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Lecture 4

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HIST 3305
Christopher Mc Naught

Lecture 4 Saturday, July 13, 2013 - Today’s rant: o Too often, when the road towards good policy is paved with disaster, Canada is the first to get on it o We learn 5 years after the Americans that it’s not working o Especially in this neoconservative time o We’ll see it with gun control, crime bill  Mandatory minimums aren’t working! We’re learning too late.  If you build more prisons, you’ll bankrupt yourself—that’s what happened to California—they let go of 60,000 people because they were non-violent drug offenders  The “tough on crime” agenda—what does that say about us as a state?  Article—Iran resorts to hangings in public—transparent attempt to rely on deterrence (visible deterrence)—anyone who’s paid attention to the world’s criminal history will know there isn’t a shred of evidence to support the fact that the death penalty will in any way prevent crime! • That’s an extreme version of our tough on crime policy • We’re nto going to the roots, not looking at what causes crime • Idea that cons don’t count, they don’t have a right to vote, shouldn’t be in touch with the outside world, etc. • The corrections policy is foul • We have a blind, bland, uncompassionate dogma that pervades our criminal law administration—it masks under reform. • The roots are the bad economy, great disparity between rich and poor. The quick fix is to throw out a slogan, political dogma, count on the fact that your constituency will accept that, but not actually exerting political will. o Another article: quoting Lincoln’s inauguration (his address)  After Civil War, 700,000 Americans had died  Even-handed stoic approach: “Though passion may have strained, it must not break our bonds of affection…better angels of our nature”  No wonder we have problems with criminal law…we don’t speak with such sagesse  Think about what our society is showing about itself…listen to Obama’s speech. He’s learned the hard way, he’s always a target everywhere he goes… - The jury! o We’re going to watch a video of the doctrine of nullification, later. o Thomas Jefferson—“under the character of jurors, the people exercise the greatest part of the democratic powers”—country can be helped to the principles of its constitution  It’s the last place where the ltitle guy can speak out without being negated or treated with prejudice o It’s always under assault  UK—the concept of it has whittled away considerably  In Canada, reduced to situations in which the defendant would have 5 years of prison—and even then, the Crown can negate your election in that direction  Less than 10% of trials in this province are carried out in the form of a jury trial o Exciting experience, but challenging  This era—people are more attuned to sund bite technology, victims of CSI mentality  Some jurisdictions of the States complain that the jurors expect a quality of evidence equal to CSI, quick trial.  OJ Simpson had so much DNA against him, but it’s partly just performance—the people have to pay attention to you, and if you’re boring/monotonous, it doesn’t matter if your client is innocent—they could be found guilty. That’s why the attorney brings the evidence to the jury and makes them physically connected to the event. • It shows how refined our system is • Killed jury trials in the States  A good essay topic: is the institution fo the jury trial a condemned one? What future does it have? • Jury trials are expensive • Jurors don’t get paid that well, just want to get out of it • Not like 17 or 18 century, with simple trial. Now, you have data from satellite, weather, security cameras, DNA, all kinds of experts coming out of your nose to testify on everything. • Simple impaired driving trial: expert determines absorbtion rate fo the alcohol, the trial goes on for ages. • In Canada, the trials can go on for far too long • Juries are very much under assault • The human factor: in one case, the jury let the case go just because they didn’t care. • Arizona jury awarded a woman something like $300,000 for injuries sustained for tripping out of a jury box • Criminal defence lawyer—his client was charged for murder, ahd no defence—he didn’t know what to say, so he told the jury to look to the back doro fo the courtroom. Said the accused would walk through that door. The jury was sequestered, came back in about 10 minutes with the verdict of guilty. The defence council asked what was going on, they had a reasonable doubt. One of the jurors said yes, but the client wasn’t looking to the back of the room. Juries aren’t stupid. - Now for actual course material! - Book: “An Utterly impartial history of Britain”—John O’Farrell o Quite funny, but good compendium of what we’re dealing with - We talked about Act of Settlement, the Glorious Revolution (1689)—Parliament asserted supremacy over the monarchy, put the king in his place o The Glorious Revolution, the bill of rights in that year dealt with ending the Catholic hereditarian monarchy of that time o James II was bumped by invitation of the Parliament to William of Orange (the Dutch king) to come over, he ousted him. James got away, went to Ireland, raised an army, giving rise to huge conflict—1690, he met William of Orange (Protestant) at Boin River, Battle of Boin—part of the Irish Troubles. o William of Orange dispatched James for good after being defeated a second time… o **But because Williamw as brought by Parliament to interrupt the flow of monarchical inheritance, it was in effect Parliament bestowing the crown on William of Orange. Now the Crown was subject tot Parliament**  Basis of a key evolution in law - Bill of Rights, Act of Settlement in 1701 (made sure that the judges weren’t appointed at the whim of the Crown, but held office subject to good behaviour) o Journey from absolutist monarchy to parliamentary democracy o So much happened just post-Civil War - Freedom of the press sprang up at this time o Served to inspire political thinkers in France and America when they cam etoward stheir own reovlutioanry developments o This parliament’s supremacy was put into law—no longer could the monarch collect taxes according to his own whim. No more scutage and conquering some land. Had to be funded by Parliament. o King could not dispense with laws, couldn’t intervene with debates in Parliament o **As part of the Queen’s Jubilee—Queen Elizabeth was invited to speak at Parliament, big symbolic thing. o Kings and Queens not allowed to interfere with justice, tamper with judges or court mechanisms—very important o All of these progressions (including Habeus Corpus Act—no longer undue detention without just cuase) extremely important. Seeds for the future. But they didn’t suddenly alter an extremely harsh legal system. - Tonight: a bit of a peek at how harsh the system was. - Book: the Old Bailey and Its Trials, by Bernard O’Donnell o The most famous court in the world o Very readable history of famous trials and developments in English law o Typical trial in 18 /19 century—at the end of the sessions, horrible part where everyone who had been convicted of an offense were herded in and stood there as the death sermon was read and they were all condemned to die. - We’re looking at the context and administration of criminal justice—16 , 17 , th th th and 18 centuries o Post middle-ages, early modern period o England as it emerges form the 17 century, moving towards Enlightenment, beginning of scientific revelations o Aristic, literary, political motivation—gave impetus to idea that system of law is creaking, needs some reform o Newgate Jail, the Old Bailey o Developments in legislative and Parliamentary protection, but this horrific reality of the process and those caught in it o The justice was very unlevened, very brutal o A period when Britain was on the ascendancy, looking at it societally nad economically - 15 -18 centuries, it became “Great Britain”—consolidated its territories, Ireland and Scotland, became vast empire, prothss of industrialization. Most powerful nation in the world by the mid-19 century o Population in 15 /16 century: 220,000 people in London o By 1700, it doubled: over half a million people in London  Industrialisation pulling in people from rural areas  Urban density—close proximity physically—great disparity between landed gentry  rising commercial class that was going to threaten the landed gentry creating opportunities for crime—big threat to the merchantile class. Suddenly they wanted law and order because it th wasn’t good for business. o 18 century, population of London was 12% of English population o Lots of developments: colonialization, exotic teas and coffees coming in (colonial trade), shipping wool to Holland, stock broking and insurance companies coming up, development of naval fleets both military and commercial, banking, consumer society, spread beyond the city gates to the suburbs, etc. o But despite all this, and the advancements in criminal law, there was the LONDON MOB.  Increase in crime  The courts and parliament tried to deal with it—redefinition of offences. Felonies increased from less than 50 to more than 200 between late 17 and early 19 century.  By the time the Great English legal reforms came,t here were over 200 legal offences for which you could be hanged  Execution rates were more or less stable—why? Society got a little more complicated, sophisticated. Some juries/judges didn’t wish to always executed. Looked for pardons, mercy. Transportation act came into being (exile—that’s basically how Australia was founded). Or you were sent off to the States (until American Revolution).  **Keep this in mind—more and more convictions, but didn’t result in increasing numbers of executions! - Record of parliamentary debates, committee records o Whigs (liberals) beginning to front the rising mercantile class. Knew that the old hierarchy was being more and more challenged, a sense of impending crisis in the air in a political sense. Hay thought there was a ruling class conspiracy, lbind reliance by the judges on discretion and the wisdomo f the gentry who populated the bench, we didn’t need legal reform, that’s contary to English principles.. - What was life like then? The physical society? o Sir Richard Philips wrote “a morning’s walk from London Garden to Cue”  Late 18 century, talking about all the factory smoke, deposits of tar o Snapshot of the drive of nascent capitalism: “a race whose wisdom depends on cunning…greatest possible amount of labour in the shortest possible amount of time for the least possible amount of wages”  Charles Dickens himself worked in a sweatshop o William Wordsworth: in love with the Lake District, wrote, “…getting and spending, we lay waste all of our powers”.  When he wrote about daffodils, he was saying, “what has happened to all of these fine things despite the advancement of man?” - What did people think about criminal law? o Societal ‘get tough’ attitudes  Thomas Wright: “every town, every abbey has the right of hanging…almost a natural object of the landscape,a s a signpost” • Death was a constant thing, not shocking  Marquis of Halifax: “men are not hanged for stealing horses, but that horses may nto be stolen”  “The fact that men are hanged for murder is one great reason why murder is considered so great a crime.”  **very simplistic dogmatic views rooted in a blind belief in deterrence o Even back then, there were those beginning to question the efficacy fo the system and the value of harsh justice no matter what: th  Cheserey Baccarea (Milan criminologist in mid-18 century): “Is it not absurd that the laws which punish homicide, in attempt to prevent murder, publically commit murder themselves?”—one of first arguments against capital punishment. His writings influenced British criminologist Jeremy Bentham and the Benthamites th  Late 18 century, Mary Wollstonecraft: “Executions,f ar from being useful examples…hardening the heart they sought to purify…the mind is roused totally about present circumstances.”— most serious crimes are committed from the heat of the moment or passion. Lover’s quarrels, battered spouses, drunken brawls in which people don’t think abou the death penalty first.  Sir Thomas Buxton: “we rest our hopes on the hangman…forget the very fruit of our duties, its prevention.”—the last thing the Omnibus Crime Bill does is the prevention of crime! It’s al punishment, narrowing of parole and release. They don’t speak of rehabithtation. - William Hogarth, 18 century print called “Gin Lane”—shows what life was like in London—houses crumbling form disrepair and lack of funds, man pouring booze down someone’s throat, woman taking drugs and suffering blisters, infant falling over, skeletal man, dog about to eat him, man being cut down from the gallows, pawnbroker, someone robbing a coffin… o Debauchery, malnutrition, street crime, death and chaos - 1701: people starting to write about philosophy of crime o “Hanging
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