Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P27 pot

2d 1 2005, the Court ruled that juveniles who are under the age of 18 when they commit capital crimes may not be sentenced to death.. Capital Punishment for DWI-Related Offenses Many obs

no clear consensus against executing mentally retarded defendants who had been convicted of murder

However, just 13 years later the Court found that “standards of decency” had evolved

to a point at which mentally retarded defen-dants could no longer be made subject to capital punishment without violating the cruel and unusual punishment clause of the Eighth Amendment (ATKINS V VIRGINIA, 536 U.S 304,

122 S Ct 2242, 153 L Ed 2d 335[U.S 2002])

The Court emphasized the fact that since Penry

18 states had passed legislation excluding the mentally retarded from the class of defendants who are eligible for capital punishment Apply-ing the same type of analysis in Stanford v

Kentucky, 492 U.S 361, 109 S Ct 2969, 106 L

Ed 2d 306 (1989), the Court found that there was no national consensus prohibiting the EXECUTION of juvenile offenders over age 15

However, in Roper v Simmons, 543 U.S 551,

125 S Ct 1183, 161 L Ed 2d 1 (2005), the Court ruled that juveniles who are under the age

of 18 when they commit capital crimes may not

be sentenced to death

The Court likewise found sufficient proof of consensus against making rape defendants as a class that was eligible for capital punishment, stressing that only one jurisdiction in the country at the time of its decision allowed capital punishment for the rape of an adult

woman (Coker v Georgia, 433 U.S 584, 97 S

Ct 2861, 53 L Ed 2d 982[2002])

Death by electrocution has been challenged several times as being inconsistent with

“evolving standards of decency” In a series

of Florida cases, the U.S Supreme Court denied CERTIORARI in appeals where the PETI-TIONERoffered proof that during the execution the electric chair was engulfed by flames and that smoke had emanated from the inmate’s head But the Florida Supreme Court ruled that death by electrocution does not violate the Eighth Amendment’s prohibition of cruel and unusual, citing evidence that execution by electrocution renders an inmate instan-taneously unconscious, thereby making it impossible to feel pain when the electrical current is properly maintained (Provenzano v Moore, 744 So 2d 413 (Fla 1999); cert denied,

528 U.S 1182, 120 S Ct 1222, 145 L Ed 2d

1122[2000])

Capital Punishment for DWI-Related Offenses

Many observers expected the “evolving stan-dards of decency” test to be invoked by a North CarolinaDEFENDANTwhen prosecutors sought to impose the death penalty for crimes he committed during a 1996 drunk-driving inci-dent that left two college stuinci-dents dead Thomas Richard Jones was charged and convicted on one count of driving while impaired, one count

ofASSAULTwith a deadly weapon, three counts of assault with a deadly weapon inflicting serious injury, and two counts of first-degree murder under the FELONY-MURDER RULE During the penalty phase, the jury rejected the prosecu-tion’s arguments for capital punishment, in-stead sentencing Jones to life in prison When Jones appealed his CONVICTION, the North Carolina Supreme Court did not review his sentence under an Eighth Amendment analysis Rather, the state’s high court ruled that any sentence that Jones might have received for first-degree murder would not have been justified, because a first-degree murder charge can only be supported by proof that the defendant possessed a “specific intent” to commit the crime At a minimum, the court said, proof of SPECIFIC INTENT requires evidence that the defendant had “an actual intent to undertake the conduct resulting in death; thus, even if the killing itself was not intended, the actual intent to torture, poison, starve, or

SOURCE: U.S Department of Justice, Bureau of Justice Statistics, Capital

Punishment, 2007

PRISONERS EXECUTED UNDER CIVIL AUTHORITY IN THE UNITED STATES, 1977 TO 2007

Total prisoners executed: 1,099 Executions by method: 1,099

Other races 14 Hispanic

81

Lethal gas 11

Hanging 3 Firing squad 2

Black

373

White 631

Electrocution 154

Lethal injection 929 Capital Punishment

ILLUSTRATION BY GGS

CREATIVE RESOURCES.

REPRODUCED BY

PERMISSION OF GALE,

A PART OF CENGAGE

LEARNING.

imprison the victim must be present … for the

killing to qualify as first-degree murder.” The

North Carolina Supreme Court rejected the

state’s argument that specific intent could be

“implied” from the defendant’s reckless conduct

(State v Jones, 538 S.E 2d 917 [N.C 2000]) No

state court since State v Jones has successfully

prosecuted a defendant for first-degree murder

arising out of a drunk-driving-related offense

Racial Bias

In 1983 Professor David C Baldus, of the

University of Iowa College of Law, published

a study on the capital punishment system in

the state of Georgia The figures he assembled

showed that between 1973 and 1979, killers

whose victims were white were 11 times more

likely to be sentenced to death than were killers

whose victims were black

Baldus’s study was used by death row inmate

Warren McClesky in an appeal that came before

the U.S Supreme Court (McClesky v Kemp, 481

U.S 279, 107 S Ct 1756, 95 L Ed 2d 262)

Although the Court accepted the validity of the

study, it found the statistics “insufficient to

demonstrate unconstitutional discrimination”

or “to show irrationality, arbitrariness, and

capriciousness.”

Other studies have yielded equally

disturb-ing numbers regarddisturb-ing the statistical differences

between the system’s treatment of blacks and

whites For example, between 1976 and 1995,

a total of 245 convicts were executed; 84 percent

of their victims were white, although fewer than

50 percent of all murder victims are white

Many critics argue that statistics demonstrating

racial bias in the administration of capital

punishment prove that the death penalty, even

if constitutional in concept, is unconstitutional

as applied in the United States—violating at

least the EQUAL PROTECTION clause of the

FOURTEENTH AMENDMENT

Justice Lewis F Powell Jr., who voted with

the majority in McClesky to deny a racial-bias

challenge to the capital punishment system,

later informed a biographer that he since had

come to regret his vote

Consideration of Mitigating Factors

In general, the jury may not be precluded from

considering, and may not refuse to consider,

any relevant mitigating evidence in

determin-ing whether capital punishment is the

appropriate sentence for a particular defen-dant However, the Eighth Amendment does not require courts to instruct a jury during the penalty phase that it has both an obligation and the authority to consider the mitigating factors deemed relevant by state law (Buchanan v

Angelone, 522 U.S 269, 118 S Ct 757, 139 L

Ed 2d 702[1998]) Instead, it is sufficient for a court to instruct the jury that it must impose a life sentence if, after considering “all the evidence,” the jury does not believe that capital punishment is justified

Once convicted and sentenced to death, death row inmates may again cite mitigating factors in making an appeal for leniency orCLEMENCYfrom the state’s PAROLE board or another EXECUTIVE BRANCH department Such appeals often cite mitigating factors that existed either before, after,

or at the time the crime was committed However, parole boards and related executive branch departments are under no obligation to give mitigating evidence any weight and may typically reject a death row inmate’s request for clemency without providing any reason for doing so

For example, the Texas Parole Board was flooded with requests to grant clemency to Karla Faye Tucker, a death row inmate who had been convicted of brutally killing two people with a pickax during a 1983 robbery Despite evidence that Tucker was 23 years old and high

on drugs at the time of the crime, that she had been addicted to drugs since she was eight years old, and that she had been a prostitute since age

14, the sentencing jury found more compelling other evidence showing that Tucker had a history of violent behavior, that she had received sexual gratification every time she struck one of the victims with the pickax, that she had talked of killing two others to prevent them from telling police about the murders, and that she had planned future crime sprees to raid drug labs, kill the people who worked there, and steal their property

During her 14 years on death row, how-ever, Faye underwent a religious conversion to Christianity that many people believed was sincere In fact, religious leaders from around the world, including Pope John Paul II, made personal appeals to have Tucker’s sentence commuted to life in prison The European Parliament and theUNITED NATIONSalso publicly sought clemency for Tucker The Karla Faye Tucker who was on death row, they all said, was not the same person who had committed

CAPITAL PUNISHMENT 249

the gruesome murders more than a decade earlier

The Texas BOARD OF PARDONS and Paroles refused to stay the execution, finding that neither Tucker’s gender nor her religious conversion were sufficient grounds to com-mute her sentence.“Mercy was already consid-ered by the jurors when they sentenced her to die,” the chairman of the pardons and parole board said Then-Texas governor GEORGE W BUSH also rejected Tucker’s requests for clem-ency Tucker challenged the adequacy of the Texas executive-clemency procedures, but the Texas Court ofCRIMINALAppeals concluded that

“[a]n inmate has no constitutional or inherent right toCOMMUTATIONof her sentence” (Ex parte Tucker, 973 S.W 2d 950 [Tex Crim App

1998]) Clemency, the court wrote, is a matter

that rests solely within the“unfettered discre-tion” of the executive branch of the state government On February 3, 1998, Tucker became the first woman to be executed in Texas since theCIVIL WAR

Deterrent Effect

Since the beginning of the twentieth century, many studies have been conducted on the deterrent effect of capital punishment More often than not, the results have proven inconclusive; no hard evidence exists to verify the theory that the threat of such a harsh punishment will sway criminals from their actions In fact, some statistics indicate that the opposite is true; in some instances, states that employ capital punishment have a higher incidence of HOMICIDE than neighboring states that do not employ the death penalty

The Costs of Capital Punishment

In 1989 the state of Florida executed

42-year-old Ted Bundy Bundy

con-fessed to 28 murders in four states

During his nine years on death row, he

received three stays ofEXECUTION Before

he was put to death in the electric

chair, Bundy cost taxpayers more than

$5 million

In a country where some 65 percent of

the population favors the death penalty,

many people may feel that Bundy got what

he deserved A further question, however,

is whether U.S taxpayers got their

money’s worth When a single sentence

of death can cost millions of dollars to

carry out, does it make economic sense to

retain the death penalty?

The actual execution of an inmate is

typically quick, simple, and inexpensive;

the capital punishment system is far

more complex and costly To resolve

issues of unconstitutionality that the

Supreme Court found in Furman v

Georgia (408 U.S 238, 92 S Ct 2726,

33 L Ed 2d 346[1972]), states found it

necessary to introduce a complex appeals

process that would guarantee the rights

of death row inmates Capital trials are much more expensive to carry out than are their noncapital counterparts because

of the price at stake, the life of the accused Evidence gathering is also more expensive: Evidence must be collected not only to determine the guilt or innocence of the accused but also to support or contradict a sentence of death All sentences of death face a mandatory review by the state supreme court, which increases legal fees More-over, in Florida, the state supreme court spends half of its time reviewing death penalty cases If a case advances farther in the state or federal appeals process, the costs continue to rise

Appeals of a death sentence guaran-tee great expense to the taxpayer, as the state pays both to defend and to PROSE-CUTEdeath row inmates Public defenders

in such appeals openly admit that their goal is delay, and prosecutors and state attorneys slow the process by fighting access to public records and allowing

death row defendants to sweat out their cases until the last minute

Abolitionists believe that the existing system cannot be repaired and must be abandoned The alternative sentence, life

IMPRISONMENT without PAROLE, achieves the same result as capital punishment, they argue Like the death penalty, a life sentence permanently removes the con-vict from the community against which

he or she committedCRIMES, and it is far less expensive A 2008 report by the California Commission on the Fair Administration of Justice estimated that the annual cost of the state death penalty system was $137 million dollars Half of that amount goes to housing 670 inmates

on death row; it costs $90,000 per year more to keep an inmate on death row compared to incarcerating an inmate in a maximum security system who has been sentenced to life imprisonment without the possibility of parole

According to a study by the Indiana

CRIMINAL LAWStudy Commission released

in 2002, executions cost the state

The U.S Supreme Court justices in the

Furman case, both concurring and dissenting,

often referred to studies that showed no conclusive

correspondence between capital punishment and

the frequency with which capital crimes were

committed A later accounting revealed that

during the moratorium on capital punishment,

from 1967 to 1976, the national homicide rate

nearly doubled Since then, depending on the

study conducted, evidence has been presented to

show that capital punishment has no deterrent

effect; that the implementation of the death penalty

is directly related to a decrease in capital crime; and

that the implementation of the death penalty is

directly related to an increase in capital crime

Although some opponents of the death

penalty are quick to argue that capital

punish-ment has no deterrent effect, many supporters

feel that the purpose of capital punishment is retribution, not deterrence Many individuals, especially those with close ties to the victims, are more often concerned that the particular convicted criminal pay for the crime than that other persons be deterred through punishment

of thePERPETRATOR

Morality and Emotion

Emotions might have played a part in the Furman decision Burger, in his dissent, warned that the Court’s “constitutional inquiry … must

be divorced from personal feelings as to the morality and efficacy of the death penalty.”

JusticeHARRY A.BLACKMUN, who joined Burger in his dissent, later renounced his belief in the death penalty for reasons that another justice saw as partly personal

38 percent more than the costs of

keeping an inmate incarcerated for life

Similarly, a 1993 study at Duke

Univer-sity showed that between 1976 and 1992,

the state of North Carolina spent in

excess of $1 billion on executions

or $2.16 million per execution A 2008

report by the Kansas Department of

Corrections found that capital cases are

70 percent more expensive than

compa-rable non-capital cases The median

death penalty cost $1.26 million

Not only are the costs of execution

excessive but so too are the time delays It

is not unusual for an individual to wait on

death row for more than ten years In the

1995 case Lackey v Texas (514 U.S 1045,

115 S Ct 1421, 131 L Ed 2d 304),

Clarence Allen Lackey, who had been on

death row for 17 years, claimed that such

a duration constitutedCRUEL AND UNUSUAL

PUNISHMENT Although his MOTION was

denied, Justices JOHN PAUL STEVENS and

STEPHEN BREYERadmitted that the concern

was not without warrant

Opponents of capital punishment

point out that abandoning the death

penalty would make available many

millions of dollars as well as thousands

of hours that the courts could allocate to

other aspects of the criminal justice

system The amount of money necessary

to execute a single inmate might be used

to put several criminals behind bars for the remainder of their lives

Supporters of capital punishment agree with detractors on one issue:

The death row appeals process is far too complex and expensive However, whereas opponents of the death penalty use this as a reason to reformSENTENCING, supporters use it as a reason to reform the system of appeals Supporters argue that thorough reform of the appeals process would free up as much money as abolish-ing the death penalty; expenses could be cut while capital punishment is retained

Immediately following the execution

of Bundy, Chief Justice WILLIAM H

REHNQUIST called for changes in the procedure for appealing death sentences

Noting that the Supreme Court had turned down three emergency appeals

by Bundy in the hours just prior to his execution, the chief justice said,“Surely it would be a bold person to say that this system could not be improved.”

In a 1995 interview, President BILL CLINTON, a staunch supporter of capital punishment, called the appeals process ridiculous and in need of reform

Clinton, like other supporters of the death penalty, saw appeals reform as paramount if capital punishment is to be efficiently and effectively carried out

Congress responded by enacting the

Antiterrorism and Effective Death Penalty Act of 1996 (Pub L 104-132) The act sought to limit the number of post-conviction petitions for HABEAS CORPUS

filed by death row inmates Since its enactment the Supreme Court has issued numerous rulings on the act’s provisions; most of its rulings have sustained strict time limits and procedural rules that limit appeals, but the number of execu-tions per year remains low As of 2008, over 3,200 inmates were on death row, yet the annual rate of executions fluc-tuates between 40 and 70 It is likely that

a number of death row inmates will die from natural causes

Supporters also argue that too many rights are provided to death row inmates The appeals process is too kind to convicts, they argue, and ignores the pain that persists in the aftermath of the criminals’ actions Family members of victims of capital crimes are expected to wait years, while perpetrators abuse the system to forestall execution of the sentence imposed

FURTHER READING Streib, Victor L 2003 Death Penalty in a Nutshell St Paul, Minn.: Thomson/West CROSS REFERENCES

Cruel and Unusual Punishment; Due Process

CAPITAL PUNISHMENT 251

In 1994, in Callins v Collins, 510 U.S 1141,

114 S Ct 1127, 127 L Ed 2d 435, Blackmun wrote a dissenting opinion in which he con-demned the practice of capital punishment

in the United States He argued that “no combination of procedural rules or substantive regulations ever [could] save the death penalty from its inherent constitutional deficiencies”—

“arbitrariness, discrimination, caprice, and mis-take.” Justice ANTONIN SCALIA criticized Black-mun’s position, writing that Blackmun had based his dissent on intellectual, moral, and personal reasons, rather than on the authority of the Constitution

Adequacy of Resources for Capital Defenses

In 2007 the AMERICAN BAR ASSOCIATIONissued a report indicating that most states operate with capital defense systems that are underfunded and staffed with unqualified lawyers who lack resources to provide adequate defenses for death row inmates Based on this report, the ABA requested a national moratorium on the death penalty

Death Penalty Statistics and Trends

Despite the controversy, the constitutionality of capital punishment has been upheld and continues to be an acceptable practice in 36 states As of January 1, 2009, a total of 3,297 inmates were on death row throughout the United States In 2008 a total of 37 persons in nine states were executed, including 18 inmates

in Texas Between 1977 and 2007, the highest number of inmates executed in one year was 98

in 1999

FURTHER READINGS Banner, Stuart 2002 The Death Penalty: An American History Cambridge, MA: Harvard Univ Press.

Bedau, Hugo Adam, and Paul G Cassell, eds 2004 Debating the Death Penalty: Should America Have Capital Punishment? New York: Oxford Univ Press.

Bigel, Alan I 1994 “Symposium on Capital Punishment—

Justices William J Brennan, Jr., and Thurgood Marshall

on Capital Punishment: Its Constitutionality, Morality, Deterrent Effect, and Interpretation by the Court ” Notre Dame Journal of Law, Ethics, and Public Policy (Thomas J White Center on Law and Government).

Foley, Michael A 2003 Arbitrary and Capricious: The Supreme Court, the Constitution, and the Death Penalty.

Westport, CT: Praeger.

Rodriguez, Roxanne 2001 The Modern Death Penalty:

A Legal Research Guide Buffalo, NY: W.S Hein.

Von Drehle, David 1995 Among the Lowest of the Dead: The Culture of Death Row New York: Times Books.

CROSS REFERENCES Criminal Law; Criminal Procedure; Criminology; Witherspoon v Illinois.

CAPITAL STOCK All shares constituting ownership of a business, including common stock and preferred stock The amount of shares that a corporate charter requires

to be subscribed and paid, or secured to be paid,

by shareholders The amount of stock that a corporation may issue; the amount actually contributed, subscribed, or secured to be paid on The liability of the corporation to its shareholders after creditors’ claims have been settled The valuation of the corporation as a business enterprise

Capital stock is distinguishable from the property and assets of the corporation The property of a corporation fluctuates and may be greater or less than the original capital invested, but the capital stock remains intact and unaffected by the vicissitudes of business Undivided profits, or surplus, are not part of the capital stock, although they are included in the general capital or assets of the corporation The capital stock of a corporation serves only corporate purposes It functions as security for the creditors of the corporation who have relied on its existence, because it cannot be diverted or withdrawn to the detriment of corporate creditors Capital stock is sometimes regarded as a trust fund

CAPITALIZE

To regard the cost of an improvement or other purchase as a capital asset for purposes of determining income tax liability To calculate the net worth upon which an investment is based

To issue company stocks or bonds to finance an investment

The owner of a business may capitalize the expense of renovating a factory to maximize his

or her after-tax profits, since such expenses may

be used to decrease the pretax profits, thereby reducing the amount of profits subject to TAXATION

An individual may compute the net worth

of shares of stock, in order to treat them as capital assets for INCOME TAX purposes Such treatment often results in more favorable rates

of taxation on the profits made when assets are sold because they are considered capital gains

CAPITATION TAX

An assessment levied by the government upon a

person at a fixed rate regardless of income or

worth

Since it is a tax upon the individual, and not

upon merchandise, a capitation tax is frequently

labeled a head tax APOLL TAXis a capitation tax

CAPTION

The standardized heading of a legal instrument,

such as a motion or a complaint, which sets forth

the names of the parties in controversy, the name

of the court, the docket number, and the name of

the action

vCARDOZO, BENJAMIN NATHAN

Benjamin Nathan Cardozo was a New York

state court judge, an ASSOCIATE JUSTICE on the

U.S Supreme Court, and an influential legal

scholar

Cardozo was born May 24, 1870, in New

York City, the youngest son in a family of six

children His parents were descendants of

Portuguese and Spanish Jews who had settled

in New York before the Revolutionary War His

father, Albert Cardozo, was a trial court judge

who was forced to resign his seat because of

allegations, which were never proved, of

improper conduct involving the then corrupt

New York City government Cardozo was

tutored during his early life by well known

clergyman and teacher Horatio Alger and

entered Columbia College at the age of fifteen

He earned a bachelor’s degree in 1889 and a

master’s degree in 1890, then enrolled at

Columbia Law School He was granted

admis-sion to the New York state bar in 1891 without

having received his law degree

After completing his legal training and

passing the BAR EXAMINATION, Cardozo began

practicing appellate law with his brother He

soon became a prominent practitioner in his

own right in the fields of corporate and

COMMERCIAL LAW He often acted as consultant

to other law firms, writing appeal briefs for

other lawyers and appearing frequently before

the New York Court of Appeals, the state’s

highest court His extensive appellate experience

led him to write his first book, Jurisdiction of the

Court of Appeals of the State of New York,

published in 1903 In addition, judges often

appointed him to act as referee in complicated

matters of commercial law, one of his areas of specialty

In 1913, after 23 years in private practice, Cardozo was nominated and elected as a judge

on the New York Supreme Court, the state’s trial-level bench Only six weeks later, he was designated to serve temporarily as an associate judge on the Court of Appeals He remained a temporary judge of the Court of Appeals until

1917, when he was appointed to fill a vacant and permanent seat, and in 1926 he was elected chief judge

During his tenure on the Court of Appeals, Cardozo made his mark as an influential and celebrated jurist and moved the New York court

to the forefront of the nation’s state courts

With respect to TORT LAW, the court under Cardozo greatly expanded the protection of-fered to individuals injured by theNEGLIGENCEof others In MACPHERSON V BUICK MOTOR CO., 217 N.Y 382, 111 N.E 1050 (1916), perhaps Cardozo’s most influential tort opinion, the court held Buick liable for the negligent construction of a defective wheel that injured

a purchaser who had bought the car not from Buick but from an automobile dealer Cardozo’s decision to look beyond the contractual rela-tionship between the buyer and seller to the manufacturer for redress helped lay the ground-work for the development ofPRODUCT LIABILITY, now a common feature of the law, which allows for recovery for injuries even if the consumer had no contractual relationship with the manufacturer But Cardozo was also willing to impose some commonsense limits on tort liability In the classic decision Palsgraf v Long Island Railroad, 248 N.Y 339, 162 N.E 99 (1928), he authored the majority opinion establishing that a person can be held negligent only for a harm or injury that is foreseeable and not for every injury that follows from the negligence As Cardozo put it, “[T]he orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of duty.”

Cardozo’s influence was also strongly felt in the law of contracts He wrote the majority opinion in Wood v Duff-Gordon, 222 N.Y 88,

118 N.E 214 (1917), perhaps his best known and most widely quoted decision concerning the implied elements of a contract In Wood and his other contract law decisions, Cardozo made clear his views that, whenever possible, courts should attempt to instill fairness in an ambigu-ous contract by analyzing and interpreting its

THE GREAT TIDES AND CURRENTS WHICH ENGULF THE REST OF MEN DO NOT TURN ASIDE IN THEIR COURSE AND PASS THE JUDGES BY

—B ENJAMIN C ARDOZO

implicit terms to cover situations that the parties may not have provided for explicitly

In 1932, when ninety-year-old Oliver Wen-dell Holmes Jr., announced his retirement from the U.S Supreme Court, politicians, lawyers, and legal scholars publicly campaigned for Cardozo to succeed him President HERBERT HOOVER, though impressed with Cardozo’s credentials and intellect, was initially lukewarm about nominating him to the Court Two other

New Yorkers, Chief Justice Charles E Hughes and JusticeHARLAN F.STONE, were already on the Court and others in Hoover’s administration were concerned about appointing a second Jewish justice to serve in addition to Justice LOUIS D BRANDEIS After Stone offered his resignation (which was not accepted) to make room for Cardozo, Hoover was eventually persuaded to ignore the politics of geography and anti-Semitism and named Cardozo to the Court On February 24, 1932, Cardozo was confirmed unanimously by a voice vote of the Senate, though he was said to be reluctant to leave his family and friends in New York and move to Washington, D.C., to accept the seat Though he served on the Court for only six years, Cardozo authored a number of significant decisions He authored the majority opinion in theCIVIL RIGHTScase Nixon v Condon, 286 U.S

73, 52 S Ct 484, 76 L Ed 984 (1932) Condon held that a resolution by a state party executive committee, under purported authority of a Texas statute (Vernon’s Ann Civ St Tex art 3107), which excluded blacks from primary elections, violated theEQUAL PROTECTION Clause

of theFOURTEENTH AMENDMENT Cardozo, for the most part, supported President Franklin D Roosevelt’s NEW DEAL legislation, writing the majority opinions in Helvering v Davis, 301 U.S

619, 57 S Ct 904, 81 L Ed 307 (1937), and Steward Machine Co v Davis, 301 U.S 548, 57

S Ct 883, 81 L Ed 1279 (1937), which upheld the constitutionality of the UNEMPLOYMENT COM-PENSATION (SOCIAL SECURITY Act § 901–910, 42 U.S.C.A § 1101–1110) and old-age benefits programs (Social Security Act § 201 et seq., 42 U.S.C.A § 401 et seq.) of theSOCIAL SECURITY ACT

Benjamin N.

Cardozo.

PHOTOGRAPH BY

HARRIS & EWING.

COLLECTION OF THE

SUPREME COURT OF THE

UNITED STATES.

Benjamin Nathan Cardozo 1870–1938

1870 Born, New York, N.Y.

◆

1890 Earned master's degree from Columbia

1903 Jurisdiction of the Court of Appeals

of the State of New York published

1924 The Growth of the Law published

1926 Elected chief judge of Court of Appeals

1914–18 World War I

1938 Died, Port Chester, N.Y.

1861–65 U.S Civil War

1937 Wrote majority opinion

in Palko v Connecticut

1939–45 World War II

1913 Elected to New York Supreme Court

1917 Appointed to permanent seat on Court of Appeals;

wrote majority opinion in Wood v Duff-Gordon

1921 The Nature of the Judicial Process published

◆ ◆ ◆

1928 Wrote majority opinion in Palsgraf v.

Long Island Railroad

1932 Nominated to U.S Supreme Court by President Hoover

OF 1935 Cardozo also authored a number of

significant CRIMINAL LAW decisions while on the

Court, including Palko v Connecticut, 302 U.S

319, 58 S Ct 149, 82 L Ed 288 (1937) In

Palko, the Court held that the Due Process

Clause of the Fourteenth Amendment of the

Constitution did not require that the DOUBLE

JEOPARDY Clause contained in the FIFTH

AMEND-MENT be applied to the states Cardozo favored

a “selective incorporation” approach to the

Fourteenth Amendment, writing that only select

protections of the first eight amendments that

“represented the very essence of a scheme of

ordered liberty, … principles of justice so

rooted in the traditions and conscience of our

people as to be ranked fundamental,” should be

imposed upon the states Palko represented the

beginning of the Supreme Court’s long struggle

to formulate a test for applying the Due Process

Clause of the Fourteenth Amendment as a limit

on states’ powers

Cardozo, though remembered for his

ma-jority opinions, was not afraid to disagree with

the majority and wrote some equally significant

and stirring dissents while on the Court In

Carter v Carter Coal Co., 298 U.S 238, 56 S Ct

855, 80 L Ed 1160 (1936), one of many cases

arising out of constitutional challenges to

Roosevelt’s New Deal legislation, the Court in

a 6–3 vote struck down the 1935 Bituminous

Coal Conservation Act (15 U.S.C.A §§ 801–

827), which authorized fixed prices to help

stabilize the coal industry Cardozo maintained

that the law was constitutional and necessary to

combat the economic problems created by the

Great Depression He wrote that“[a]fter making

every allowance for differen[ces] of opinion as to

the most efficient CURE, the student of the

subject is confronted with the indisputable truth

that there are ills to be corrected, and ills that

had a direct relation to the maintenance of

commerce among the states… An evil existing,

and also the power to correct it, the lawmakers

were at liberty to use their own discretion in the

selection of the means.”

Cardozo’s body of legal scholarship is not

limited to the many important judicial opinions

he authored as a state court judge and U.S

Supreme Court justice He also wrote a number

of books which have become classics of legal

thought and judicial philosophy His lectures on

the decision-making process that he delivered at

Yale Law School and Columbia University early

in his career were published in 1921 as a group

of essays in The Nature of the Judicial Process, which is still widely used as a textbook for first-year law students He also wrote The Growth of the Law (1924), The Paradox of Legal Science (1928), and Law and Literature (1931) In all his books, Cardozo sought to define the difficult issues faced by a judge in deciding cases, as well

as his beliefs about how the entire legal system could function most effectively

Cardozo, who never married and remained close to his family throughout his life, was a shy and reclusive man described in one book about the history of the Court as “the hermit philosopher.” He remained on the Supreme Court until 1938 when he died of heart trouble

at the age of 68 He is buried in the Cardozo family plot in the cemetery of Shearith Israel congregation at Cypress Hills, Long Island

FURTHER READINGS Congressional Quarterly 2004 Guide to the U.S Supreme Court 4th ed Washington, D.C.: Congressional Quarterly.

Elliott, Stephen P., ed 1986 A Reference Guide to the United States Supreme Court New York: Facts on File.

Kaye, Judith S 1999 “Poetic Justice: He Was a Great Common Law Judge, Responsive to His Times; As Business Relationships Became More Complex and Attenuated, Benjamin Nathan Cardozo Created New —and Lasting—Standards.” American Lawyer 21 (December).

Levy, Beryl H 2007 Cardozo and Frontiers of Legal Thinking.

Whitefish, MT: Kessinger.

Pollard, Joseph P 1995 Mr Justice Cardozo: A Liberal Mind

in Action Buffalo, NY: Hein.

CARE Watchful attention; custody; diligence; concern;

caution; as opposed to negligence or carelessness

In the law of NEGLIGENCE, the standard of reasonable conduct determines the amount of care to be exercised in a situation The care taken must be proportional to the apparent risk

As danger increases, commensurate caution must be observed

Slight care is the care persons of ordinary prudence generally exercise in regard to their personal affairs of minimal importance

Reasonable care, also known as ordinary care,

is the degree of care, diligence, or precaution that may fairly, ordinarily, and properly be expected or required in consideration of the nature of the action, the subject matter, and the surrounding circumstances

CARE 255

Great care is the degree of care that persons of ordinary prudence usually exercise with respect

to their personal affairs of great importance

Another type of care is that which a fiduciary—a person having a duty, created by his or her undertaking, to act primarily for another’s benefit—exercises in regard to valuable possessions entrusted to him or her by another

CARJACKING The criminal taking of a motor vehicle from its driver by force, violence, or intimidation

The U.S JUSTICE DEPARTMENT categorizes the crime of carjacking as a “completed or attempted ROBBERY of a motor vehicle by a stranger to a victim.” Carjacking incidents emerged in increasing numbers in the 1980s and 1990s, after their initial appearances in Detroit According to a report filed with the Bureau of Justice Statistics in 1999, an average of 49,000 carjackings occurred in the United States each year between 1992 and 1996 During this time, about half of all attempted carjackings were successful, though the most carjackings (84 percent) did not result in injuries to the victims

Carjackers are often thought by the public

to target older persons, women, and tourists—

groups of conspicuous vulnerability However, statistics from 1992 to 1996 show that indivi-duals between the ages of 25 and 49 were more likely to be the victims of such a crime (3.6 out

of every 10,000 persons) than individuals ages

50 or older (0.9 out of every 10,000 persons)

Moreover, males during this time span were more likely to be victims (3.1 out of every 10,000 persons) than females (1.9 out of every 10,000 persons)

The makes and models of the cars targeted for carjacking vary from city to city, and it is not only the expensive, top-of-the-line cars that are taken but also older and less priceyAUTOMOBILES This may be because carjackings are moreCRIMES

of opportunity than of premeditation Carjackers simply wait for an unaware driver, an open window, or an unlocked door According to the Bureau of Justice Statistics report in 1999, persons with an average annual income of between $35,000 and $49,999 were more likely

to be victims (3.2 out of every 10,000) than those who made $50,000 or more per year (2.4 out of every 10,000)

Carjacking was formally introduced to Congress during its spring 1992 session by Representative Charles E Schumer (D-NY) Over the next several months, a new law involving the crime was discussed and devel-oped into the Anti-Car THEFTAct of 1992 (18 U.S.C.A § 2119) The focus was not entirely on carjacking, but rather on car theft, which had become the number one property crime in the United States, with automobiles constituting more than 50 percent of the property U.S citizens lost to theft

In the fall of 1992, Pamela Basu and her 22-month-old daughter were carjacked in Maryland Basu was forced from her car by two men and, in a struggle to keep her daughter from being hurt, became caught in the seat belt outside the car She was dragged almost two miles before she was freed from the seat belt; her daughter, still in her car seat, was thrown from the vehicle a short time later Basu died

of massive internal injuries; her daughter was physically unharmed The publicity sur-rounding this crime helped fuel the movement that led to the passage of a provision in the Anti-Car Theft Act of 1992 that made carjack-ing a federal offense

PresidentGEORGE HERBERT WALKER BUSHsigned the act into law on October 25, 1992 The statute’s provision regarding carjacking was as follows:

Whoever, possessing a firearm, as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped or received

in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do

so, shall—1) be fined under this title or imprisoned not more than 15 years, or both 2) If serious bodily injury… results, be fined under this title or be imprisoned not more than 25 years, or both, and 3) if death results,

be fined under this title or imprisoned for any number of years up to life, or both

Within a few months of its passage, the federal carjacking statute was challenged under the DOUBLE JEOPARDYClause of the U.S Constitution According to the FIFTH AMENDMENT, no person shall“be subject for the same offence to be twice put inJEOPARDYof life or limb,” meaning that no one can be tried twice for the same crime After the carjacking statute was passed, people who used a firearm during the commission of a carjacking were not only subject to punishment

under that statute but also faced mandatory

punishment under 18 U.S.C.A § 924(c), which

outlaws the use or carrying of a firearm in

relation to a violent crime The issue came to a

head in United States v Singleton, 16 F.3d 1419

(5th Cir 1994), when the presiding judge ruled

that both the firearm portion of the carjacking

statute and the gun statute proscribed the same

conduct, and Congress had not shown that it

would impose cumulative punishment under

these two statutes Therefore, the gun count in

the carjacking statute violated the Double

Jeopardy Clause

Within several months of Singleton,

amend-ments to the carjacking portion of the Anti-Car

Theft Statute were debated in the House of

Representatives and Senate The result was a

provision in theVIOLENT CRIME CONTROL AND LAW

ENFORCEMENT ACT OF 1994, Pub L No 103-322,

108 Stat 2119, which was signed by President

BILL CLINTON The provision made two significant

amendments to 18 U.S.C.A § 2119 The first

was that a death sentence can be handed down

in cases in which a carjacking victim is killed

The second was that “possessing a firearm, as

defined under section 921 of this title” was

deleted and replaced with “with the intent to cause death or serious bodily harm.” This removed the double jeopardy problem identi-fied in Singleton

Although carjacking has been made a federal crime, several states also have legislation on the subject One is Florida, which has a big tourist industry In the late 1980s and early 1990s, an increasing number of tourists, most of them foreign, were victims of carjackings in Florida

Because tourists in well-marked rental cars were common carjacking victims, Florida passed legislation in 1993 (F.S.A § 320.0601) that outlawed company logos and license plates that made rental and leased cars obvious Florida’s legislators felt that tourists warranted this extra protection for three main reasons First, tourists are, more often than not, unfamiliar with the area and are more likely to become lost or end

up in a high-crime area Second, tourists often carry more cash than natives, which makes them prime robbery targets And finally, fewer tourists are likely to return and testify in court about a crime By granting tourists the right to drive unmarked rental cars, Florida made them less vulnerable to the crime of carjacking

FURTHER READINGS Bodette, David C 2001 “Criminal Law—United States v.

Boucha: The Sixth Circuit Interprets the ‘Person or Presence ’ Requirement of the Federal Carjacking Statute ” The Univ of Memphis Law Review 32 (fall).

Bogenn, Tim 2003 Grand Theft Auto: Vice City Official Strategy Guide Upper Saddle, NJ: BradyGames.

Bureau of Justice Statistics Web site 2004 Carjackings in the United States, 1993–2002 Available online http://www.

ojp.usdoj.gov/bjs/abstract/c02.htm; website home page:

http://www.ojp.usdoj.gov (accessed July 11, 2009).

Kretzmar, Allan Jon 1998 “I Would Rather Face a Carjacker in Court Than Have a Carjacker Come to

My Funeral! The Debate over Carjacking, Legislation, and Anti-Theft-Anti-Carjacking Devices ” Univ of West Los Angeles Law Review 29 (annual).

Michenfelder, Mary C 1995 “The Federal Carjacking Statute: To Be or Not to Be? An Analysis of the Propriety of 18 U.S.C § 2119 ” Saint Louis Univ Law Journal 39 (spring).

Norborg, Chris 2000 “Conditional Intent to Kill Is Enough for Federal Carjacking Conviction ” Journal of Criminal Law and Criminology 90 (spring).

Rand, Michael R 1994 Carjacking: National Crime Victimi-zation Survey Washington, D.C.: Justice Department of Justice Available online at http://www.ojp.usdoj.gov/

bjs/pub/ascii/c.txt; website home page: http://www.ojp.

usdoj.gov (accessed July 11, 2009).

Wing, F Georgann 1994 “Putting the Brakes on Carjacking

or Accelerating It? The Anti Car Theft Act of 1992 ” Univ of Richmond Law Review 28 (April).

VICTIMS OF MOTOR VEHICLE THEFT, 1993 TO 2002 a

SOURCE: U.S Department of Justice, Bureau of Justice

Statistics, National Crime Victimization Survey,

“Carjacking, 1993–2002.”

Victims

5.0

4.0

3.0

2.0

1.0

0

Total White Black Hispanic Male Female

1.7

1.5

3.3 2.6 2.3

1.1

a Average number of carjacking victimizations per year: 38,000

Carjacking

ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY

PERMISSION OF GALE, A PART OF CENGAGE LEARNING.

CARJACKING 257