Gale Encyclopedia Of American Law 3Rd Edition Volume 8 P11 pdf

Most persons held in preventive detention are criminal defendants, but state and federal laws also authorize the preventive detention of persons who have not been accused of crimes, such

One common tactic is for the court to issue an order prohibiting the prosecutor, the defense attorney, and other trial participants from making public comments about the case Courts often permit extensive juror questionnaires that give both sides the chance to identify persons who have been exposed to pretrial publicity and who have already made up their minds about the guilt or innocence of the defendant A court also may sequester the jury during the course of the trial Another tactic is to postpone the trial until publicity dies down In rare cases a court will change the venue of the trial to a locale less affected by the pretrial publicity

FURTHER READINGS Bruschke, Jon, and William E Loges 2003 Free Press vs Fair Trials: Examining Publicity’s Role in Trial Outcomes.

Mahwah, N.J.: Lawrence Erlbaum Associates.

Duncan, Susan Hanley 2008 “Pretrial Publicity in High Profile Trials: An Integrated Approach to Protecting the Right to a Fair Trial and the Right to Privacy ” Ohio Northern Law Review 34.

Stack, Richard 1998 Courts, Counselors & Correspondents: A Media Relations Analysis of the Legal System Littleton, Colo.: F.B Rothman.

Swingle, H Morley 2001 “Prosecutors Beware: Pretrial Publicity May Be Hazardous To Your Career ” Prosecutor, Journal of the National District Attorneys Association 35 (September-October).

CROSS REFERENCES Criminal Law; Criminal Procedure; Due Process of Law;

Freedom of the Press.

PREVAILING PARTY The litigant who successfully brings or defends an action and, as a result, receives a favorable judgment or verdict

PREVENTIVE DETENTION The confinement in a secure facility of a person who has not been found guilty of a crime

Preventive detention is a special form of imprisonment Most persons held in preventive detention are criminal defendants, but state and federal laws also authorize the preventive detention of persons who have not been accused

of crimes, such as certain mentally ill persons

Preventive detention is a relatively recent phenomenon Before the 1970s the general practice in criminal courts was to set bail for almost all criminal defendants For defendants accused of particularly heinous crimes, courts would set the amount of bail so high that the

defendants were unlikely to be released Defen-dants inMURDERcases were held in jail without bail through the end of trial

In the early 1970s the District of Columbia became the first jurisdiction to experiment with preventive detention for defendants other than murder defendants Under D.C Code 1973, 23–

1322, aDEFENDANTcharged with a dangerous or violent crime could be held before trial without bail for up to 60 days The defendant was entitled to a hearing at which the PROSECUTOR

was required to present evidence of a substantial probability that the defendant committed the alleged offense The defendant was allowed to present evidence, cross-examine witnesses, and appeal an adverse ruling This detention scheme was upheld by the District of Columbia Court

of Appeals in United States v Edwards, 430 A.2d

1321, (1981), cert denied, 455 U.S 1022 (1982) Congress created a federal preventive deten-tion system for criminal defendants in the Federal Bail Reform Act of 1984 (18 U.S.C.A §§

3141 et seq [1996]) The act is similar to the District of Columbia law with several excep-tions Under the act, the prosecution is not required to notify a defendant that it intends to present evidence of his past crimes The federal act allows a court to accept evidence from the prosecution without giving the defendant an opportunity to question the evidence The federal act does not limit the defendant’s detention; a defendant may be held without bail until he is found not guilty Finally, the class

of defendants eligible for preventive detention is broader under the federal act than under the District of Columbia law

The federal act authorizes the court to conduct a preventive detention hearing upon a motion made by the prosecutor where the defendant is accused of (1) a crime of violence; (2) a crime for which the maximum sentence is life in prison or death; (3) an offense that is punishable by a prison term of ten years or more under the federal Controlled Substances Act or the Maritime Drug Law Enforcement Act; or (4) any felony if the person has been convicted of two or more violent offenses or federal drug offenses Furthermore, a defendant may be held

in preventive detention prior to trial if the court finds that he or she may flee or intimidate, threaten, or injure a prospective witness or juror The court can make such a finding on its own, without a motion filed by the prosecutor

88 PREVAILING PARTY

Under the federal act, a court may consider

several factors when it decides whether to detain

a criminal defendant, including the nature and

circumstance of the offense charged; the weight

of the evidence against the defendant; the history

and characteristics of the defendant, including

his or her character, physical and mental

condition, family ties, employment, financial

resources, length of residence in the community,

community ties, past conduct, drug and alcohol

history, and criminal history; the defendant’s

prior attendance at court proceedings; whether

the defendant was onPAROLE,PROBATION, or other

conditional release at the time of the alleged

offense; and the nature and seriousness of the

danger to any person or the community that

would be posed by the defendant’s release

A criminal defendant who is confined in jail

through the end of trial is considered detained

until the day of sentencing Defendants

sen-tenced to prison receive credit for the time that

they serve in jail prior to the beginning of their

sentence, but some defendants may go free until

the day of sentencing Under the federal act, a

criminal defendant who is convicted at trial

must be detained until the day of sentencing,

with the following exceptions Under 18

U.S.C.A § 3143 (1997), a defendant who does

not face a prison term may be released until the

day of sentencing, and defendants whom the

court finds are not likely to flee and do not

present a danger to the safety of any other

person may also be released If the defendant is

appealing a guilty verdict, the court may release

the defendant pending the outcome of the

appeal if it finds that the defendant is not

dangerous and will not flee and that the appeal

may yield a result favorable to the defendant

The U.S SUPREME COURT entertained a

challenge to the federal act based on theEIGHTH

AMENDMENT in 1987 in United States v Salerno,

481 U.S 739, 107 S Ct 2095, 95 L Ed 2d 697

Anthony Salerno and Vincent Cafaro, who were

facing numerous federal RACKETEERING charges,

were detained without bail after a detention

hearing because the court believed that they

posed a danger to the community Salerno and

Cafaro appealed to the Supreme Court, arguing

that the court violated their due process rights

by detaining them, and therefore essentially

punishing them, on the basis of potential

crimes The defendants also argued that the

federal act violated the Excessive Bail Clause of

the Eighth Amendment

By a vote of six to three, the Court rejected both arguments According to the majority,

“The mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.” The Court reasoned that to determine whether detention constitutes punishment, it must look

to the legislative intent behind the act Because Congress had formulated the act to prevent danger to the community, and not as punish-ment for the defendant, the detention was best characterized as regulatory and not punitive

Because the detention was not considered punishment, the defendants were due only minimal process The Court concluded that the hearing the defendants had received sufficient process to justify the detention

The Court also rejected the defendants’ exces-sive-bail argument, noting that the Eighth Amendment prohibits only the setting of excessive bail and does not address the issue

of whether bail should be available at all All states now allow for the preventive detention

of criminal defendants without bail prior to trial and for the continued detention of defendants before sentencing and during appeals

Preventive detention may also be imposed

on persons other than criminal defendants

States may detain mentally unstable individuals who present a danger to the public, including criminal defendants found not guilty by reason

of insanity In Addington v Texas, 441 U.S 418,

99 S Ct 1804, 60 L Ed 2d 323 (1979), the High Court ruled that a state may place mentally unstable persons in preventive detention for an indefinite period of time, but only after the government has shown by at least a PREPONDER-ANCE OF EVIDENCE that the person presents a danger to himself or herself or to others If the person becomes mentally stable and shows no sign of mental illness, continued confinement of the person violates due process (Foucha v

Louisiana, 504 U.S 71, 112 S Ct 1780, 118 L

Ed 2d 437[1992])

The Supreme Court has ruled that persons accused of dangerous crimes who become incompetent before trial may be placed in preventive detention until they are competent (Jackson v Indiana, 406 U.S 715, 92 S Ct

1845, 32 L Ed 2d 435[1972]) The Court also has ruled that potentially dangerous resident

ALIENS may be detained pending DEPORTATION

proceedings (Carlson v Landon, 342 U.S 524,

PREVENTIVE DETENTION 89

72 S Ct 525, 96 L Ed 547[1952]; Wong Wing

v United States, 163 U.S 228, 16 S Ct 977, 41

L Ed 140[1896]) Finally, juveniles who have been arrested on the suspicion that they have committed a crime may be placed in preven-tive detention if they present a danger to the community (Schall v Martin, 467 U.S 253, 104

S Ct 2403, 81 L Ed 2d 207[1984])

In the 1990s some states enacted laws that authorized the continued INCARCERATION of convicted child sex offenders after the offender had served his sentence Such laws were challenged as violating several constitutional rights, including the right to due process, the right to be free from CRUEL AND UNUSUAL PUNISHMENT, the right to be free from DOUBLE JEOPARDY, and the prohibition ofEX POST FACTO LAWS (laws that retroactively apply criminal sanctions)

Results of challenges to these sex offender statutes have varied In 2007 a Missouri court confined a convicted sex offender to a mental institution because it found clear and convinc-ing evidence that the man posed a risk to children The man had not been convicted of any crime for more than 20 years, but the judge approved what could amount to a life sentence in the mental institution In another example from Connecticut, a judge refused to order additional confinement of a serial rapist who had completed his term According to the judge, the man was entitled to be released despite evidence that he could pose a risk

of harm

FURTHER READINGS Jackson, Joe, and William F Burke, Jr 2000 Dead Run: The Shocking Story of Dennis Stockton and Life on Death Row New York: Walker.

Lhotka, William C 2007 “Potential Sex Predator May Be Confined for Life ” St Louis Post-Dispatch (Nov 1).

Miller, Frank W., et al 1991 Prosecution and Adjudication.

4th ed Westbury, N.Y.: Foundation Press.

Miller, Marc, and Martin Guggenheim 1990 “Pretrial Detention and Punishment ” Minnesota Law Review 75.

Pazniokas, Mark and Gary Libow 2007 “Court Refuses to Hold Convict Longer ” Hartford Courant (Oct 12).

Rodriguez, Nancy 2003 Persistent Offender Law: Racial Disparity, Patterned Offenses, and Unintended Effects.

New York: LFB.

Secret, Philip E 1977 The Constitutionality of Preventive Detention Washington, D.C.: Univ Press of America.

CROSS REFERENCES Child Abuse; Criminal Law; Criminal Procedure; Due Process of Law; Insanity Defense; Sex Offenses.

PRICE-FIXING The organized setting of what the public will be charged for certain products or services agreed to by competitors in the marketplace in violation of the

SHERMAN ANTI-TRUST ACT(15 U.S.C.A § 1 et seq.) Horizontal price-fixing involves agreements

to set prices made among one particular class

of sellers—such as producers, wholesalers, or retailers

Vertical price-fixing occurs between differ-ent categories of the sellers of products and services, such as between a manufacturer and wholesaler, wholesaler and distributor, or distributor and retailer

At the turn of the millennium, the presti-gious international auction houses of Christie’s and Sotheby’s were embroiled in a price-fixing scandal involving collusion over the commis-sions charged The respective CEOs were severely punished, with one serving ten months

in federal prison and the other sentenced to home confinement and paying a six-figure fine

A considerable settlement was reached in aCLASS ACTION suit brought by clients who transacted business with the firms through the years when they were illegally agreeing to set their fees together

FURTHER READING Mason, Christopher 2004 The Art of the Steal New York: Putnam.

CROSS REFERENCE Antitrust Law.

PRIGG V PENNSYLVANIA

A pre–Civil War case, Prigg v Pennsylvania, 41 U.S (16 Pet.) 539, 10 L Ed 1060 (1842), declared unconstitutional all fugitive slave laws enacted by the states on the ground that the federal law provided the exclusive remedy for the return of runaway slaves

The national debate over SLAVERY grew in intensity beginning in the 1840s Many of the Northern states demonstrated their hostility to slavery by enacting laws that attempted to frustrate Southern slave owners who came North

in search of runaway slaves Slave owners were outraged at these laws, arguing that the federal Fugitive Slave Act of 1793 gave them the right to reclaim their property without interference by state government In 1842 the U.S Supreme Court resolved the issue in Prigg v Pennsylvania

90 PRICE-FIXING

Edward Prigg, a professional slave catcher,

seized Margaret Morgan, a runaway slave from

Maryland living in Pennsylvania Prigg applied to

a state magistrate for certificates of removal

under the federal Fugitive Slave Act of 1793 and

an 1826 Pennsylvania personal liberty law Prigg

needed the certificates to legally remove Morgan

and her two children to Maryland The

Penn-sylvania law had a higher standard of proof for

demonstrating the slave owner applicant’s title to

the slaves After the magistrate refused to issue

the certificates, Prigg illegally returned the slaves

to Maryland Pennsylvania indicted Prigg for

KIDNAPPING under the 1826 law and extradited

him from Maryland Following his conviction,

Prigg appealed to the U.S Supreme Court

By an 8–1 vote, the Court reversed his

conviction Writing for the Court, JusticeJOSEPH

STORYconcluded that the Pennsylvania law was

unconstitutional because it conflicted with the

federal act He based his analysis on the Fugitive

Slave Clause contained in Article IV, Section 2,

of the U.S Constitution The clause directs the

return of runaway slaves to the state from where

they came

Story claimed that the clause was a

“funda-mental article, without the adoption of which

the Union could not have been formed.” His

historical analysis, however, was questionable

The clause was added late in the Constitutional

Convention and was not debated Nevertheless,

Story concluded that the clause was a“practical

necessity.” Without it, every non-slaveholding

state would have been at liberty to free all

runaway slaves coming within its limits This

would have“created the most bitter animosities,

and engendered perpetual strife between the

different states.”

Having established that the Fugitive Slave

Clause guaranteed the rights of slave owners to

reclaim runaway slaves and to prevent

non-slaveholders from interfering with such

prop-erty rights, Story looked to the Fugitive Slave

Act of 1793 for enforcement of these rights

Story held that the constitutional provision gave

Congress the authority to pass the act, stating

that “where the end is required, the means are

given.” Pennsylvania had argued that its law was

based on the POLICE POWERS given to it by the

Constitution Story rejected this argument,

holding that because the federal law was based

on a specific constitutional provision that was

national in scope, the federal power on this

issue was exclusive

As an extension of this conclusion, Story ruled that states were not compelled to enforce the federal fugitive slave provisions It would be inconsistent and without legal basis, he rea-soned, for the Court to declare the preeminence

of federal law and then require state courts to help carry out the law Therefore, the federal government was “bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it

by the Constitution .” Though Story wished that state judges would execute the federal law,

he understood that the federal government had

no power to require them to do so

Even if there had been no federal law on runaway slaves, Story, without “the slightest hesitation,” found in the Fugitive Slave Clause

an implied right for a slave owner or slave owner’s agent to go into any state and recapture

a slave The owner of a slave “is clothed with entire authority, in every state in the Union, to seize and recapture his slave, whenever he can

do it without any breach of the peace, or any illegal violence.”

Story expressly recognized the police power

of the states to arrest, detain, or exclude runaway slaves from their borders States had as much right to protect themselves against the “depreda-tions and evil example” of runaways as they did against “idlers, vagabonds, and paupers.”

An 1847 handbill offering a reward for

an escaped slave The Supreme Court’s decision in Prigg frustrated slave owners as Northern states obliged the Court by refusing to participate in fugitive slave proceedings.

LIBRARY OF CONGRESS

PRIGG V PENNSYLVANIA 91

These regulations, however, “can never be permitted to interfere with or to obstruct the just rights of the owner to reclaim his slave.”

The Prigg decision angered slavery oppo-nents Some state judges took Story’s opinion to heart and refused to participate in federal fugitive slave proceedings In 1843 Massachu-setts passed an act that forbade any state official from participating in the return of a fugitive slave under the 1793 federal law Other Northern states passed similar acts

Slave owners soon became aware that the withdrawal of state support curtailed their ability

to return slaves to the South There were not enough federal magistrates to process applica-tions under the 1793 law This led to theFUGITIVE SLAVE ACT OF 1850, which authorized the appointment of a federal commissioner in every county in the United States who could issue certificates of removal for fugitive slaves Persons who interfered in the process were subject to criminal penalties The 1850 act caused many runaway slaves to move to Canada

Prigg was a crucial case because it an-nounced that slavery was a national issue that could not be disturbed bySTATE ACTION It also disclosed that the institution of slavery was woven into the Constitution

FURTHER READINGS Finkelman, Paul 2009 “John Mclean: Moderate Abolition-ist and Supreme Court Politician ” Vanderbilt Law Review 62 (March).

——— 1993 “Sorting Out Prigg v Pennsylvania.” Rutgers Law Journal 24 (spring).

Maltz, Earl M 2000 “Majority, Concurrence, and Dissent:

Prigg v Pennsylvania and the Structure of Supreme Court Decisionmaking ” Rutgers Law Journal 31 (winter).

PRIMA FACIE [Latin, On the first appearance.] A fact presumed

to be true unless it is disproved

In common parlance the term prima facie is used to describe the apparent nature of something upon initial observation In legal practice the term generally is used to describe two things: the presentation of sufficient evidence by a civil claimant to support the legal claim (a prima facie case), or a piece of evidence itself (prima facie evidence)

For most civil claims, a plaintiff must present a prima facie case to avoid dismissal

of the case or an unfavorable directed verdict

The plaintiff must produce enough evidence on

all elements of the claim to support the claim and shift the burden of evidence production to the respondent If the plaintiff fails to make a prima facie case, the respondent may move for dismissal or a favorable directed verdict without presenting any evidence to rebut whatever evidence the plaintiff has presented This is because the burden of persuading a judge or jury always rests with the plaintiff

Assume that a plaintiff claims that an employer failed to promote her based on her sex The plaintiff must produce affirmative evidence showing that the employer used illegiti-mate, discriminatory criteria in making employ-ment decisions that concerned the plaintiff The employer, as respondent, does not have a burden

to produce evidence until the plaintiff has made a prima facie case of SEX DISCRIMINATION (Texas Department of Community Affairs v Burdine, 450 U.S 248, 101 S Ct 1089, 67 L Ed 2d 207 [1981]) The precise amount of evidence that constitutes a prima facie case varies from claim to claim If the plaintiff does not present a prima facie case with sufficient evidence, the judge may dismiss the case Or, if the case is being heard by a jury, the judge may direct the jury to return a verdict for the respondent

Prima facie also refers to specific evidence that, if believed, supports a case or an element that needs to be proved in the case The term prima facie evidence is used in both civil and

CRIMINAL LAW For example, if the prosecution in

a murder case presents a videotape showing the defendant screaming death threats at the victim, such evidence may be prima facie evidence of intent to kill, an element that must

be proved by the prosecution before the defendant may be convicted of murder On its face, the evidence indicates that the defendant intended to kill the victim

Statutes may specify that certain evidence is prima facie evidence of a certain fact For example, a duly authenticated copy of a defen-dant’s criminal record may be considered prima facie evidence of the defendant’s prior convic-tions and may be used against the defendant in court (Colo Rev Stat Ann § 18-3-412 [West 1996]) ACIVIL LAWexample is a statute that makes

a duly certified copy or duplicate of a certificate of authority for a fraternal benefit society to transact business prima facie evidence that the society is legal and legitimate (Colo Rev Stat Ann

§ 10-14-603[West 1996])

92 PRIMA FACIE

FURTHER READINGS

Herlitz, Georg Nils 1994 “The Meaning of the Term ‘Prima

Facie ’” Louisiana Law Review 55.

Whisner, Mary 2009 “The United States Code, Prima Facie

Evidence, and Positive Law.” Law Library Journal 101.

CROSS REFERENCE

Burden of Persuasion.

PRIMARY AUTHORITY

Law, in various forms, that a court must follow in

deciding a case

Primary authority mainly consists of

sta-tutes, decisions by the U.S Supreme Court, and

all judicial decisions handed down by the same

court or a higher court within the same judicial

system

CROSS REFERENCE

Secondary Authority.

PRIMARY EVIDENCE

An authentic document or item that is offered as

proof in a lawsuit, as contrasted with a copy of, or

substitute for, the original

Primary evidence, more commonly known

as best evidence, is the best available

substanti-ation of the existence of an object because it is

the actual item It differs from secondary

evidence, which is a copy of, or substitute for,

the original If primary evidence is available to a

party, that person must offer it as evidence

When, however, primary evidence is

unavail-able—for example, through loss or

destruc-tion—through no fault of the party, he or she

may present a reliable substitute for it, once its

unavailability is sufficiently established

PRIME LENDING RATE

The lowest rate of interest that a financial

institution, such as a bank, charges its best

customers, usually large corporations, for

short-term unsecured loans

The prime lending rate, also known as the

“prime rate,” is an index and not a law It is an

economic indicator that is often used as a

measuring point for adjusting interest rates on

other types of loans such as mortgages, car

loans, credit card interest rates, and interest on

student loans The rate varies according to

economic factors and is generally tied to the Fed

Funds Target Rate, which is set by the Federal

Open Market Committee (FOMC) within the

Federal Reserve When Prime Lending Rate changes, so do the financial obligations between parties whose dealings are influenced by it

PRIMOGENITURE The status of being the firstborn child among several children of the same parents A rule of inheritance at COMMON LAW through which the oldest male child has the right to succeed to the estate of an ancestor to the exclusion of younger siblings, both male and female, as well as other relatives

This practice was not widely followed in the United States, and was abolished in the United Kingdom in 1925

PRINCIPAL

A source of authority; a sum of a debt or obligation producing interest; the head of a school In an agency relationship, the principal is the person who gives authority to another, called an agent, to act

on his or her behalf and under his or her control If the agent is authorized to act on behalf of a principal, he or she binds the principal legally (e.g.,

to terms of a contract, such as for the sale of a house, entered in the principal’s name) as a result

of any legally consequential actions, which are those undertaken within the scope of authorized activity

A principal can also be rendered liable for the torts

of an agent if committed in the course of official, authorized service to the principal The agent owes the principal a fiduciary duty of loyalty The authority can be terminated at any time

In CRIMINAL LAW, the principal is the chief actor or perpetrator of a crime; those who aid, abet, counsel, command, or induce the commis-sion of a crime may also be principals In investments and banking, the principal refers to the person for whom aBROKERexecutes an order;

it may also mean the capital invested or the face amount of a loan

A principal in the first degree is the chief actor

or perpetrator of a crime A principal in the second degree must be present at the commission

of the criminal act and aid, abet, or encourage the principal in his or her criminal activity

FURTHER READING Gregory, William A The Law of Agency and Partnership, 3d ed St Paul Minn.: West.

CROSS REFERENCE Principal and Surety.

PRINCIPAL 93

PRINCIPAL AND SURETY

A contractual relationship whereby one party—

the surety—agrees to pay the principal’s debt or perform his or her obligation in case of the principal’s default

The principal is the debtor—the person who is obligated to a creditor The surety is the accommodation party—a third person who becomes responsible for the payment of the obligation if the principal is unable to pay

or perform The principal remains primarily liable, whereas the surety is secondarily liable

The creditor—the person to whom the obligation is owed—can enforce payment or performance by the principal or by the surety

if the principal defaults The creditor must always first seek payment from the principal before approaching the surety If the surety must fulfill the obligation, then he can seek recovery from the principal after satisfying the creditor An example of a principal and surety relationship occurs when a minor purchases a car on credit and has a parent act as a surety to guarantee payment of the car loan

A suretyship arises from an agreement Each

of the parties must be competent The parties must form the agreement through offer and acceptance, and the contract must be based on valid consideration The parties must openly

ASSENT to the contract so that all of the parties are known to each other The surety must be identified as such so that the creditor will not hold that person primarily liable If the face of the contract indicates a suretyship, the creditor receives sufficient notice of the three-party arrangement

No special form of contract is needed to create a principal-and-surety relationship The agreement can be consummated by written correspondence or be in the form of a bond

No particular language is needed to identify the relationship, since courts will examine the substance and not the form of the contract to determine whether a suretyship exists Courts will rarely imply a suretyship agreement, except when an involuntary suretyship arises out of an implied oral agreement When joint debtors obtain a loan, each is a principal for a proportionate share of the debt, and a surety for the remaining amount In practice, however, each joint debtor is a principal and is primarily liable for the entire loan if the creditor seeks

repayment A joint debtor who pays the entire debt can, however, seek contribution from the other debtors

The surety’s liability is indicated by the terms of the contract Unless otherwise pro-vided, a surety assumes the obligation of the principal A surety, however, can limit his liability to a certain amount because the obligations of the principal and surety do not have to be co-extensive When a surety agrees

to be accountable for a certain amount, she cannot be held responsible for a sum greater than that for which she contracted The surety becomes liable when the principal breaches a contract with the creditor In the absence of a contractual limitation, a surety’s liability is measured by the loss or damage resulting from the default by the principal The liability of the surety terminates when the principal’s obliga-tion is fulfilled

In some states, a surety may not be sued after the obligation of the principal has become barred by aSTATUTE OF LIMITATIONS In jurisdictions that follow this rule, the surety may elect to take advantage of the limitations defense that is available to the principal debtor In other states, however, the running

of the statute does not bar an action against a surety

FURTHER READINGS Klinger, Marilyn, George J Bachrach, and Tracey L Haley, eds 2008 The Surety’s Indemnity Agreement: Law and Practice Chicago: Tort Trial and Insurance Practice, American Bar Association.

Leo, T Scott, and Daniel Mungall, Jr., eds 2005 The Restatement of Suretyship and Guaranty: A Translation for the Practitioner Chicago: Tort Trial and Insurance Practice Section, American Bar Association.

CROSS REFERENCES Debtor; Creditor; Liability.

PRINCIPLE

A fundamental, well-settledRULE OF LAW A basic truth or undisputed legal doctrine; a given legal proposition that is clear and does not need to be proved

A principle provides a foundation for the development of other laws and regulations It is not to be confused with the word “principal,” which refers to the legal status or relationship of

a person

94 PRINCIPAL AND SURETY

PRINTERS INK STATUTE

Statutes enacted in a number of states making it a

misdemeanor to use representations that are

untrue, deceptive, or misleading in advertisements

Once the Surgeon General and other experts

began to understand the dangers of smoking,

tobacco companies were no longer able to use

proclamations in their advertising that their

products provided health and vitality etc

PRIOR INCONSISTENT STATEMENTS

Communications made by a witness before the

time he or she takes the stand to testify in an

action that contradict subsequent testimony given

on the same exact facts

Prior inconsistent statements can be used in

a lawsuit only to impeach (discredit) the

trustworthiness of the witness’ testimony They

cannot, however, be used to establish the truth

of the matter they address

TheFEDERAL RULES OF EVIDENCEgovern the use

of prior inconsistent statements in federal courts

PRIOR RESTRAINT

Government prohibition of speech in advance of

publication

One of the fundamental rights guaranteed by

the FIRST AMENDMENTto the U.S Constitution is

the freedom from prior restraint Derived from

English COMMON LAW, the rule against prior

restraint prohibits government from banning

expression of ideas prior to their publication

The rule against prior restraint is based on the

principle thatFREEDOM OF THE PRESSis essential to

a free society Attempts by government to obtain

a prior restraint have largely been unsuccessful

The rule against prior restraint was

undis-puted for much of U.S history The landmark

case ofNEAR V.MINNESOTA, 283 U.S 697, 51 S Ct

625, 75 L Ed 1357 (1931), finally settled the

issue, with the U.S Supreme Court finding that

the First Amendment imposed a heavy

presump-tion against the validity of a prior restraint

In Near, the Court struck down a Minnesota

state law that permitted public officials to seek

an INJUNCTION to stop publication of any

“malicious, scandalous and defamatory

news-paper, magazine, or other periodical.” The

statute was used to suppress publication of a

small Minneapolis newspaper, the Saturday

Press, which had crudely maligned local police

and political officials, often in anti-Semitic terms The law provided that once a newspaper was enjoined, further publication was punish-able asCONTEMPTof court

Chief Justice CHARLES EVANS HUGHES, in his majority opinion, called the law“the essence of censorship” and declared it unconstitutional

With its decision, the Court incorporated the First Amendment freedom of the press into the

DUE PROCESS CLAUSE of the FOURTEENTH AMEND-MENT This incorporation made freedom of the press fully applicable to the states

Though Hughes agreed that a rule against prior restraint was needed, he acknowledged that this restriction was not absolute The rule would not, for example, prevent government in time of war from prohibiting publication of“the sailing dates of transports or the number and location of troops.” Threats to national security interests are almost certain to prevail over freedom of the press, but it has proved difficult to invoke the

“national security” justification

This was illustrated in the Pentagon Papers case of 1971 (NEW YORK TIMES CO.V.UNITED STATES,

403 U.S 713, 91 S Ct 2140, 29 L Ed 2d 822)

PresidentRICHARD NIXON’s administration sought

to prevent the New York Times and the Washington Post from publishing excerpts from

a classified study (the Pentagon Papers) on the history of U.S involvement in Vietnam, arguing that publication would hurt national security interests The Supreme Court, by a 6–3 vote, held that the government’s efforts to block publication amounted to an unconstitutional prior restraint

The national security exception failed again

in a 1979 case dealing with the publication of a magazine article that purported to explain the process for making a hydrogen bomb (United States v Progressive, Inc., 467 F Supp 990 [W.D

Wis 1979]) The federal government obtained a preliminary injunction against The Progressive, stopping publication of the article until a hearing on a permanent injunction could be held Before the hearing, however, another publication printed a similar article The government then dropped its lawsuit, and the magazine published the original article

Prior restraint issues have arisen over prejudicial PRETRIAL PUBLICITY in sensational criminal proceedings The defendant’s right

to a fair trial by an unbiased jury must be considered as well as freedom of the press In exceptional circumstances, a court may depart

PRIOR RESTRAINT 95

from prior restraint doctrine by restricting news coverage of a criminal case These restrictions must be narrowly tailored, and they must not unduly restrict the right of the press to inform the public The U.S Supreme Court, in Nebraska Press Association v Stuart, 427 U.S 539, 96 S Ct

2791, 49 L Ed 2d 683 (1976), made clear, however, that these restrictions are severely limited The Court invalidated aGAG ORDERissued

by a state trial judge that forbade the publishing

or broadcasting of any confessions, admissions,

or facts that strongly implicated the defendant charged with a grisly mass murder

The rule against prior restraint does not apply to the publication of student-operated school newspapers In Hazelwood School District v Kuhlmeier, 484 U.S 260, 108 S Ct

562, 98 L Ed 2d 592 (1988), the Supreme Court upheld a public school principal’s deci-sion to remove certain controversial material from the school newspaper The principal based his decision on fears that the articles on teen pregnancy andDIVORCEwould allow students to identify classmates who had encountered such difficulties Justice BYRON R WHITE ruled that educators did not“offend the First Amendment

by exercising editorial control so long as their actions are reasonably related to legitimate pedagogical concerns.”

Prior restraint issues have also appeared in cases involving the picketing of clinics where

ABORTIONS are performed In Hill v Colorado,

530 U.S 703, 120 S.Ct 2480, 147 L.Ed.2d 597 (2000), the Supreme Court upheld a Colorado law that required anti-abortion demonstrators

to stay at least eight feet away from anyone entering or leaving medical facilities The protesters had argued that this restriction was

a prior restraint on their First Amendment right

to express their views on abortion JusticeJOHN PAUL STEVENSstated that prior restraint related to restrictions “imposed by official censorship.”

The Colorado law only applied if the “pedes-trian does not consent to the approach.” Therefore, the private individual, not the government, exercise the right not to hear the protesters views in close proximity The pro-testers were free to display signs that could be seen eight feet away from the person entering or leaving the clinic

FURTHER READINGS Fisher, Louis, and Katy J Harriger 2009 American Constitutional Law: Volume 2, Constitutional Rights:

Civil Rights and Civil Liberties 8th ed Durham, NC: Carolina Academic Press.

Friendly, Fred 1981 Minnesota Rag: The Scandal Sheet That Shaped the Constitution New York: Random House Levy, Leonard Williams 2004 Emergence of a Free Press Chicago: Ivan R Dee.

Rudenstine, David 1996 The Day the Presses Stopped: A History of the Pentagon Papers Case Berkeley: Univ of California Press.

CROSS REFERENCE Incorporation Doctrine.

PRISON

A public building used for the confinement of people convicted of serious crimes

Prison is a place used for confinement of convicted criminals Aside from the death penalty, a sentence to prison is the harshest punishment imposed on criminals in the United States On the federal level, imprisonment or

INCARCERATIONis managed by the Federal Bureau

of Prisons, a federal agency within theDEPARTMENT

OF JUSTICE State prisons are supervised by a state agency such as a department of corrections Confinement in prison, also known as a

“penitentiary” or “correctional facility,” is the punishment that courts most commonly im-pose for serious crimes, such as felonies For lesser crimes, courts usually impose short-term incarceration in a jail, detention center, or similar facility

Confining criminals for long periods of time

as the primary form of punishment is a relatively new concept Throughout history, various coun-tries have imprisoned criminal offenders, but imprisonment was usually reserved for pretrial detention or punishment of petty criminals with

a short term of confinement

Using long-term imprisonment as the primary punishment for convicted criminals began in the United States In the late eighteenth century, the nonviolent Quakers in Pennsylvania proposed long-term confinement

as an alternative to CAPITAL PUNISHMENT The Quakers stressed solitude, silence, rehabilita-tion, hard work, and religious faith Confine-ment was originally intended not only as a punishment but as an opportunity for renewal through religion

In 1790 the Walnut Street Jail in Philadel-phia constructed a separate cell house for the sole purpose of holding convicts This was the first prison in the United States The concept of

96 PRISON

long-term imprisonment became popular as

the U.S public embraced the concept of

removing offenders from society and

punish-ing them with confinement and hard labor

Before the existence of prisons, most offenders

were subjected to CORPORAL PUNISHMENT or

public humiliation and then released back into

the community In the nineteenth century, as

the United States became more urban and

industrial, poverty became widespread, and

crime increased As crime increased, the

public became intolerant of even the most

petty crimes and viewed imprisonment as the

best method for stopping repeated criminal

activity

The early nineteenth century was filled with

fierce debates about how a prison should be

run There emerged two competing ideas: the

Auburn System and the Eastern PENITENTIARY

System The Auburn System took its name from

the Auburn, New York, prison, which opened

in 1819 At first, the prison placed all its worst

offenders in solitary confinement, but this

arrangement led to nervous breakdowns and

suicides The system was modified so that

inmates slept in separate cells but worked and

ate together However, the inmates were forced

to remain silent Administrators believed this

code of silence would prevent prisoners from

picking up bad attitudes and would promote

their rehabilitation

The Eastern Penitentiary System at Cherry

Hill, Pennsylvania, opened its gates in 1829 The

prison building was designed in the form of a

central hub with spokes radiating from this

administrative center Small cells lined each

spoke and prisoners had their own exercise

space Unlike the Auburn System, this system

promoted extreme isolation Not surprisingly,

many inmates committed SUICIDE In time, the

Auburn System prevailed, as state legislatures

saw advantages in congregate living The

Auburn System encouraged prison industries

to help make prisons self-supporting

By the mid-nineteenth century, prisons

existed throughout the United States Prisoners

were kept in unsanitary environments, forced to

work at hard labor, and brutalized by guards

These conditions continued until the 1950s and

1960s, when heightened social and political

discourse led to a renewed emphasis on

rehabilitation

The closing of one particular prison

sym-bolized the change in correctional philosophy

Alcatraz Prison, located on an island off San Francisco, was used exclusively to place in solitary confinement convicts classified as either violent or disruptive Rehabilitation was nonexistent in Alcatraz The prison was filthy and rat-infested, and prisoners were held in dungeon-like cells, often chained to stone walls

Established in 1934, Alcatraz was closed in 1963,

in part because its brutal treatment of prisoners symbolized an outdated penal philosophy

By the mid-1960s the stated purpose of many prisons was to educate prisoners and prepare them for life after prison Many federal and state courts ordered administrators to improve the conditions inside their prisons, and the quality of life for inmates greatly improved

In 1971 a bloody, day-long riot at the Attica Correctional Facility in New York sparked a reaction against rehabilitative ideals More than 40 people were killed in the uprising

in Attica Shortly after the Attica riot, the Federal Bureau of Prisons began to transfer unruly federal prisoners to the Federal Peniten-tiary at Marion, Illinois, where they were held

in solitary confinement In 1983, after three

On March 21, 1963, the last of the inmates housed at Alcatraz Prison were transferred to other facilities The permanent closing of the prison reflected the renewed emphasis

on the rehabilitation

of prisoners that arose during the 1950s and 1960s.

AP IMAGES

PRISON 97