duties to the Office of Insular Affairs

within the INTERIOR DEPARTMENT The

presi-dent of the United States appoints judges and

executive officers to offices in the territories

Congress devises court systems for the

territo-ries, and the Supreme Court may review

deci-sions made by territorial courts

Congress may pass laws governing a tory with due deference to the customs and sen-

terri-sibilities of the native people Congress may not

pass territorial laws that violate a fundamental

constitutional right Such rights have not been

defined concretely by the Supreme Court in the

context of territorial law, but they can include

the right to be free from unreasonable SEARCHES

Puerto Rico, 442 U.S 465, 99 S Ct 2425, 61 L.

Ed 2d 1 [1979])

Persons living in U.S territories do not havethe right to vote for members of Congress They

may elect their own legislature, but the laws

passed by the territorial legislature may be

nulli-fied by Congress Each territory may elect a

del-egate who attends congressional sessions,

hearings, and conferences in Washington, D.C

These delegates may propose legislation and

vote on legislation in committees, but they may

not participate in final votes

U.S territories have less political power than

do U.S commonwealths Commonwealths are

afforded a higher degree of internal political

autonomy than are territories Congress and the

commonwealth work together to fashion a

polit-ical system that is acceptable to both parties By

contrast, Congress tends to impose its will on

territories Commonwealth status once

inevitably led to statehood, but such a

progres-sion is no longer automatic

FURTHER READINGS

Farrand, Max 2000 The Legislation of Congress for the ernment of the Organized Territories of the United States, 1789–1895 Buffalo, N.Y.: Hein.

Gov-Statham, Robert, Jr 2002 Colonial Constitutionalism: The Tyranny of United States’ Offshore Territorial Policy and Relations Lanham, Md.: Lexington Books.

Van Dyke, Jon M 1992 “The Evolving Legal Relationships between the United States and Its Affiliated U.S.-Flag

Islands.” University of Hawaii Law Review 14 (fall).

The term territory has various meanings in

different contexts Generally, the term refers to

a particular or indeterminate geographicalarea In a legal context, territory usuallydenotes a geographical area that has beenacquired by a particular country but has notbeen recognized as a full participant in thatcountry’s affairs In the United States, Guam isone example of a territory Though it is consid-ered a part of the United States and is governed

by the U.S Congress, Guam does not have fullrights of statehood, such as full representation

in Congress or full coverage under the U.S

Constitution

The term territory is also used in the law to

describe an assigned area of responsibility Asalesperson, for example, may work in a cer-tain area A salesperson’s territory may belegally significant in a contract case Assumethat Sally has agreed to sell widgets on com-mission in a specific territory on the conditionthat no other seller from the widget supplierwill do business in that territory If the sup-plier arranges for another seller to encroach onSally’s territory, Sally may take legal actionagainst the supplier

per-Since the SEPTEMBER 11TH ATTACKS on theUnited States in 2001, which resulted in the

TERRORISM 5

destruction of the World Trade Center in NewYork City and severe damage to the Pentagon inWashington, D.C., the United States has changedits priorities to focus upon eradicating terrorism

in the world Terrorism involves the systematicuse of terror or violence to achieve politicalgoals The targets of terrorism include govern-ment officials, identified individuals or groups,

and innocent bystanders In most cases terroristsseek to overthrow or destabilize an existing polit-ical regime, but totalitarian and dictatorial gov-ernments also use terror to maintain their power

Tim-After a nationwide manhunt, investigators from

linked McVeigh to the blast using remnants of aRyder rental truck believed to have carried the bomb

At trial, prosecutors established further ties: phone records and testimony by the owner of therental office suggested McVeigh had rented the truckunder an alias in Junction City, Kansas, two daysbefore the bombing Residue from explosives hadalso been found on McVeigh’s clothing

tele-Prosecutors portrayed McVeigh as an government extremist The defendant’s sister, Jen-nifer McVeigh, told the court that he was angry overthe government’s destruction of the Branch Davidiancompound in Waco, Texas, in April 1993, and that hehad hinted at taking action Personal correspon-dence was introduced as evidence in an effort toround out the portrait of McVeigh as a follower of far-right politics, who was disillusioned and willing tocommit acts of terror Key testimony came fromMichael J Fortier, an Army friend and co-conspiratorwho had surveyed the Federal Building withMcVeigh, and his wife, Lori Fortier The Fortiers saidthat McVeigh wanted the bombing to start a civil war

anti-Led by Oklahoma attorney Stephen Jones, thedefense team was critical of every phase of the pros-

ecution Defense attorneys attacked the ogy of the FBI in preparing physical evidence as well

methodol-as the government’s witnesses In particular, theycharged that the Fortiers were liars who hoped toescape prison time and to profit financially from theirtestimony Maintaining that McVeigh was railroaded,the defense pointed to the existence of a human legfound in the ruins of the building to suggest that theactual Oklahoma City bomber had died in the explo-sion

After the jurors returned a guilty verdict on June

2, the trial moved into an unusual penalty phase Thedefense, seeking leniency, made a lengthy presenta-tion about the Waco siege, at which McVeigh hadbeen present, in what seemed to observers an oddeffort to explain his motives in Oklahoma City It alsocalled to the stand William McVeigh, who made anemotionally charged appeal for his son’s life But thestatements of survivors who had lost family andfriends in the Oklahoma massacre apparentlyswayed the jurors, who decided on execution

FURTHER READINGS

Gottman, Andrew J 1999 “Fair Notice, Even for Terrorists: othy McVeigh and a New Standard for the Ex Post Facto Clause.” Washington and Lee Law Review 56 (spring).

Tim-Hoffman, David 1998 The Oklahoma City Bombing and the itics of Terror Venice, Calif.: Feral House.

Pol-“Responding to Terrorism: Crime, Punishment, and War.” 2002.

Harvard Law Review 115 (February).

Rodgers, Jim, and Tim Kullman 2002 Facing Terror: The ernment’s Response to Contemporary Extremists in Amer- ica Lanham, Md.: Univ Press of America.

mitted on U.S soil However, these were

cer-tainly not the first acts of terrorism carried out

against the United States by foreign terrorists,

nor were they the first attacks carried out against

the World Trade Center In February 1993, a

bombing of the World Trade Center killed six

people and injured more than a thousand

oth-ers The bomb left a crater 200 by 1,000 feet wide

and five stories deep The FEDERAL BUREAU OF

Task Force identified and helped bring to trial 22

Islamic fundamentalist conspirators The trial

revealed extensive plans for terrorist acts in the

United States, including attacks on government

facilities

During the 1990s, the United States alsobecame more concerned about domestic terror-

ist activities carried out by U.S citizens without

any foreign involvement Beginning in 1978, an

individual who came to be known as the

Unabomber targeted university scientists, airline

employees, and other persons he associated with

a dehumanized, technology driven society The

suspect killed three people and injured 23 others

with package bombs At the Unabomber’s

insis-tence, major newspapers published his

35,000-word manifesto describing his anti-technology

philosophy In April 1996, a suspect, Theodore

Kaczynski, was arrested for crimes associatedwith the Unabomber After a rather bizarre trial,

in 1998, Kaczynski pled guilty in exchange for asentence of life without the possibility of

However, it was the bombing of the Alfred P

Murrah Federal Building in Oklahoma City,Oklahoma, on April 19, 1995, that galvanizedconcerns about domestic terrorism The bomb-ing killed 168 people and injured more than 500others The FBI arrested Timothy J McVeighand Terry Nichols, who were charged with mur-der and conspiracy McVeigh and Nichols wereconnected to the right-wing militia movement,which opposes the powers held by the federalgovernment and believes in the right of itsmembers to bear arms

In June 1997, McVeigh was found guilty ofmurder and conspiracy, and sentenced to death

He attempted to appeal his conviction for threeyears, but gave up in late 2000 On June 11, 2001,McVeigh was executed by lethal injection

Nichols faced similar charges in his 1997 trial

He was acquitted on charges of first- and degree murder, but was found guilty of conspir-ing to use a weapon of mass destruction and

sentenced Nichols to life in prison without the

TERRORISM 7

International Terrorist Incidents, 1981 to 2002

SOURCE: U.S State Department, Patterns of Terrorism, 2002.

0 100 200 300 400 500 600 700 800

1981 1983 1985 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002

489 497

635 665 605

375 437 565

363 431

322 440

possibility of parole However, at the state level,Nichols faced 161 counts of first-degree murder,which could result in the death penalty TheOklahoma state trial was scheduled to begin inMarch 2004.

A year after the Oklahoma City bombing, abomb erupted at Atlanta’s Centennial OlympicPark during the celebration of the OlympicGames in July 1996 The bomb killed onewoman and injured 111 others in what Presi-dent BILL CLINTONcalled an “evil act of terror.”

The initial investigation focused on RichardJewell, a security guard at the park At first Jew-ell was considered to be a hero when he alertedauthorities to a knapsack containing a pipebomb Shortly thereafter, however, he was con-sidered a prime suspect After a later investiga-tion cleared Jewell of wrongdoing, he sued anumber of media outlets for DEFAMATION.During the next seven years, the Atlantabombings remained largely unresolved On May

31, 2003, authorities arrested Eric Rudolph, who

is considered the primary suspect Authoritiesalso suspect Rudolph of bombing abortion clin-ics in Atlanta and Birmingham, Alabama, as well

as the bombing of a gay and lesbian nightclub inAtlanta

Congress has responded to the threat ofdomestic terrorism with the enactment of severallaws In 1996, Congress passed the Antiterrorismand Effective Death Penalty Act, Pub L No 104-

132, 110 Stat 1214 The law allocated $1 billion tofund federal programs to combat terrorism Theact also established a federal death penalty for ter-rorist murders and strengthened penalties forcrimes committed against federal employeeswhile performing their official duties In addition,the act increased the penalties for conspiraciesinvolving explosives and for the possession ofnuclear materials, criminalized the use of chemi-cal weapons, and required plastic explosives tocontain “tagging” elements in the explosive mate-rials for detection and identification purposes

Following the attacks of September 11, gress, at the urging of President GEORGE W.

Con-BUSH, moved swiftly to enact the ProvidingAppropriate Tools Required to Intercept andObstruct Terrorism Act (USA PATRIOT) Act of

2001, Pub L No 107-56, 115 Stat 272 The actseeks to enhance domestic security against ter-rorism by setting up a Counterterrorism Fund

in the U.S Treasury, and appropriating moneyfor combating terrorism to the FBI’s TechnicalSupport Center It also increases the president’s

authority to seize the property of foreign sons, organizations, or countries that the presi-dent determines have planned, authorized,aided, or engaged in hostilities or attacks againstthe United States Other provisions of the actfocus on enhancing surveillance proceduresused by federal law enforcement personnel, andattempts to control MONEY LAUNDERING, which

per-is believed to be a major source of income forterrorist organizations

One year later, Congress enacted the land Security Act of 2002, Pub L No 107-296,

Home-116 Stat 2135 The act formally endorsed theestablishment of the HOMELAND SECURIT Y

The Homeland Security Act reorganized severalfederal agencies to fall under the authority of theHomeland Security Department in an effort tocoordinate the government’s efforts The Amer-ican public has become familiar with the newdepartment because of the color-coded Home-land Security Advisory System, which indicatesthe likely threat of terrorist attacks against the

United States The two lowest levels are low (coded in green) and guarded (coded in blue) The other three levels include elevated (yellow),

high (orange), and severe (red) Throughout

much of 2003, the level was set at elevated or

high due to a number of threats identified by

department officials

International Terrorism

The September 11 attacks have been viewed

as a continuation of a series of deadly terroristactivities that had taken place overseas In thelate twentieth century, terrorism became a tool

of political groups in Europe, the Middle East,and Asia The growth of international terrorismled to KIDNAPPINGS, HIJACKING of airplanes,bombing of airplanes and buildings, and armedattacks on government and public facilities Inthe 1980s, several countries, including Libya,Iran, and Iraq, were identified as supportinginternational terrorism by providing training,weapons, and safe havens

Interests of the United States overseas weremajor targets of terrorism In November 1979, agroup of Islamic students overran the U.S.embassy in Iran and took many hostages.Although some of the hostages were later freed,the Iranians detained 52 American hostages for

a period of 444 days until they were released inJanuary 1981, just after the swearing-in of Pres-

ident RONALD REAGAN In 1983, a 12,000-pound

truck bomb exploded in a U.S compound in

Beirut, Lebanon, killing 241 American soldiers

By the 1990s, the terrorist organization alQaeda (Arabic for “the Base”), led by Saudi dis-

sident Osama Bin Laden, developed as the

pri-mary culprit in terrorist attacks on U.S interests

at home and abroad Al Qaeda is believed to be

responsible for the 1993 attacks on the World

Trade Center and, later, the September 11

attacks On August 7, 1998, truck bombs

exploded nearly simultaneously at the U.S

embassies in Dar es Salaam, Tanzania, and

Nairobi, Kenya The blasts killed 224 people,

including 12 Americans, and injured another

4,600 Four members of al Qaeda were later

con-victed for their part in the bombings In October

2000, an al Qaeda operative conducted a suicide

attack on the U.S.S Cole, resulting in the deaths

of 17 sailors and injuries to over 30 others

The activities of Bin Laden and al Qaedawere well known prior to the September 11

attacks Bin Laden had issued a religious edict,

known as a fatwah, calling for attacks on U.S.

troops and civilians

Although many members of al Qaeda areMiddle-Eastern, U.S officials, in 2001, captured

John Philip Walker Lindh, a U.S citizen who had

trained with terrorist organizations in Pakistan

and Afghanistan Lindh fought for the Taliban

government of Afghanistan even after the

Sep-tember 11 attacks Lindh, who became known as

the “American Taliban,” was indicted on ten

counts, including conspiracy to murder U.S

nationals He reached a plea bargain with federal

prosecutors and pleaded guilty to supplying

services to the Taliban In October 2000, he was

sentenced to 20 years in prison

The United States has responded to tional terrorist organizations and the nations

interna-that support them through a variety of military

actions In March 1986, President Reagan

ordered the military to conduct a strike on

Libya, which was believed to have been

respon-sible for the bombing of a nightclub in Germany

as well as other terrorist acts After the embassy

bombings in Tanzania and Kenya in 1998,

Pres-ident Clinton ordered strikes on al Qaeda

mili-tary camps in Afghanistan However, these

attacks appeared to have little effect upon the

terrorist activities of the organizations that

per-petrated the violent acts

Following the September 11 attacks, theUnited States changed its strategy regarding ter-

rorists significantly President Bush announcedthat the United States would consider nationsthat harbor terrorists as equally responsible forterrorist activities In the latter part of 2001, theUnited States led an international coalition thatremoved the Taliban regime from power inAfghanistan In March 2003, the United Statesled another coalition in an attack on Iraq, whichthe Bush administrated asserted had supportedterrorist organizations such as al Qaeda Withinweeks, Iraq’s leader, Saddam Hussein, wasremoved from power

The attacks on Iraq did not receive supportfrom a number of nations, including traditionalU.S allies Germany and France Moreover, theremoval of the regimes in Afghanistan and Iraqdid not appear to end the threat of terrorism inthe Middle East or elsewhere In May 2003,shortly after the United States declared that theactive phases of its armed military operations inIraq had concluded, terrorists bombed residen-tial compounds in Riyadh, Saudi Arabia, killing

at least 34 people, including nine Americans

Four days after the Saudi Arabia attacks, bombserupted in Casablanca, Morocco, killing 43 peo-ple Authorities suspect that al Qaeda operativeswere responsible

Noone, Michael F., and Yonah Alexander 1997 Cases and Materials on Terrorism: Three Nations’ Response Boston:

Kluwer Law International.

Piszkiewicz, Dennis 2003 Terrorism’s War with America: A History Westport, Conn.: Praeger.

Shanty, Frank, and Raymond Picquet, eds 2003 dia of World Terrorism Armonk, N.Y.: Sharpe Reference.

Encyclope-CROSS-REFERENCES

War on Terrorism.

TERRY V OHIO

In Terry v Ohio, 392 U.S 1, 88 S Ct 1868, 20 L.

Ed 2d 889 (1968), the U.S Supreme Court ruledthat the FOURTH AMENDMENT to the U.S Con-

TERRY V OHIO 9

stitution permits a law enforcement officer tostop, detain, and frisk persons who are suspected

of criminal activity without first obtaining theirconsent, even though the officer may lack a war-rant to conduct a search or PROBABLE CAUSEto

make an arrest Now known as a Terry stop, this

type of police encounter is constitutionally missible only when an officer can articulate aparticularized, objective, and reasonable basisfor believing that criminal activity may be afoot

per-or that a given suspect may be armed and gerous

dan-The case stemmed from an incident inCleveland, Ohio, in 1963 Police officer MartinMcFadden observed three men engaging in sus-picious behavior near the corner of EuclidAvenue and Huron Road One of the suspectswas the defendant, John Terry Along with code-fendant Richard Chilton and a third man,known only as Katz, Terry was seen pacing infront of a downtown store Occasionally, themen would pause to confer with each other

More often, McFadden witnessed the men ing into the store’s front window Over a period

peer-of ten to twelve minutes, the three men lookedinto the same store window approximately 24times

Based on his training as an officer and 39years of experience on the police force, including

35 as a detective, McFadden believed that thesuspects were “casing” the store for a ROBBERY.Attempting to forestall a possible robbery,McFadden approached the three men and iden-tified himself as a police officer Not being famil-iar with any of the suspects, McFadden asked fortheir names When the men mumbled unintelli-gibly in response, McFadden grabbed Terry,quickly patted down his overcoat, and discov-ered a 38-caliber revolver After removing thepistol from Terry’s coat pocket, McFadden pat-ted down the other two suspects, findinganother revolver in Chilton’s overcoat Katz wasnot armed

Terry and Chilton were charged with ing concealed weapons Prior to trial the twodefendants brought a motion to suppress theincriminating evidence seized by McFadden

carry-The defendants argued that the weapons wereinadmissible because McFadden had discoveredthem during an unlawful search McFadden, thedefendants pointed out, possessed neither avalid SEARCH WARRANT authorizing the patdown nor probable cause to detain them Deny-ing their motion to suppress, the court sched-

uled the matter for trial where both defendantswere found guilty The Supreme Court of Ohioaffirmed the convictions, and the defendantsappealed to the nation’s highest court The U.S.Supreme Court divided its opinion into threeparts

First, the Supreme Court ruled that thedefendants enjoyed qualified protection fromtemporary police detention under the FourthAmendment Before a court will examine thepropriety of police activity under the FourthAmendment, it must first determine whetherthe interests asserted by a defendant are consti-tutionally protected The Fourth Amendmentgoverns areas where individuals maintain a rea-sonable expectation of privacy, including a zone

of personal freedom in which every individual issecure from unnecessary and unreasonable gov-ernmental intrusion Walking down the streets

of Cleveland, the Court said, Terry and Chiltonheld a reasonable expectation that their personalliberty would not be unlawfully restrained bylaw enforcement

Second, the Court ruled that the defendants’freedom was effectively impeded by theirencounter with McFadden Any time a policeofficer accosts an individual to detain him forquestioning, the Court emphasized, the officerhas “seized” that person within the meaning ofthe Fourth Amendment It would be nothingless than “torture of the English language,” theCourt added, to suggest that McFadden’s patdown of the suspects’ clothing was anythingother than a “search” as that term is defined inthe Constitution

Third, the Court ruled that McFadden actedreasonably during his encounter with the defen-dants Acknowledging that the Constitutiongenerally requires probable cause to effect anarrest and a lawfully executed warrant to con-duct a search, the Court identified a third area ofpolice activity that is permissible under theFourth Amendment, though it may amount toneither a full-blown search nor a technicalarrest The central inquiry under the FourthAmendment, the Court wrote, is whether thepolice have acted reasonably under the circum-stances The express language of the FourthAmendment does not prohibit all warrantlesssearches performed without probable cause, butonly those that are unreasonable

In dealing with rapidly unfolding andincreasingly dangerous situations, the Courtsaid, police may find it impractical or impossible

to obtain a search warrant before choosing to

intervene In other situations, injury or harm

may result to bystanders if law enforcement is

made to wait until it has probable cause before

acting The Court indicated that the Fourth

Amendment gives law enforcement flexibility to

investigate, detect, and prevent criminal activity

According to Terry, this flexibility includes the

right of police officers to stop persons suspected

of criminal activity and detain them for

ques-tioning If during questioning police are led to

believe that a suspect is armed and dangerous,

an officer may frisk the suspect without

violat-ing the Fourth Amendment

In this case the Court noted that McFaddenpersonally witnessed the two defendants engag-

ing in what appeared to be preparations for a

robbery It would have been negligent, the Court

thought, for McFadden to have turned a blind

eye to such behavior Given that he chose to

investigate further, the Court said, it was

reason-able for McFadden to assure himself that none

of the suspects was armed, especially after they

failed to respond intelligibly to his request for

identification In patting down and frisking the

defendants, McFadden chose a prudent course

to stave off threats to his security and the

secu-rity of others

The Court reached its holding by ING the legitimate needs of law enforcement

BALANC-against the privacy interests of individuals

Forcible detention of individuals for

question-ing is far from a petty indignity Even a limited

search of outer clothing, the Court stressed,

con-stitutes a “serious intrusion upon the sanctity of

the person, which may inflict great indignity and

arouse strong resentment, and it is not to be

undertaken lightly.” At the same time, law

enforcement must not be restricted from

per-forming its job in a proficient manner The

Fourth Amendment does not restrict police

from intervening until after a crime has been

committed Crime prevention is a bona fide goal

of law enforcement, the Court said, and the

Fourth Amendment places only reasonable

restrictions upon pursuit of that goal

Outlining these restrictions, the Court saidthat no police officer may lawfully stop and

detain a person for questioning unless the

offi-cer first observes unusual conduct that arouses a

reasonable suspicion of criminal activity A stop

may be no longer than necessary to confirm or

dispel an officer’s suspicion and must not be

unnecessarily restrictive or intrusive During the

period of detention, no searches may be formed unless the officer has an objective andparticularized basis for believing the suspect isarmed and dangerous Any search must be lim-ited to the suspect’s outer clothing and may beperformed only for the purpose of discoveringconcealed weapons Evidence obtained duringsearches that comport with these restrictions,the Court said, is admissible under the FourthAmendment Evidence obtained in violation of

per-the limitations set forth in Terry may be

sup-pressed under the EXCLUSIONARY RULE

FURTHER READINGS

Bandes, Susan 1999 “Terry v Ohio in Hindsight: The Perils

of Predicting the Past.” Constitutional Commentary 16

(winter).

Lichtenberg, Illya D., Alisa Smith, and Michael Copeland.

2001 “Terry and Beyond: Testing the Underlying Assumption of Reasonable Suspicion.” Touro Law Review 17 (winter).

Whitebread, Charles H., and Christopher Slobogin 2000.

Criminal Procedures: An Analysis of Cases and Concepts.

New York: Foundation.

CROSS-REFERENCES

Search and Seizure; Stop and Frisk.

TEST CASE

A suit brought specifically for the establishment of

an important legal right or principle.

The term test case describes a case that tests

the validity of a particular law Test cases are ful because they establish legal rights or princi-ples and thereby serve as precedent for futuresimilar cases Test cases save the judicial systemthe time and expense of conducting proceedingsfor each and every case that involves the sameissue or issues

use-To illustrate, assume that Congress passes alaw that makes using a cellular phone whiledriving a misdemeanor punishable by up to oneyear in jail and a fine of $10,000 Such a lawwould likely be challenged by a large number ofcell phone owners, all of whom are in essentiallyidentical circumstances and all of whom havethe same arguments against the law In such asituation, attorneys representing the plaintiffsmight look for a case with a sympathetic set offacts with which to challenge the law For exam-ple, they might select a case involving a driverwho was charged with violating the law whenshe used her cell phone to request medical assis-tance for a family member Other observant lawfirms would postpone or otherwise delay their

TEST CASE 11

own similar cases to wait for the outcome of thetest case.

A test case need not concern a new law

Suppose, for example, an attorney or client isdissatisfied with the current state of a particu-lar law and has strong arguments in favor ofchanging it If the facts of the case give theattorney or client a good chance of prevailing,the case may be called a test case because theoutcome would change the law for future per-sons in similar circumstances

In some cases, a person may choose to late an existing law to provoke a lawsuit, prose-cution, or penalty The person may thenchallenge the lawsuit, prosecution, or penaltyand use the case to try and change the law

vio-through a judicial opinion In Druker v

Com-missioner of Internal Revenue, 697 F.2d 46 (2d

Cir 1982), cert den., 461 U.S 957, 103 S Ct.

2429, 77 L Ed 2d 1316 (1983), for example,James O and Joan Druker, a married couple,intentionally used the lower tax rates for unmar-ried individuals in computing their 1975 and

1976 INCOME TAXbecause they believed the eral tax scheme was unconstitutional under the

against the Drukers, the Drukers filed suitagainst the commissioner of the IRS The Druk-ers were unsuccessful, but had they received afavorable disposition, they would have suc-ceeded in changing the law on federal taxation

or she is doing, the nature and extent of his or

her property, the natural objects (which meansappropriate persons or recipients) of his or herbounty, and the interrelationships among thesethree concepts

A testator is a person who makes a valid will

A will is the document through which adeceased person disposes of his property A per-son who dies without having made a will is said

to have died intestate

A testator must be of sound mind whenmaking a will In part to ensure that a testator is

of sound mind, states require that the signing of

a will be witnessed by multiple persons A tor also should be making the will withoutduress and free of coercion from other persons

testa-If the testator is not acting of her own free will

in consenting to the terms of the will, a courtmay later void all or part of it

TESTIFY

To provide evidence as a witness, subject to an oath or affirmation, in order to establish a partic- ular fact or set of facts.

Court rules require witnesses to testify aboutthe facts they know that are relevant to thedetermination of the outcome of the case.Under the law a person may not testify until he

is sworn in This requirement is usually met by awitness swearing to speak the truth A personwho does not believe in appealing to God mayaffirm to the court that the testimony about to

be given is the truth

A witness may testify as to facts directlyobserved, which is called direct evidence; factslearned indirectly, which is called CIRCUMSTAN-

opinion the expert has formed based on factsembodied in a hypothetical question The par-ties to the court proceeding are free to question

a witness as to the truthfulness of the testimony

or the competence of the witness

Constitu-tion gives the defendant in a criminal trial the rightnot to testify, so as to avoid SELF-INCRIMINATION

In addition, the rule that a person must testify

when called as a witness has several exceptions

based on the existence of a special relationship

between the defendant and the potential

wit-ness Among the most important of these

exceptions are confidential communications

between a husband and a wife, an attorney and

a client, a doctor and a patient, and a priest and

penitent

per-son may testify about at a court proceeding

Though there are numerous exceptions,

gener-ally a witness may not testify about what she

heard another say if that testimony is offered to

prove the truth of the matter asserted Such

tes-timony is known as HEARSAY For example, if

the witness testifies that he heard that JOHN DOE

was married and this statement is offered to

prove that John Doe was married, it is hearsay

and the court will strike the testimony from the

record

CROSS-REFERENCES

Attorney-Client Privilege; Marital Communications

Privi-lege; Physician-Patient PriviPrivi-lege; Privileged Communication.

TESTIMONY

Oral evidence offered by a competent witness

under oath, which is used to establish some fact or

In Texas v Johnson, 491 U.S 397, 109 S Ct 2533,

105 L Ed 2d 342 (1989), the U.S Supreme

Court was asked to review the constitutionality

of a Texas statute prohibiting the desecration of

certain venerated objects, including state and

national flags The defendant was convicted

under the statute for burning the U.S flag

dur-ing a political demonstration In strikdur-ing down

the statute, the Supreme Court ruled that flag

burning is SYMBOLIC SPEECH protected by the

Free Speech Clause of the FIRST AMENDMENTto

the U.S Constitution The case splintered the

nine Supreme Court justices, much as the issue

of flag burning splintered the rest of the nation

The case stemmed from an incident duringthe 1984 Republican National Convention in

Dallas, Texas Outside the convention center a

group of demonstrators marched through the

streets to protest the policies of President

dis-tributed literature, shouted slogans, and madespeeches One demonstrator, Gregory Lee John-son, unfurled a U.S flag, doused it withkerosene, and set it on fire While the flagburned, several protestors chanted: “America,the red, white, and blue, we spit on you.” Severalbystanders were offended by the flag burning,and one took the flag’s remains home to hisbackyard where he buried them No violence oraltercations took place at any time during thedemonstration, however

Johnson was convicted of desecrating a erated object in violation of Texas Penal Codesection 42.09(a)(3) (1989) He was sentenced toone year in prison and fined $2,000 His convic-tion was affirmed by the Fifth District Court ofAppeals in Dallas Johnson’s case was thenreviewed by the Texas Court of Criminal Appeals,which reversed his conviction, holding that thestate could not punish Johnson for burning the

ven-U.S flag under these circumstances (Johnson v.

State, 755 S.W.2d 92 [Tex Crim App 1988]) The

Free Speech Clause, the court ruled, forbids thegovernment from establishing an orthodox sym-bol of national unity that is insulated from publiccriticism, symbolic or otherwise

In a 5–4 decision the U.S Supreme Courtaffirmed the holding of the Texas Court ofCriminal Appeals Joined by Justices THURGOOD

opinion for the Court Chief Justice WILLIAM H.

majority opinion was divided into two parts

First, the Court ruled that flag burning isexpressive conduct for First Amendment pur-poses The Court noted that the defendant’smethod of protest was not confined to the writ-ten or spoken word, which traditionally receivesthe most constitutional protection from govern-mental restraint Nevertheless, the Court said,flag burning could not be fairly characterized asmere conduct devoid of any communicativequalities, which traditionally receives little or noprotection under the Free Speech Clause

Instead, the Court observed, the defendantburned the flag as the symbolic culmination of

an ardent political demonstration “The sive, overtly political nature of the conduct,” the

expres-TEXAS V JOHNSON 13

Court wrote, “was both intentional and whelmingly apparent.”

over-Symbolic expression has long been ated with the U.S flag under the federal Consti-

associ-tution In West Virginia State Board of Education

v Barnette, 319 U.S 624, 63 S Ct 1178, 87 L Ed.

1628 (1943), the Supreme Court ruled that lic school children cannot be compelled to salutethe flag when doing so would violate their reli-gious beliefs, which are protected by the First

pub-Amendment In Spence v Washington, 418 U.S.

405, 94 S Ct 2727, 41 L Ed 2d 842 (1974), theCourt ruled that the Free Speech Clause guaran-tees the right of individuals to attach a peacesymbol to the flag in protest of U.S foreign pol-

icy Finally, in Smith v Goguen, 415 U.S 566, 94

S Ct 1242, 39 L Ed 2d 605 (1974), the Courtruled that individuals enjoy a First Amendmentright to express themselves by affixing the flag toarticles of clothing, even if that means allowingcertain individuals to display the flag on the seat

of their pants Each of these cases was cited by

the Court in Texas v Johnson to illustrate that

the defendant’s method of protest was justanother manifestation of symbolic expressioninvolving the U.S flag

Second, the Supreme Court ruled that theinterests asserted by the government wereinsufficient to overcome the defendant’s right

to engage in symbolic expression The ment had argued that the Texas statute repre-sented a legislative attempt to prevent societaldisorder, which presumably would result if flagburning were permitted But the Court deter-mined that the defendant’s actions neitherresulted in disorder nor created a substantiallikelihood that disorder would ensue Althoughseveral onlookers were seriously offended bythe defendant’s symbolic protest, the Courtsaid that the First Amendment is designed toprotect even the most disagreeable speechunless it is likely to produce imminent lawless-ness, such as a breach of the peace Had disor-der resulted on this particular occasion, theCourt pointed out, the defendant could havebeen prosecuted under the relevant provisions

govern-of the Texas Penal Code prohibiting breach govern-ofthe peace Because no arrests were made forbreaching the peace, the Court held, the gov-ernment’s interest in preventing disorder wasnot implicated in this case

The government also argued that the Texasflag desecration statute was a justifiable means

of promoting national unity The national flag,

the government contended, is the country’smost visceral image of nationhood, reflectingthe solidarity of the 50 states for the commongood Flag burning, by contrast, tends to castdoubt on the strength of this image, the govern-ment asserted, causing Americans to questionwhether the United States is really united at all.The Supreme Court agreed with the govern-ment in part, acknowledging that the flag hascome to symbolize 200 years of nationhood noless than the combination of letters found in theword “America.”

At the same time, the Court cautioned, theflag does not mean the same thing to everyone.For some Americans the flag stands for an impe-rialistic foreign policy and a legacy of CIVIL

his own list of things symbolized by the flag Inprohibiting flag burning and other forms of des-ecration, the Court continued, the state of Texaswas attempting to prescribe a single patrioticmeaning for this national political symbol TheCourt noted, however, that the government has

no constitutional authority to restrict the tent of political expression, whether it be writ-ten, spoken, or symbolic, without offering acompelling reason for doing so

con-In this case, no compelling reasons wereoffered If the flag were protected from desecra-tion under the First Amendment, the Court rea-soned, the government might seek to protectother national symbols from destruction as well,including copies of the federal Constitution andthe Declaration of Independence The Courtwas unwilling to allow the government toembark on this path for fear of where it mightlead The only proper remedy for the state ofTexas, the Court emphasized, was to publiclyencourage proper respect for the flag by honor-ing it through state-sponsored ceremonies such

as Flag Day In the marketplace of ideas, theCourt opined, the only way to combat perni-cious speech is through persuasive countervail-ing speech The First Amendment requiresindividuals to persuade each other with soundarguments, not silence each other through gov-ernmental suppression

In his dissenting opinion, Chief JusticeRehnquist wrote that “No other American sym-bol has been as universally honored as the flag.”The chief justice paid tribute to the men andwomen of the armed forces who have sacrificedtheir lives to preserve the freedom symbolized

by the flag According to the chief justice, flag

burning evinces a distinct lack of respect for the

memory of those who have fought and died for

the cause of liberty in the United States While

burning the flag might be considered expressive

conduct, Rehnquist argued, the state of Texas, as

well as every other state in the Union, has a

com-pelling interest in preserving it from destruction

and desecration

Justice Brennan tried to address some of theconcerns raised by Rehnquist in a brief para-

graph included in the Court’s majority opinion

“We are tempted to say ” Brennan wrote, “that

the flag’s deservedly cherished place in our

com-munity will be strengthened, not weakened, by

our holding today.” The Court’s decision,

Bren-nan stressed, underscores the “principles of

free-dom and inclusiveness that the flag best reflects”

and reaffirms “the conviction that our toleration

of criticism such as Johnson’s is a sign and

source of our strength.”

The Court applied the same approach to afederal flag burning law as it did to the Texas

statute After the decision in Johnson, President

amendment banning the burning and

desecra-tion of the American flag Congress rejected this

approach and instead passed the Flag Protection

Act of 1989, Pub L 101-131, 103 Stat 777,

believing it had addressed the concerns of the

Supreme Court and that the statute did not

vio-late the First Amendment Within minutes after

the law went into effect, Shawn Eichman burned

several flags on the steps of the U.S Capitol

That same night, Mark John Haggerty set fire to

a U.S flag in front of the U.S Courthouse in

Seattle Eichman and Haggerty were arrested

and charged with violating the act The district

courts dismissed the charges, ruling that the act

violated the holding in Johnson.

The Supreme Court, in United States v

Eich-man, 496 U.S 310, 110 S Ct 2404, 110 L Ed 2d

287 (1990) struck down the Flag Protection Act

on a 5–4 vote Justice Brennan, in his majority

opinion, held that Congress cannot enact a law

curtailing an individual’s right to symbolic

political expression The act was not

content-neutral because it allowed prosecution for

disre-spectful burning but allowed for redisre-spectful

burning In addition, the government may not

ban the expression of an idea simply because it

finds the idea offensive The asserted intent of

Congress to protect the “physical integrity” was

a transparent ruse; Congress had sought to ban

protected symbolic expression

FURTHER READINGS

Goldstein, Robert Justin 2000 Flag Burning and Free Speech:

The Case of Texas v Johnson Lawrence: Univ Press of

Kansas.

Miller, J Anthony 1997 Texas v Johnson: The Flag Burning Case Springfield, N.J.: Enslow Publishers.

Tompkins, Nancy 1997 Texas v Johnson: Defending the Flag.

New York: Franklin Watts.

The Supreme Court addressed these issues in

Texas v White, 74 U.S (7 Wall.) 700, 19 L Ed 227

(1869), which involved a dispute over the ment of U.S bonds In 1850 Texas had received

pay-$10 million in bonds from the United States insettlement of boundary claims The bonds werepayable to the state and redeemable after Decem-ber 31, 1864 Texas law required the governor toendorse the bonds before they could be redeemed

or transferred When Texas seceded from theUnion in 1862, however, the Confederate legisla-ture repealed the gubernatorial endorsementrequirement and established a military board tosell the bonds to finance the war effort

In 1865 George White and John Chiles,among others, purchased the bonds in exchangefor cotton and medicine None of the bondswere endorsed by the governor After the war thepeople of Texas convened and established a con-stitution under which they elected a governor in

1866 The convention also authorized the nor to seek recovery of the bonds In 1867 Con-gress enacted the Reconstruction Acts, whichcreated five military districts in Texas, each with

gover-a militgover-ary commgover-ander The militgover-ary rule wgover-asimposed to ensure the restoration of civil peace

in the Southern states and to protect the rights

of the newly freed slaves

Texas filed suit in the U.S Supreme Courtseeking recovery of the bonds sold to White and

TEXAS V WHITE 15

Chiles and subsequently resold to citizens ofmany states The state also asked that the UnitedStates be enjoined from paying the bondsbecause they had not been endorsed by the gov-ernor and were past due when presented forpayment White argued that Texas had no right

to bring the suit and that the Supreme Courthad no jurisdiction to hear the case becauseTexas’s status as a state had changed due to itssecession during the Civil War Thus, federal lawwas not applicable at the time the bonds weretransferred

The Supreme Court rejected the ers’ arguments Chief Justice SALMON P CHASE,

bondhold-in his majority opbondhold-inion, held that the tion “in all its provisions, looks to an indestruc-tible Union, composed of indestructible States.”

Constitu-Once a territory gained admission to the Union

as a state, its relationship to the Union was petual and indissoluble unless terminated byrevolution or consent of the states Therefore,the secession of the insurgent government fromthe Union was void Texas remained a state dur-ing the Civil War, and its citizens were still citi-zens of the United States

per-The defeat of the secessionist Texas regimeleft Texas without a lawful government, and itsrights as a member of the Union were sus-pended The Court ruled that under the Guar-antee Clause of the U.S Constitution the U.S

government had the right to provide Texas with

a republican form of government Hence, thepresident was authorized to establish a provi-sional government This action, which had beenratified by Congress in the Reconstruction Acts,buttressed the federal government’s right tooversee the post–Civil War South

Based on these principles, the Court easilydisposed of the substantive issues The Courtheld that the state had retained title to thebonds The contract made by the illegal seces-sionist government with White and other bond-holders was void, as this government had nolegal authority to make the contract The bondsthemselves were not negotiable because theywere not endorsed by the governor The repeal-ing statute enacted by the Confederate govern-ment was void because of its illegal purpose

The bondholders who had purchased the bondsfrom White and Chiles could be denied pay-ment because they had assumed a risk of badtitle, as the bonds were already past due andwere sold at a price substantially lower than facevalue

FURTHER READINGS

Gray, Tonya M 1999 “Separate But Not Sovereign:

Recon-ciling Federal Commandeering of State Courts.” derbilt Law Review 52 (January).

Van-Hyman, Harold M 1997 The Reconstruction Justice of Salmon P Chase: In Re Turner and Texas v White.

Lawrence: Univ Press of Kansas.

THEATERS AND SHOWS

Comprehensive terms for places where all types of entertainment events can be viewed, including films, plays, and exhibitions.

Since these types of entertainment affect thepublic interest, they may properly be subjected

to government regulation The power to regulatemust, however, be exercised reasonably since itrestrains the free speech rights of performers,filmmakers, and distributors A city is not per-mitted to prohibit all theaters or shows, forexample, but it can properly set forth regula-tions governing fire safety and crowd control Inaddition, minors, unaccompanied by a parent orguardian, can be forbidden to attend shows orperformances after dark or deemed “adult enter-tainment.” Public séances for money-makingpurposes are sometimes unlawful because theycan be used to cheat certain individuals Tempo-rary shows likely to attract large crowds over ashort period of time, such as outdoor rockmusic concerts, must be approved in advance byauthorities who must supervise plans to protectthe health and safety of both the people attend-ing the show and those who reside in the area.Local regulations may require that theater build-ings be constructed with flameproof materialsfor floors, walls, seats, curtains, and carpeting;that, in general, a certain amount of light be oneven during performances; and that exits largeenough to handle crowds be placed at differentsides of the building and clearly marked The-aters are ordinarily required to have ushers onduty to maintain order by supervising the move-ment of crowds

at extremely inflated prices) A state or local

ernment may make it a criminal offense to sell a

ticket for more than the price stamped on it

Frequently the statutory scheme that scribes resale of tickets for more than the

pro-printed price includes special provisions for

ticket brokers, who are in the business of selling

tickets for a number of theaters to members of

the public Brokers are strictly regulated to

pro-tect the public from FRAUD, EXTORTION, and

exorbitant rates A dishonest BROKERcould

pos-sibly sell tickets for performances not scheduled,

sell seats already sold, or scalp the tickets For the

public protection, a state or city may require

anyone reselling tickets to be licensed and may

revoke the license of any broker who abuses the

privilege

Obscenity

Communities have a proper interest in ing limitations upon OBSCENITYin theaters It is

plac-deemed appropriate to protect unsuspecting or

unwilling adults from assaults of indecency and

to protect children from graphic displays of

interpreted the Constitution to permit

individu-als to view obscene materiindividu-als in the privacy of

their own homes; however, since theaters are

public places, the law may regulate indecent

exhibitions, even where everyone present

expected to view pornography and willingly

entered Some states, however, decline to

prose-cute the spectators under such circumstances

Exhibitors of lewd films in coin-operated booths

in amusement arcades cannot claim any right of

privacy even though patrons view the films

alone in the booths

however, it is sometimes difficult to determine

what is obscene The U.S Supreme Court has

decided that works that describe or depict sexual

conduct can be regulated if, when taken as a

whole, they appeal to a prurient interest, portray

sexual conduct in a patently offensive way, and

lack serious literary, artistic, political, or

scien-tific value In addition, the Supreme Court has

said that communities may apply their own local

standards in judging shows, which has led to

conflicting decisions in various courts

A state can regulate theaters and shows inorder to control pornography in a number of

ways For example, a state might require

distrib-utors or exhibitors who handle films

commer-cially to be licensed, and may revoke the license

of anyone who traffics in obscene films Certain

states and municipalities have set up a board ofcensors who are authorized to view films prior

to their exhibition to the public The concept ofcensorship by PRIOR RESTRAINTis in direct con-flict with notions of free speech

CROSS-REFERENCES

Entertainment Law; First Amendment; Freedom of Speech;

Movie Rating; X Rating.

THEFT

A criminal act in which property belonging to another is taken without that person’s consent.

The term theft is sometimes used

synony-mously with LARCENY Theft, however, is

actu-ally a broader term, encompassing many forms

of deceitful taking of property, including dling, EMBEZZLEMENT, and FALSE PRETENSES.Some states categorize all these offenses under asingle statutory crime of theft

swin-CROSS-REFERENCES

Burglary; Robbery.

THEODOSIAN CODE

The legal code of the Roman Empire promulgated

in A.D 438 by the emperor Theodosius II of the

East and accepted by the emperor Valentinian III

of the West.

The Theodosian Code was designed to inate superfluous material and to organize thecomplex body of imperial constitutions that hadbeen in effect since the time of the emperorConstantine I (306–337) It was derived prima-rily from two private collections: the GregorianCode, or Codex Gregorianus, a collection ofconstitutions from the emperor Hadrian(117–138) down to Constantine compiled bythe Roman jurist Gregorius in the fifth century;

elim-and the Hermogenian Code, or Codex genianus, a collection of the constitutions of theemperors Diocletian (284–305) and Maximian(285–305) prepared by the fifth-century juristHermogenes to supplement the GregorianCode The Theodosian Code was one of thesources of the CIVIL LAW, the system of Roman

Corpus Juris Civilis in A.D 528–534 under thedirection of the Byzantine emperor Justinian

Until the twelfth century, when the Corpus JurisCivilis became known in the West, the Theo-dosian Code was the only authentic body of civillaw in widespread use in Western Europe

THEODOSIAN CODE 17

quar-be prescriquar-bed by law.

Ratified in 1791, the Third Amendment tothe U.S Constitution sets forth two basicrequirements During times of peace, the mili-tary may not house its troops in private resi-dences without the consent of the owners

During times of war, the military may not houseits troops in private residences except in accor-dance with established legal procedure By plac-ing these limitations on the private quartering ofcombatants, the Third Amendment subordinatesmilitary authority to civilian control and safe-guards against abuses that can be perpetrated bystanding armies and professional soldiers

The Third Amendment traces its roots to

prohibited the maintenance of a standing army

in time of peace without the consent of ment Less than a century later Parliamentpassed the Quartering Acts of 1765 and 1774,which authorized British troops to take shelter

Parlia-in colonial homes by military fiat (order) ing the American Revolution, British Red Coatsfrequently relied on this authorization, makingthemselves unwelcome guests at private resi-dences throughout the colonies By 1776 the

the king of England for quartering “large bodies

of troops among us” and keeping “standingarmies without the consent of our legislature.”

Against this backdrop, a number of coloniesenacted laws prohibiting the nonconsensualquartering of soldiers The Delaware Declara-tion of Rights of 1776, for example, providedthat “no soldier ought to be quartered in anyhouse in time of peace without the consent ofthe owner, and in time of war in such a manneronly as the legislature shall direct.” Similar

expressions also appeared in the Maryland laration of Rights of 1776, the MassachusettsDeclaration of Rights of 1780, and the NewHampshire Bill of Rights of 1784 Originallydrafted by JAMES MADISON in 1789, the ThirdAmendment embodies the spirit and intent ofits colonial antecedents

Dec-Primarily because the United States has notbeen regularly confronted by standing armiesduring its history, the Third Amendment hasproduced little litigation The Supreme Courthas never had occasion to decide a case basedsolely on the Third Amendment, though theCourt has cited its protections against the quar-tering of soldiers as a basis for the constitutionalright to privacy (GRISWOLD V CONNECTICUT,

381 U.S 479, 85 S Ct 1678, 14 L Ed 2d 510[1965]) In lower federal courts, Third Amend-ment claims typically have been rejected with-out much discussion

However, in 1982, the U.S Court of Appealsfor the Second Circuit issued the seminal inter-

pretation of the Third Amendment in Engblom

v Carey, 677 F.2d 957 (1982) Engblom raised the

issue of whether the state of New York had lated the Third Amendment by housing mem-bers of the NATIONAL GUARDat the residences oftwo correctional officers who were living in adormitory on the grounds of a state peniten-tiary The governor had activated the guard toquell disorder at the penitentiary during a pro-tracted labor strike

vio-Although the Second Circuit Court did notdecide whether the Third Amendment had beenviolated, it made three other important rulings.First, the court ruled that under the DUE PROCESS

Third Amendment applies to action taken by thestate governments no less than it applies to actions

by the federal government Second, the courtruled that the two correctional officers were “own-ers” of their residences for the purposes of theThird Amendment, even though they were rent-ing their dormitory room from the state of NewYork Any person who lawfully possesses or con-trols a particular dwelling, the court said, enjoys areasonable expectation of privacy in that dwellingthat precludes the nonconsensual quartering ofsoldiers Third, the court ruled that members ofthe National Guard are “soldiers” governed by thestrictures of the Third Amendment

No federal court has had the opportunity toreexamine these Third Amendment issues since

Engblom.

FURTHER READINGS

Fields, William S 1989 “The Third Amendment:

Constitu-tional Protection from the Involuntary Quartering of

Soldiers.” Military Law Review 124.

Levy, Leonard Williams 1999 Origins of the Bill of Rights.

New Haven, Conn.: Yale Univ Press.

CROSS-REFERENCES

Bill of Rights; Incorporation Doctrine.

THIRD DEGREE

A colloquial term used to describe unlawful

meth-ods of coercing an individual to confess to a

crim-inal offense by overcoming his or her free will

through the use of psychological or physical

vio-lence.

The least serious grade of a specific crime—

the grades being classified by the law according to

the circumstances under which the crime is

com-mitted—for which the least punishment specified

by statute will be imposed.

THIRD PARTY

A generic legal term for any individual who does

not have a direct connection with a legal

transac-tion but who might be affected by it.

A third-party beneficiary is an individual for

whose benefit a contract is created even though

that person is a stranger to both the agreement

and the consideration Such an individual can

usually bring suit to enforce the contract or

promise made for his or her benefit

A third-party action is another name for the

procedural device ofIMPLEADER, which is used

in a civil action by a defendant who wants to

bring a third party into a lawsuit because that

party will ultimately be liable for all, or part of,

the damages that may be awarded to the

plain-tiff

THIRTEENTH AMENDMENT

The Thirteenth Amendment to the U.S

Consti-tution reads:

Section 1 Neither slavery nor involuntary

servitude, except as a punishment for crime whereof the party shall have been duly con- victed, shall exist within the United States, or any place subject to their jurisdiction.

Section 2 Congress shall have power to

enforce this article by appropriate legislation.

The Thirteenth, Fourteenth, and FifteenthAmendments to the U.S Constitution were

approved by Congress and ratified by the states

after the U.S CIVIL WAR Known collectively as

the Civil War Amendments, they were designed

to protect individual rights The ThirteenthAmendment forbids INVOLUNTARY SERVITUDE

imposed on an individual as punishment for acrime

For many decades, however, the goals of theCivil War Amendments were frustrated Dueperhaps to the waning public support for post-war Reconstruction and the nation’s lack of sen-sitivity to individual rights, the U.S SupremeCourt severely curtailed the application of theamendments The Supreme Court thwarted theamendments in two ways: by restrictively inter-preting the substantive provisions of the amend-ments and by rigidly confining Congress’senforcement power

Congress enacted a number of statutes toenforce the provisions of the Civil War Amend-ments, but by the end of the nineteenth century,most of those statutes had been overturned bythe courts, repealed, or nullified by subsequentlegislation For example, Congress enacted the

provided that all persons should have full andequal enjoyment of public inns, parks, theaters,and other places of amusement, regardless ofrace or color Although some federal courtsupheld the constitutionality of the act, manycourts struck it down These decisions were thenappealed together to the U.S Supreme Courtand became known as the CIVIL RIGHTS CASES,

109 U.S 3, 3 S Ct 18, 27 L Ed 835 (1883) Thecases involved theaters in New York and Califor-nia that would not seat African Americans, ahotel in Missouri and a restaurant in Kansas thatwould not serve African Americans, and a train

in Tennessee that would not allow an AfricanAmerican woman in the “ladies” car

The Supreme Court struck down the CivilRights Act of 1875 by an 8–1 vote, holding thatCongress had exceeded its authority to enforcethe Thirteenth and Fourteenth Amendments

The Court held that private discriminationagainst African Americans did not violate theThirteenth Amendment’s ban on slavery Fol-lowing this decision, several northern and west-ern states began enacting their own bans ondiscrimination in public places But many otherstates did the opposite: they began codifyingracial SEGREGATIONand discrimination in lawsthat became known as the JIM CROW LAWS

In 1896, the U.S Supreme Court decided thecase ofPLESSY V FERGUSON,163 U.S 537, 16 S

THIRTEENTH AMENDMENT 19

Ct 1138, 41 L Ed 256, in which it upheld gation on railroad cars Desegregationists hadhoped that the Supreme Court would acknowl-edge that the federal government’s power to reg-ulate interstate commerce allowed it to bansegregation on public transportation But theCourt avoided this issue, holding that this par-ticular railway was a purely local line In addi-tion, the Court found that the segregation rulesdid not violate the Thirteenth Amendmentbecause they did not establish a state of involun-tary servitude, although they did distinguishbetween races In a lone dissent, Justice JOHN

separation of citizens, on the basis of race, whilethey are on a public highway, is a badge of servi-tude wholly inconsistent with the civil freedomand the equality before the law established bythe constitution.”

During the next six decades, the U.S

Supreme Court continued to uphold tion of the races in schools, public accommoda-tions, public transportation, and various otheraspects of public life, so long as the treatment ofthe races was equal The Court refused to hearcases arguing that the Thirteenth Amendmentwas violated by private covenants betweenwhites who agreed not to sell or lease theirhomes to African Americans Thus, thecovenants were allowed to stand Gradually,though, the Supreme Court’s narrow view of theCivil War Amendments expanded, resulting insignificant changes in civil and CRIMINAL LAW.This expansion began in 1954, when the Court

segrega-overturned its decision in Plessy v Ferguson and

outlawed the separate-but-equal doctrine

[1954])

Although the Supreme Court had declaredinvalid the Civil Rights Act of 1875, it had notinvalidated an earlier act, the Civil Rights Act of

1866 (42 U.S.C.A § 1982) The Civil Rights Act of

1866 was specifically enacted to enforce the teenth Amendment’s ban on slavery By 1968, theU.S Supreme Court was relying on the act to pro-hibit individuals from discriminating againstracial minorities in the sale or lease of housing

Thir-(Jones v Alfred H Mayer Co., 392 U.S 409, 88 S.

Ct 2186, 20 L Ed 2d 1189 [1968]) The Jones

decision was issued just weeks after Congressenacted the first federal fair housing laws

In reaching their decision the SupremeCourt first had to decide whether Congress had

the power to enact the Civil Rights Act of 1866.Justice POTTER STEWART, writing for the major-ity, turned to the Thirteenth Amendment andobserved that it was adopted to remove the

“badges of slavery” and that it gave Congresspower to effect that removal Stewart wrote:

Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation [W]hen racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.

The Supreme Court continues to addressissues that arise under the Thirteenth Amend-

ment In the 1988 case of United States v.

Kozminski, 487 U.S 931, 108 S Ct 2751, 100 L.

Ed 2d 788, the Court explored the meaning of

the term involuntary servitude This case

addressed the Thirteenth Amendment as well as

a federal criminal statute (18 U.S.C.A § 1584)that forbids involuntary servitude At issue inthe case were two mentally challenged men inpoor health who had been kept laboring on afarm The men worked seven days a week, 17hours a day, initially for $15 per week and thenfor no pay at all Their employers used variousforms of physical and psychological threats andforce to keep the men on the farm The Courtheld that “involuntary servitude” requires morethan mere psychological coercion; it alsorequires physical or legal coercion But, theCourt noted, the Thirteenth Amendment wasdesigned not only to abolish slavery of AfricanAmericans, but also to prevent other forms ofcompulsory labor akin to that slavery

Observing that the definition of slavery hasshifted since the Civil War, courts have held thatinvoluntary servitude does not necessarily

require a black slave and a white master (Steirer

v Bethlehem Area School District, 789 F Supp.

1337 [E.D Pa 1992]) The courts have foundthat religious sects may be guilty of subjecting

an individual to involuntary servitude if the sectknowingly and willfully holds an individual

against her will (United States v Lewis, 644 F Supp 1391 [W.D Mich.], aff ’d, 840 F.2d 1276

(6th Cir 1986) In addition, forcing a mentalpatient to perform nontherapeutic labor may be

a form of involuntary servitude (Weidenfeller v.

Kidulis, 380 F Supp 445 [E.D Wis 1974]).

The Thirteenth Amendment does not hibit the government from compelling citizens

to perform certain civic duties, such as serving

on a jury (Hurtado v United States, 410 U.S 578,

93 S Ct 1157, 35 L Ed 2d 508 [1973]) or

par-ticipating in the military draft (Selective Draft

Law cases, 245 U.S 366, 38 S Ct 159, 62 L Ed.

349 [1918])

A related statute is the Anti-Peonage Act (42U.S.C.A § 1994) Peonage is defined as compul-

sory service based upon the indebtedness of the

peon to the master The courts have held that

neither the Thirteenth Amendment nor the

Anti-Peonage Act prevents a convicted person

from being required to work on public streets as

part of his sentence (Loeb v Jennings, 67 S.E 101

(Ga 1910), aff ’d, 219 U.S 582, 31 S Ct 469, 55

L Ed 345 [1911]) In addition, neither of these

laws prevents the government from garnishing

wages or using the court’s CONTEMPTpower to

collect overdue taxes or CHILD SUPPORT

(Bel-tran v Cohen, 303 F Supp 889 [N.D Cal 1969];

Knight v Knight, 996 F.2d 1225 [9th Cir 1993]).

The courts have also held that state workfareprograms that require or encourage citizens to

obtain gainful employment in order to

partici-pate in the state’s public assistance programs do

not constitute involuntary servitude or peonage

(Brogan v San Mateo County, 901 F.2d 762 [9th

Cir 1990]) In another interesting application of

these laws, a federal court held that a high school

program that required all students to complete

60 hours of community service in order to

grad-uate did not constitute involuntary servitude or

peonage (Steirer v Bethlehem Area School

Dis-trict, 789 F Supp 1337 [E.D Pa 1992]).

FURTHER READINGS

Azmy, Baher 2002 “Unshackling the Thirteenth

Amend-ment: Modern Slavery and a Reconstructed Civil Rights

Agenda.” Fordham Law Review 71 (December).

Glasser, Ira 1991 Visions of Liberty New York: Arcade.

Schleichert, Elizabeth 1998 The Thirteenth Amendment:

Ending Slavery Springfield, N.J.: Enslow.

Smolla, Rodney A 1997 Federal Civil Rights Acts 3d ed Vol.

1 New York: Clark Boardman Callaghan.

Vorenberg, Michael 2001 Final Freedom: The Civil War, the

Abolition of Slavery, and the Thirteenth Amendment.

New York: Cambridge Univ Press.

Witt, Elder, ed 1979 The Supreme Court and Individual

Rights Washington, D.C.: Congressional Quarterly.

Wolff, Tobias Barrington 2002 “The Thirteenth

Amend-ment and Slavery in the Global Economy.” Columbia Law Review 102 (May).

Thomas was born June 23, 1948, in PinPoint, Georgia, a small town near Savannah Heattended Savannah’s Saint Benedict the Moor,Saint Pius X High School, and Saint John Vian-ney Minor Seminary When he graduated fromSaint John in 1967, he was the only AfricanAmerican in his class After just one year as aseminarian at Missouri’s Immaculate Concep-tion Seminary, Thomas abandoned his plans tobecome a priest Instead, he enrolled in Massa-chusetts’s Holy Cross College After graduating

in 1971, he attended Connecticut’s Yale sity Law School, and earned a doctor of

Thomas married Kathy Grace Ambush in

1971 The couple had a son, Jamal Thomas, in

1973, and divorced in 1984 In 1986, he marriedVirginia Lamp, a political activist and a lawyerfor the U.S.LABOR DEPARTMENT

Thomas’s first job out of law school was asassistant to Missouri’s Republican attorney gen-eral John C Danforth Thomas specialized in taxand environmental issues In 1977, he accepted aposition in the law department of MonsantoChemical Corporation Thomas returned topublic service in 1979, when Danforth waselected to the U.S Senate Danforth invitedThomas to work for him as a legislative aide inWashington, D.C

Thomas’s star rose quickly during theRepublican administration of President RONALD

secretary in the civil rights division of the U.S

path crossed that of ANITA HILL, a recent YaleUniversity Law School graduate In 1982, whenThomas became chair of the EQUAL EMPLOY-

also moved to the federal agency

In 1990, Thomas became a federal judge forthe Court of Appeals for the District of Columbia

In 1991, President GEORGE H W BUSHnominatedThomas to the U.S Supreme Court During theconfirmation process, Hill accused Thomas ofsexually harassing her while she worked for him atthe EEOC After tense hearings before the U.S

Senate, Thomas was confirmed by a vote of 52–48

THOMAS, CLARENCE 21

“W E DO NOT START FROM THE PREMISE THAT

[ STATUTORY ]

LANGUAGE IS IMPRECISE

I NSTEAD , WE ASSUME THAT IN DRAFTING

LEGISLATION ,

C ONGRESS SAID WHAT IT MEANT ”

—C LARENCE

T HOMAS

On October 18, 1991, he was sworn in as the 106thjustice of the U.S Supreme Court.

Thomas is known as a conservative justice,voting to uphold STATES’ RIGHTS and limit thepowers of the federal government He has fre-quently voted with Justice ANTONIN SCALIAandChief Justice WILLIAM REHNQUIST Legal com-mentators have noted that Thomas rarely asksquestions during the Court’s oral arguments

Thomas has not been the author of any breaking decisions, but has written many dis-senting opinions

ground-Several books have been published about theSupreme Court’s only African American justiceincluding two unauthorized biographies pub-

lished in 2001 Numerous publishers sought therights to Thomas’s memoirs, and in January 2003,HarperCollins announced that it would publishThomas’s account of his life Thomas received anadvance of more than $1 million for the book,which is expected to be published in 2005

FURTHER READINGS

Gerber, Scott Douglas 1999 First Principles: The Jurisprudence

of Clarence Thomas New York: New York Univ Press Thomas, Andrew Peyton 2001 Clarence Thomas: A Biogra- phy New York: Encounter Books.

Thompson was born on January 17, 1768, inNew York City, New York After graduating fromPrinceton University in 1788, he studied lawwith Gilbert Livingston, a member of a politi-cally powerful family, and JAMES KENT, a tower-ing figure in U.S JURISPRUDENCE Thompsonwas admitted to the New York bar in 1792.When Kent left the law firm in 1795, Thompsonbecame Livingston’s partner and eventuallymarried Livingston’s daughter Sarah

Thompson was elected to the New York islature in 1800 and then used Livingston’s polit-ical connections to obtain an appointment to

1950

❖

1950–53 Korean War

1961–73 Vietnam War

1948 Born, Pin Point, Ga.

◆

2002 Wrote majority opinion

in Earls v.

Tecumseh

2000 Joined majority in

Bush v.

Gore

1974 Graduated from Yale Law School

◆

1974–77 Served as assistant attorney general of Mo.

1977–79 Worked as staff attorney at Monsanto Chemical Corp.

1981–82 Appointed assistant secretary in civil rights division of U.S Department of Education

1982 Appointed

as chairman

of EEOC

1990–91 Sat on U.S.

Court of Appeals for the District

of Columbia

1996 Joined majorities in invalidating minority voting districts

in Shaw v Hunt and Bush v Vera

1994 Joined majorities in Shaw v.

Reno and Johnson v DeGrandy

1991 Appointed to replace Thurgood Marshall on High Court; accused of sexual harassment during confirmation hearings

1991– Served as associate justice of the U.S Supreme Court

1992 Joined dissent in Hudson v McMillan

1993 Joined majority in St.

Mary's Honor Center v Hicks

the state supreme court in 1802 He was

pro-moted to chief justice in 1814, in which position

he presided until 1818

President Monroe appointed Thompsonsecretary of the navy in 1819 As head of the

department, Thompson earned Monroe’s trust

and respect Although he had presidential

ambi-tions, Thompson agreed to accept Monroe’s

offer of a seat on the U.S Supreme Court,

join-ing the Court in 1824 In 1828, however, he

returned to politics, running unsuccessfully for

the governorship of New York even though he

did not resign from the bench

As a justice, Thompson believed that the statesshould be allowed to regulate commerce unlesstheir laws directly conflicted with federal law Thisposition put him in conflict with Chief Justice

interpreted the Constitution’s COMMERCE CLAUSE

as giving the federal government the exclusiveright to regulate interstate commerce Thompsonwrote the concurring opinion in the landmark

case of Ogden v Saunders, 25 U.S (12 Wheat.)

213, 6 L Ed 606 (1827), which held that any lawpassed after the execution of a contract, in thiscase a New York insolvency statute, was part of the

contract In another important case, Kendall v.

United States ex rel Stokes, 37 U.S (12 Pet.) 524, 9

L Ed 1181 (1838), Thompson supported theright of federal courts to issue a writ of MAN-

nondiscretionary, ministerial obligations

Thompson died on December 18, 1843, inPoughkeepsie, New York

FURTHER READINGS

Roper, Donald Malcolm 1987 Mr Justice Thompson and the Constitution New York: Garland.

Henry David Thoreau was a nineteenth-centuryphilosopher and writer who denounced materi-alistic modes of living and encouraged people toact according to their own beliefs of right andwrong, even if doing so required breaking thelaw His writings, especially his call for nonvio-lent resistance to government injustice, haveinspired many later reformers

Thoreau was born on July 12, 1817, in cord, Massachusetts He graduated from HarvardCollege in 1837 During his college years, he wasgreatly influenced by Ralph Waldo Emerson, the

1775–83 American Revolution

◆

1788 Graduated from Princeton University

◆

1792 Admitted

to New York bar

◆

1800 Elected to New York legislature

1802–18 Served on the New York Supreme Court

1812–14 War of 1812

◆

1814 Promoted

to chief justice

1819–23 Served as secretary of the Navy under Monroe

1827 Wrote concurring opinion in Ogden v Saunders

1828 Ran unsuccessfully for governor of New York

1823–43 Served

as associate justice of the U.S

Supreme Court

1843 Died, Poughkeepsie, N.Y.

1832 Dissented against Marshall in

Cherokee Nation v Georgia, arguing

that an Indian tribe was a "foreign state" under the Constitution

Smith Thompson (etching by Albert Rosenthal).CORBIS

leader of the transcendental movement Thoreaubecame a personal friend of the eminent authorand spent several years as Emerson’s houseguest.

Their long friendship was a significant influence

on Thoreau’s writing and philosophy

Through Emerson, Thoreau met many otherbrilliant thinkers and writers of the time, includ-ing Margaret Fuller, Nathaniel Hawthorne, andAmos Bronson Alcott This group of transcen-dentalists supported a plain and simple lifestylespent searching for the truth beyond one’staught beliefs Unlike some of the other tran-scendentalists, Thoreau lived out many of their

beliefs Thoreau’s first work, A Week on the

Con-cord and Merrimack Rivers, was published in

1849 and is considered the definitive statement

of his transcendalist beliefs

For several years in the 1830s and 1840s,Thoreau refused to pay POLL TAXESto the gov-

ernment as a way of protesting SLAVERY, whichthe government permitted The poll tax waslevied on all men over the age of twenty.Thoreau was finally jailed overnight for thisrefusal in 1841 but was bailed out by his relativeswho paid his back taxes for him

From July 4, 1845, to September 6, 1847,Thoreau lived alone at Walden Pond, Massachu-setts, on a plot of land owned by Emerson ThereThoreau devoted his time to studying natureand writing While at Walden Pond, he wrote

Walden, a collection of essays about nature and

human nature that was published in 1854.Later Thoreau became outraged by the Mex-ican War, which he believed was caused by greedfor Mexican land, and by the FUGITIVE SLAVE ACT, which helped slave owners recover escapedslaves As a result of this outrage, Thoreau wrote

an essay that was published in 1849 under the

title Civil Disobedience (Thoreau’s original title was Resistance to Civil Government) The essay

contended that each person owes a greater duty

to his own conscience and belief system than isowed to the government Thus, Thoreauencouraged people to refuse to obey laws thatthey believe are unjust

Civil Disobedience also supported theories of

people misuse government He argued that theMexican War was started by just a few peoplewho used the U.S government as a tool.Thoreau maintained that because the U.S sys-tem of government was slow to correct itselfthrough the will of the majority, people shouldimmediately withdraw their support from gov-ernment and act according to their beliefs ofwhat is right

Thoreau did not approve of violent ance to government, however He advocatedpeaceful or passive resistance In 1859, when

“I WISH TO LIVE

1817 Born, Concord, Mass.

◆

1837 Graduated from Harvard College

1841 Jailed for nonpayment of poll taxes

1846–48 Mexican War

1845–47 Lived at Walden Pond

1854 Walden

published

1849 A Week on the Concord and Merrimack

Rivers and Civil Disobedience published

◆ ❖

1862 Died, Concord, Mass

1859 The Last

Days of John Brown published

1861–65 Civil War

slavery, Thoreau believed that Brown was right

in acting according to his beliefs even though his

actions were against the law Although Thoreau

did not admire the violent method that Brown

used in trying to stop slavery, Thoreau did

admire Brown’s commitment to doing what he

believed was right In 1859 Thoreau published

The Last Days of John Brown, an essay describing

how Brown’s actions convinced many

Northern-ers that slavery must be totally abolished

Thoreau’s writings and philosophy greatlyinfluenced many important world figures For

example, the reformer Leo Tolstoy of Russia,

ideas Thoreau died of tuberculosis on May 6,

1862, in Concord, Massachusetts

FURTHER READINGS

Bennett, Jane 1994 Thoreau’s Nature: Ethics, Politics, and the

Wild Thousand Oaks, Calif.: Sage.

Lawry, Robert P 2002 “Ethics in the Shadow of the Law: The

Political Obligation of a Citizen.” Case Western Reserve Law Review 52 (spring).

Thoreau, Henry David 2000 Walden; and, Civil

Disobedi-ence: Complete Texts with Introduction, Historical texts, Critical Essays Ed by Paul Lauter Boston:

Con-Houghton Mifflin.

CROSS-REFERENCES

Anarchism.

Richard Lewis Thornburgh served as U.S

attor-ney general from 1988 to 1991, working for the

Reagan and Bush administrations A formergovernor of Pennsylvania, Thornburgh put astrong emphasis on criminal enforcement dur-ing his tenure and moved away from the ideo-logical social issues favored by his predecessor,

Thornburgh was born on July 16, 1932, inCarnegie, Pennsylvania He graduated from YaleUniversity with an engineering degree in 1954and earned a law degree from the University ofPittsburgh in 1957 After his admission to thePennsylvania bar in 1958, he joined the Pitts-burgh law firm of Kirkpatrick, Lockhart, John-son, and Hutchinson

appointed Thornburgh U.S attorney for ern Pennsylvania He served as U.S attorneyuntil 1975, when he joined the JUSTICE DEPART- MENTas an assistant attorney general As head ofthe department’s criminal division, Thornburghwas instrumental in setting up the publicintegrity section that investigated alleged impro-prieties by department personnel

west-After leaving office in 1977, Thornburghreturned to the Kirkpatrick law firm in Pitts-burgh, but he was intent on beginning a politi-cal career In 1978 he was elected governor ofPennsylvania, an office he held until 1987 In hisearly days as governor, Thornburgh was thrustinto the national limelight The nuclear accident

at the Three Mile Island NUCLEAR POWERplant

in the spring of 1979 set off a wave of panic inPennsylvania Thornburgh was credited withbringing calm to the state

THORNBURGH, RICHARD LEWIS 25

“T HIS COLLECTIVE AMNESIA THAT SEEMS TO AFFECT THE W HITE H OUSE STAFF WOULD CONCERN ME IF I

WERE THE PRESIDENT ”

◆

◆

◆◆

1939–45 World War I

1950–53 Korean War

1961–73 Vietnam War

1958 Admitted

to Pa bar and joined firm of Kirkpatrick, Lockhart, Johnson, and Hutchinson

1969–75 Served as U.S.

attorney for western Pennsylvania

1975–77 Served as assistant U.S attorney general in charge of the Justice Department's criminal division 1978–87 Served as governor of Pa.

1979 Three Mile Island nuclear accident occurred

1988–91 Served as U.S.

attorney general under Reagan and Bush

1989 Initiated the Sentencing Reform Act

1991 Ran unsuccessfully for U.S Senate

2002 Selected

by Justice Department to probe accounting practices

at WorldCom; issued 122-page report detailing WorldCom abuses; appointed lead independent director of Irish drug maker Elan Corp., under investigation

by SEC

1992–93 Served as undersecretary general of the United Nations

1993 Rejoined Kirkpatrick & Lockhart in their Washington office

1996 Served as observer in Russian presidential elections

1997 Appointed practitioner in Residence at University of Iowa College of Law

In July 1988 President RONALD REAGAN

appointed Thornburgh U.S attorney general,succeeding Edwin Meese Meese had become acontroversial figure in the Reagan administra-tion He had stressed social issues such as

for an end to AFFIRMATIVE ACTION Meese alsohad come under scrutiny for possible criminalconflict-of-interest charges He resigned onlyafter an INDEPENDENT COUNSEL declined tofile criminal charges

Taking office under these circumstances,Thornburgh sought to restore integrity andcredibility to the department During the lastmonths of the Reagan administration, he moved

to revitalize management of the department,refocus its energies on prosecuting crimesinvolving guns or drugs, and aggressively pursuewhite-collar criminals

His early months in office convinced dent GEORGE H W BUSH to reappoint Thorn-burgh attorney general His tenure in the Bushadministration drew criticism from some con-servative groups for his prosecution of environ-mental crimes and for his strong enforcement of

PER-SONS Within the department, his managementstyle provoked criticism Career departmentofficials called him aloof and alleged that heemployed political partisanship in the adminis-tration of justice

Thornburgh resigned as attorney general inJuly 1991 to run for the U.S Senate from Penn-sylvania in a special election Harris Wofford, hisDemocratic opponent, had been appointed sen-ator to fill the seat until the special election Atthe beginning of the campaign, Thornburghenjoyed a 40-point lead in the opinion polls.Wofford, however, argued that the countryneeded a national HEALTH INSURANCE systemand reminded voters of the economy, which was

in recession Thornburgh’s lead crumbled ford easily defeated him, earning 55 percent ofthe vote to Thornburgh’s 45 percent

Wof-In 1992 President Bush appointed burgh undersecretary general of the UNITED

Thorn-burgh rejoined the Kirkpatrick law firm’s ington, D.C., office and served as a legalcommentator on several television networknews and talk shows His autobiography waspublished in 2003

Wash-FURTHER READINGS

Ford, Daniel 1986 Meltdown New York: Simon & Schuster Thornburgh, Dick 2003 Where the Evidence Leads: An Auto- biography Pittsburgh: Univ of Pittsburgh Press.

common types of threats forbidden by law arethose made with an intent to obtain a pecuniaryadvantage or to compel a person to act againsthis or her will In all states, it is an offense tothreaten to (1) use a deadly weapon on anotherperson; (2) injure another’s person or property;

or (3) injure another’s reputation

It is a federal offense to threaten to harm thepresident or to use the mail to transmit threat-ening communications These laws must be bal-anced against FIRST AMENDMENTrights.Unlawful communications include, amongother things, the use of threats to preventanother from engaging in a lawful occupationand writing libelous letters or letters that tend toprovoke a breach of the peace The use of intim-idation for purposes of collecting an unpaid

Richard L.

Thornburgh.

UPI/CORBIS-BETTMANN

debt has been held to constitute an unlawful

communication but might be prosecuted as

A mere threat that does not cause any harm

is generally not actionable When combined

with apparently imminent bodily harm,

how-ever, a threat is an assault for which the offender

might be subject to civil or criminal liability In

most jurisdictions, a plaintiff can recover

dam-ages for the intentional infliction of severe

men-tal or emotional suffering caused by threats or

unlawful communications

In those jurisdictions that have statutes hibiting unlawful communications, such as let-

pro-ters that tend to provoke a breach of the peace, a

violation of the statute gives rise to a civil action

for damages

THREE STRIKES LAWS

Criminal statutes that mandate increased

sen-tences for repeat offenders, usually after three

seri-ous crimes.

Beginning in the early 1990s, states began toenact mandatory sentencing laws for repeat

criminal offenders These statutes came to be

known as “three strikes laws,” because they were

invoked when offenders committed their third

offense By 2003 over half the states and the

fed-eral government had enacted three strikes laws

The belief behind the laws was that getting

career criminals off the streets was good public

policy However, the laws have their critics, who

charge that sentences are often disproportionate

to the crimes committed and that incarceration

of three strikes inmates for 25 years to life would

drive up correctional costs Nevertheless, the

U.S Supreme Court has upheld three strikes

laws and has rejected the argument that they

amount to CRUEL AND UNUSUAL PUNISHMENT

The state of Washington passed the firstthree strikes law in 1993 Anyone convicted of

three separate violent felonies must be

sen-tenced to life in prison with no chance for

1994, by enacting a three strikes law that

man-dates a sentence of 25 years to life for a third

felony conviction Unlike Washington, the

Cali-fornia law counts nonviolent felonies, such as

popularity of the three strikes law in California

has been pronounced By 2001 over 50,000

criminals had been sentenced under the new

law, far more than any other state, with almost

one-quarter of the inmates facing a minimum of

25 years in prison Not surprisingly, California’slaw has drawn the most attention in the debateover three strikes statutes

The California law originally gave judges nodiscretion in setting prison terms for threestrikes offenders However, the CaliforniaSupreme Court ruled, in 1996, that judges, in theinterest of justice, could ignore prior convictions

in determining whether an offender qualifiedfor a three strikes sentence Prosecutors have thegreatest discretion; they may decide whether tocount certain crimes as strikes when they filetheir criminal complaint Critics have chargedthat this system introduces the worst of bothworlds: mandatory sentences for those chargedunder the law and unequal application of thelaw The disparity in prosecutorial use of theCalifornian law has meant that the law is rarelyused in San Francisco but is used heavily inother parts of the state

Supporters of three strikes laws have arguedthat the plummeting crime rates of the 1990swere due in part to this tough new sentencingscheme They especially rely on California statis-tics, which cite the fact that approximately 1,200offenders are sentenced per year in Californiaunder the three strikes law They call the law asuccess since offenders are off the street for atleast 25 years and are not able to harm the pub-lic again

The three strikes sentencing of offenderswho have committed a number of violentcrimes has rarely drawn much criticism Con-cerns about the fairness and proportionality ofthe law have been raised when an offender issent to prison for 25 years for shoplifting orsome other minor property crime Critics notethat a 25-year sentence for a third strike shoplift-ing offense is the same sentence meted out tothose who commit murder Long sentences forrelatively minor offenses, they contend, amounts

to cruel and unusual punishment, which isbarred by the EIGHTH AMENDMENT By the late1990s a number of appeals had been raised instate and federal courts based on the dispropor-tionality argument

The case of Leandro Andrade became a focalpoint in the argument over the constitutionality

of California’s three strikes law Andrade wasconvicted of two counts of petty theft forshoplifting a total of nine videotapes from twoKmart stores The value of the tapes stolenamounted to $153.54 Under California law, a

THREE STRIKES LAWS 27

petty theft charge is usually a misdemeanor with

a penalty of up to six months in county jail and

a fine of up to $1,000 However, the prosecutorhad the discretion to elevate the charges to felonylevel offenses Andrade, who was a heroin addict,had a string of burglary, theft, and drug convic-tions on his criminal record The prosecutorcharged him with two counts of felony theft and

a jury convicted Andrade on both counts

These separate convictions, along with aprior first-degree burglary conviction, triggeredthe three strikes law Because the two thefts weretreated as separate incidents, the three strikes lawwas applied to both charges, leading to two con-secutive terms of 25 years to life in prison.Andrade could not apply for parole until heserved 50 years in prison, at which time he would

be 87 years old The California courts upheld this

offend-ers, but they do not impose punishments

as harsh as “Three Strikes and You’re

Out” (TSAYO) laws TSAYO laws

man-date that a heavy sentence be imposed on

persons who are convicted of a third

felony The minimum prison sentence

required by such laws is typically between

25 years and life The federal government

and more than two dozen states have

passed TSAYO legislation since 1992.

TSAYO legislation is designed to tect society from dangerous individuals

pro-who show a pattern of

lawless-ness, incapacitate repeat felony

offenders by keeping them

behind bars, and deter others

from committing similar

crim-inal offenses National crimcrim-inal

justice statistics show that the

number of violent crimes has

precipitously dropped over the last eight

years TSAYO legislation is not without

its critics, however In 1998 several

stud-ies called into doubt the effectiveness of

three-strikes laws Constitutional

chal-lenges have been leveled against TSAYO

laws at both the state and federal levels,

but courts and legislatures have resisted

overturning them.

VIO-LENT CRIME CONTROL AND LAW

Law 103–322, September 13, 1994, 108

Stat 1796 It imposes a mandatory

sen-tence of life imprisonment without

con-victed of a serious violent federal felony when they have two or more prior serious violent felonies or one or more serious violent felony convictions and one or more serious drug offense convictions.

The first two convictions may be for state

or federal offenses, but the third tion must be for a federal offense before the VCCLEA three-strikes provision applies.

convic-VCCLEA defines “serious violent felony” to include murder, voluntary

to commit murder or rape,

and firearms use or possession, among others 18 U.S.C.A.

3559 Offenses committed at the state level need not be deemed a felony

by the state to trigger the VCCLEA strikes provision as long as the state offense is “seriously violent,” meaning the offense is similar to those specified by the VCCLEA “Serious drug offense” is defined by the VCCLEA as knowingly or intentionally manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense enu- merated controlled substances Drug offenses committed at the state level are considered “serious” under VCCLEA if they would be punishable by the federal controlled substances laws.

three-The impetus behind TSAYO laws came from a string of highly publicized cases in which a crime victim was viciously attacked by a repeat offender on parole One of the most publicized cases was that of 12-year-old Polly Klaas from California In 1993 she was kidnapped, molested, and murdered by Richard

long history of criminal convictions Polly’s father, Marc, appeared on a num- ber of national television programs to attack the criminal justice system’s lenient treatment of repeat felony offend- ers and to advocate the enactment of three-strikes laws Relatives of other vic- tims, concerned citizens, prosecutors, and politicians followed suit.

Washington state’s legislature was the first to respond, passing TSAYO legisla- tion in 1993 West’s RCWA 9.94A.392 et seq The law mandates life in prison after conviction on any three of about 40 felonies, ranging from murder to robbery and vehicular assault Defendants con- victed under this law are not eligible for parole, nor may their sentence be sus- pended or shortened California and 11 other states passed similar laws in 1994 Nine more states were added to the list a year later By the year 2000 more than 24 states had adopted TSAYO laws of their own Georgia took matters a step further, enacting a “Two Strikes and You’re Out” law Ga Code Ann S 17–10–6.1(b) Felons convicted of the state’s most seri- ous crimes only twice are sentenced to

Have Three-Strikes Laws Worked to

Reduce Recidivism?

sentence as proportionate The Ninth Circuit

Court of Appeals ruled that Andrade’s sentence

was unconstitutional because it was grossly

dis-proportionate Although the California law was

unconstitutional as applied, the Ninth Circuit

refused to hold that the “three strikes and you’re

out” law was generally unconstitutional

The Supreme Court, in a 5–4 decision, turned the Ninth Circuit decision and upheld

over-the constitutionality of over-the three strikes law as

applied to Andrade (Lockyer v Andrade, 538 U.S.

63, 123 S Ct 1166, 155 L Ed 2d 144 [2003] TheCourt held that federal courts must give duedeference to state court sentencing decisions In

a prior ruling the Court had stated that tures must be given “broad discretion to fashion

legisla-a sentence thlegisla-at fits within the scope of the portionality principle.” The “precise” contours

pro-THREE STRIKES LAWS 29

life in prison without parole Known as

“the seven deadly sins,” these crimes are murder, armed robbery, rape, kidnap-

Despite their popularity in the early 1990s, TSAYO laws have come under severe attack in the late 1990s In 1998 several studies were released that ques- tioned the effectiveness of such laws Four studies were largely responsible for driv- ing the debate: one by the Rand Institute, one by the National Institute of Justice, one

by the Justice Policy Institute, and one by the Campaign for Effective Crime Policy,

a nonpartisan group comprised of dens, prosecutors, and law enforcement officials.

war-The studies revealed two kinds of results In most states, little had changed.

Washington had convicted 66 people under its TSAYO law Arkansas had 12 convictions and Alaska, Connecticut, Louisiana, Maryland, North Carolina, Pennsylvania, Vermont, and New Jersey had no more than six Wisconsin had invoked its law only once, while no one

in Utah, Virginia, Montana, Tennessee, New Mexico, or Colorado had ever been prosecuted for a third-strike offense.

Instead, the states that let their TSAYO laws lay idle were still seeking harsh pun- ishments for dangerous recidivists, but under repeat-offender statutes that had been on the books for decades In other words, for these states the TSAYO laws represented a symbolic measure that nei- ther improved nor diminished a prose- cutor’s ability to keep dangerous recidivists off the streets Similarly, the studies showed that only 35 offenders

had been convicted of a third strike at the federal level through 1997.

The results were vastly different in California and Georgia California had imprisoned more than 4,800 criminals for 25 years to life on third strikes; the state also identified more than 40,000 second-strike offenders who would await such a sentence were they subsequently convicted for any one of roughly 500 crimes Georgia had sent approximately 1,000 defendants to prison for life with- out parole under its two strikes law and identified another 1,000 offenders eligi- ble for that fate were they to subsequently commit one of the “seven deadly sins.”

These studies did more than arm opponents of TSAYO laws with evidence

of disparate results They suggested that the laws had been enforced more often against minority offenders than against white offenders In California only 1,237

of the more than 4,800 defendants tenced for a third strike were white; 2,138 were African American, 1,262 were Latino, and 201 were classified as “other.”

sen-The studies further indicated that these minority offenders were mostly being punished for nonviolent third strikes.

Statistics demonstrated that more than twice as many defendants’ third-strike offenses were for drug possession or petty theft as for murder, rape, or kidnapping.

Some of these nonviolent third strikes included seemingly innocuous offenses, such as shoplifting, stealing packages of steak, and drinking alcohol at a liquor store without paying for it.

Proponents of TSAYO laws have not been dissuaded by these results Prosecu- tors say that these laws remain a vital tool for them to hang over the heads of first-

and second-time offenders They tend that seemingly “harmless” third- strike offenses are often isolated from the first and second strikes that place the defendant in a less sympathetic context For example, an individual who was prosecuted for a third strike after he stole

a bottle of vitamins had eight prior victions, one of which was for robbery Another individual who was prosecuted for bigamy under California’s TSAYO law had prior convictions for armed robbery Prosecutors also point to statistics reflect- ing a dramatic decline in violent crime over the last eight years as conclusive proof of TSAYO laws’ effectiveness.

con-Opponents of TSAYO laws edge that prison populations have drasti- cally increased in some states due in part

acknowl-to incarceration of third-strike offenders, but they question whether this result is entirely good Reports indicate that pris- ons in California and Georgia are severely overcrowded The Georgia Department

of Corrections estimates that it needs nearly 14,000 more beds and a budget increase of 25 percent to accommodate the overflowing prison population In the meantime, state prisons have erected tents as cell blocks, moved bunks into common areas, and housed three inmates

in cells designed for two.

California officials have predicted that its prisons will experience a shortage

of 70,000 beds from convictions under the state’s TSAYO laws They also predict that the number of inmates age 50 to 64 will increase 80 percent by 2013, and the number of prisoners 65 and older will increase by 144 percent They agonize over booming medical costs spent to treat

(continued)