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Antinomies and the Automobile: A New Approach to Criminal Justice Histories
Abstract
In the twentieth century, the antinomy of freedom and coercion served as the dominant paradigm for understanding issues of crime and punishment. Roscoe Pound in Criminal Justice in America (1930) and Herbert Packer in The Limits of the Criminal Sanction (1968) described a tension between the values of individual liberty and general security to explain the problems with the justice system and the public's disagreements over their solution. Historians of twentieth‐century criminal law have also adopted this framework to explain causation and change. This essay argues that an antinomic perspective of criminal justice history, while useful, has obscured important historical questions. A focus on social changes, such as the transformations that the automobile brought about in the commission of crimes and police practices, instead of on contrasting values, offers a different account of how proceduralism became inextricably tied to notions of American freedom in the twentieth century. This approach also historicizes the “paradigm of antinomies” and shows how people in the past, like Pound and Packer, mobilized dualistic thinking, which shaped a criminal legal culture based on an antagonism—both real and perceived—between citizens and law enforcement.
... In the Elucidation of Article 143 of the Criminal Procedure Code it states "what is meant by "letter of case delegation" is the letter of delegation of cases itself complete with the indictment and case files". Regarding the two articles, it can be seen that 2 (two) things, namely First, Article 72 of the Criminal Procedure Code places the case file as a right for the suspect which is given on the basis of a request to the investigator/public prosecutor, but Article 143 paragraph (4) of the Criminal Procedure Code places the case file as rights for suspects that must be given by the public prosecutor, and Second, the right to case files is only for suspects or defendants even though a convict also needs case files to prepare a defense in submitting legal proceedings for review (Renan, 2017;Seo, 2013) This antinomy of norms also has implications in practice where sometimes case files are given at the request of the suspect or his legal adviser even though based on Article 143 paragraph (4) of the Criminal Procedure Code, the public prosecutor is required to provide the case handover letter itself complete with the indictment and case files at the time of handing over the case files to court. Not infrequently, public prosecutors are reported by legal advisers on charges of violating the provisions of Article 143 paragraph (4) of the Criminal Procedure Code or Article 143 paragraph (4). ...
Indonesia, as a democratic country that prioritises human rights, pays special attention to the protection of the rights of its citizens involved in the criminal justice process. In this regard, case files are an important element in the preparation of evidence in criminal cases. However, there is a misalignment in the criminal law regarding how to access case files. Article 72 of KUHAP allows suspects to request a copy of the investigation report, while Article 143(4) of KUHAP requires the prosecutor to include the case file when submitting the case to the court. In order to ensure fairness in the criminal justice system and maintain cost-efficiency in the handling of cases, it is important to explore and clarify the right of access to case files. This paper aims to identify the ideal form of such a right in order to accommodate the needs of suspects, defendants or prisoners in properly preparing their defence in the Indonesian criminal justice process. In the Indonesian criminal justice system, case files are important documents used by suspects, defendants or prisoners to prepare a defence in a criminal case. Unfortunately, the right of access to case files, as stipulated in the Criminal Procedure Code (KUHAP), still creates confusion. Article 72 of the Criminal Procedure Code entitles the suspect to request a copy of the investigation report, while Article 143(4) of the Criminal Procedure Code requires the prosecutor to include the case file when submitting the case to the court. This paper concludes that Article 72 of the Criminal Procedure Code needs to be revised to clarify the right of access to case files. The revision proposes changing the text to read "Upon request of the suspect, accused or convict, or his/her proxy, the relevant official shall provide a copy of the derivative examination report for the purpose of their defence." Similarly, the explanation of Article 143 of KUHAP is revised to clarify that the power of attorney for the appointment of a case is the letter of appointment of the case itself complete with the indictment and case file, except for the case file provided at the request of the suspect, his attorney, or his legal counsel to the prosecutor. These changes provide a more definitive formulation while taking into account the economic approach in the criminal justice process. The right of access to case files remains protected, while the state is not burdened with the obligation to provide case files to all suspects at the prosecution stage.
... In order to create laws that can protect the people, fair treatment, laws that protect every citizen of the nation so that their rights are guaranteed of course, there must be regulations that are used as guidelines in the preparation of laws and regulations, as the main rules that apply to drafting regulations from the initial process of their formation until the end (Seo, 2013). These regulations apply to the public. ...
In order to create a legal objective to protect and provide the people with fair treatment, the law should protect every citizen of the nation so that their rights are guaranteed in state regulations. The regulation is also used as guidelines in the further preparation of legislation. With the existence of standard procedure, each drafting of regulations such as defining, standardization, and choosing a method that binds all institutions authorized to form laws and regulations so that the regulations in question can meet the needs of the community for good laws and regulations. The 1945 Constitution of the Republic of Indonesia itself has mandated Law Number 12 of 2011 concerning the Establishment of Legislation to be a guide in forming legislation, one of the proposed changes from the Second Draft Amendment to Law Number 12 of 2011 concerning the Establishment of Legislation is to add the omnibus law method. The legislation technique with the omnibus law model was chosen to be used by law policymakers in various countries for a number of reasons. One of the main reasons is that with this technique, it will be easy for legislators to reach an agreement or approval of new legislation drafts and avoid political impasse/interest.
This book chronicles the development of criminal law in America, from the beginning of the constitutional era (1789) through the rise of the New Deal order (1939). Elizabeth Dale discusses the changes in criminal law during that period, tracing shifts in policing, law, the courts and punishment. She also analyzes the role that popular justice - lynch mobs, vigilance committees, law-and-order societies and community shunning - played in the development of America's criminal justice system. This book explores the relation between changes in America's criminal justice system and its constitutional order.
* Introduction Tight Little Islands: Criminal Justice In The Colonial Period * The Shape and Nature of the Law * The Law of God and Man From The Revolution To The Close Of The Nineteenth Century * The Mechanics of Power: The Republican Period * Power and Its Victims * Setting the Price: Criminal Justice and the Economy * Morals, Morality, and Criminal Justice * The Mechanics of Power II: Professionalization and Reform in the Late Nineteenth Century * Lawful Law and Lawless Law: Forms of American Violence * Legal Culture: Crimes of Mobility * Women and Criminal Justice to the End of the Nineteenth Century * The Evolution of Criminal Process: Trials and Errors Criminal Justice In The Twentieth Century * A National System * Crime on the Streets Crime in the Suites * Realignment and Reform * Law, Morals, and Victimless Crime * The Mechanics of Power: Some Twentieth-Century Aspects * The Contemporary Criminal Trial * Gender and Justice * Crimes of the Self: Twentieth-Century Legal Culture * A Nation Besieged
Police Questioning of Law Abiding Citizens
For a member of one of the most staid occupations, I have had a disturbing number of encounters with the police. I can count nine or ten times that I have been stopped and questioned in the past few years -almost enough to qualify me as an adjunct member of the Mafia. Most recently, when the officer told me he had the right to stop anyone any place any time-and for no reason-I decided I had better write an article. Let me describe some of my adventures.
My problem is that I like to walk. In Chevy Chase, Maryland, a tree-lined suburb that smells of honeysuckle on spring nights, a police car swooped down on me about eleven at night. The officer wanted me to identify myself: where did I live, where was I going. He was not looking for anyone in particular; just on patrol. In Santa Barbara, California, where I had gone to give a paper on conservation, I was stopped on Main Street, about ten blocks from where I was staying. I was looking for a restaurant, a search which I was allowed to continue after giving a satisfactory explanation of my presence. In Belmont, Massachusetts, I was halted two blocks from my brother's house. I admit that it was very early morning. But my small niece had been up. In New Haven, about eleven at night, I was stopped a half mile from my own residence. Since this was home territory, and since the officers had summoned me off the sidewalk without even getting out of their patrol car, I protested. This was the only time that the police implied they were actually looking for someone-a prowler, they said. Two more patrol cars and a sergeant arrived as I continued to stand my ground on the sidewalk. After ten minutes' discussion we all dispersed. In Long Lake, New York, an Adirondack vacation town, a state policeman stopped me on the main street about ten at night. I was walking on the sidewalk. He demanded I tell my age, occupation, and reason for being out on the street, and that I produce some identification. When I told him I had none, he was ready to arrest me-for walking on the wrong side of the street, or for vagrancy, he said. I pointed out that my family has owned a house at Long Lake for sixty years-and that there was no sidewalk on the other side of the street.
I should add that I have been stopped many times without cause while driving a car. It has happened in New York State, in Massachusetts, and as far away as Oregon; always in broad daylight; each time I asked why I had been flagged down with siren and flashing light; each time at first no answer was given; only when I was dismissed did the officer say "just checking." In each case the officer wanted not only to see my license, but also to know where I was going, where I was coming from, and my business. In all of my experiences, I have never been arrested, never told that I was committing an offense, and never told that I answered a particular description.
These circumstances define the problem that I wish to discuss. In this article, I am not concerned with police investigations after a crime has been reported, or with circumstances which suggest that the individual who has been stopped may be doing something illegal. My problem is this: no crime has been reported, no suspect has been described, there is no visible sign of an offense, there is nothing whatever to direct police attention to this particular individual. I am concerned with what is called preventive police work.
Herbert Packer's
The Limits of the Criminal Sanction (1968) has spawned decades of commentary. This essay argues that Packer's two‐model conceptualization of the criminal process is best understood within his professional milieu of doctrinal legal scholarship and the political context of the Warren Court revolution. Within this context, the essay suggests a distinction between two due process visions: formalism and fairness. This distinction is useful for illuminating debates and decisions on criminal procedure matters in the Supreme Court such as Terry v. Ohio (1968) and Apprendi v. New Jersey (2000). I conclude by encouraging sensitivity to legal and historical context in future commentary on Packer's framework.
This Article offers a detailed analysis of major Taft Court decisions involving prohibition, including Olmstead v. United States, Carroll v. United States, United States v. Lanza, Lambert v. Yellowley, and Tumey v. Ohio. Prohibition, and the Eighteenth Amendment by which it was constitutionally entrenched, was the result of a social movement that fused progressive beliefs in efficiency with conservative beliefs in individual responsibility and self-control. During the 1920s the Supreme Court was a strictly bone-dry institution that regularly sustained the administrative and law enforcement techniques deployed by the federal government in its losing effort to prevent the manufacture and sale of liquor throughout the continental United States. This is surprising, because the Taft Court was in other respects dominated by conservative Justices, who were temperamentally opposed to the expansion of the national administrative state, particularly in contexts in which the national government sought to displace local police power. Prohibition represented the greatest expansion of federal regulatory authority since Reconstruction. It caused a major crisis in the theory and practice of American federalism, as the national government, which lacked the courts or police necessary for implementing the Eighteenth Amendment, sought to conscript state judicial and law enforcement resources. Close inspection reveals that the Taft Court's support for prohibition came from an unlikely alliance between two liberal Justices - Holmes and Brandeis - and three conservative Justices - Taft, Van Devanter, and Sanford. Three conservative Justices - McReynolds, Sutherland, and Butler - remained adamantly opposed to prohibition. Holmes's and Brandeis's support of prohibition likely reflects pre-New Deal liberalism's conviction that courts ought to defer to democratic lawmaking. This conviction was sorely tested by the flagrant and persistent defiance of prohibition, as well as by the repressive criminal and administrative techniques used to secure prohibition's enforcement. Not only did progressives grow suspicious of federal regulatory efforts to enforce sumptuary legislation, but they began to question the legitimacy of positive law that lacked resonance with the customs and mores of the population. These trends in American liberalism are visible in Brandeis's famous dissent in Olmstead. They would vanish with the advent of the New Deal and not reappear until the 1960s, in cases like Griswold v. Connecticut, at a time when the American administrative state had become as effectively entrenched as it had been during prohibition in the 1920s. The opposition to prohibition of McReynolds, Sutherland, and Butler represents the traditional pre-New Deal judicial conservative position that positive law, particularly positive national law, was to be judicially disciplined whenever it departed from customary social values. The vigorous support of prohibition by otherwise conservative Justices like Taft, Van Devanter, and Sanford, by contrast, represents a new development in American judicial conservatism. These Justices fused a conservative belief in social control with an embrace of legal positivism. This fusion disappeared from judicial conservatism with the repeal of the Eighteenth Amendment, and it did not reappear until the 1970s and the philosophy of Justice Rehnquist, when judicial conservatism finally came to terms with the entrenchment of the American administrative state. The brief constitutionalization of prohibition, in other words, forced Justices on both the right and the left to stop debating whether there should be an American administrative state, and required them instead to reconstruct their judicial philosophy on the assumption that the administrative state was an unalterable reality. It provoked a brief efflorescence of judicial perspectives that would not come into full flower until late in the twentieth century. Prohibition also forced a rethinking of the appropriate limits of national power, as well as fundamental developments in the meaning of Fourth Amendment limitations on law enforcement.
Historical sources indicate that the concept of "Fourth Amendment reasonableness" is only a modern judicial invention, not the intended meaning of the text. Common-law sources show there was no broad "reasonableness" standard in framing-era search and arrest law. In addition, historical sources show that the Framers were concerned almost exclusively with searches of houses under general writs or warrants. Although the Framers abhorred the exercise of discretionary authority by ordinary officers, they were not threatened by warrantless intrusions because the ex officio authority of peace officers was very limited, especially when a house was involved. Thus, because the Framers perceived that warrant authority was the potent form of arrest and search authority, and because they were primarily concerned with the protection of the house and the sphere of domestic privacy associated with the house, they believed that prohibiting legislative authorization of general warrants would suffice to preserve the right to be secure. Moreover, in framing-era law, unlawful conduct by officers was regarded only as a private trespass, not as a form of government illegality. Thus the Framers had no basis for addressing the conduct of warrantless officers in a constitutional provision (and also had no basis for considering exclusion as a consequence of an unlawful search). The reference to "unreasonable searches and seizures" in the text did not refer to a relativistic standard; rather that phrasing reflected Coke's earlier use of "against reason" as a label for a violation of a basic legal principle. James Otis invoked Coke's "against reason" during the Writs of Assistance Case and his protege John Adams (who recorded Otis's speech) introduced "unreasonable" into the lexicon of American search and seizure texts when he authored the 1780 Massachusetts Declaration of Rights. Modern reasonableness doctrine is best understood as a judicial adjustment to the post-framing conferral of discretionary arrest and search authority on peace officers, a development which created a novel threat to the security of person and house. The 1914 decision in Weeks v. United States drew upon the late nineteenth century reconception of officer misconduct "under color of " office as a form of government illegality to extend the Fourth Amendment to warrantless officers. It also constitutionalized the common-law warrant requirement for house searches. The 1925 decision in Carroll v. United States changed direction, however, and facilitated enforcement of Prohibition by reinterpreting "unreasonable" as a relativistic standard for warrantless searches. Thus, the history of the Fourth Amendment is one of drastic doctrinal and contextual change. The authentic meaning cannot be recovered from the words of the text alone; rather, the intended meaning of the words can only be ascertained by examing the doctrinal and institutional context that shaped the Framers' concern. The differences between the historical and modern contexts are so pronounced that the original meaning cannot provide answers to modern issues. The value of recovering the authentic original meaning lies largely in the larger perspective it provides: we now accord the ordinary officer much more authority than the Framers either intended or expected.
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