Tuesday, November 04, 2014

With Liberty and Justice for All?: Guilty? Crime, Punishment, and the Changing Face of Justice by Teri Kanefield

Thirteen-year old Brian collect baseball cards. One day in a shop Brian spotted a 1968 card pairing the rookie stars Gerry Koosman and Nolan Ryan. The price was listed as "1200/."

Brian asked the sales clerk,"Is it worth twelve dollars?"

"Yes," said the clerk.

"I'll take it," Brian said.

The store owner assumed the card had been stolen sometime later that day. As you might expect, kids who were shown Brian's bargain soon showed up to collect the shop owner's $100 reward for information about the missing card.

As a serious collector, Brian had reason to know the card ought to be worth more than $12.00. But he paid the asking price with cash and saved his receipt.

Was Brian a thief? A felon? Or was he just lucky, bargaining for a good price... ? Was there a law against what Brian did? There wasn't. And, since Brian's family and the shop owner settled out of civil court (which the author defines), agreeing to sell the card at fair market price and donate the money to charity, there still isn't a ruling to protect a merchant from such mistakes. Should there be?


People often use the word crime to mean "something bad"--but the legal definition of a crime is "an act that the law makes punishable." If there is no law against a particular behavior, it isn't a crime, no matter how bad it is.

A crime is different from other forms of wrongdoing in that a crime is seen as harmful to society as a whole.


There is a reason why the symbol for justice is a balance scale, as Teri Kanefield's forthcoming Guilty?: Crime, Punishment, and the Changing Face of Justice (Houghton Mifflin Harcourt, 2014) points out. Clearly, there can't be a law against everything someone thinks is bad. And what people once thought was legal and even a "good" thing for society--wife-beating, corporal punishment for children at home and school, segregation by race, withholding full civil rights to women, African Americans, and Indians, even smoking in public places--has completely changed over time. Actions that once were illegal and subject to prosecution have become legal and acceptable, again for the good of "society as a whole."

Kanefield points out that liberty AND justice are sometimes in opposition to each other: "Justice" requires that all wrongdoers be brought to trial and punished, for the "social good" of all--just retribution and protection from further crime. "Liberty" provides that all should be equal before the law and that "due process" protects personal liberty by limiting the power of police and courts, requiring restrictions on "unreasonable searches and seizures," no "testimony" against themselves, "privacy" in papers and personal effects, speedy trial by a jury of peers, legal representation for all, and "the presumption of innocence until proven guilty." Kane carefully shows in actual case studies the many problems that occur with applying either theory of law, discussing at some length the seminal Supreme Court rulings in Plessy V. Ferguson, Tapp V. Ohio, Gideon V. Wainwright, Miranda V. Arizona and Karemata V. U.S., and discusses the difficulties in interpreting "unreasonable," "self-incrimination," "due process," and even "presumption of innocence," which is actually an unwritten "common law" derived from old English custom. Even the widely quoted "you have the right to remain silent" is often unobserved in practice, depending upon "precedence" in court actions for whatever enforceability it has, as the author shows in a case in which "silence" is legally interpreted as evidence of guilt.

That liberty and justice for all is a work in progress is the theme of Guilty?: Crime, Punishment, and the Changing Face of Justice.. Kanefield's writing is clear and engaging, and she provides photos, fact boxes, and tables (one showing that California's famous "Five Strikes and Out" law is less effective in reducing crime than no such law at all) provide instant access to background information, and her coverage of key cases by name is included in the generous bibliography, along with a glossary, chapter notes, and extensive indexing. With elective courses in criminal justice now offered in many middle and high schools, this book is a useful resource for additional reading for secondary civics students, one that raises for thought the big questions: What is a crime? What is the purpose of punishment? Who decides? And which laws best serve the "good of society as a whole?"

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