In the Sweat Box: A Historical Perspective on the Detention of Material Witnesses

After the September 11 terrorist attacks, the Justice Department detained scores of allegedly suspicious persons under a federal material witness statute--a tactic that provoked a great deal of controversy. Most critics assume that the abuse of material witness laws is a new development. Yet, rather than being transformed by the War on Terror, the detention of material witnesses is a coercive strategy that police officers across the nation have used since the nineteenth century to build cases against suspects. Fears of extraordinary violence or social breakdown played at most an indirect role in its advent and growth. Rather, it has long been used to obtain prosecution evidence in ordinary cases of murder, robbery, prostitution, and other street crimes. Historically, no stark divide between the innocent witness and the suspected criminal existed in the minds of the police. Indeed, material witness detention contributed to the rise of incommunicado interrogation and numbered among the tactics identified in the Wickersham Commission\u27s expose of the third degree in 1931. This Essay demonstrates that the story of material witness detention is one of stasis, not of change. For more than a century, the field practices of police and magistrates have been unresponsive to reforms in statutory and constitutional law or to sporadic public pressure on behalf of detainees deemed to have knowledge of a crime. In telling such a story, this Essay seeks, not to defend the Justice Department, but to suggest that intense scholarly focus on September 11 as a watershed in the history of criminal procedure obscures ways in which the gradual consolidation of governmental power over more than a century has fostered an increasingly coercive and secretive relationship between the individual and the police

The Stereotyped Offender: Domestic Violence and the Failure of Intervention

Scholars and battered women\u27s advocates now recognize that many facets of the legal response to intimate-partner abuse stereotype victims and harm abuse survivors who do not fit commonly accepted paradigms. However, it is less often acknowledged that the feminist analysis of domestic violence also tends to stereotype offenders and that state action, including court-mandated batterer intervention, is premised on these offender stereotypes. The feminist approach can be faulted for minimizing or denying the role of substance abuse, mental illness, childhood trauma, race, culture, and poverty in intimate-partner abuse. Moreover, those arrested for domestic violence crimes now include heterosexual women, lesbians, and gay men; abuse is as common in same-sex relationships as in their heterosexual counterparts. Failure to take such factors into account perpetuates a one-dimensional image of the batterer as a controlling, heterosexual, male villain-a stereotype that impedes efforts to coordinate effective responses to domestic violence and entrenches gendered hierarchies that affect men, as well as women. This Article begins by placing the feminist paradigm of the batterer in historical context. Although feminists transformed the dialogue about domestic violence by locating- it in patriarchy and gender inequality, the offender stereotype that the Battered Women\u27s Movement used to spur a vigorous state response and that still drives domestic violence policy shares some limitations with earlier paradigms of the wife beater-the hot-headed sinner in Puritan New England or the drunken brute of Temperance discourse. Like these earlier stereotypes, the image of the coercive, controlling male batterer is too one-dimensional and too closely tied to other sociopolitical agendas to yield a practical approach to prevent domestic violence and change the behavior of its perpetrators. Drawing on historical, sociological, and psychological materials, as well as insights from masculinities studies, this Article suggests limits to our understanding of those who commit intimate-partner abuse and to the laws and policies-especially court-mandated batterer intervention programs ( BIPs )-currently in place. It presents an original analysis of 46 sets of state and local standards for BIPs to show that, although these standards are starting to be more inclusive, they still tend to impose a one-size-fits-all formula designed for heterosexual male offenders. The one-size-fits-all approach ignores crucial differences-not only in intimate-partner violence committed by women, as opposed to men, and homosexuals, as opposed to heterosexuals-but also between heterosexual male offenders and the types of abuse they inflict. Recognizing these differences would facilitate the effective tailoring of BIPs to achieve long-term behavioral change in a variety of participants. The Article concludes by offering preliminary suggestions for transforming profeminist interventions to encourage accountability and rehabilitation and to reduce recidivism without stereotyping domestic violence offenders

The Stereotyped Offender: Domestic Violence and the Failure of Intervention [Batterer Intervention Program (BIP) standards data, as of 2015]

These 19 comparative data tables relating to state and local certification standards for batterer intervention programs (BIPs), as of 2015, are electronic Appendices B-T to Carolyn B. Ramsey, The Stereotyped Offender: Domestic Violence and the Failure of Intervention, 120 Penn. St. L. Rev. 337 (2015), available at http://scholar.law.colorado.edu/articles/56/. Appendix A is not reproduced here because it simply contains citations to the state and local standards, but it is published with the journal article

The Stereotyped Offender: Domestic Violence and the Failure of Intervention

Scholars and battered women\u27s advocates now recognize that many facets of the legal response to intimate-partner abuse stereotype victims and harm abuse survivors who do not fit commonly accepted paradigms. However, it is less often acknowledged that the feminist analysis of domestic violence also tends to stereotype offenders and that state action, including court-mandated batterer intervention, is premised on these offender stereotypes. The feminist approach can be faulted for minimizing or denying the role of substance abuse, mental illness, childhood trauma, race, culture, and poverty in intimate-partner abuse. Moreover, those arrested for domestic violence crimes now include heterosexual women, lesbians, and gay men; abuse is as common in same-sex relationships as in their heterosexual counterparts. Failure to take such factors into account perpetuates a one-dimensional image of the batterer as a controlling, heterosexual, male villain-a stereotype that impedes efforts to coordinate effective responses to domestic violence and entrenches gendered hierarchies that affect men, as well as women. This Article begins by placing the feminist paradigm of the batterer in historical context. Although feminists transformed the dialogue about domestic violence by locating- it in patriarchy and gender inequality, the offender stereotype that the Battered Women\u27s Movement used to spur a vigorous state response and that still drives domestic violence policy shares some limitations with earlier paradigms of the wife beater-the hot-headed sinner in Puritan New England or the drunken brute of Temperance discourse. Like these earlier stereotypes, the image of the coercive, controlling male batterer is too one-dimensional and too closely tied to other sociopolitical agendas to yield a practical approach to prevent domestic violence and change the behavior of its perpetrators. Drawing on historical, sociological, and psychological materials, as well as insights from masculinities studies, this Article suggests limits to our understanding of those who commit intimate-partner abuse and to the laws and policies-especially court-mandated batterer intervention programs ( BIPs )-currently in place. It presents an original analysis of 46 sets of state and local standards for BIPs to show that, although these standards are starting to be more inclusive, they still tend to impose a one-size-fits-all formula designed for heterosexual male offenders. The one-size-fits-all approach ignores crucial differences-not only in intimate-partner violence committed by women, as opposed to men, and homosexuals, as opposed to heterosexuals-but also between heterosexual male offenders and the types of abuse they inflict. Recognizing these differences would facilitate the effective tailoring of BIPs to achieve long-term behavioral change in a variety of participants. The Article concludes by offering preliminary suggestions for transforming profeminist interventions to encourage accountability and rehabilitation and to reduce recidivism without stereotyping domestic violence offenders

A Diva Defends Herself: Gender and Domestic Violence in an Early Twentieth-Century Headline Trial

This short article was presented as part of a symposium on headline criminal trials, organized by St. Louis University School of Law in honor of Lawrence Friedman. It describes and analyzes the self-defense acquittal of opera singer Mae Talbot in Nevada in 1910 on charges of murdering her abusive husband. Based on extensive research into archival trial records and newspaper reports, the article discusses how the press, the court, and trial lawyers on both sides depicted the killing and Mae’s possible defenses. Without discounting the sensationalism and entertainment value, to a scandal-hungry public, of stories about violent marriages, I contend that press coverage of Mae Talbot’s trial and others like it served an important social function. It helped to make intimate-partner violence a public issue and to define men’s brutality toward their wives as improper and unmanly. However, the newspapers did not always get the story right. Despite reporters’ speculation that Mae would plead insanity, her defense team centered its case on the alternative theories of justifiable homicide and accident. The jury instructions given in the case and filed with the Washoe County Court tell an even more interesting story of a judge who supplemented black-letter self-defense law with commentary on gender roles and the decline of men’s right to beat their wives. The newspapers, the defense lawyers, and ultimately the trial judge all seemed to see the case as one in which the deceased’s wrongful behavior — that is, his brutality toward the defendant — played a central role. Mae was acquitted because she killed a man widely perceived to have violated his duties toward her as a husband. Although she was a glamorous entertainer, her case resonated with the acquittal of many ordinary women accused of murdering their batterers in the late 1800s and early 1900s

Women’s Votes, Women’s Voices, and the Limits of Criminal Justice Reform, 1911–1950

Deriving its vigor from the work of grassroots organizations at the state and local levels, the League of Women Voters (LWV) sought, in the first half of the twentieth century, to provide newly enfranchised women with a political education to strengthen their voice in public affairs. Local branches like the San Francisco Center learned from experience—through practical involvement in a variety of social welfare and criminal justice initiatives. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California and especially San Francisco in reforming three aspects of the criminal justice system that affected women: courts, police, and prisons. Based on a close analysis of historical primary sources, it reveals the contradictions and shortcomings, as well as the achievements, of one group of female leaders who sought to carry on the suffragists’ legacy

Book Review

The vast majority of criminal cases result in guilty pleas, rather than jury verdicts— a situation that has existed since the nineteenth century. Mike McConville and Chester L. Mirsky trace the rise of plea bargaining in New York City to the mid-1800s and challenge several historical explanations for this transformation of the criminal process. They present an interesting critique of existing analyses and skillfully combine empirical study of case data with discussion of the social and political context in which nineteenth-century legal actors developed their strategies. Among the book’s minor flaws is the overuse of very long quotations from the case files. A few well-chosen examples would have added narrative interest without distracting from the argument. Nevertheless, McConville and Mirsky have produced a significant work