On the federal level, the president appoints prosecutors to represent the United States in complaints against criminal defendants.. A prosecutor does not have to personally believe BEYON
Trang 1To offer or propose To form, serve, or put forward
an item, plan, or idea for discussion and ultimate acceptance or rejection
In litigation, parties commonly ask each other formal, written questions (known as
“interrogatories”) as part of the discovery process One party will propound a set of these questions for the other to answer in writing
Federal Rule of Civil Procedure Rule 33 governs interrogatories in federal civil litigation matters
Under this rule, a party may typically serve no more than 25 interrogatories unless the court makes an exception State rules, however, vary
as to quantity
PROPRIETARY
As a noun, a proprietor or owner; one who has the exclusive title to a thing; one who possesses or holds the title to a thing in his or her own right;
one who possesses the dominion or ownership of
a thing in his or her own right
As an adjective, belonging to ownership;
owned by a particular person; belonging or pertaining to a proprietor; relating to a certain owner or proprietor
“Proprietary” is an adjective that refers to ownership or characteristics relating to owner-ship It describes all the rights that the owner of property may exercise Proprietary articles are items that are manufactured and marketed under an exclusive right
Municipal corporations have a proprietary function, a term describing the duty or capacity
of a city to enter into business ventures or to perform discretionary acts in the best interests
of the citizens Proprietary functions differ from governmental functions, which are duties that a city performs as a political subdivision of a state
In general, a governmental function is one that only government may perform (such as licenses and inspections), while a proprietary function may be performed by a municipal or a private entity (for example, trash collection) Courts may classify some functions, such as municipal hospitals and road repair, in either category, which can affect the outcome of civilLITIGATION
PRORATE
To divide proportionately To adjust, share, or distribute something or some amount on a pro rata basis
For example, if an individual chooses to join
an association or organization that has yearly dues, a prorated membership fee may be offered
if said individual joins mid-year, as they will not be awarded the benefits of membership for
an entire calendar year
PROROGATION Prolonging or putting off to another day The discontinuation or termination of a session of the legislature, parliament, or the like InENGLISH LAW,
a prorogation is the CONTINUANCE of the parlia-ment from one session to another, as an adjournment is a continuation of the session from day to day InCIVIL LAW, giving time to do a thing beyond the term previously fixed
PROSECUTE
To follow through; to commence and continue an action or judicial proceeding to its ultimate conclusion To proceed against a defendant by charging that person with a crime and bringing him or her to trial
The state, on behalf of the people, generally prosecutes a defendant accused of a crime
PROSECUTING ATTORNEY SeeDISTRICT AND PROSECUTING ATTORNEYS
PROSECUTOR
A prosecutor is one who prosecutes another for a crime in the name of the government
State and county governments employ prosecutors to represent their local communi-ties in complaints against criminal defendants
On the federal level, the president appoints prosecutors to represent the United States in complaints against criminal defendants
In some states a prosecutor must present the court with a written statement of the charges, called an information In other states a prosecu-tor is required to convene a GRAND JURYbefore charging a DEFENDANT with a serious crime A grand jury is a collection of laypersons selected
by the prosecutor to examine evidence and decide whether to indict the defendant and so authorize prosecution On the federal level, the FIFTH AMENDMENTrequires prosecutors to obtain
an INDICTMENT for capital or “otherwise infa-mous” crimes, with the exception of crimes arising out of active military service
168 PROPOUND
Trang 2In most criminal cases, the prosecutor must
match wits with the defense attorney who
represents the defendant Almost all criminal
defendants are represented by an attorney, even
if they cannot afford to pay for one If a court
does not offerLEGAL REPRESENTATIONto a criminal
defendant, the defendant may not be
incarcer-ated upon conviction
Prosecutors have a broad discretion in
determining whether to prosecute a criminal
defendant A prosecutor does not have to
personally believe BEYOND A REASONABLE DOUBT
that the defendant committed the alleged act
A prosecutor must simply possess enough
evidence to support a reasonable belief that
the defendant committed the crime
There are two notable limits on the
prosecutor’s discretion to prosecute First, a
prosecutor may not base a prosecution on“an
unjustifiable standard such as race, religion, or
other arbitrary classification” (Oyler v Boles,
368 U.S 448, 82 S Ct 501, 7 L Ed 2d 446
[1962]) For example, a prosecutor may not
selectively prosecute only Chinese persons who
violate laws regulating laundry facilities (Yick
Wo v Hopkins, 118 U.S 356, 6 S Ct 1064, 30
L Ed 220 [1886])
Second, a prosecutor may not vindictively
add charges because a defendant has pursued a
constitutionally protected right (Blackledge v
Perry, 417 U.S 21, 94 S Ct 2098, 40 L Ed 2d
628 [1974]) For example, assume that a
defendant is convicted at trial but that the
conviction is reversed on appeal If the
prose-cutor seeks to retry the defendant, the
prosecu-tor may not, without more evidence, charge the
defendant with more serious charges than the
defendant faced in the first trial A prosecutor
may threaten a defendant with a more serious
charge if the defendant refuses to plead guilty
to a lesser criminal charge, but only if the
prosecutor has evidence to support the more
serious charge (Bordenkircher v Hayes, 434 U.S
357, 98 S Ct 663, 54 L Ed 2d 604 [1978])
Prosecutors hired by the government are the
only persons empowered to prosecute criminal
cases Private parties may lodge criminal
complaints against persons or groups, but
under state and federal statutes, only a duly
authorized attorney may prosecute a criminal
case Federal and state governments can
pro-hibit unauthorized persons from prosecuting
other persons because the control of criminal
prosecutions is a legitimate interest of govern-ment (Leeke v Timmerman, 454 U.S 83, 102 S
Ct 69, 70 L Ed 2d 65[1981]) This rule makes sense because it allows the government to prevent the judicial system from becoming more overburdened
Prosecutors have many duties to perform in the course of a criminal prosecution At the arraignment—the defendant’s first appearance before the court—the prosecutor must make a bail recommendation BAIL is the amount of money that the defendant must pay the court to gain release from jail Release for a fraction of bail may be obtained if a criminal defendant pays a bail bonds company that promises to pay the bail if the defendant does not show for future court appearances A prosecutor may recom-mend that the court deny bail to an allegedly dangerous defendant to keep the defendant in jail while the case is being processed
The prosecutor must prepare the case against the defendant She does this by review-ing the evidence, conductreview-ing an investigation, and communicating with police officers The prosecutor may issue directives to law enforce-ment personnel to find more evidence The prosecutor also must notify the defendant of the evidence against him and must turn over any exculpatory evidence (evidence that would tend to clear the defendant) that the prosecutor possesses
The prosecutor usually meets with the defendant or the defendant’s attorney in advance of trial to discuss the case Considering the vast number of criminal laws passed by state and federal legislatures, defendants usually face more than one criminal charge for any given criminal episode The ability to bring multiple charges gives prosecutors a measure of bargain-ing power over criminal defendants Prosecu-tors often are willing to drop certain charges and recommend lesser sentences for defendants who agree to plead guilty to a certain crime
This practice is calledPLEA BARGAINING
If the defendant does not wish to plead guilty, the prosecutor usually must defend the legitimacy of the prosecution at various stages before trial In felony cases the prosecutor may
be required under law to obtain permission from a grand jury before she or he can prosecute the defendant A grand jury is a panel
of individuals that can reject a criminal prosecution for lack of evidence If the grand
PROSECUTOR 169
Trang 3jury returns a NO BILL, the defendant is not indicted and the case against the defendant must be dropped If the grand jury returns a TRUE BILL, the defendant is indicted and the prosecution may proceed
Few criminal defendants proceed to trial
More than 90 percent of all criminal prosecu-tions are disposed of through plea bargaining
Those criminal defendants who do proceed to trial usually mount challenges prior to trial based on the legality of evidence gathering and the sufficiency of the evidence against them
Defendants may make requests of the court For instance, a defendant may request that the trial
be moved to a different geographic location, or
a defendant may ask the court to forbid the trial participants from talking to the media The prosecutor may also challenge evidence offered
by the defendant and make certain requests of the court These challenges and requests are made
in pretrial motions and hearings If the prosecutor does not rebut or respond to the defendant’s arguments regarding the evidence, the court may dismiss the case before it goes to trial
At trial the prosecutor must prove beyond a REASONABLE DOUBTthat the defendant committed the alleged criminal acts The prosecutor must make an OPENING STATEMENT, present evidence and testimony, and make a CLOSING ARGUMENT Both the prosecutor and defense attorney have the right to cross-examine witnesses and to challenge the introduction of certain testimony and other evidence Ultimately, the court decides what evidence will be admitted into the trial and what evidence will be excluded If the defendant is convicted, the trial judge imposes a sentence The prosecutor may make
a sentencing recommendation, but the court is not obliged to follow the recommendation
In theory, a prosecutor’s job is not to convict and send to prison as many persons as possible The basic function of a prosecutor is to seek the truth about criminal actions Thus, if a prosecutor discovers evidence that puts the defendant’s guilt in doubt or relieves the defendant of criminal liability, the prosecutor must turn that evidence over to the defendant
If a prosecutor lacks evidence of a defendant’s guilt, he or she must drop the charges or decline
to press charges In practice, however, prosecu-tors find that they are judged in the court of public opinion on the number of convictions that they obtain
The prosecutor’s role differs significantly from the role of the defense attorney The defense attorney’s primary job is to zealously defend the client and to seek a result that is in the client’s best interest The prosecutor’s job is more complicated The prosecutor must decide whether the prosecution in a given case will promote the ends of justice, instill respect for the law, and advance the cause of ordered liberty
In any event, a prosecutor does not decide whether to convict a defendant That decision is made by the fact finder: either the judge in a BENCH TRIAL or the jury in a jury trial The prosecutor only decides whether to charge the defendant and then presents the community’s case to the fact finder
Scholars disagree on the precise historical origins of the U.S prosecutor The modern version of the professional prosecutor likely derives from the European practice of vesting one office with the power to conduct criminal prosecutions In England, private parties could prosecute other private parties until the eigh-teenth century, but English statutes creating the office of public prosecutor existed as far back as the mid-sixteenth century In colonial America all 13 colonies established the office and position of attorney general The colony’s attorney general was charged with prosecuting crimes committed within the colony Private prosecutions were carried out at times, but private prosecution ended around the beginning
of the American Revolution in the 1770s Historians have attributed the rise of the public prosecutor to the cost associated with private prosecutions Few persons in colonial America had the time or resources to prosecute an alleged criminal
The primacy of the public prosecutor became entrenched in the 1820s as the U.S public began to press for the introduction of democracy into the criminal justice process States began to allow the election of judges, and laws allowing the election of a prosecutor followed shortly thereafter In 1832 Mississippi became the first state to include a provision in its constitution providing for the election of local prosecutors Every state entering the Union after 1850 provided for either the election or employment of public prosecutors, and the position is now deeply rooted in the federal and state criminal justice systems
170 PROSECUTOR
Trang 4Originally, public prosecutors were
consid-ered mere figureheads in the criminal justice
system Local sheriffs and even coroners had
more say in the process than did the prosecutor
This situation changed by the mid-nineteenth
century as more and more prosecutors were
elected by the public rather than hired by the
local government The powers of the prosecutor
gradually increased until the 1920s, when a
drastic increase in crime led to heightened
public scrutiny of the office and revelations that
prosecutors were being corrupted by organized
criminals By the 1940s most states had enacted
statutes creating licensing requirements for the
office of prosecutor Under these statutes a
person who is not licensed to practice law may
not perform the work of the prosecutor even if
the person has won the election Most states
also created a regular office of prosecutor
instead of hiring private attorneys to work as
part-time prosecutors The power of the
prosecutor’s office has increased over the years
Modern prosecutors have more authority
than ever before They have the authority to
investigate persons, grant IMMUNITYto witnesses
and accused criminals, and plea bargain with
defendants Prosecutors decide what criminal
charges to bring and when and where a person
will answer to those charges Courts rarely
second-guess the decisions of a prosecutor, and
all courts presume that a prosecutor has acted
appropriately Furthermore, prosecutors enjoy
absolute immunity from suit for their
court-room work However, they may be liable for suit
when their conduct in the investigatory phase of
their duties is in dispute They may be forced to
defend against a suit for MALICIOUS PROSECUTION
only if they blatantly exceed the powers of their
office A prosecutor who fabricates testimony or
other evidence, for instance, may be held liable
in a civil suit for malicious prosecution
FURTHER READINGS
Beebe, Mark A 2003 “Prosecutors, Politics, Press, and
Prejudice ” Idaho Law Review 39 (spring).
Chattin, Rebecca M 1996 “Prosecutorial Discretion.”
Georgetown Law Journal 84 (April).
Clark, Marcia 1997 Without a Doubt New York:
HarperCollins.
Darden, Christopher, and Jess Walter 1996 In Contempt.
New York: HarperTrade.
Gershman, Bennett L 1999 Prosecutorial Misconduct 2d ed.
St Paul, Minn.: West Group.
Law Enforcement Coordinating Committee/Victim-Witness
Staff, Executive Office for United States Attorneys,
U.S Department of Justice 1999 Victim and Witness
Rights: United States Attorneys’ Responsibilities 3d ed.
Washington, D.C.: U.S Dept of Justice, Executive Office for United States Attorneys.
Miller, Frank W., et al 1991 Prosecution and Adjudication.
4th ed Westbury, N.Y.: Foundation Press.
Misner, Robert L 1996 “Recasting Prosecutorial Discre-tion ” Journal of Criminal Law and Criminology 86 (spring).
Richman, Daniel 2003 “Prosecutors and Their Agents, Agents and Their Prosecutors ” Columbia Law Review
103 (May).
Worrall, John L., and M Elaine Nugent-Borakove, eds.
2008 The Changing Role of the American Prosecutor.
Albany: State Univ of New York Press.
CROSS REFERENCES Attorney; Criminal Law; Criminal Procedure; District and Prosecuting Attorneys; Malicious Prosecution; Plea Bargaining; Pretrial Conference; Right to Counsel.
PROSPECTUS
A document, notice, circular, advertisement, letter,
or communication in written form or by radio or television that offers any security for sale, or confirms the sale of any security
A prospectus, sometimes known as an“offer document,” is a legal document published by,
or on behalf of, a corporation orMUTUAL FUND It contains disclosures about the character, nature, and purpose of an issue of shares, debentures,
or other corporate SECURITIES that extends an invitation to the public to purchase the securi-ties The prospectus is filed with the SECURITIES AND EXCHANGE COMMISSION The content of a prospectus is regulated by federal law It must contain all material facts relating to the company and its operations (including assets and liabilities) so that a prospective investor can make an informed decision as to the merit of the investment In the case of a mutual fund, it must discuss the fund’s policies and fees A prospectus must be available to an investor before any asset purchase is made
PROSTITUTION Prostitution is the act of offering one’s self for hire
to engage in sexual relations
Prostitution is illegal in all states except Nevada, where it is strictly regulated Some state statutes punish the act of prostitution, and other state statutes criminalize the acts of soliciting prostitution, arranging for prostitution, and operating a house of prostitution On the federal level, the MANN ACT (18 U.S.C.A
§ 2421 [as amended] makes it a crime to
PROSTITUTION 171
Trang 5transport a person in interstate or foreign commerce for the purpose of prostitution or for any other immoral purpose
Prostitution, historically and currently a trade largely practiced by women, was not a distinct offense in colonial America A prostitute could be arrested forVAGRANCYif she loitered on the streets, but generally the act of engaging in sex for money was not itself a crime
The first prostitution statutes were enacted during the so-called Progressive political move-ment of the late nineteenth and early twentieth centuries Urban areas experienced unprece-dented growth during this period Cities became the centers of industrial manufacturing and production, and they were quickly ravaged by disease and poverty The Progressive movement emphasized education and instituted new government controls over the activities of the
general population The movement introduced the PROHIBITION of alcohol, which was banned from 1919 to 1933, vested government with increased power over the lives of poor persons, and created a host of new criminal laws, including laws on prostitution Prostitution actually increased during this period, and it was seen as one of the biggest threats to public health because of its potential to spread debilitating venereal diseases such as syphilis and gonorrhea Prostitutes were viewed as moral failures The male customers of prosti-tutes were not held up to scorn, but the women who practiced prostitution were seen as respon-sible for increases in crime and the general decay of social morals
In the nineteenth and early twentieth centuries, states began to encourage the arrest
of prostitutes for such crimes as vagrancy and loitering Congress passed the Mann Act in
Commercial Sex: Repression
or Legalization?
In the United States, 49 states make
prostitution a crime The only
excep-tion is Nevada, which permits brothels to
operate in specific areas of the state Since
the 1970s, advocates of reform have called
for either the legalization or the
decrimi-nalization of prostitution Proponents see
these approaches as a way of preventing
women from being punished for making
a choice on how they want to earn an
income Opponents of these changes
dismiss the idea that women voluntarily
choose this type of work and claim that
prostitution is yet another part of the U.S
commercial sex industry, which
systemat-ically subordinates women
Proponents of decriminalization
argue that it would remove the stigma
associated with prostitution and increase
profits They contend that
decriminaliza-tion would also relieve the police of
the costly and futile effort to stop an
unstoppable practice
Legalizing prostitution would mean
regulating it Supporters contend that
this would allow the government to
collect millions of dollars annually in taxes, reduce collateral crime, and pro-tect the public from sexually transmitted diseases Proponents point to Nevada, where the use of brothels facilitates testing for diseases and reduces the number of street prostitutes
Other supporters of decriminaliza-tion and reguladecriminaliza-tion challenge what they see as the paternalistic argument that women need to be protected from sexual exploitation This argument, they claim,
is nonsensical because it means that to protect women from exploitation, society must imprison them for engaging in prostitution
In addition, those who favor decrim-inalization note that the worst form of exploitation suffered by prostitutes is from pimps If prostitution were legal, women would generally conduct busi-ness on their own, free from the parasitic and abusive conduct of pimps
Decriminalization supporters also cite the difference between the lax policing of off-street prostitutes and the
harsh treatment of street prostitutes These observers argue that the enforce-ment disparity is a matter of race and class: most street prostitutes are mem-bers of historically oppressed groups, whereas off-street prostitutes generally have middle-class backgrounds They argue that it is unfair for society to tolerate and even promote escort services while regularly jailing street prostitutes Opponents of legalization of prostitu-tion have tradiprostitu-tionally based their opposi-tion on the immorality of commercial sex However, modern feminist thought has developed other arguments against the removal of legal barriers to selling sex Many feminists have attacked the
“career-choice” argument They see it as
a corruption of feminist values that otherwise favor the economic liberty of women They contend that, from a limited range of options constrained by economics, education, sexual harass-ment, and abuse, the decision to sell one’s body cannot be deemed a choice Even if a woman makes a conscious
172 PROSTITUTION
Trang 61910, which criminalized interstate prostitution,
and state legislatures made prostitution a distinct
criminal offense The prostitute, not the
cus-tomer, was the first to be penalized on the state
and local levels; statutes that criminalized the
solicitation of prostitution were passed later
Historically, the enforcement of
prostitu-tion laws focused on apprehension of the
prostitute In the 1960s and 1970s, perhaps as a
result of heightened social discourse on the
issue of prostitution, police departments
be-came more vigilant in their pursuit of
custo-mers Local police in urban areas now regularly
conduct “sting” operations designed to catch
solicitors through the use of undercover agents
posing as prostitutes Many states have
FORFEI-TURE statutes that give law enforcement
agen-cies the power to seize and gain ownership of
vehicles used by customers of prostitutes, and
alleged customers may find their pictures published in the local newspaper
All jurisdictions have made their tion statutes gender-neutral, but the prostitu-tion relaprostitu-tionship still usually consists of a man paying a woman for sex There are occasional variations of the sexual identities of the participants in contemporary society, but, by and large, a prostitute is still more likely to be a female Many prostitutes still work on the street, living a desperate, brutal, dangerous life at the mercy of a promoter, or pimp Because the prostitute usually is a woman or a girl, and because prostitution can wreak havoc on the life of the prostitute, the issue of prostitution has become a matter of concern for WOMEN’S RIGHTS advocates
An increasing amount of prostitution occurs off the street by organized escort services, and
decision to enter prostitution, this does
not redeem the trade from being the
worst form of gender-based exploitation
The “choice” argument is also
un-dercut, argue the opponents of
legaliza-tion, by the fact that the average
prosti-tute starts working at the age of fourteen
and suffers sexual abuse, drug
depen-dency, violence at the hands of
custo-mers, and emotional control by pimps
From this point of view, women are
victims of commercial sex work
More radical feminist critics of
legalization argue that prostitution, like
pornography, is an example of the
unequal status of women in the United
States The right to privacy arguments
advanced by legalization proponents
may sound reasonable, contend critics,
but they mask the systematic
subordi-nation of women Noted feminist legal
scholar Catharine A MacKinnon has
defined pornography as “the graphic
sexually explicit subordination of
women, whether in pictures or words,”
especially in a violent or degrading
context Prostitution is worse than
pornography, contend these critics,
be-cause women are subjected to sex in
violent and degrading contexts
For these more radical critics
of legalization and decriminalization,
making commercial sex legal would legitimize the subordinated position of women in U.S society Just as the legalization of casino gambling has caused a dramatic increase in the num-ber of people gambling and the amount
of money wagered, the legalization of prostitution would give the commercial sex industry the opportunity to legiti-mately expand Critics argue that in a consumer culture already permeated with sexual imagery, legalization is not the answer
Legalization critics have acknowl-edged, however, that prostitutes are prosecuted for their acts while their male customers usually are not In the 1980s and 1990s, many state and local govern-ments have sought to end this double standard by enacting laws that target customers of prostitutes This legislation has also been triggered by residents of local communities who have grown tired
of enduring the presence of customers who visit their neighborhoods These so-called anti-john laws seek to discourage customers by impounding their cars, and, in some cases, notifying their spouses of their arrest
Many police departments have also increased their use of police decoys—
officers disguised as prostitutes who lure
unsuspecting customers into arrest In addition, customers who have been arrested may find their names listed in the local newspaper or photographs broadcast on a local cable television station
It is unlikely that prostitution will
be legalized or decriminalized because few politicians would relish being associated with so morally explosive an issue as commercial sex It is also unlikely, given prostitution’s persistence throughout history, that efforts by law enforcement to prosecute prostitutes and their customers will bring an end
to prostitution
FURTHER READINGS Kuo, Lenore 2002 Prostitution Policy: Revolu-tionizing Practice through a Gendered Perspective New York: New York Univ Press.
Law, Sylvia A 2000 “Commercial Sex: Beyond Decriminalization ” Southern California Law Review 73 (March).
Lefler, Julie 1999 “Shining the Spotlight on Johns: Moving toward Equal Treatment
of Male Customers and Female Prosti-tutes ” Hastings Women’s Law Journal 10 (winter).
CROSS REFERENCES Feminist Jurisprudence; MacKinnon, Catharine.
PROSTITUTION 173
Trang 7prostitutes from these services have some measure of control over their lives Some escort services cater to high-profile clients During the 1990s, the Hollywood madam Heidi Fleiss grabbed media attention when she was charged with running a prostitution ring Among her alleged clients was actor Charlie Sheen Using escort services has ruined the careers of others
For instance, former New York governor Eliot Spitzer in 2008 was accused of paying a call girl
as much as $1,000 per hour One week after the allegations first emerged, Spitzer resigned
FURTHER READINGS Clements, Tracy M 1996 “Prostitution and the American Health Care System: Denying Access to a Group of Women in Need ” Berkeley Women’s Law Journal 11.
Conant, Michael 1996 “Federalism: The Mann Act, and the Imperative to Decriminalize Prostitution ” Cornell Journal of Law and Public Policy 5 (winter).
Feuer, Alan 2008 “Four Charged with Running Online Prostitution Ring ” New York Times Springfield, Ill.:
C C Thomas.
Flowers, R Barri 2001 Sex Crimes, Predators, Perpetrators, Prostitutes, and Victims: An Examination of Sexual Crimi-nality and Victimization Springfield, Ill.: C C Thomas.
Hanna, Cheryl 2002 “Somebody’s Daughter: The Domestic Trafficking of Girls for the Commercial Sex Industry and the Power of Love ” William & Mary Journal of Women and the Law 9 (fall).
Hauge, Carol H 1995 “Prostitution of Women and International Human Rights Law: Transforming Ex-ploitation into Equality ” New York International Law Review 8 (summer).
Kuo, Lenore 2002 Prostitution Policy: Revolutionizing Practice Through a Gendered Perspective New York:
New York Univ Press.
Lucas, Ann M 1995 “Race, Class, Gender, and Deviancy:
The Criminalization of Prostitution ” Berkeley Women’s Law Journal 10.
McCoy, Amy 2002 “Children ‘Playing Sex for Money’: A Brief History of the World ’s Battle against the Commercial Sexual Exploitation of Children.” New York Law School Journal of Human Rights 18 (summer) CROSS REFERENCES
Criminal Law; Sex Offenses; Vice Crimes.
PROTECTIONISM SeeIMPORT QUOTAS
PROTECTIVE CUSTODY Protective custody is an arrangement whereby
a person is safeguarded by law enforcement authorities in a location other than the person’s home because his or her safety is seriously threatened
When a witness to a crime is intimidated not
to testify because the alleged perpetrator and/or associates have threatened physical violence against the witness or the witness’s family, law enforcement authorities have the ability to offer the witness protective custody Protective custody may last only until the end of a trial, or it may last for several years State and federal govern-ments operate witness protection programs that provide assistance to those who wish to cooper-ate but who are afraid of physical retaliation Until the 1960s, law enforcement used protective custody infrequently Federal prose-cution of ORGANIZED CRIME figures led to the offering of witness protection to key govern-ment informers In 1964 Joseph Valachi became the first La Cosa Nostra member to publicly testify to the existence of the organized crime group, appearing before a congressional com-mittee Valachi, who was facing the death penalty, agreed to testify in return for personal protection He was held in solitary confinement for protection and given $15 a month
Since the 1970s the Federal Witness Security Program (18 U.S.C.A § 3521) has grown in size The program is used to fight organized crime,TERRORISM, gang-related crime, and nar-cotics trafficking As of 2008 more than 7,500 witnesses and more than 17,000 total partici-pants had become part of the program According to theU.S.MARSHALS SERVICE, those in the witness protection program have helped to convict more than 10,000 criminals
Under the program, the U.S attorney general is authorized to offer security to key witnesses who have physical safety concerns The program, which is administered by theU.S
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
SOURCE: Federal Bureau of Investigation, Crime in the United States, 2007.
1998
70,000 60,000 50,000 40,000 30,000 20,000 10,000 0
2007
Year
50,082
39,081
Prostitution Arrests, 1998 to 2007
174 PROTECTIONISM
Trang 8MARSHALS SERVICE, provides a newSOCIAL SECURITY
number and other documents to enable the
person to establish a new identity It also
provides housing, transportation of household
goods to a new residence, payments to meet
basic living expenses, employment assistance,
and other services necessary to assist the person
in becoming self-sustaining The witness’s
immediate family or a person closely associated
with the witness may be provided similar
assistance under the program
In return for this assistance, the witness and
family members over 18 years of age must each
sign a memorandum of agreement The witness
must agree to testify and provide information to
law enforcement officials In addition, the person
must agree not to commit any crime and to take
all necessary steps to avoid detection Most
witnesses remain in the program for two years
before pursuing their new lives on their own
Many states have adopted similar programs
for witnesses This type of protection, however,
has come under increased scrutiny Because
witnesses who are convicted criminals are given
new identities and moved to new locations,
local law enforcement agencies have no knowl-edge that potentially dangerous persons are in their communities MURDER and other serious crimes have been committed by persons assisted through witness protection
These programs have also been challenged because a number of high-profile criminals have received favorable treatment Some drug dealers have been allowed to keep their narcotics-generated money and have avoided prison in return for their testimony against others involved in drug trafficking Critics argue that
it makes no sense to have the government pay
to relocate drug dealers and to ensure their safety Defenders of the program argue that this
is a necessary price to pay to convict more powerful crime figures
In several states, witness protection pro-grams are grossly underfunded For instance, Colorado’s program as of 2007 had an annual budget of only $50,000 When a witness and his fiancée were murdered in 2005, the system came under fire However, the state did not take immediate steps to find a remedy for the problem The California program likewise has
Hollywood Madam
T
B
he Los Angeles prostitution prosecution and
conviction of Heidi Fleiss, dubbed the Hollywood
Madam by the press, raised issues that went beyond
the sensational elements of the case Feminist groups
criticized Los Angeles prosecutors for continuing the
familiar pattern of targeting female prostitutes while
ignoring their male customers
Heidi Fleiss, the daughter of a prominent
California pediatrician and a schoolteacher, was
arrested in June 1993 for running an expensive
call-girl business Fleiss was charged with pandering, or
providing prostitutes to customers It was alleged
that seventy women worked for her and that her
clients included Hollywood actors, U.S politicians,
and rich foreign businessmen
The tabloid press had made Fleiss a minor
celebrity before her arrest by occasionally
discuss-ing her and publishdiscuss-ing photographs of her Her
notoriety led the Los Angeles police to conduct a
“sting” operation, in which an officer posed as a
customer, hiring prostitutes at a rate of $1,500 each for a supposed party When the women arrived for the party, they and Fleiss were arrested
In the months that followed, titillating details emerged about Fleiss and her alleged customers
At one point Fleiss offered to reveal the names
of the wealthy men who used her services if she was paid $1 million As the case neared trial, her attorney alleged that Fleiss had been selectively prosecuted and that her male customers, whose names were in her address book, would not be charged with any crimes
The judge dismissed Fleiss’s arguments, and she was convicted of pandering on December 2,
1994 The Los Angeles chapter of the National Organization for Women and some feminists charged that the failure to prosecute the rich and powerful customers demonstrated the double stan-dard at work in the criminal justice system regarding prostitution offenses
PROTECTIVE CUSTODY 175
Trang 9suffered from funding programs In California,
a witness receives little more than one month’s rent and moving expenses
Witness protection programs also exist in prisons To protect witnesses serving a prison sentence, the federal government has created witness protection units within federal prisons
Protected witnesses live a more comfortable life than other prisoners, which includes having free and unlimited access to telephones and CABLE TELEVISIONand the ability to use their own money
to buy food, appliances, jewelry, and other items
Aside from these witness protection pro-grams, prisons also have protected custody units for inmates who are targets ofASSAULTor victims
ofSEXUAL HARASSMENT Although conditions vary greatly in protected custody units from one institution to another, life is more restricted than in the general prison population Some large prisons have separate protective custody facilities, but in most jails and prisons an inmate has protective custody status while housed in administrativeSEGREGATION This means that the inmate is restricted to his cell twenty-three hours a day and must take meals there as well
The United States has assisted other nations
in establishing witness protection programs
During the early 2000s, the U.S Marshals Services began assisting about a dozen countries
to create these programs The effort extended from Western Europe to Asia and involved governments that wanted to intervene in drug cartels, criminal GANGS, human trafficking operations, and terrorists groups
FURTHER READINGS Earley, Pete, and Gerald Shur 2003 Witsec: Inside the Witness Protection Program New York: Bantam.
Johnson, Kevin 2007 “Witness Protection Program Gets Exported.” USA Today.
Hart, Pamela E 2009 “Falling through the Cracks: The Shortcomings of Victim and Witness Protection under
§ 1512 of the Federal Victim and Witness Protection Act ” Valparaiso University Law Review Winter.
U.S Government Manual Website Available online at http://
www.gpoaccess.gov/gmanual/ (accessed May 30, 2009).
United States Marshals Service “Witness Protection Ser-vices ” Available online at http://www.usmarshals.gov/
witsec/index.html (accessed May 30, 2009).
PROTECTIVE ORDER
A court order, direction, decree, or command to protect a person from further harassment,SERVICE
OF PROCESS, or discovery
A protective order can limit the time and place where a deposition can be taken, restrict the inspection of documents in the possession
of a party, or regulate or modify the enforce-ment of a judgenforce-ment
PROTECTORATE
A form of international guardianship that arises under INTERNATIONAL LAW when a weaker state surrenders by treaty the management of some or all of its international affairs to a stronger state The extent of the reciprocal rights and duties between the protecting state and the protected state depends upon the terms of the treaty and the conditions under which other states have recognized the protectorate Although
it loses some of its independence, the protected state still exists as a state in INTERNATIONAL LAW and may avail itself of some of the rights of a state Its diplomatic representatives may still enjoy normal immunities within the courts of other states, for instance, and a treaty concluded
by the protecting state with a third state is not necessarily binding on the protected state Some agencies of the U.S government, such
as the ENVIRONMENTAL PROTECTION AGENCY, still use the term protectorate to refer to insular areas of the United States such as Puerto Rico and the U.S Virgin Islands However, the agency responsible for the administration of those areas, the Office of Insular Affairs (OIA) within the United StatesDEPARTMENT OF INTERIOR, exclusively uses the term “insular area” rather than protectorate
PROTEST
A protest is a formal statement or action expressing dissent or disapproval; under some circumstances, a protest is lodged to preserve a claim or right that would be waived unless a negative opinion was expressly voiced
Debtor Protests
A formal statement made by a debtor, usually in writing, disputing a debt’s legality or validity but agreeing to make payment while reserving the right to recover the amount at a later time The disputed debt is described as under protest Noting Protests
A noting or initial protest is a memorandum made on a dishonored instrument, with a
176 PROTECTIVE ORDER
Trang 10notary’s initials, date, and the amount of
charges, together with a statement of the cause
of dishonor, such as no effects, not advice, or no
account The notes are added to charge the
memory of the notary and should be done on
the day of dishonor
Taxpayer Protests
Taxes paid under protest may be recovered by
the taxpayer only when there is an applicable
statute so providing, and there has been strict
compliance therewith Courts will review a
taxpayer protest to determine whether the
taxing authority acted in GOOD FAITH Taxpayer
protests will be dismissed when they are not
stated with sufficient specificity, are not
con-nected to a cognizable legal injury, or are not
pursued in a timely manner
Customs Protests
In customs cases, a protest is the complainant’s
PLEADINGthat marks the beginning of an action
against the United States in the court of
appropriate jurisdiction A customs protest in
its inception seeks administrative relief, but
upon denial of such relief, the customs protest
becomes the initial pleading in a judicial
proceeding
International Protests
An international protest is a formal
communi-cation from one international actor to another
objecting to the latter’s conduct as violating
INTERNATIONAL LAW
Patent Protests
A patent protest is a proceeding in the U.S
PATENT AND TRADEMARK OFFICE to determine
patentability of an invention after the invention
has challenged in a petition
Political Protests
A political protests is a method by which
individuals express their opposition to
some-thing, whether it is a government policy, rule, or
regulation, a business rule or practice, a
religious precept or practice, or any other part
of society or culture the protestor finds
objectionable Political protests are typically
undertaken by groups of persons organized to
forcefully express their opinion in public so as
to effect change Depending on the time, place,
and manner of a political protest, it may receive
more or less FIRST AMENDMENTprotection
PROTHONOTARY
A title given to the principal clerk of a court
PROTOCOL
A brief summary; the minutes of a meeting; the etiquette of diplomacy
Protocol refers to a summarized document
or the minutes of a meeting that are initialed by the parties present to indicate the accuracy of the document or minutes
Protocol is a section of the DEPARTMENT OF STATE that is responsible for advising the government, the president, the vice president, and the SECRETARY OF STATE on matters of diplomatic procedure governed by law or international custom and practice Protocol is the method of officially ranking or receiving government officials
PROVINCE The district into which a country has been divided;
as, the province of Ontario in Canada More loosely, a sphere of activity or a profession such as medicine or law
PROVISIONAL Temporary; not permanent Tentative, contingent, preliminary
A provisional civil service appointment is a temporary position that fills a vacancy until a test can be properly administered and statutory requirements can be fulfilled to make a permanent appointment
PROVISO
A condition, stipulation, or limitation inserted in
a document
A condition or a provision in a deed, lease, mortgage, or contract, the performance or nonperformance of which affects the validity
of the instrument It generally begins with the word provided
A proviso clause in a statute excepts something from statutory requirements, quali-fies the statute, or excludes some potential area
of misinterpretation
PROVOCATION Conduct by which one induces another to do a particular deed; the act of inducing rage, anger, or
PROVOCATION 177