Wilson served on the Supreme Court from 1789 to 1798, but the latter years of his life ended in disgrace.. ◆ 1785–87 Attended the Third Continental Congress 1782–83 Attended the Second C
Trang 1California into the Union as a free state but gave the Utah and New Mexico territories the right
to determine the slavery issue for themselves at the time of their admission to the Union Most disturbing to Wilmot were the new powers given to the federal government to enforce the
FUGITIVE SLAVE ACT(9 Stat 462)
Wilmot served as a Pennsylvania state judge from 1851 to 1861 In 1854 he, along with disaffected members of the Democratic and Whig parties, helped form the Republican Party
The Republican Party was antislavery and adopted the Wilmot Proviso language as part
of its platform Wilmot became a prominent
member of the party and was elected to the U.S Senate where he served the 1861–63 term
A strong defender of the Union, Wilmot supported PresidentABRAHAM LINCOLNin the early years of the U.S CIVIL WAR Lincoln appointed Wilmot a judge of the U.S Court of Claims in
1863, a post he served until 1868
Wilmot died on March 16, 1868, in Towanda, Pennsylvania
FURTHER READINGS Going, Charles 1924 David Wilmot, Free-Soiler: A Biogra-phy of the Great Advocate of the Wilmot Proviso Reprint Gloucester, Mass.: P Smith, 1966.
Henretta, James A., and David Brody 2009 America: A Concise History Boston, Mass.: Bed/St Martin CROSS REFERENCES
Compromise of 1850; Republican Party; "Wilmot Proviso" (Appendix, Primary Document).
WILMOT PROVISO The 1846 Wilmot Proviso was a bold attempt by opponents of slavery to prevent its introduction
in the territories purchased from Mexico follow-ing the Mexican War Named after its sponsor, Democratic representative DAVID WILMOT of Pennsylvania, the proviso never passed both houses of Congress, but it did ignite an intense national debate over slavery that led to the creation
of the antislaveryREPUBLICAN PARTYin 1854 The Mexican War of 1845–1846 was fueled,
in part, by the desire of the United States to annex Texas President JAMES POLK asked Con-gress in August 1846 for $2 million to help him negotiate peace and settle the boundary with Mexico Polk sought the acquisition of Texas and other Mexican territories Wilmot quickly offered his proposal, known as the Wilmot Proviso, which he attached to President Polk’s
David Wilmot.
GETTY IMAGES
David Wilmot 1814–1868
1861–65 U.S Civil War 1846–48
Mexican War
1814 Born, Bethany, Pa.
1834 Admitted
to Pa bar
1846 Wilmot Proviso failed to pass Congress
1845–51 Served in U.S House
1868 Died, Towanda, Pa.
❖
◆
◆
◆ ◆
1850 Compromise
of 1850
1854 Helped form the Republican party
1856 Republicans held their first presidential convention
1851–61 Served
as Pa.
state judge
1861–63 Served in U.S Senate 1863–68 Served as judge
on the U.S Court of Claims
418 WILMOT PROVISO
Trang 2funding measure The proviso would have
prohibited slavery in the new territories
ac-quired from Mexico, including California
The proviso injected the controversial slavery
issue into the funding debate, but the House
approved the bill and sent it to the Senate for
action The Senate, however, adjourned before
discussing the issue
When the next Congress convened, a new
appropriations bill for $3 million was presented,
but the Wilmot Proviso was again attached to
the measure The House passed the bill and the
Senate was forced to consider the proposal
Under the leadership of SenatorJOHN C.CALHOUN
of South Carolina and other proslavery
sena-tors, the Senate refused to accept the Wilmot
amendment, approving the funds for
negotia-tions without the proviso
For several years, the Wilmot Proviso was
offered as an amendment to many bills, but it
was never approved by the Senate However,
the repeated introduction of the proviso kept
the issue of slavery before the Congress and the
nation TheCOMPROMISE OF1850, which
admit-ted California as a free state but left the issue of
slavery up to the citizens of New Mexico and
Utah, created dissension within the Democratic
and Whig parties The strengthening of federal
enforcement of the FUGITIVE SLAVE ACT (9 Stat
462) angered many northerners and led to
growing sectional conflict
The creation of the Republican Party in
1854 was based on an antislavery platform that
endorsed the Wilmot Proviso The prohibition
of slavery in any new territories became a party
tenet, with Wilmot himself emerging as
Republican Party leader The Wilmot Proviso, while unsuccessful as a congressional amend-ment, proved to be a battle cry for opponents of slavery
FURTHER READINGS Fehrenbacher, Don Edward 1995 Sectional Crisis and Southern Constitutionalism Baton Rouge: Louisiana State Univ Press.
Henretta, James A., and David Brody 2009 America: A Concise History Boston, Mass.: Bed/St Martin.
Morrison, Chaplain W 1967 Democratic Politics and Sectionalism: The Wilmot Proviso Controversy Chapel Hill: Univ of North Carolina Press.
Rayback, Joseph G 1971 Free Soil: The Election of 1848.
Lexington: Univ Press of Kentucky.
CROSS REFERENCES Compromise of 1850; “Wilmot Proviso” (Appendix, Primary Document).
vWILSON, JAMES Lawyer, author, theorist, and justice,JAMES WILSON
helped write the U.S Constitution and served as one of the first justices of the U.S Supreme Court Wilson emigrated from Scotland in the mid 1760s, studied law, and quickly gained prominence and success in Philadelphia As a Federalist, Wilson believed in strong central government This theme pervaded the pamphlets
he wrote in the 1770s and 1780s These highly influential tracts won him a national reputation
In 1787, he was a leading participant at the Constitutional Convention where the U.S Con-stitution was written Wilson served on the Supreme Court from 1789 to 1798, but the latter years of his life ended in disgrace
Born on September 14, 1742, near St
Andrews, Scotland, Wilson came from a rural
James Wilson 1742–1798
1800 1775
1750
1798 Died, Edenton, N.C.
1796 Jailed for bad debts
1793 Wrote opinion in Chisholm v.
Georgia, which upheld the right of
citizens of one state to sue another state.
1789 Appointed associate justice of the U.S Supreme Court; became the first law professor at University of Pa.
◆
1785–87 Attended the Third Continental Congress
1782–83 Attended the Second Continental Congress
1787 Successfully argued for
a federal government divided into three parts at the Constitutional Convention
1775–83 American Revolution
1774
Considerations
on the Nature and Extent of the Legislative Authority
of the British Parliament
published
1775–76 Attended the First Continental Congress
1776 Signed the Declaration of Independence
1757–65 Studied at the Universities of St.
Andrews, Glasgow, and Edinburgh
1765 Immigrated to the American colonies
1767 Admitted to Pa bar
1742 Born, near
St Andrews,
Scotland
LAWS MAY BE UNJUST MAY BE DANGEROUS,MAY BE DESTRUCTIVE;AND YET NOT BE UNCONSTITUTIONAL
—J AMES W ILSON WILSON, JAMES 419
Trang 3working class background His quick intelli-gence took him far from his roots, however He attended the University of St Andrews from
1757 to 1759, the University of Glasgow from
1759 to 1763, and the University of Edinburgh from 1763 to 1765 At the age of 23, he set out
to make his fortune by emigrating to the American colonies, where he promptly began studying law under one of America’s best lawyers, JOHN DICKINSON Two years later, in
1767, he was admitted to the Pennsylvania bar
Over the next two decades, Wilson wrote political pamphlets that brought him national attention and launched his public career In
1774 he argued that the American colonies should be free from the rule of British law-makers in his widely read Considerations on the Nature and Extent of the Legislative Authority of the British Parliament His writing soon led to involvement in the planning for American independence He represented Pennsylvania at the CONTINENTAL CONGRESS from 1775 to 1776, and 1782 to 1783, and signed theDECLARATION OF INDEPENDENCEin 1776 In 1779 Wilson accepted the role of Advocate General for France in America, a post he occupied until 1783
Wilson’s most important role came at the Constitutional Convention in 1787, where he argued on behalf of key features of the Constitu-tion such as the SEPARATION OF POWERS, which divided federal government into three parts, and the sovereignty of the people A year later he
helped persuade Pennsylvania to adopt the Constitution
In 1789 President GEORGE WASHINGTON con-sidered Wilson for the position of chief justice
of the U.S Supreme Court, a post Wilson desired but never attained He became an associate justice, and, in the same year, was made the first law professor of the University of Pennsylvania The few short opinions he wrote for the Court embodied his strong FEDERALISM His most famous opinion was CHISHOLM V
GEORGIA, 2 U.S (2 Dall.) 419, 1 L Ed 440 (1793), which upheld the right of citizens of one state to sue another state
Wilson’s most lasting impact likely resulted from his work on the Committee of Detail, which produced the first draft of the United States Constitution in 1787 He wanted senators and the president to be popularly elected He also raised the Three-Fifths Compromise at the convention, which counted slaves as three-fifths
of a person for representation in the House and
ELECTORAL COLLEGE Despite the accomplishments of his early life, Wilson remained a minor figure on the Court As a result of bad investments he fell heavily into debt in the 1790s and was jailed twice before fleeing his creditors He died on August 21, 1798, in Edenton, North Carolina
FURTHER READINGS Conrad, Stephen A 1989 “James Wilson’s ‘Assimilation of the Common-Law Mind ’” Northwestern University Law Review 84 (fall).
——— 1984 “Polite Foundation: Citizenship and Com-mon Sense in James Wilson ’s Republican Theory.” Supreme Court Review (annual).
Delahanty, Mary T 1969 The Integralist Philosophy of James Wilson New York: Pageant Press.
Hills, Roderick M., Jr 1989 “The Reconciliation of Law and Liberty in James Wilson ” Harvard Journal of Law & Public Policy 12 (summer).
Smith, Page 1973 James Wilson, Founding Father, 1742–
1798 Westport, Conn.: Greenwood Press.
Wilson, James 2004 The Works of the Honourable James Wilson Published under the direction of Bird Wilson Union, N.J.: Lawbook Exchange.
vWILSON, JAMES QUINN James Q Wilson is a significant American thinker and writer whose views onCRIMINOLOGY, economics, politics, and culture have found both acceptance and criticism since the 1970s Wilson is particularly known for advancing the
“broken window” theory of crime deterrence Wilson’s 1982 thesis was simple: If people see a
James Wilson.
LIBRARY OF CONGRESS
420 WILSON, JAMES QUINN
Trang 4broken factory or office window that is left
unrepaired, they will conclude that no one is
looking after the property Soon all the windows
will be broken, signaling the breakdown of law
and order in that neighborhood Wilson’s
theory held that neighborhoods could prevent
the growth of crime if they quickly took steps
such as replacing broken windows, removing
graffiti, keeping streets and buildings in good
repair, and making arrests for petty crimes and
misdemeanors such as littering and evading
fares for public transportation Numerous U.S
cities embraced Wilson’s theory The most
notable response was that of New York City in
the 1990s, when Mayor Rudolph Giuliani and
Police Commissioner William Bratton used this
approach to successfully reduce crime and
improve the perception of New York City as a
safe place to visit
James Quinn Wilson was born May 27, 1931,
in Long Beach, California Wilson did not plan
on attending college until his high school English
teacher told him that he could attend the
University of Redlands on a scholarship In
1952 Wilson graduated with a bachelor’s degree
in political science Wilson enlisted in the navy
during theKOREAN WARand served three years He
then attended graduate school at the University of
Chicago, where he received a Ph.D in 1959
Wilson taught government at Harvard
University from 1961 until 1987 He then
taught management andPUBLIC POLICYat UCLA
from 1985 to 1997 As of 2009 Wilson is the
RONALD REAGAN Professor of Public Policy at
Pepperdine University’s School of Public Policy
Wilson has served on a number of national
commissions related to public policy In 1966
he was chair of the White House Task Force on
Crime He also served as chair of the National Advisory Commission on Drug Abuse Preven-tion in 1972–1973 and was a member of the attorney general’s Task Force on Violent Crime
in 1981 From 1985 to 1990 he was a member of the President’s Foreign Intelligence Advisory Board Wilson served on the board of directors for the Police Foundation from 1971 to 1973
In addition to serving on the board of directors of a number of major U.S corpora-tions, Wilson serves as chair of the council of academic advisors for the American Enterprise Institute He was elected a member of the American Academy of Arts and Sciences and was made a fellow of the American Philosophi-cal Society In 1990, Wilson received the JAMES MADISON Award for distinguished scholarship from the American Political Science Association (APSA) He served as president of the APSA from 1991 to 1992
Wilson has authored more than a dozen books dealing with the topics of crime, govern-ment, urban problems, and aspects of American culture One of Wilson’s most seminal works was Thinking about Crime, published in 1975 In this book Wilson, a strong conservative, rejected the rehabilitation model of punishment that held that offenders are subject to rehabilitative efforts and that money spent on social programs helps reduce crime Wilson wrote that offenders could not be helped by social programs because they have made a rational choice to commit crimes Wilson argued in favor of the deterrence model that held that INCARCERATION and other government-imposed sanctions are the best methods of deterring would-be offenders
Wilson’s arguments in favor of the deter-rence model of crime and punishment gained
James Quinn Wilson 1931–
◆
◆
◆
◆
◆
❖
2001 September 11 terrorist attacks
2002 The Marriage
Problem: How Our Culture Has Weakened Families published
1991–92 Served as president of American Political Science Association
1985–97 Taught management and public policy
at UCLA
1975 Thinking about
Crime published
1959 Earned Ph.D.
from University of Chicago
1950–53 Korean War 1939–45
World War II
1931 Born,
Long Beach, Calif.
1961–87 Taught government at Harvard University
◆
1990 Received James Madison Award for distinguished scholarship, American Political Science Association
◆
1961–73 Vietnam War
2006 American Government, 10th edition, published
2003 Awarded Presidential Medal of Freedom
WITHOUT RELIGIOUS FREEDOM,MODERN GOVERNMENT IS IMPOSSIBLE
—J AMES Q W ILSON
Trang 5support throughout the 1980s and 1990s During this period a number of states as well as the federal government replaced indeterminate sen-tencing policies that gave judges and PAROLE
boards wide latitude to determine how long an offender should be incarcerated, with sentencing guidelines that mandated particular sentence lengths with little discretion left to the judges
These policy changes met with great favor from governmental officials and members of the public who advocated increased law and order.HUMAN RIGHTS advocates and others have criticized the results of the deterrence model as infringing on civil liberties Some members of the judiciary have protested severe penalties for what they see
as minor offenses Nevertheless, Wilson has been steadfast in defending his theory As crime rates fell in the 1990s, he argued that deterrence worked In a 1998 U.S News and World Report article Wilson stated,“Putting people in prison is the single most important thing we’ve done.”
Wilson continued to stir controversy in
2002 with the publication of his book (one of 14), The Marriage Problem: How Our Culture Has Weakened Families, in which he argued that
COHABITATION andDIVORCEhave led to increases
in school dropouts, teenage pregnancies, and criminal activity
According to Pepperdine University, Wilson’s textbook on American government, American Government: Institutions and Policies, co-written with John J DiIulio Jr., is more widely used on university campuses than any other government textbook The book’s tenth edition was published in 2006
FURTHER READINGS Kelling, George M., and Catherine L Coles 1998 Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities New York: Touchstone Books.
Wilson, James Q 2002 The Marriage Problem: How Our Culture Has Weakened Families New York: Harper-Collins.
——— 1997 Moral Judgment: Does the Abuse Excuse Threaten Our Legal System? New York: BasicBooks.
——— 1995 On Character: Essays Washington, D.C.: AEI Press.
CROSS REFERENCES Crimes; Rehabilitation; Sentencing.
Educator, political reformer, and the 28th presi-dent of the United States, Woodrow Wilson significantly affected domestic and international affairs during his two terms in office Wilson made advances in education while he was the president of Princeton University in the early 1900s, before entering politics as the governor of New Jersey in 1910 He was elected president first
in 1912 and again in 1916 He emerged from the tragedy ofWORLD WAR Ias an international leader who campaigned widely for the creation of the
LEAGUE OF NATIONS—the post-war international organization that was the forerunner of the
UNITED NATIONS But political battles with a reluctant Congress ultimately dashed his hopes
of U.S participation in the League
Born on December 28, 1856, in Staunton, Virginia, Thomas Woodrow Wilson was the third
of four children of devoutly religious parents, Janet Woodrow Wilson and Joseph Ruggles Wilson (a minister) TheU.S.CIVIL WARprevented him from beginning school until the age of nine, but the intellectual atmosphere fostered largely by his father helped him to excel After graduation from Princeton University in 1879, he studied law at the University of Virginia and became a member of the bar in 1882 He established a law practice in Atlanta, Georgia, but later returned to
Thomas Woodrow Wilson 1856–1924
❖
◆
1924 Died, Washington, D.C.
1919 Awarded Nobel Peace Prize; Volstead Act passed over Wilson's veto
1918 Signed Versailles peace treaty; lobbied for U.S participation in League of Nations
◆
◆
1910 Elected governor of New Jersey
1902–10 Served as president of Princeton University
1913 Underwood Tariff Act passed; Federal Reserve Act passed
1913–21 Served as U.S president
1915 Lusitania attacked and sunk
1917 U.S entered World War I
1914–18 World War I
1885–92 Taught at Bryn Mawr College, Wesleyan University, and Princeton University
1879 Graduated from Princeton University
1861–65 U.S Civil War
1856 Born,
Staunton,
Va.
◆
422 WILSON, THOMAS WOODROW
Trang 6school to study political science at Johns Hopkins
University, earning his doctorate in 1886
Professionally, Wilson worked in the area of
education before entering politics Between
1885 and 1892, he taught history and political
economy first at Bryn Mawr College, then at
Wesleyan University, and finally at Princeton
As president of Princeton from 1902 to 1910, he
became known as an educational reformer His
improvements to teaching were welcomed until
he set out on a bold plan to reform the social
structure of the school by eliminating class
distinctions, an effort that was severely criticized
Elected governor of New Jersey in 1910, Wilson
pursued reform policies that won greater
ap-proval: He improved worker’s compensation and
the school system while also providing for better
control ofPUBLIC UTILITIES
In 1912 the strength of Wilson’s
accom-plishments at Princeton and as governor helped
to take him to the White House Running as a
Democrat, he also benefited from a rift in the
REPUBLICAN PARTY that split votes between
THEODORE ROOSEVELTandWILLIAM HOWARD TAFT
Wilson called his domestic program the New
Freedom It consisted of far-ranging economic
and labor reforms In a dramatic return to an old
tradition, he addressed Congress personally,
asking for passage of the legislation, and Congress
largely complied In 1913 the Underwood Tariff
Act instituted theINCOME TAX but decreased the
tariff on certain imports The Federal Reserve Act
of 1913 (38 Stat 251), which reorganized the
national banking system, is regarded as the most
important banking reform in history It gave the
federal government control over the FEDERAL
RESERVE BOARD while also providing agricultural
credits to farmers
The extent of Wilson’s idealism can be seen
in other significant reforms In 1914 theFEDERAL
TRADE COMMISSIONwas established to discourage
business corruption, and theCLAYTON ANTITRUST
ACT (15 U.S.C.A § 12 et seq.) was passed in
order to restrict businesses from
monopoliz-ing—unfairly dominating—individual markets
Three constitutional amendments were ratified
during the Wilson administration: the provision
for the direct election of U.S senators in 1913
(SEVENTEENTH AMENDMENT); thePROHIBITIONof the
manufacture, sale, and transportation of liquor
in 1917 (EIGHTEENTH AMENDMENT); and the
granting of the right to vote to women in
1920 (NINETEENTH AMENDMENT)
Wilson’s foreign-affairs policies encoun-tered serious difficulties In Mexico, which was
in the throes of upheaval, the arrest of U.S
military personnel precipitated a U.S invasion
U.S troops also retaliated when Mexican revolutionary Francisco“Pancho” Villa invaded New Mexico Wilson ordered troops to pursue him into Mexico Relations between the two nations remained tense throughout the Wilson administration
World War I and its aftermath tested Wilson The United States was neutral at the onset of war in 1914 Despite the entreaties of allies, it did not enter the war until nearly two years after Germany had begun attacking ships with submarines (Germany sank the English ship Lusitania on May 7, 1915, killing more than 100 U.S passengers.) More German attacks on ships carrying U.S passengers forced Wilson’s hand In 1917 his war speech included the celebrated phrase,“the world must be made safe for democracy.” As the defeat of Germany became imminent in 1918, Wilson put forth his Fourteen Points, a post-war program that he hoped would establish a lasting peace
Besides economic, political, and geographic proposals, Wilson’s plan proposed the creation
of an international peacekeeping body to be called the League of Nations Traveling to Europe in 1918 for the signing of a peace treaty
Woodrow Wilson LIBRARY OF CONGRESS
AMERICA WAS SET
UP AND OPENED HER DOORS,IN ORDER THAT ALL MANKIND MIGHT COME AND FIND WHAT IT WAS TO RELEASE THEIR ENERGIES IN A WAY THAT WOULD BRING THEM COMFORT AND HAPPINESS AND PEACE OF MIND
—W OODROW W ILSON
Trang 7at Versailles, France, Wilson was praised This acclaim was not heard at home, where domestic criticism of his proposed League of Nations forced him to make concessions He traveled widely across the nation campaigning on behalf
of his plan Ultimately, however, opposition in the U.S Senate, based on the conviction that the United States should stay out of European affairs, scuttled plans for U.S participation in the League Wilson also suffered personally at this time A stroke in 1919 rendered him an invalid for the rest of his life
History has sometimes judged Wilson to be too much of an idealist, particularly in foreign affairs The disastrous Versailles Treaty, in particular, sowed the seeds of a second world war Yet his leadership during the war was inspirational, and his plan for international participation after the war was largely achieved
in later decades under the aegis of the United Nations For these accomplishments, Wilson was awarded the 1919 Nobel Peace Prize He died on February 3, 1924, in Washington, D.C
FURTHER READINGS Butler, Gregory S 1997 “Visions of a Nation Transformed:
Modernity and Ideology in Wilson ’s Political Thought.”
Journal of Church and State 39 (winter).
Carroll, James Robert 2001 The Real Woodrow Wilson: An Interview with Arthur S Link, Editor of the Wilson Papers Bennington, Vt.: Images from the Past.
Clements, Kendrick A., and Eric A Cheezum 2003.
Woodrow Wilson Washington, D.C.: CQ Press.
Macmillan, Margaret 2002 Paris 1919: Six Months that Changed the World New York: Random House.
Stid, Daniel D 1998 The President as Statesman: Woodrow Wilson and the Constitution Lawrence: Univ Press of Kansas.
CROSS REFERENCES
“Fourteen Points Speech” (Appendix, Primary Document); League of Nations; Treaty of Versailles.
WIND UP The last phase in the dissolution of a partnership
or corporation, in which accounts are settled and assets are liquidated so that they may be distributed and the business may be terminated The dissolution of a corporation or a partnership culminates in the wind up of all legal and financial affairs of the business State statutes govern the dissolution process for both types of business organizations, based on the need to insure that creditors, stockholders, and other interested parties receive a fair accounting
of the liquidation and distribution of the business assets
When a corporation announces that it will dissolve and end its legal existence, it is only the beginning of the end Dissolution marks the end
of business as usual, but corporate existence continues for the limited purpose of paying, settling, and collecting debts Once this is done, the corporation may wind up and distribute the remaining assets
A general partnership will dissolve when a change occurs in the relation of the partners caused by any partner ceasing to be associated in the carrying on of the business In the absence of
a contrary agreement by the partners, a dissolu-tion involves reducing the partnership assets
to cash, paying creditors, and distributing to partners the value of their respective interests, as well as the performance of existing contracts Once this phase is completed, the partnership may wind up by distributing assets Once the wind up has occurred, the termination of the partnership is complete
A partnership contract that is silent as to the procedures for wind up and liquidation must defer to the provisions of the Uniform Partner-ship Act (UPA), which has been adopted by virtually all of the states The same rules of winding up and liquidation apply to all partner-ships, regardless of their nature or business Section 37 of the UPA provides that unless otherwise agreed, the partners who have not wrongfully dissolved the partnership or the legal
Winding up a
business involves
selling off all of the
business’s assets.
Going out of business
sales typically involve
steep discounts to
move merchandise
quickly.
AP IMAGES
424 WIND UP
Trang 8representative of the last surviving solvent
partner have the right to wind up the partnership
affairs, provided, however, that any partner, his
legal representative, or his assignee may obtain,
for good cause, winding up by a court
WINSHIP, IN RE
In the case In re Winship, 397 U.S 358, 90 S Ct
1068, 25 L Ed 2d 368 (1970), the U.S Supreme
Court ruled that the DUE PROCESS CLAUSE of the
FOURTEENTH AMENDMENTto the U.S Constitution
requires proofBEYOND A REASONABLE DOUBTbefore
a juvenile may be adjudicated delinquent for an
act that would constitute a crime were the child
an adult Winship expanded the constitutional
protections afforded byIN RE GAULT, 387 U.S 1,
87 S Ct 1428, 18 L Ed 2d 527 (1967), in which
the Supreme Court ruled that minors accused of
delinquent acts must receive notice of any
charges pending against them, and be given a
reasonable opportunity to defend themselves
during a fair hearing in which they enjoy the
RIGHT TO COUNSEL, the right not to incriminate
themselves, and the right to confront and
cross-examine adverse witnesses
Twelve-year-old Samuel Winship was
charged under the New York Family Court Act
(NYFCA) with stealing $112 from a woman’s
pocketbook, an act that would have constituted
the crime of LARCENY if Winship had been an
adult At the conclusion of the proceedings
against Winship, the family court judge made a
finding of delinquency by aPREPONDERANCE OF THE
EVIDENCE, the standard of proof set forth in section
744(b) of the NYFCA The judge acknowledged
on the record that the state had not proven its
case beyond a reasonable doubt As a
conse-quence for his transgression, Winship was placed
in a juvenile training facility for a minimum
period of 18 months
Winship appealed the adjudication of
delin-quency to the New York Supreme Court (an
intermediate court of appeals in New York),
where he challenged the constitutionality of the
NYFCA Winship claimed that he was denied
due process because the NYFCA required the
family court to apply a quantum of proof less
stringent than beyond a reasonable doubt After
the court rejected this challenge, Winship
appealed the case to the New York Court of
Appeals (the highest court in the state of New
York), which affirmed the decisions of both
lower courts In the Matter of Samuel W v
Family Court, 24 N.Y.2d 196, 247 N.E.2d 253,
299 N.Y.S.2d 414 (1969)
The court of appeals relied on the traditional distinction between juvenile and criminal pro-ceedings in explaining its decision to affirm the lower court State intervention in delinquency matters is traditionally justified under the doct-rine of PARENS PATRIAE, a paternalistic theory of juvenile justice in which the government seeks to protect the welfare of minors by providing wayward youth with medical help, counseling, discipline, and other assistance deemed necessary
by a court or by social services
In contrast to the remedial and rehabilitative nature of many juvenile dispositions, criminal sanctions are intended to serve four different purposes: punishment, retribution, deterrence, and confinement While most criminal proceed-ings are open to the public, nearly all juvenile proceedings are conducted in private under strict orders of confidentiality Because adult criminal defendants generally have more at stake than minors accused of delinquency, criminal proceedings involving adults are designed to be more adversarial in nature Conversely, juvenile proceedings are administered with greater flexibility to meet the needs of each delinquent child
Based on these distinctions, the court of appeals concluded that the remedial goals of juvenile justice are better served when the guilt
or innocence of a minor is determined by a preponderance of the evidence Application of the reasonable doubt standard in delinquency proceedings, the court of appeals reasoned, would result in a greater number of acquittals
More troubled children would return home without aid from juvenile justice programs, the court surmised, and delinquency problems would exacerbate
In reversing the New York Court of Appeals, the U.S Supreme Court emphasized two points First, the Court underscored the importance of the reasonable doubt standard
Proof beyond a reasonable doubt, the Court said, is a standard deeply rooted in the nation’s history, and forms an integral part of the fundamental freedoms protected by the Due Process Clause The Court noted that since colonial times every person accused of wrong-doing in America has been entitled to a
PRESUMPTION OF INNOCENCE until proven guilty beyond a reasonable doubt by the government
WINSHIP, IN RE 425
Trang 9Second, the Court indicated that this standard of proof is not necessarily limited to criminal cases, but may apply in other proceed-ings in which an accused faces a potential deprivation of life, liberty, or property Winship faced confinement in a juvenile training facility for a period of up to six years because his detention order was subject to annual extension
by the family court until his 18th birthday
Ordinarily, the Supreme Court observed, the law reserves such lengthy periods of confine-ment for adult felony offenders But when juvenile defendants are exposed to adult-like penal sanctions, the Court held, they must be protected by the same procedural safeguards as adult criminal defendants, including the right to
be presumed innocent until proven guilty beyond a reasonable doubt
Despite the sweeping language ofIN RE WINSHIP
and In re Gault, juveniles are not always afforded the same protections as adults under the Due Process Clause For example, in McKeiver v
Pennsylvania, 403 U.S 528, 91 S Ct 1976, 29 L
Ed 2d 647 (1971), the Supreme Court ruled that there is no constitutional right to jury trial in juvenile proceedings So long as the judge presiding over a juvenile matter is fair and impartial, the Supreme Court said, due process has been provided
FURTHER READINGS Imwinkelried, Edward J 2002 “The Reach of Winship:
Invalidating Evidentiary Admissibility Standards that Undermine the Prosecution ’s Obligation to Prove the Defendant ’s Guilt beyond a Reasonable Doubt.” UMKC Law Review 70 (summer).
Paglia, Todd J 1993 “Misuse of the General Verdict and the Demise of In re Winship ” New England Journal on Criminal & Civil Confinement 19 (summer).
Rosenberg, Irene Merker 1990 “Winship Redux: 1970 to
1990 ” Texas Law Review 69 (November).
“Winship on Rough Waters: The Erosion of the Reasonable Doubt Standard ” 1993 Harvard Law Review 106 (March).
CROSS REFERENCES Due Process of Law; Juvenile Law; Preponderance of Evidence.
WIRETAPPING
A form of electronic eavesdropping accomplished
by seizing or overhearing communications by means of a concealed recording or listening device connected to the transmission line
Wiretapping is a particular form of ELEC-TRONIC SURVEILLANCE that monitors telephonic
and telegraphic communication The introduc-tion of such surveillance raised fundamental issues concerning personal privacy Since the late 1960s, law enforcement officials have been required to obtain a SEARCH WARRANT before placing a wiretap on a criminal suspect Under the Federal Communications Act of 1934 (47 U.S.C.A 151 et seq.), private citizens are prohibited from intercepting any communica-tion and divulging its contents
Police departments began tapping phone lines in the 1890s The placing of a wiretap is relatively easy: A suspect’s telephone line is identified at the phone company’s switching station and a line, or“tap,” is run off the line to
a listening device The telephone conversations may also be recorded
The U.S.SUPREME COURT, in the 1928 case of Olmstead v United States, 277 U.S 438, 48 S Ct
564, 72 L Ed 944, held that the tapping of a telephone line did not violate the Fourth Amendment’s prohibition against unlawful searches and seizures, so long as the police had not trespassed on the property of the person whose line was tapped Justice LOUIS D
BRANDEISargued in a dissenting opinion that the Court had employed an outdated mechanical and spatial approach to the FOURTH AMENDMENT
and that it had failed to consider the interests in privacy that the amendment was designed to protect
For almost 40 years, the U.S Supreme Court maintained that wiretapping was permis-sible in the absence of a TRESPASS When police did trespass in federal investigations, the evi-dence was excluded in federal court The Court reversed course in 1967, with its decision in Katz v United States, 389 U.S 347, 88 S Ct
507, 19 L Ed 2d 576 The Court abandoned the Olmstead approach of territorial trespass and adopted one based on the reasonable expecta-tion of privacy of the person who was the subject of the wiretapping Where an individual has an expectation of privacy, the government is required to obtain a warrant for wiretapping Congress responded by enacting provisions
in the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A § 2510 et seq.) that established procedures for wiretapping All wiretaps were banned except those approved
by a court Wiretaps were legally permissible for
a designated list of offenses, if a court approved
A wiretap may last a maximum of 30 days, and
426 WIRETAPPING
Trang 10notice must be provided to the subject of the
search within 90 days of any application or a
successful interception In 1986 Congress
ex-tended wiretapping protection to electronic
mail in the Electronic Communications Privacy
Act (ECPA), 8 U.S.C.A § 2701 et seq The law,
also known as the Wiretap Act, makes it illegal
to tap into privateE-MAIL
With the emergence of the INTERNETin the
1990s as a popular communications vehicle, law
enforcement agencies concluded that it was
necessary to conduct surveillance of e-mail, chat
rooms, and Web pages in order to monitor
illegal activities, such as the distribution ofCHILD
PORNOGRAPHYand terrorist activities In 2000, the
FEDERAL BUREAU OF INVESTIGATION(FBI) launched
an Internet diagnostic tool called“Carnivore.”
Carnivore monitored e-mail writers online or
recorded the contents of messages It performed
these tasks by capturing “packets” of
informa-tion that may be lawfully intercepted Civil
liberties broups expressed alarm at the loss of
privacy posed by such invasive technology The
FBI changed the name of the program to
DCS1000 and abandoned it in 2001 in favor of
commercial software The FBI told Congress
that it had used the program only 25 times
between 1998 and 2000, and in 2005 it disclosed
that it had only carried out 10 Internet wiretaps
to that point It justified the switch to an
undisclosed commercial software program
be-cause that would be less expensive and could
better target individuals without affecting other
e-mail users
Following the September 11, 2001, terrorist
attacks, Congress broadened wiretapping rules
for monitoring suspected terrorists and
perpe-trators of computerFRAUDand abuse through the
USA PATRIOT Act, Pub L No 107-56, 115 Stat
272 (2001) For example, the act expanded the
use of traditional pen registers (a device to
capture outgoing phone numbers from a specific
line) and“trap and trace” devices (that capture
the telephone numbers of incoming callers) to
include both telephone and Internet
commu-nications as long as they exclude message content
These devices can be used without having to show
that the telephone being monitored was used in
communications with someone involved in
TERRORISM or intelligence activities that may
violate criminal laws
In addition, the act broadened the
provi-sions of the 1986 Wiretap Act that involve
roving wiretaps Roving wiretaps authorized law enforcement agents to monitor any telephone
a suspect might use Again, agents do not have
to prove that the suspect is actually using the line This means that if a suspect enters the private home of another person, the home-owner’s telephone line can be tapped The act does allow persons to file civil lawsuits if the federal government discloses information gained through surveillance and wiretapping powers
In 2005 Attorney General ALBERTO GONZALES
confirmed a newspaper story in the New York Times that the government had conducted warrantless wiretaps of persons within the United States This surveillance was in conjunc-tion with the collecconjunc-tion of foreign intelligence
by the U.S National Security Agency (NSA) as part of the Bush administration’s “war on terror.” The disclosure triggered civil lawsuits against the telecommunication companies that assisted the government in violation of federal laws regarding the collection of foreign intelligence
In 2007 Congress amended the Foreign Intelligence Surveillance Act of 1978 (FISA) to
Authorized Intercepts of Communication
in 2008
SOURCE: Administrative Office of the U.S Courts,
Wiretap Report, 2008.
Racketeering 58
Larceny, theft, robbery 44
Bribery 3
Gambling 54
Homicide
or assault 92
Other 47
Narcotics 1,593
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
WIRETAPPING 427