Stupid Question ™
May 16, 2005
By John Ruch
© 2005
Q: Why isn’t a person who carries out a state execution guilty of homicide themselves?
—Jackie, Mashpee, Massachusetts
A: An executioner certainly commits homicide. However, in law, that’s a neutral term that doesn’t necessarily imply criminal guilt.
There are three broad subclasses of homicide in law. The one we generally think of “homicide” in the murder-mystery sense is felonious homicide. In a case of terrible tautology, it simply means homicide that is punishable as a felony (in medieval times, a felony was any crime punishable by death—a much longer list than ours today).
In practical terms, it means a homicide carried out with criminal intent. Felonious homicide is broken down into two more familiar types: murder and manslaughter.
Murder is felonious homicide conducted with “malice aforethought”—premeditation or malicious intent. While definitions of manslaughter vary widely, it generally means felonious homicide without premeditated malice. The classic example is a “crime of passion”—killing someone in the heat of an argument.
Murder is considered worse than manslaughter and punished accordingly.
Felonious homicide also includes “felony murder”—a killing conducted while committing some other, primary felony. It’s essentially a way of punishing what would normally be manslaughter as murder to discourage violent crimes. For example, let’s say you use explosives to blow open a bank vault in the middle of the night with no expectation of anyone being inside. Your intent is to commit various felonies, but not murder. However, if someone turns out to be inside by chance and is killed by the blast, you could be charged with felony murder in some jurisdictions.
Murder and manslaughter don’t necessarily involve direct action. You can be charged with either one for a killing carried out by “procurement” (getting someone else to do the deed)—or “omission” (failing to act in a way that kills someone, such as not feeding them, or acting recklessly).
Another broad legal category is excusable homicide. This covers accidental killings that cannot be considered a crime. Say you hit a golf ball on a course, which bounces off a tree, goes into a crowd, hits a man on the head, and kills him. You have committed homicide, but obviously you had no criminal intent or recklessness. The law would excuse you from criminal penalties.
A legal execution is obviously not excusable homicide. In fact, it sounds like felonious homicide. It fits the bill of the most severe kind of murder—premeditated and malicious. It also involves procurement; because the executioner is a hired killer, it would seem the entire state, and arguably the entire populace of the democracy, could be charged with murder.
But a legal execution is not murder because of the third legal category: justifiable homicide. It covers a killing conducted in self-defense or under some other legal right. Justifiable homicides clearly involve intent, and possibly malice and premeditation, but are “justified” by the law. Because the law justifies it, it is by definition not a crime. (Definitions of excusable homicide sometimes include justifiable homicide.)
Justifiable homicide includes cases in which police officers kill armed suspects, and anyone who kills someone criminally attacking them. (Such killings must still be demonstrably justifiable.) It also covers legal executions, which are penalties justified by the law.
To put a fine point on it, an execution is not legal simply because the state carries it out. It has to be authorized by law. Therefore, if a state conducted an execution without having a death penalty law, it would be murder, not justifiable homicide.
Showing posts with label law crime. Show all posts
Showing posts with label law crime. Show all posts
March 29, 2008
Trial By Combat
Stupid Question ™
May 2, 2005
By John Ruch
© 2005
Q: Is it true you could win a court case in the Middle Ages by fighting a duel? That doesn’t seem fair.
—Jamie, from the Internet
A: “Judicial combat” or “trial by combat” indeed could be used to settle certain types of court cases from early medieval times until as late as the 1500s, especially in duel-crazy France.
It was considered fair because of the notion—evidently still popular today—that whoever wins was de facto favored by God. However, it’s probably more accurate to say that judicial combat was a form of macho gambling given a patina of righteousness. (The Catholic Church never approved of the method—especially in the days when priests weren’t exempted.)
The legal concepts involved shouldn’t be confused with the way a modern court works. Judicial combat was rooted in the legal theory of “ordeals”—torture tests that you would survive or otherwise pass by the grace of God if you were (in modern parlance) innocent.
Judicial combat generally had to involve a supposed witness to a crime accusing a “defendant” (in modern terms). But there were a variety of other ordeals for cases with a higher level of doubt, or where there were more facts to be determined.
By and large, these were straight-up torture tests, such as carrying a piece of red-hot iron in one’s hand for a proscribed period, or plunging one’s hand into boiling water and trying really hard not to blister too much.
At its simplest (and most simple-minded), the ordeals were literal gambling, such as drawing a straw or marked stone in judgment-by-lottery.
In the viewpoint of the times, these weren’t random practices, because nothing was; God directs everything, and always favors the righteous.
Faith did not run so deep that such laws applied to everyone, however. The torture tests, with their obvious presumption of guilt, were reserved almost exclusively for commoners.
Judicial combat, on the other hand, thrived in the nobility, where it was wrapped in the gaudy philosophy of chivalry. In later periods it was often carried out in what would be considered military courts today, with its outcome recognized by common law as well.
I said before that the outcome of an ordeal judged innocence in modern terms. In the terms of the day, however, what it really determined was truthfulness. Then, as now, the basis of the legal system was one party making a claim against another party—and both sides claiming the other is making it all up.
However, we start from a position of the accused being innocent, and they can leave court with a determination of “not guilty.” Judicial combat was much more focused on personal honor and the truth of each party’s claim.
As historian Francois Billacois noted, the fundamental idea behind the duel of the era was calling each other a liar. The loser of judicial combat wasn’t merely dishonored (and likely dead); he was automatically considered a perjurer.
While perjury is still a crime in our modern system, it’s rarely prosecuted. And it’s unimaginable that someone would be executed for perjury, let alone punished before a determination of the facts of the larger crime is made. But that’s what judicial combat did.
In the system of chivalry, being called a liar was an affront to a man’s all-important honor. While fighting it out was oh-so-manly, there was another way to resolve the situation—you could get friends and allies to swear to your good character.
If that didn’t work, combat it was. Of course, fighting to the death was something of a deterrent, and out-of-court settlements were still possible (such as withdrawing the accusation).
The exact ceremony for judicial combat varied with time and place. In France, which kept the custom the longest and in the most elaborate form, it eventually could be invoked only for the most serious crimes and only with the king himself officiating.
However, some general rules appear to have applied. The fight wasn’t necessarily to the death, there always being some kind of judgment as to what meant defeat. Forfeit was also possible (though it could be followed by execution).
Women were never dragged into combat. Elderly men and those too impaired to fight could also get out of it. Historian Bradford Broughton noted that “even broken foreteeth could disqualify a man, for these teeth helped greatly in the victory”—indicating the savagery judicial combat could involve.
That’s not say the actual accuser and defendant would be the ones stabbing and biting each other. It was often possible (sometimes legally, sometimes not) to hire “champions,” or professional fighters, to duel in one’s place. Apparently God’s favor could be bought by proxy.
In keeping with the irrationality of the whole business, another universal practice was inspecting the combatants for magical talismans—supernatural steroids that amounted to cheating.
May 2, 2005
By John Ruch
© 2005
Q: Is it true you could win a court case in the Middle Ages by fighting a duel? That doesn’t seem fair.
—Jamie, from the Internet
A: “Judicial combat” or “trial by combat” indeed could be used to settle certain types of court cases from early medieval times until as late as the 1500s, especially in duel-crazy France.
It was considered fair because of the notion—evidently still popular today—that whoever wins was de facto favored by God. However, it’s probably more accurate to say that judicial combat was a form of macho gambling given a patina of righteousness. (The Catholic Church never approved of the method—especially in the days when priests weren’t exempted.)
The legal concepts involved shouldn’t be confused with the way a modern court works. Judicial combat was rooted in the legal theory of “ordeals”—torture tests that you would survive or otherwise pass by the grace of God if you were (in modern parlance) innocent.
Judicial combat generally had to involve a supposed witness to a crime accusing a “defendant” (in modern terms). But there were a variety of other ordeals for cases with a higher level of doubt, or where there were more facts to be determined.
By and large, these were straight-up torture tests, such as carrying a piece of red-hot iron in one’s hand for a proscribed period, or plunging one’s hand into boiling water and trying really hard not to blister too much.
At its simplest (and most simple-minded), the ordeals were literal gambling, such as drawing a straw or marked stone in judgment-by-lottery.
In the viewpoint of the times, these weren’t random practices, because nothing was; God directs everything, and always favors the righteous.
Faith did not run so deep that such laws applied to everyone, however. The torture tests, with their obvious presumption of guilt, were reserved almost exclusively for commoners.
Judicial combat, on the other hand, thrived in the nobility, where it was wrapped in the gaudy philosophy of chivalry. In later periods it was often carried out in what would be considered military courts today, with its outcome recognized by common law as well.
I said before that the outcome of an ordeal judged innocence in modern terms. In the terms of the day, however, what it really determined was truthfulness. Then, as now, the basis of the legal system was one party making a claim against another party—and both sides claiming the other is making it all up.
However, we start from a position of the accused being innocent, and they can leave court with a determination of “not guilty.” Judicial combat was much more focused on personal honor and the truth of each party’s claim.
As historian Francois Billacois noted, the fundamental idea behind the duel of the era was calling each other a liar. The loser of judicial combat wasn’t merely dishonored (and likely dead); he was automatically considered a perjurer.
While perjury is still a crime in our modern system, it’s rarely prosecuted. And it’s unimaginable that someone would be executed for perjury, let alone punished before a determination of the facts of the larger crime is made. But that’s what judicial combat did.
In the system of chivalry, being called a liar was an affront to a man’s all-important honor. While fighting it out was oh-so-manly, there was another way to resolve the situation—you could get friends and allies to swear to your good character.
If that didn’t work, combat it was. Of course, fighting to the death was something of a deterrent, and out-of-court settlements were still possible (such as withdrawing the accusation).
The exact ceremony for judicial combat varied with time and place. In France, which kept the custom the longest and in the most elaborate form, it eventually could be invoked only for the most serious crimes and only with the king himself officiating.
However, some general rules appear to have applied. The fight wasn’t necessarily to the death, there always being some kind of judgment as to what meant defeat. Forfeit was also possible (though it could be followed by execution).
Women were never dragged into combat. Elderly men and those too impaired to fight could also get out of it. Historian Bradford Broughton noted that “even broken foreteeth could disqualify a man, for these teeth helped greatly in the victory”—indicating the savagery judicial combat could involve.
That’s not say the actual accuser and defendant would be the ones stabbing and biting each other. It was often possible (sometimes legally, sometimes not) to hire “champions,” or professional fighters, to duel in one’s place. Apparently God’s favor could be bought by proxy.
In keeping with the irrationality of the whole business, another universal practice was inspecting the combatants for magical talismans—supernatural steroids that amounted to cheating.
March 28, 2008
Prison Islands
Stupid Question ™
Sept. 26, 2002
By John Ruch
© 2002
Q: Why did they close down Alcatraz? Are there any prison islands left?
—Puzzled About Prison Islands
A: Island prisons were typically built for special reasons—and with huge imperial budgets—that are highly outdated today.
The infamous Devil’s Island (and its two sibling prison islands) off French Guiana began as part of a penal colony; today it is, more fittingly (by modern standards), a tourist destination.
Prison islands were based on making criminals disappear rather than rehabilitating and reintegrating them. (South Africa’s Robben Island, where anti-apartheid activists—including Nelson Mandela—were jailed, was also used to dump mental patients and lepers in less enlightened years.)
Thus, they’ve been especially favored for political prisoners. Napoleon was dumped on Saint Helena in the South Atlantic; the Soviet Gulag system was invented on the White Sea’s Solovki Islands.
Like many island prisons, Alcatraz started in 1835 as a military outpost with a fine defensive position in San Francisco Bay. Being remote and fortified, it was also a good dumping ground for military prisoners (especially repeat escapees) and political prisoners such as Native American guerillas and Quaker war objectors.
In 1934, it became a federal prison, and perhaps the only island prison designed to capitalize on the island-prison mystique. Attorney General Homer Cummings wanted the rebuilt prison to intimidate would-be criminals and dumped such hard cases as Al Capone there.
It failed miserably. Crime stayed up and Capone ran his mob from his cell. Alcatraz was extremely expensive to operate and maintain, and by the rehabilitation-minded 1960s was a throw-away-the-key dinosaur. It closed in 1963 and was replaced by the landlocked prison in Marion, Illinois.
Like so many former prison islands, Alcatraz is now a national park. Likewise, the Chateau d’If off Marseilles, where the real Man in the Iron Mask and the fictional Count of Monte Cristo both did time, now traps only tourists.
Island prisons today are mostly ad hoc (political prisoners dumped on remote atolls in Fiji and the Maldives) or barely islands (like New York City’s Riker’s Island, tucked in the East River with its own bridge).
The US’s only remaining Alcatraz-style prison, accessible only by sea or air, is Washington State’s McNeil Island Corrections Center in Puget Sound off Tacoma.
A territorial prison opened on the 27-acre isle in 1875, not to prevent escape but because it was easy to supply by ship. (Escapes from island prisons were fairly common anyhow.) The feds dumped McNeil as impractical in the 1970s, but the state took it over.
Perhaps the only remaining island prison successfully melding the old and new is Mexico’s three-island Tres Marias group in the Pacific, 70 miles off Puerto Vallarta.
It opened in 1908 as the Mexican’s Devil’s Island for hardcore cons. But in the 1980s, it switched to a progressive version of a penal colony, with non-violent offenders allowed to choose to do time there, learning job skills and interrelating freely in what is essentially a small community all its own. Some see it as a model for prison reform.
Sept. 26, 2002
By John Ruch
© 2002
Q: Why did they close down Alcatraz? Are there any prison islands left?
—Puzzled About Prison Islands
A: Island prisons were typically built for special reasons—and with huge imperial budgets—that are highly outdated today.
The infamous Devil’s Island (and its two sibling prison islands) off French Guiana began as part of a penal colony; today it is, more fittingly (by modern standards), a tourist destination.
Prison islands were based on making criminals disappear rather than rehabilitating and reintegrating them. (South Africa’s Robben Island, where anti-apartheid activists—including Nelson Mandela—were jailed, was also used to dump mental patients and lepers in less enlightened years.)
Thus, they’ve been especially favored for political prisoners. Napoleon was dumped on Saint Helena in the South Atlantic; the Soviet Gulag system was invented on the White Sea’s Solovki Islands.
Like many island prisons, Alcatraz started in 1835 as a military outpost with a fine defensive position in San Francisco Bay. Being remote and fortified, it was also a good dumping ground for military prisoners (especially repeat escapees) and political prisoners such as Native American guerillas and Quaker war objectors.
In 1934, it became a federal prison, and perhaps the only island prison designed to capitalize on the island-prison mystique. Attorney General Homer Cummings wanted the rebuilt prison to intimidate would-be criminals and dumped such hard cases as Al Capone there.
It failed miserably. Crime stayed up and Capone ran his mob from his cell. Alcatraz was extremely expensive to operate and maintain, and by the rehabilitation-minded 1960s was a throw-away-the-key dinosaur. It closed in 1963 and was replaced by the landlocked prison in Marion, Illinois.
Like so many former prison islands, Alcatraz is now a national park. Likewise, the Chateau d’If off Marseilles, where the real Man in the Iron Mask and the fictional Count of Monte Cristo both did time, now traps only tourists.
Island prisons today are mostly ad hoc (political prisoners dumped on remote atolls in Fiji and the Maldives) or barely islands (like New York City’s Riker’s Island, tucked in the East River with its own bridge).
The US’s only remaining Alcatraz-style prison, accessible only by sea or air, is Washington State’s McNeil Island Corrections Center in Puget Sound off Tacoma.
A territorial prison opened on the 27-acre isle in 1875, not to prevent escape but because it was easy to supply by ship. (Escapes from island prisons were fairly common anyhow.) The feds dumped McNeil as impractical in the 1970s, but the state took it over.
Perhaps the only remaining island prison successfully melding the old and new is Mexico’s three-island Tres Marias group in the Pacific, 70 miles off Puerto Vallarta.
It opened in 1908 as the Mexican’s Devil’s Island for hardcore cons. But in the 1980s, it switched to a progressive version of a penal colony, with non-violent offenders allowed to choose to do time there, learning job skills and interrelating freely in what is essentially a small community all its own. Some see it as a model for prison reform.
March 27, 2008
Bounty Hunters
Stupid Question ™
July 22, 1999
By John Ruch
© 1999
Q: How can I become a bounty hunter?
—Couldn’t Make It Into WWF
A: People arrested for crimes can often go free pending trial with a bail bond—a contract in which the accused is released into another person’s custody on that person’s promise to pay a set sum to the court if the accused doesn’t appear for trial.
Bail bondsmen do this for a fee. If the accused doesn’t appear, they lose a lot of money (average bail nationwide is $1,000). They usually have a set time (30 days in Ohio) to deliver the accused back to court and still get their money back.
The bail bond contract puts the accused in the bondsman’s custody. He or his agents can therefore do almost anything to return the accused to court, including breaking into his home and arresting and imprisoning him.
Most bail-jumpers are brought in by the bondsmen themselves with a phone call. But for tougher cases, they can authorize a bounty hunter (more politely known as a bail enforcer or fugitive recoverer) to capture the accused.
Some states license bounty hunters; others outlaw them. But in most states, including Ohio, you only need to be of “suitable age and discretion” and be authorized by a bondsman to hunt a specific jumper. In fact, many bounty hunters have criminal records of their own.
Gary Turner, a bounty hunter in Cicero, Illinois, who runs an online bounty-hunter school, said he was a bored used-car salesman when he got into the business. After taking a course on basic laws and tracking techniques (also available in Rob Burton’s books “Bounty Hunter” and “Bail Enforcer”), and with only basic military and security work experience, he and his buddies sent out letters to local bondsmen until they got a job.
Most bondsmen still only look for basic military/police experience, size and intelligence. But concern over wild arrest tactics have led trade groups such as the United States Bail Enforcement Academy (USBEA) to lobby for training requirements to get rid of what it calls “Rambo bounty hunters.”
The USBEA dismisses most “bounty hunter schools” as simple book learning and “war stories.” New bounty hunter companies like Georgia’s Metro Bail Enforcement have FBI-level entry requirements.
In any case, a bounty hunter should have good people skills, tracking savvy, patience and complete understanding of bail law.
They should own a bulletproof vest, a variety of firearms, a surveillance vehicle (preferably a van), handcuffs, a police scanner and cell phones.
Bounty hunters generally early 10 to 15 percent of the bond amount, plus expenses. But Turner said the percentage goes up as the return deadline approaches. He said he recently made 50 percent on a fugitive he nabbed near Wrigley Field.
Metro Bail Enforcement actually offers low salaries—around $12,000—plus commissions.
However, very few bounty hunters work full-time; Turner still works the car lot as his day job.
July 22, 1999
By John Ruch
© 1999
Q: How can I become a bounty hunter?
—Couldn’t Make It Into WWF
A: People arrested for crimes can often go free pending trial with a bail bond—a contract in which the accused is released into another person’s custody on that person’s promise to pay a set sum to the court if the accused doesn’t appear for trial.
Bail bondsmen do this for a fee. If the accused doesn’t appear, they lose a lot of money (average bail nationwide is $1,000). They usually have a set time (30 days in Ohio) to deliver the accused back to court and still get their money back.
The bail bond contract puts the accused in the bondsman’s custody. He or his agents can therefore do almost anything to return the accused to court, including breaking into his home and arresting and imprisoning him.
Most bail-jumpers are brought in by the bondsmen themselves with a phone call. But for tougher cases, they can authorize a bounty hunter (more politely known as a bail enforcer or fugitive recoverer) to capture the accused.
Some states license bounty hunters; others outlaw them. But in most states, including Ohio, you only need to be of “suitable age and discretion” and be authorized by a bondsman to hunt a specific jumper. In fact, many bounty hunters have criminal records of their own.
Gary Turner, a bounty hunter in Cicero, Illinois, who runs an online bounty-hunter school, said he was a bored used-car salesman when he got into the business. After taking a course on basic laws and tracking techniques (also available in Rob Burton’s books “Bounty Hunter” and “Bail Enforcer”), and with only basic military and security work experience, he and his buddies sent out letters to local bondsmen until they got a job.
Most bondsmen still only look for basic military/police experience, size and intelligence. But concern over wild arrest tactics have led trade groups such as the United States Bail Enforcement Academy (USBEA) to lobby for training requirements to get rid of what it calls “Rambo bounty hunters.”
The USBEA dismisses most “bounty hunter schools” as simple book learning and “war stories.” New bounty hunter companies like Georgia’s Metro Bail Enforcement have FBI-level entry requirements.
In any case, a bounty hunter should have good people skills, tracking savvy, patience and complete understanding of bail law.
They should own a bulletproof vest, a variety of firearms, a surveillance vehicle (preferably a van), handcuffs, a police scanner and cell phones.
Bounty hunters generally early 10 to 15 percent of the bond amount, plus expenses. But Turner said the percentage goes up as the return deadline approaches. He said he recently made 50 percent on a fugitive he nabbed near Wrigley Field.
Metro Bail Enforcement actually offers low salaries—around $12,000—plus commissions.
However, very few bounty hunters work full-time; Turner still works the car lot as his day job.