Lindstrom, Richard

Neumer, Peter

English

Northwestern University Illinois, School of Law: Scholarly Commons

Journal of Criminal Law and CriminologyVolume 95Issue 4 Summer Article 7Summer 2005Criminal Law and Criminology: A Survey ofRecent BooksRichard LindstromPeter NeumerFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Book Review is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationRichard Lindstrom, Peter Neumer, Criminal Law and Criminology: A Survey of Recent Books, 95 J. Crim. L. & Criminology 1423(2004-2005)0091-4169/05/9504-1423THE JOuRNAL OF CRIMINAL AW & CRIMINOLOGY Vol. 95, No. 4Copyright 0 2005 by Northwestern University, School of Law Printed in U.S.A.RECENT BOOKSCRIMINAL LAW AND CRIMINOLOGY: ASURVEY OF RECENT BOOKSRICHARD LINDSTROM & PETER NEUMER*MIKE MCCONVILLE AND CHESTER L. MIRSKY, JURY TRIALS ANDPLEA BARGAINING: A TRUE HISTORY (Oxford and Portland, Oregon: HartPublishing 2005) 364 PP.During the first half of the nineteenth century, guilty pleas replaced jury trials as theprimary means of disposing of criminal cases in many American jurisdictions. By theend of that century, several jurisdictions reported that ninety percent of felony casesended in guilty pleas. As Mike McConville and Chester Mirsky point out in theirstudy of the transformation of the criminal process in New York between 1800 and1865, scholars' explanations for the cause of these changes have varied. Someexperts have traced the turn to plea bargaining to the professionalization of the lawand the police that occurred over the course of the nineteenth century. A combinationof police officers who "were capable of producing reliable evidence of guilt" andexperienced lawyers who could "distinguish between cases where conviction wascertain and those where triable issues remained" led to the disappearance of factualdisputes that would have made trials necessary. Others, according to McConville andMirsky, have traced the development of plea bargaining to broader changes inAmerican society and politics during the nineteenth century. To these scholars, pleabargaining has been viewed as a means of "legitim[izing] institutions of localgovernment through ameliorative acts directed to the emerging underclass during aperiod of social conflict" that was created by the development of an industrializedsociety as well as a product of a wider search for social order that manifested itself innew roles for lawyers and the courts. McConville and Mirsky find both thesearguments inadequate. They argue that such changes in the legal system can only beexplained by a theory that grows out of an empirical evaluation of data that is thenfitted into the political and social context of the place that produced it.McConville and Mirsky challenge these earlier arguments by examining a variety ofdata from courts in New York City during the first half of the nineteenth century,including prosecution case files produced by the District Attorney's office, casereports prepared for official publication, data produced for the Court Minute Book,* J.D. Candidates 2006, Northwestern University School of Law.1423and statistics produced by the Secretary of State. This information allows the authorsto begin their account with a brief explanation of how the criminal courts worked inNew York at the beginning of the century. They outline the process by which casescame into the courts, how defendants were charged and found representation, and howcases proceeded at trial. Throughout this process, the authors emphasize, the courtsfocused on the actions and interests of the individual defendant. This focusencouraged defendants and prosecutors to choose to go to trial, since the outcomes inthese settings represented a validation of this focus. By the middle of the century,however, politics and society in New York had begun to change, and the legal systemchanged as well. By 1850, New York City had become a teeming metropolis, filledwith recent immigrants and beset by the social problems that often come with apopulation filled with impoverished, desperate people. The political system changedtoo; power shifted to Tammany Hall, a political organization that built support byclaiming to meet the interests of working people and immigrants and that cemented itsposition by passing out patronage to its constituents. Disgust at the excesses that thispatronage system produced, as well as concern about the poor living and workingconditions that the changing city produced, led to the creation of a number of reformorganizations aimed at assisting the poor. The legal system experienced thepoliticization of offices such as the district attorney and judges, and a dramatic changein the outcome of cases. After 1845, the number of guilty pleas increased markedly;by 1865, such pleas had become the dominant method of disposing of criminal cases.The authors show that earlier explanations for this growing dominance of guilty pleas,such as the pressures on the courts of increased caseloads, changes in the practice andperformance of the law, and the professionalization of police practice, cannot accountfor this growth in pleas. Instead, they argue that guilty pleas began to predominatewhen the interests of a new, democratized, ruling class seeking to appear successful atfighting crime merged with those of reformers who wanted to change the meaning andmethods of punishment. Politically minded district attorneys equated guilty pleaswith convictions, and often preferred them because they did not have to invest in theuncertainties of appeals. At the same time, reformers began to argue that criminalscould be defined according to type and class, and that society needed to control thedangerous classes and provide opportunities for those who could be changed. Analliance between politicians and reformers transformed the legal system from onefocused on individual culpability and "evidence and proof' to one that approachedcrime in a generalized manner, assumed guilt, and "gave prominence to a criminologythat tended to define dangerousness through class, race and ethnicity and otherfactors" unrelated to the facts of the case.Jury Trials and Plea Bargaining offers an important critique of earlier explanationsfor the transformation of the legal system in the nineteenth century United States.McConville and Mirsky demonstrate that the growing use of guilty pleas to endcriminal cases in New York City between 1800 and 1865 cannot simply be a result oflegal professionalization or social change, but resulted instead from the collision of avariety of factors within and without the practice of law. Their insistence that legalchange cannot be understood by a narrow, functionalist focus on legal process or by asweeping theory of social change ungrounded in empirical facts offers an importantcorrective for both legal scholars and historians. The book succeeds in tying togethera variety of social, cultural, and legal changes to provide a coherent explanation of thegrowth of plea bargaining. The authors also hint at the costs for democracy of a legal1424 [Vol. 95RECENT BOOKSsystem that shifted from a focus on individual behavior to an emphasis on placingpeople within classes defined by race, class, and gender. That this dehumanizing ofthe justice system occurred during a time that historians have marked as a moment ofdemocratization in the United States points to a central irony of that period. Thoughthis book offers an insightful critique of earlier explanations for the rise of pleas, theauthors organize their book in a way that obscures the power of their argument. Toomuch of their text is filled with case summaries and anecdotes derived from case files.This space would have better been filled with more historical context and a morethorough explanation of how their thesis offers insight for both legal scholars andhistorians. Despite these frustrations, however, McConville and Mirsky's book offersan important history of the costs of the rise of pleas in nineteenth century America.JAMES A. PALUCH, JR., A LIFE FOR A LIFE: LIFE IMPRISONMENT:AMERICA'S OTHER DEATH PENALTY (Los Angeles, CA: RoxburyPublishing Company 2004) 239 Pp.James A. Paluch, Jr. is one of a growing number of Americans who will probably diein prison. Sentenced to life in prison without parole, Paluch has written a book thatdescribes the conditions prisoners face and argues for reform in the system thatsentenced him to life. Paluch's book is the result of correspondence he initiated withThomas L. Bernard, Professor of Crime, Law, Justice and Sociology at PennsylvaniaState University. For several years, Paluch sent pages of handwritten and typewrittenmanuscript to Bernhard, who supervised editing of the 1000 pages he received into acoherent volume that describes the various aspects of prisoners' lives and makes astrong argument for ending the process of sentencing prisoners to serve the rest oftheir lives in prison. Paluch is successful in describing the daily degradations ofprison life. While that depiction enhances the argument for prison reform, the book'ssurprising lack of personal, confessional insights makes Paluch's arguments forcompassion and reprieve for those sentenced to life less compelling than they shouldbe.A Life for a Life shows how prisoners live. Brief chapters discuss the various aspectsof a prisoner's life, which become hours of boredom punctuated by ringing bells,shouted orders, and systematic humiliations. Prisoners like Paluch work constantly tokeep their cells clean and their possessions in good repair. Paluch describes theprosaic details of hygiene, diet, disciplinary rituals, and work that make up daily lifein prison. He provides readers with a detailed account of the arduous process ofwashing clothes in a cell, of the recipes prisoners use to supplement the meager andunappealing diet provided in prison dining halls, and of attempts to keep clean andordered a cell that can be torn apart at any moment by ill-tempered guards. Paluchalso recounts the more harrowing elements of violence and sexual abuse thatchallenge every prisoner attempting to negotiate life behind bars. Much of this abusecomes from fellow prisoners, who harm fellow inmates either through their own pent-up aggression or by seeking the comfort by becoming an informant for the guards.The dangers prisoners face from each other, however, represents only a portion of thedistress inmates endure. One source of distress for inmates like Paluch comes fromoutside the prison: they pine constantly for a family they see very rarely and hear fromonly under the most humiliating and restrictive conditions. Prisoners also face2005] 1425[Vol. 95unclean and unhealthy living conditions, fitful access to medical services that areoften inadequate and sometimes incompetent, and discipline that is frequentlyarbitrary and unfair. Paluch himself served time in a restrictive housing unit after aguard planted drugs in his cell. All of these conditions mean that inmates endure adegraded, dehumanized condition that undermines any hope of rehabilitation.Despite these daily humiliations, Paluch also demonstrates that prisoners, particularlythose who, like him, are sentenced to life terms, find ways to endure and createcommunity behind bars. Such prisoners might turn to a renewed religious faith, find acompanion among the fellow prisoners for protection and solace, or become an expertin a legal issue, all in an effort to deepen the meaning of their lives in prison. Ofcourse, some prisoners also turn to chemical abuse or sexually deviant behavior todeal with the trauma of their present lives. Paluch's cell, lined with religious andlegal books, furnished with a writing desk and typewriter, and adorned with mementosof his family, sports, heroes, and religious faith, testify to his successful effort to givemeaning to a life that could easily spiral into stultifying routine. In a similar way,writing this book gives voice and purpose to the thoughts that Paluch's imprisonmenthas forced him daily to confront. Paluch's involvement in the Pennsylvania Lifer'sAssociation, an organization of prisoners agitating for reform in the sentencingprocess and the possibility of parole, also demonstrates this adaptation process.Paluch argues that life sentences without the possibility of parole are inhumane, cruel,and counterproductive. Prisoners sentenced to life in prison without parole can bereleased only by an act of executive clemency. Before 1994, governors had allowedthe release of 350 such inmates. In 1994, however, Reginald McFadden, a prisonerreleased through this process, committed rape and murder in New York. Since thattime, only one inmate sentenced to life has been released. In practice, then, a prisonersentenced to life has no hope of ever seeing the outside of the prison. Paluch findsthis stark fact a distressing one. "Punishment by imprisonment," he writes, "onlyworks when justice is meted out in a fashion that restores moral rightness." Thecurrent method of dealing with prisoners sentenced to life undermines such efforts atjustice. No matter how reformed a prisoner becomes, Paluch points out, there is nohope for release: "the only difference between capital punishment and lifeimprisonment is the amount of time it takes for the prisoner to die."This argument is intellectually appealing; prisoners have little incentive to changewhen they know nothing good can come of that change, and punishment that focusesonly on the crime and not on the conditions of the person who committed that crimehardly represents an enlightened form of justice. Paluch's argument would have beenmore convincing, however, if the argument had been built through a more thoroughdescription of Paluch's own transformation in prison from a troubled and violentyoung man to a thoughtful, responsible adult. The reader is only offered hints at thisprocess; Paluch notes that he underwent a religious conversion in prison but does notdescribe the effects of that change on his life. His arguments for sentence reform thusseem merely intellectual, and lack the emotional resonance that they might when tiedto a more compelling version of his personal story. In a political climate where manyreaders of this book will find the degradations Paluch describes as just punishment forhis crime of murder, his failure to more directly connect the reform he seeks to the lifehe has lived in prison undermines his case.1426RECENT BOOKSKITTY CALAVITA, IMMIGRANTS AT THE MARGINS: LAW, RACE, ANDEXCLUSION IN SOUTHERN EUROPE (Cambridge: Cambridge UniversityPress 2005) 278 PP.In Immigrants at the Margins: Law, Race, and Exclusion in Southern Europe, KittyCalavita explores how the Italian and Spanish governments have responded to theincreasing number of immigrants residing in their respective countries. Calavitadetails how in Italy and Spain, immigrants from developing countries are both desiredas a source of cheap labor and reviled as an alleged force of cultural destabilization.These seemingly contradictory sentiments are, according to Calavita, inextricablylinked. Immigrants are desired precisely because their status as "Other" compels themto work "under conditions and for wages that locals.., largely shun." Absent amarginalized status, immigrants would be less likely to constitute a source of cheaplabor. Thus, the immigrants' inability to be accepted into Italian or Spanish society isprecisely what makes the immigrants valuable from the perspective of Italian andSpanish employers. Moreover, because immigrants work almost exclusively in lessdesirable sectors of the economy, immigrants are further stigmatized as people whoare different and separate from those in regular society.Calavita describes how the increasing criminalization of immigration law in both Italyand Spain currently contributes to this marginalization process. Recent legislationpassed by Center-Right governments in both Spain and Italy can be fairly described asanti-immigrant. Spain's Law 8/2000 denies illegal immigrants the right of assembly,collective bargaining, striking, and joining labor unions. Italy's Bossi-Finni Lawstipulates that only immigrants who have a work contract in hand can enter legally,and then only within annual quotas. Under Bossi-Finni, if immigrants lose their job,they lose their residence permit and automatically fall into illegality if they do not getanother work contract within six months. In addition, the bill criminalizes re-entryafter deportation. (It was initially proposed that illegal residence itself should beconsidered a felony and carry a prison sentence, but that proposal was determined tobe impractical.) Sponsor Umberto Bossi described the purpose of the bill as follows:"The concept is that immigrants are to come to our country for one purpose only:work. Otherwise, they will be sent back."Both of these laws repealed legislation, enacted by Center-Left governments, that wasmore protective of immigrants' rights. Italy's Turco-Napolitano law, passed in 1998,provided immigrants the right to equal treatment in the workplace, access to theuniversal health care system, and, for the undocumented, the right to urgent care, andthe right to attend public school. Spain's Law 4/2000 also extended the right to publiceducation to all immigrant children, regardless of legal status, as well as access topublic housing services. The progressive concepts embodied in these repealed lawshave largely vanished from political discourse in Spain and Italy.The recent Italian and Spanish immigration legislation serves not just to marginalizeillegal immigrants, but rather legal immigrants as well. In many cases undocumentedworkers are more desirable to employers because the undocumented workers arepushed by fear and poverty. Therefore, legal workers are often passed over byemployers in favor of illegal workers. In addition, legal workers are often2005] 14271428 [Vol. 95blackmailed by their employers, who threaten to revoke an individual worker's legalstatus. Thus, an immigrant's legal status can sometimes make his or her employmentexperiences equal to or worse than those of illegal immigrants in the Italian andSpanish labor markets.Calavita points out that--despite the prominent anti-immigrant rhetoric-both Italianand Spanish governments have undertaken immigrant integration programs.Integration programs are present even in the often explicitly xenophobic region ofNorthern Italy. These programs exist because both Italy and Spain rely heavily onimmigrant labor. While anti-immigrant political platforms often produce electoralsuccess, they are not truly sustainable from an economic standpoint because theItalian and Spanish economies would suffer great hardship if immigrants wereeliminated from the labor force. Thus both the Italian and Spanish government havespent tens of millions of dollars on immigrant integration programs that have the goalof assimilating immigrants into Spanish and Italian culture. Calavita argues that theseprograms are undertaken in good faith but are ultimately unsuccessful in combatingthe countervailing anti-integration forces that include, most notably, Italy and Spain'simmigration laws. Thus, even with a significant outlay of governmental resources,both legal and illegal immigrants remain on the outskirts of Spanish and Italiansociety, subject to cultural and legal persecution.

Criminal Law and Criminology: A Survey of Recent Books

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