Although the Supreme Court has ruled that arraignments are a necessary pre-condition to trial under federal law, the Court has also ruled that failure to arraign a defendant is not a rev
Trang 1pursuing elements of a possible weapons pro-gram and was ignoring demands of suspending production of uranium Additionally, North Korea had not only withdrawn from the Nuclear Non-Proliferation Treaty but had also tested two nuclear devices With Washington laying out its largest defense spending in a quarter century, arms control and disarmament were clearly perceived to not be a priority of the Bush administration
Under President BARACK OBAMA, the United States once again changed its focus back toward arms control and non-proliferation In an April
2009 speech, Obama outlined a number of concrete steps that the United States was planning to take in order to address the threat
of nuclear weapons Specifically, the United States introduced a resolution on nuclear nonproliferation and disarmament during the
chaired by President Obama on September 24,
2009 The Security Council unanimously ap-proved Obama’s resolution, which set forth a series of goals to eliminate nuclear weapons, ban the production of fissile material used to make such weapons, outlaw atomic tests and safeguard stockpiles of weapons Additionally, the resolution advocated actions to be taken against nations that violate the International
NUCLEAR NONPROLIFERATION TREATYby having their military use civilian nuclear technology Oba-ma’s appearance at the United Nations Special Session of the Security Council was the first time any U.S president had ever presided over a full-scale summit of the Security Council This action sent a powerful signal to the world that the United States plans to reestablish being a leader on arms control The United States is also planning on hosting a global nuclear security summit in Washington in April 2010, which will focus on raising the global standard for effective nuclear security
FURTHER READINGS Center for Arms Control and Non-Proliferation 2009.
“President Obama Making Good on Nuclear Weapons Promises ” Press Release, September 23, 2009 Available online at http://www.armscontrolcenter.org/audience/
media/092309_obama_good_on_nuclear_promises/
website home page: http://www.armscontrolcenter.org (accessed September 26, 2009).
Dunn, Lewis A., and Sharon A Squassoni 1993 Arms Control: What Next? Boulder, Colo.: Westview Press.
Laird, Melvin R August 23, 2001 “Why Scrap the ABM Treaty? ” Washington Post, A25.
Mufson, Steven December 16, 2001 “ABM Treaty May Be History, But Deterrence Doctrine Lives ” Washington Post, A37.
Parsons, Christi September 25, 2009 “Security Council Backs Abolishing Nuclear Arms ” latimes.com Available online at http://www.latimes.com/news/nationworld/ world/la-fg-obama-nuclear25-2009sep25,0,6589404 story website home page: http://www.latimes.com (accessed September 26, 2009).
“Project on Strengthening Arms Control and Nonprolifera-tion ” Center for Arms Control and non-Proliferation Available online at http://www armscontrolcenter.org/ resources/strengthening_nonproliferation/ websitehome page: http://www.armscontrolcenter.org (accessed Septem-ber 25, 2009).
Sheehan, Michael 1988 Arms Control: Theory and Practice Oxford: Blackwell.
Varner, Bill September 25, 2009 “Obama Gets UN Nuclear Accord as U.K., France Put Heat on Iran ” Bloomberg com Available online at http://www.bloomberg.com/ apps/news?pid=20601087&sid=aiiuAu6px_Cw website home page: http://bloomberg.com(accessed September
26, 2009).
Weisman, Steven R March 23, 2003 “A Nation at War: A New Doctrine, Pre-emption, Idea with a Lineage whose Time Has Come.” New York Times, 1B.
CROSS REFERENCES Anti-Ballistic-Missile Treaty of 1972; Blockade; Hot Line Agreement, 1971; Intermediate-Range Nuclear Forces Treaty; International Law; NATO; Nixon, Richard Milhous; Nuclear Nonproliferation Treaty; Nuclear Weapons; Terrorism; War.
ARRAIGNMENT
A criminal proceeding at which the defendant is officially called before a court of competent jurisdiction, informed of the offense charged in the complaint, information, indictment, or other charging document, and asked to enter a plea of guilty, not guilty, or as otherwise permitted by law Depending on the jurisdiction, arraignment may also be the proceeding at which the court determines whether to set bail for the defendant or release the defendant on his or her own recognizance Although the initial appearance of the arrested person before a magistrate is sometimes referred to as an arraignment, it is not a true arraignment, which only comes after the DEFEN-DANT has been both arrested and formally charged In all but extremely rare cases, arraign-ment also takes place before any suppression hearings and the trial itself The interests at issue
in an arraignment are the defendant’s right to know of the charges against him or her and the defendant’s right to have adequate information from which to prepare a defense The state also has an interest in having the defendant make a
PLEAso it can prepare accordingly
368 ARRAIGNMENT
Trang 2The SIXTH AMENDMENT to U.S Constitution
guarantees that defendants shall “be informed
of the nature and cause of the accusation against
them.” But the Sixth Amendment does not
guarantee defendants the right to be informed
of the charged offense at an arraignment
Although the Supreme Court has ruled that
arraignments are a necessary pre-condition to
trial under federal law, the Court has also ruled
that failure to arraign a defendant is not a
reversible error where the failure is inadvertent,
the defendant knows that he is the accused, the
defendant is apprised of the charged offense, the
defendant is able to assist in preparing a defense,
and the defendant is not otherwise prejudiced by
the lack of an arraignment Thus the importance
and necessity of being arraigned before trial
varies from case to case and from jurisdiction to
jurisdiction The law governing arraignment
procedures is spelled out by statutes and court
rules at both the state and federal levels
The Federal Rules of CRIMINAL PROCEDURE
provide that during the arraignment federal
courts must read the indictment or information
to the defendant or state the substance of the
charge to the defendant and ask him or her to
enter a plea thereto FR Crim P, Rule 10 The
defendant must also be given a copy of the
indictment or information before he or she is
called upon to plead Generally speaking, the
federal rules require defendants to be present at
the arraignment However, in prosecutions for
offenses punishable by fine or imprisonment for
not more than one year, the court, with the
written consent of the defendant, may permit
arraignment in the defendant’s absence
The court rules in some states only require
that arraignments be held for felony-level charges,
but not for misdemeanor-level offenses Other
states require arraignments for felonies, gross
misdemeanors, and misdemeanors punishable
byINCARCERATIONor a fine greater than a certain
amount In addition to requiring that
defen-dants be called before the court, informed of the
charged offense, and asked to enter a plea, several
state jurisdictions also require that defendants
be informed of certain constitutional rights
during arraignment, including the right to trial
by jury, the right to assistance of counsel, and
the right againstSELF-INCRIMINATION If the law of
a particular state makes the arraignment a critical
stage of the prosecution, such as when the court
rules require the defendant to raise any defenses
to the charged offense at the arraignment or
WAIVEthem, then the defendant must be afforded theRIGHT TO COUNSELunder the Sixth Amendment (Hamilton v Alabama, 368 U.S 52, 82 S Ct 157, 7 L.Ed.2d 114 [U.S.Ala 1961])
Defendants in both state and federal courts must be arraigned in a timely fashion Ordinar-ily the accused must be arraigned before the impaneling of the jury or at least before the introduction of evidence If an unreasonable delay occurs between the time a defendant is arrested and charged with an offense and the time the defendant is arraigned, state and federal courts will dismiss the criminal proceed-ings as having violated the defendant’s Sixth Amendment right to a speedy trial
Many jurisdictions require that defendants
be arraigned within seventy-two hours of arrest
As a result, defendants arrested over the weekend are usually arraigned on Mondays, which can make for a packed courtroom To speed up the arraignment process on busy days, defendants are often arraigned in groups, which
is constitutionally permissible so long as each person being arraigned identifies himself or herself to the court and the court advises all defendants in attendance that the remarks of the court apply to each person individually Courts conducting group arraignments must also ascertain on the record that each defendant was present throughout the entire course of the arraignment, heard the remarks, and under-stood them
The right to be arraigned may ordinarily be waived, even when the charge is for a felony-level offense, provided the accused knows the nature of the charge offense and has a full opportunity to present a defense The power to waive an arraignment must usually be exercised
by the accused in person Where the right of the accused to waive an arraignment is recognized,
an expressWAIVERinOPEN COURTis sufficient An arraignment may also be waived in a less formal manner, such as by the voluntary entry of a plea, by failing to call the court’s attention to a defect in the proceedings at the proper time, by announcing readiness for trial, by going to trial without objection, or by filing motions and obtaining rulings on issues of law in the case
CROSS REFERENCES Hearing; Incarceration; Sixth Amendment; Trial.
ARRAIGNMENT 369
Trang 3ARRAY The entire group of jurors selected for a trial from which a smaller group is subsequently chosen to form a petit jury or a grand jury; the list of potential jurors
Virtually all states have enacted statutes delineating requirements for jury service In most states, convicted felons and insane persons cannot be jurors Professional persons such as judicial and government officials, lawyers, ministers, and medical personnel may be exempted by statute from jury service
As a general rule, a group of local officials acting within the statutory framework select the persons who will make up the array
ARREARS
A sum of money that has not been paid or has only been paid in part at the time it is due
A person who is “in arrears” is behind in payments due and thus has outstanding debts or liabilities For example, a tenant who has not paid rent on the day it is due is in arrears
Arrears may also refer to the late distribution of the dividends of cumulativePREFERRED STOCK
ARREST
A seizure or forcible restraint; an exercise of the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal authority, especially, in response to a criminal charge
The purpose of an arrest is to bring the arrestee before a court or otherwise secure the administration of the law An arrest serves the function of notifying the community that
an individual has been accused of a crime and also may admonish and deter the arrested individual from committing other crimes
Arrests can be made on both criminal charges and civil charges, although civil arrest is a drastic measure that is not looked upon with favor by the courts The federal Constitution imposes limits on both civil and criminal arrests
An arrest may occur (1) by the touching or putting hands on the arrestee; (2) by any act that indicates an intention to take the arrestee into custody and that subjects the arrestee to the actual control and will of the person making the arrest; or (3) by the consent of the person to
be arrested There is no arrest where there is no
restraint, and the restraint must be under real or pretended legal authority However, the deten-tion of a person need not be accompanied by formal words of arrest or a station house booking to constitute an arrest
The test used to determine whether an arrest took place in a particular case is objective, and it turns on whether a REASONABLE PERSON
under these circumstances would believe he or she was restrained or free to go A reasonable person is one who is not guilty of criminal conduct, overly apprehensive, or insensitive to the seriousness of the circumstances Reason-ableness is not determined in light of a defen-dant’s subjective knowledge or fears The subjective intent of the police is also normally irrelevant to a court’s determination whether an arrest occurred, unless the officer makes that intent known Thus, a defendant’s presence at a police station by consent does not become an arrest solely by virtue of an officer’s subjective view that the DEFENDANT is not free to leave, absent an act indicating an intention to take the defendant into custody
An arrest constitutes a SEIZURE under the
and thus the procedures by which a person is arrested must comply with the protections guaranteed by the Fourth Amendment or the arrest will be invalidated and any evidence seized during the arrest or confessions made after the arrest will typically be suppressed The U.S Supreme Court has ruled that arrests made without a valid ARREST WARRANT based on
PROBABLE CAUSEare presumptively invalid under the Fourth Amendment Similarly, arrests made pursuant to a warrant that is later ruled defective may also be declared invalid, unless the officer
in procuring the warrant and making the arrest acted inGOOD FAITH
However, warrantless arrests do pass con-stitutional muster under some circumstances The Supreme Court has ruled that warrantless arrests can be made when the circumstances make it reasonable to do so For example, no warrant is required for a FELONY arrest in a public place, even if the arresting officer had ample time to procure a warrant, so long as the officer possessed probable cause that the suspect committed the crime Felony arrests in places not open to the public generally do require a warrant, unless the officer is inHOT PURSUITof a fleeingFELON Warden v Hayden, 387 U.S 294,
370 ARRAY
Trang 487 S Ct 1642, 18 L.Ed.2d 782 (1967), The
Fourth Amendment also allows warrantless
arrests for misdemeanors committed in an
officer’s presence
The exceptions to the Fourth Amendment’s
warrant requirement are based on the court’s
reluctance to unduly impede the job of law
enforcement officials Courts attempt to strike
a balance between the practical realities of
daily police work and the privacy and freedom
interests of the public Always requiring police
officers to take the time to obtain an arrest
warrant could result in the destruction of
evidence, the disappearance of suspects, or
both
When an officer does seek an arrest warrant,
the officer must present evidence to a neutral
judge or magistrate sufficient to establish
probable cause that a crime has been
commit-ted The Supreme Court has said that probable
cause exists when the facts within an officer’s
knowledge provide a reasonably trustworthy
basis for a person of reasonable caution to
believe that an offense has been committed or
is about to be committed Courts will deny
requests when the warrant fails to describe in
particularized detail the person to be arrested
The evidence upon which a warrant is based
need not be ultimatelyADMISSIBLE at trial, but it
cannot be based onKNOWINGLY or intentionally
false statements, or statements made in reckless
disregard of the truth However, inaccuracies
found in a warrant due to ordinaryNEGLIGENCE
will not typically jeopardize a warrant’s validity
Police officers need no justification to stop
someone on a public street and ask questions,
and individuals are completely entitled to refuse
to answer any such questions and go about their
business However, the Fourth Amendment
prohibits police officers from detaining
pedes-trians and conducting any kind of search of
their clothing without first possessing a
reason-able and articulreason-able SUSPICION that the
pedes-trians are engaged in criminal activity.TERRY V
OHIO, 392 U.S 1, 88 S Ct 1868, 21 L Ed 889
(1968) Police may not even compel a
pedestri-an to produce identification without first
meeting this standard Similarly, police may
not stop motorists without first having a
reasonable and articulable suspicion that the
driver has violated a traffic law If a police
officer has satisfied this standard in stopping a
motorist, the officer may conduct a search of
the vehicle’s interior, including the glove com-partment, but not the trunk, unless the officer has probable cause to believe that it contains
activity
Investigatory stops or detentions must be limited and temporary, lasting no longer than necessary to carry out the purpose of the stop or detention An investigatory stop that lasts too long turns into a DE FACTO arrest that must comply with the warrant requirements of the Fourth Amendment But no bright line exists for determining when an investigatory stop becomes a de facto arrest, as courts are reluctant
to hamstring the flexibility and discretion of police officers by placing artificial time limita-tions on the fluid and dynamic nature of their investigations Rather, the test is whether the detention is temporary and whether the police acted with reasonable dispatch to quickly confirm or dispel the suspicions that initially induced the investigative detention
An anti-war protester
is arrested on charges
of disorderly conduct and obstruction of government administration by
a New York police officer The procedures by which
a person is arrested must comply with the protections guaranteed by the Fourth Amendment.
AP IMAGES ARREST 371
Trang 5A sample arrest
warrant
F.C.A §§153, 153-a
Arrest Warrant
General Form 3 (Warrant of Arrest)
FAMILY COURT OF THE STATE OF NEW YORK COUNTY OF
In the Matter of
Petitioner(s)
against
Respondent(s)
IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK
TO ANY (POLICE)(PEACE) OFFICER IN THE STATE OF NEW YORK
A petition under Article of the Family Court Act having been filed in this Court, a copy of which is annexed hereto, and it appearing that one of the grounds for issuance of a warrant as specified in the Family Court Act exists,
YOU ARE THEREFORE COMMANDED forthwith to arrest [specify name(s)]:
and bring said person(s) before this Court to be dealt with according to law.
YOU ARE FURTHER COMMANDED, under the Family Court Act, to bring before this Court the following child or children:
THIS WARRANT [check applicable box(es)]:
may may not be executed on Sunday.
may may not be executed at night.
is subject to the following restriction(s) [specify]:
Dated: _ , .
Docket No
WARRANT OF ARREST
[continued]
372 ARREST
Trang 6Not all arrests are made by members of law
enforcement Many jurisdictions permit private
citizens to make arrests Popularly known as
citizen’s arrests, the circumstances under which
private citizens may place each other under arrest
are normally very limited All jurisdictions that
authorize citizen’s arrests prohibit citizens from
making arrests for unlawful acts committed
outside their presence Most jurisdictions that
authorize citizen’s arrests also allow citizens to
make arrests only for serious crimes, such as
felonies and gross misdemeanors, and then only
when the arresting citizen has probable cause to
believe the arrestee committed the serious crime
Witnessing the crime in person will normally
establish probable cause for making an arrest
Both private citizens and law enforcement
officers may be held liable for the tort ofFALSE
ARRESTin civil court An ACTIONfor false arrest
requires proof that the process used for the
arrest was void on its face In other words, one
who confines another, while purporting to act
by authority of law which does not in fact exist, makes a false arrest and may be required to pay money damages to the victim To make out a claim for false arrest, the PLAINTIFF must show that the charges on which he or she was arrested ultimately lacked justification That is, the plaintiff in a false arrest action must show that the arrest was made without probable cause and for an improper purpose
CROSS REFERENCES Accusation; Charge; Civil Procedure; Contraband; Criminal Action; Criminal Law; Criminal Procedure; De Facto;
Evidence; Felony; Fourth Amendment; Hot Pursuit;
Liability; Probable Cause; Seizure; Tort Law.
ARREST OF JUDGMENT The postponement or stay of an official decision of a court, or the refusal to render such a determination, after a verdict has been reached in an action at law
or a criminal prosecution, because some defect appears on the face of the record that, if a decision
is made, would make it erroneous or reversible
NOTICE TO RESPONDENT PARENT(S) IN CHILD ABUSE OR NEGLECT CASES:
PLACEMENT OF YOUR CHILD IN FOSTER CARE MAY RESULT IN YOUR LOSS OF YOUR RIGHTS TO YOUR CHILD IF YOUR CHILD STAYS
IN FOSTER CARE FOR 15 OF THE MOST RECENT 22 MONTHS, THE AGENCY MAY BE REQUIRED BY LAW TO FILE A PETITION TO
TERMINATE YOUR PARENTAL RIGHTS AND MAY FILE BEFORE THE END OF THE 15 MONTH PERIOD IF SEVERE OR REPEATED ABUSE
IS PROVEN BY CLEAR AND CONVINCING EVIDENCE, THIS FINDING MAY CONSTITUTE THE BASIS TO TERMINATE YOUR PARENTAL
RIGHTS.
Family Court Act §155(1) provides that: “ If an adult respondent is arrested under this act when the family court is not in session, he or
she shall be taken to the most accessible magistrate and arraigned The production of a warrant issued by the family court, a certificate of
warrant, a copy or a certificate of the order of protection or temporary order of protection, an order of protection or temporary order of
protection, or a record of such warrant or order from the statewide computer registry established pursuant to section 221-a of the
executive law shall be evidence of the filing of an information, petition or sworn affidavit, as provided in section 154-d of this article Upon
consideration of the bail recommendation, if any, made by the family court and indicated on the warrant or certificate of warrant, the
magistrate shall thereupon commit such respondent to the custody of the sheriff, as defined in subdivision 35 of section 1.20 of the
criminal procedure law, admit to, fix or accept bail, or parole him or her for hearing before the family court, subject to the provisions of
subdivision four of section 530.11 of the criminal procedure law concerning arrests upon a violation of an order of protection.”
Family Court Act §155-a provides that: “A desk officer in charge at a police station, county jail or police headquarters, or any of his or her
superior officers, may, in such place, take cash bail for his or her appearance before the appropriate court the next morning from any
person arrested pursuant to a warrant issued by the family court; provided that such arrest occurs between eleven o'clock in the morning
and eight o'clock the next morning, except that in the city of New York bail shall be taken between two o'clock in the afternoon and eight
o'clock the next morning The amount of such cash bail shall be the amount fixed in the warrant of arrest.”
Arrest Warrant
FAMILY COURT JUDGE
BAIL IN THE SUM OF ($ ) DOLLARS IS RECOMMENDED.
_
FAMILY COURT JUDGE
A sample arrest warrant (continued) ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
ARREST OF JUDGMENT 373
Trang 7Although the Federal Rules ofCIVIL PROCEDURE
make no such provision, state codes of civil procedure should be consulted concerning the issuance of an arrest of judgment in actions at law
In criminal proceedings, a DEFENDANT must make a motion for an arrest of judgment when the indictment or information fails to charge the accused with an offense or if the court lacks jurisdiction over the offense charged State and federal rules of CRIMINAL PROCEDURE govern an arrest of judgment in criminal prosecutions
ARREST WARRANT
A written order issued by authority of the state and commanding the seizure of the person named
An arrest warrant must be based on a complaint that alleges PROBABLE CAUSE that the
person named has committed a specific offense, and it must be issued according to the formalities required by the rules of the court The Federal Rules of CRIMINAL PROCEDURE specify that the warrant must be signed by the magistrate and must describe the offense charged The DEFEN-DANTmust be named or described in such a way that he or she can be identified with reasonable certainty The warrant must also command that the defendant be arrested and brought before the nearest available magistrate
ARROGATION Claiming or seizing something without justifica-tion; claiming something on behalf of another In civil law, the adoption of an adult who was legally capable of acting for himself or herself
ARSON
At common law, the malicious burning or exploding of the dwelling house of another, or the burning of a building within the curtilage, the immediate surrounding space, of the dwelling of another
Modern legislation has extended the defini-tion of arson to include the burning or exploding
of commercial and public buildings—such as restaurants and schools—and structures—such
as bridges In many states, the act of burning any insured dwelling, regardless of whether it belongs
to another, constitutes arson if it is done with
an intent to DEFRAUD the insurer Finally, the common-law rule that the property burned must belong to another person has been completely eliminated by statute in some states
Elements The main elements necessary to prove arson are evidence of a burning and evidence that a criminal act caused the fire The accused must intend to burn a building or other structure Absent a statutory description of the conduct required for arson, the conduct must be malicious, and not accidental Malice, however, does not mean ill will Intentional or outrageously reckless con-duct is sufficient to constitute malice Motive, on the other hand, is not an essential element of arson
Unless a statute extends the crime to other property, only a house used as a residence, or buildings immediately surrounding it, can be the subject of arson If a house is vacated, is
7,986
692
7,600
714
8,529
664
8,861
775 Property Loss in Intentionally Set Fires, 2003 to 2007
9,905
733
0
2,000
4,000
6,000
8,000
10,000
12,000
Year
Intentionally set structural fires Structural fires
SOURCE: National Fire Protection Association, “2006 U.S Fire Loss,” NFPA
Journal, November 2007 and prior issues, and Fire Loss in the United States,
August 2008.
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
374 ARREST WARRANT
Trang 8closed up, or becomes unfit for human
habita-tion, its burning will not constitute arson A
temporary absence from a dwelling will not
negate its character as a residence
Generally, the actual presence of a person
within a dwelling at the moment it is burned is
not necessary It may, however, be required for
a particular degree of the crime The fact, and
not the knowledge, of human occupancy is what
is essential If a dwelling is burned under the
impression that it is uninhabited when people
actually live in it, the crime is committed
Absent a statute to the contrary, a person is
innocent of arson if that individual burns his or
her own property while living there The
common exception to this rule is the burning
of one’s own property with an intent to defraud
or prejudice the property insurer In addition,
under statutes that punish the burning of a
dwelling house without expressly requiring it to
be the property of another, a person who burns
his or her own property might be guilty of
arson An owner, for purposes of arson, is the
person who possesses the house and has the
care, control, and management of it In those
states that have maintained the common-law
rule that the property burned must belong to
another person, an owner who burns his or her
house while it is in the possession of a lawful
tenant is guilty of arson
Degrees
In many states arson is divided into degrees,
depending sometimes on the value of the
property but more commonly on its use and
whether the crime was committed in the day
or night A typical statute might make the
burning of an inhabited dwelling house at night
first-degree arson, the burning of a building
close enough to a dwelling so as to endanger it
second-degree arson, and the burning of any
structure with an intent to defraud an insurer
thereof, third-degree arson Many statutes vary
the degree of the crime according to the
criminal intent of the accused
Punishment
Arson is a serious crime that was punishable
by death under the COMMON LAW Presently, it
is classified as a FELONY under most statutes,
punishable by either imprisonment or death
Many jurisdictions impose prison sentences
commensurate with the seriousness of the
criminal intent of the accused A finding, therefore, that the offense was committed inten-tionally will result in a longer prison sentence than a finding that it was done recklessly When a human life is endangered, the penalty is most severe
ART LAW The Framers of the Constitution acknowledged the importance of the arts when they wrote that Congress shall have the power “[t]o pro-mote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (Art I, § 8) Despite this provision, or perhaps because of its very limited nature, the federal government offered little assistance to artists until the 1930s Early unsuccessful attempts to aid the arts included
an effort by President JAMES BUCHANAN to establish the National Commission of Fine Arts,
a project that failed within a year when Congress did not appropriate funds President
Number of Intentionally Set Fires, 2003 to 2007
Year
0 100
38
482
37
489
32
31
498
32.5
2007
200 300 400 500 600
SOURCE: National Fire Protection Association, “2006 U.S Fire Loss,” NFPA Journal, November 2007 and prior issues, and Fire Loss in the United States,
August 2008.
Intentionally set structural fires Structural fires
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
ART LAW 375
Trang 9THEODORE ROOSEVELTalso encountered a reluctant Congress half a century later when he proposed the Council of Fine Arts, but success came when his successor, WILLIAM HOWARD TAFT, persuaded Congress to create the National Commission of Fine Arts
Even after the National Commission of Fine Arts was established, the federal government continued to play a minor role in funding the arts, but several municipal programs attempted
to fill the void In New York City the Civil Works Administration (CWA) sponsored paint-ings, murals, and art education The primary goal of the CWA was to create employment for artists receiving government relief With the only requirement for employment being an assertion that the applicant was an artist, the art produced under the CWA was often the work of unskilled amateurs
Federal funding for the arts took off during the Great Depression with the creation of the Federal Art Project, a branch of the Works Progress Administration (WPA) The Federal Art Project was modeled on some of the earlier municipal attempts but avoided their problems
by emphasizing the production of works of high technical competence, utilizing defined hiring guidelines, and encouraging creativity and experimentation The Federal Art Project paid a security wage, an amount that was calculated to fall between the prevailing wage and the relief grants of the region involved and was graduated according to skill level The WPA spent $35 million on the Federal Art Project and supported the production of approximately 1,500 murals, 18,800 sculptures, and 108,000 paintings as well as other works of art The onset
ofWORLD WAR IIeffectively ended the WPA
Lucile Lloyd puts the
finishing touches on
a new mural in the
California State
Building in Los
Angeles in December
1936 The work was
completed under the
auspices of the Federal
Art Project.
BETTMANN/CORBIS.
376 ART LAW
Trang 10In theCOLD WARera following World War II,
the federal government funded cultural
exchanges to promote diplomatic ends The
major cultural institutions were located primarily
in large cities, such as New York, Los Angeles,
Chicago, and Boston In 1965 only five state arts
agencies existed The quality of performances
and exhibitions was inconsistent, and support for
the best art depended on the discretion and
charity of a few patrons As a result,
opportu-nities for artists were limited, and rural audiences
had few chances to see the best productions or
visit outstanding exhibitions
In the mid-1990s, federal financial support
for the arts and humanities was provided
through several distinct agencies: the National
Commission of Fine Arts, the National
Endow-ment for the Arts (NEA), and the National
Endowment for the Humanities (NEH) The
Commission of Fine Arts, established in 1910,
advises the president, Congress, and
govern-ment departgovern-ment heads on matters of
architec-ture, sculparchitec-ture, painting, and other fine arts
The commission’s primary function is to
preserve and enhance the appearance of the
nation’s capital, Washington, D.C (40 U.S.C.A
§ 104[1986])
The National Foundation for the Arts and
Humanities Act of 1965 (20 U.S.C.A §§ 951–
968 [West Supp 1990]) established the NEA
and the NEH The NEA provides grants to, or
contracts with, groups and individuals of
exceptional talent, and state or regional
organi-zations engaged in or concerned with the arts
NEA programs encourage individual and
insti-tutional development of the arts, preservation of
the American artistic heritage, wider availability
of the arts, leadership in the arts, and the
stimulation of nonfederal sources of support for
the nation’s artistic activities The goal of the
NEA is not to provide employment, as the WPA
did, but rather to make the arts more widely
available to U.S citizens, to preserve the
nation’s rich cultural heritage, and to encourage
the creative development of the nation’s finest
artistic talent By 2003 the NEA had made more
than 120,000 grants for theater, dance,
sym-phonic music, painting, and poetry
As a major financier of the arts, the NEA has
been a significant influence on much of the
publicly exhibited art in the United States For
many years it led a quiet administrative
existence, and although it was a force in the
artistic community, the general public knew little about it In late 1989, however, the organization became the center of controversy when some members of Congress questioned whether some works of art and performances funded by the NEA wereOBSCENE The NEA had provided funding for exhibits featuring the works of artists including Robert Mapplethorpe and Andres Serrano Mapplethorpe’s exhibit included sexually explicit photographs of men, and Serrano’s exhibit included a jar of urine into which a photograph of a crucifix had been placed The uproar from the public, and from members of Congress, was so strong that in
1990 Congress enacted a law that required the NEA to take into consideration “general standards of decency and respect for the diverse beliefs and values of the American public.” This became known as the decency test
Over the next several years other controver-sial grants were awarded and challenged, culmi-nating in a case that went to the U.S Supreme Court The case, National Endowment for the Arts v Finley 524 U.S 569, 118 S Ct 2168, 141 L.Ed 2d 500 (1998), was brought by four artists including Karen Finley Finley became infamous for a performance art piece in which she would remove her clothing and smear chocolate on her body The work, she explained, symbolized the way women were exploited in society Finley and her fellow plaintiffs argued that the 1990 statute was unconstitutional and that the decency test was a violation of the rights of free speech and due process
A district court agreed and the U.S Court of Appeals upheld the district court’s decision in
1996 100 F 3d 671 (9th Cir.) In 1998 the Supreme Court ruled 8 to 1 that the law was constitutional, and that it violated no rights
Grant-seekers, the court noted, were required to submit their proposals to a panel representing diverse points of view; as such, the risk that an arbitrary ruling of indecency would be reached was minimal In his dissent, however, Justice
DAVID H.SOUTERwarned that the law could force artists to censor their own work to ensure that it would not offend anyone in a position to approve a grant
The NEH funds activities are designed to improve the quality of education and teaching
in the humanities, strengthen the scholarly foundation for humanities study and research, and advance understanding of the humanities
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