U.S.

Legal System

Adviso r: Student:

May, 2011

Table of Contents

Abstract2 Introduction..3 Chapter I: Legal System ..4 1.1 Laws and Courts in the U.S...4 1.2 The U.S. Judiciary.4 1.3 The federal courts..4 1.4 The civil and criminal courts.5 1.5 About lawyer referal services5 1.6 The litigation..5 1.7 The Jury.6 1.8 Civil trial procedure...7 1.9 Waiver of jury trial7 Chapter II: The United States Constitution..8 2.1 Articles of the Constitution...8 2.2 United States Bill of Rights 10 2.3 Amendments10 2.4 Subsequant Amendments 12 2.5 Display and honouring of the Bill of Rights13 Chapter III: Capital Punishment.14 3.1 States without capital punishment.. 14 3.2 Recent abolition...15 3.3 Restrictions on the use of the death penalty....15 3.4 Crimes subject to capital punishment. 16 3.5 Methods.. 16 3.6 Capital punishment debate. 17 3.7 Public vs private execution..18 3.8 Clemecy and commutations.18 3.9 Curent moratoria..18 Chapter IV: Case Study..20 Conclusion..23 Bibliography Annexes

Abstract

During the last decades, the U.S. Legal System has been presented to people all around the world though many TV series such as CSI, Law&Order, The Defenders and Criminal Minds, which depict different aspects of the U.S. legal process. Such series usually focus on criminal law and present the action that takes place in a courtroom. Topics such as capital punishment, custody right of adoptive parents and insanity defence are often included in crime series and the final verdict, which is almost always meant to punish the guilty, convinces the public that the U.S Legal System is a perfect one. The aim of this paper is to briefly describe the U.S. Legal System by presenting some of the aspects that make it so remakable and also unic. The four chapters of the paper present the organisation of the American Legal System, the Constitution of the U.S, a short history of the capital punishment, as well as a case study which clearly shows how legal decisions may sometimes ruin the lives of innocent men. I firmly believe that it is important to get a clear image of what the U.S. Legal System is really like, especialy nowadays, when many people consider it to be perfect, as they only take a glance at it through fiction, which in most cases has nothing to do with reality.

Introduction

The United States is well-known for having one of the most sophisticated judicial systems in the world. Every day thousands of people, including police officers, lawyers, judges and even accused criminals, take part in this system, hoping to settle disputes and work for justice. What makes this system so remarkable is that it is able to operate successfully in a country as large and diverse as the United States.The key to this success is mainly based on the fact that each state has its own set of courts that can adapt to the needs of its people. As a result, the majority of legal disputes in the U.S. are settled in state courts. Although it seems that the U.S. Legal System is almost perfect, some of its aspects, such as plea bargaining helps the defendant to get a reduced sentence if he pleads guilty and most americans do not aprove this procedure as they consider it to be in favour of criminals . Another two major drawbacks in the U.S. Legal System are the traditional litigation which is said to serve only to make lawyers rich and capital punishment which remains a controversial issue not only in the United States of America, but in the rest of the states as well

Chapter I
Legal System 1.1 Laws and Courts in the U.S. The U.S. legal system is based on federal law, augmented by laws enacted by state legislatures and local laws passed by counties and cities. Most rights and freedoms enjoyed by Americans are established in the first ten amendments of the U.S. Constitution and popularly known as theBill of Rights. American law and the U.S. Constitution apply to everyone in the U.S. irrespective of citizenship or immigration status, and even illegal immigrants have most of the same basic legal rights as U.S. citizens. Under the U.S.Constitution, each state has the power to establish its own system of criminal and civil laws, resulting in 50 different state legal systems, each supported by its own laws, prisons, police forces, and county and city courts. Theres a wide variation in state and local laws, making life difficult for people moving between states. 1.2 The U.S. Judiciary The U.S. judiciary is independent of the government and consists of the Supreme Court, the U.S. Court of Appeals and the U.S. District Courts. The Supreme Court, the highest court in the land, consists of nine judges who are appointed for life by the President. Its decisions are final and legally binding on all parties. At its discretion, and within certain guidelines established by Congress, the Supreme Court each year hears a limited number of the cases it is asked to decide. Those cases may begin in the federal or state courts, and they usually involve important questions about the Constitution or federal law. In deciding cases, the Supreme Court reviews the activities of state and federal governments and decides whether laws are constitutional. The Supreme Court has nullified laws passed by Congress and even declared the actions of U.S. presidents unconstitutional. However, when appointing a Supreme Court judge, the Presidents selection is based on a candidates political and other views, which must usually correspond with his own. The Supreme Court was for many years made up of members with a liberal or reformist outlook, although this trend has been reversed in recent years with the appointment of conservative judges by successive Republican presidents. 1.3 The federal courts A separate system of federal courts operates alongside state courts and deals with cases arising under the U.S. Constitution or any law or treaty. Federal courts also hear disputes involving state governments or between citizens resident in different states. Cases falling within federal jurisdiction are heard before a federal district judge. Appeals can be made to the Circuit Court of Appeals and in certain cases to the U.S. Supreme Court.

1.4 The civil and criminal courts There is a clear separation and distinction between civil courts, which settle disputes between people(such as property division after a divorce), and criminal courts that prosecute those who break the law. Crimes are categorised as minor offences (misdemeanours) or serious violations of the law (felonies). Misdemeanours include offences such as dropping litter, illegal parking or jay-walking, and are usually dealt with by a fine without a court appearance. Felonies, which include robbery and drug dealing, are tried in a court of law and those found guilty are generally sentenced to prison . People who commit misdemeanours may be issued a summons, while anyone committing a felony is arrested. An arrest almost always involves being handcuffed and read your rights. You must be advised of your constitutional rights when arrested. These include the right to remain silent, the right to have a lawyer present during questioning, and the right to have a free court-appointed lawyer if you cannot afford one. You will be asked if you wish to waive your rights. This is not recommended, as any statement you make can then be used against you in a court of law. It is better to retain your rights and say nothing until you have spoken with a lawyer. At the police department you are charged and have the right to make one telephone call.This should be to your embassy or consulate, a lawyer or the local legal aid office, or to someone who will stand bail for you. You are then put into a cell until your case comes before a judge, usually the same or next day, who releases you or sets bail. Bail may be a cash sum or the equivalent property value. For minor offences, you may be released on your personal recognisance. In serious cases, a judge may oppose bail. 1.5 About lawyer referal services In many areas, lawyer (or attorney) referral services are maintained by local bar associations, whose members provide legal representation for a reasonable fee. Before retaining a lawyer, one should ask exactly what legal representation costs, including fees for additional services such as medical experts, transcripts and court fees. Most importantly, hire a lawyer whos a specialist and experienced in handling your type of case. If you cannot afford a lawyer and your case goes to court, a court-appointed lawyer represents you. An unusual feature of the U.S. legal system is plea bargaining, which involves the prosecution and the defence making a deal where the defendant agrees to plead guilty to a lesser charge, thus saving the court time and leading to a reduced sentence. Penalties are often harsh, particularly for less serious crimes, while professional and white-collar criminals who can afford the best defence often get off with a light sentence or a fine. The fact that many American judges are elected, rather than appointed from qualified members of the legal profession, often results in bad legal decisions and a lack of consistency in sentencing. 1.6 The litigation Litigation is an American tradition and national sport which leads to almost 20 million civil suits a year. One of the most unusual aspects of U.S. law is that lawyers are permitted to work on a contingency fee basis, whereby they accept cases on a no-win, no-fee basis. If they

win, their fee is as high as 50 per cent of any damages. If you must hire a lawyer on a noncontingency basis, the cost is usually prohibitive. Many people believe this system helps pervert the cause of justice, as a lawyers only concern is winning a case, often irrespective of any ethical standards or the facts of the matter. The contingency-fee system is responsible for the proliferation of litigation cases, which lawyers are happy to pursue. The litigation system is primarily designed to make lawyers rich, while ensuring that almost everyone else ends up losing. Not only must individuals have liability insurance to protect against being sued, but everyone from doctors to plumbers must have expensive malpractice insurance to protect themselves against litigious patients or customers. The whole U.S. economy and legal system is underpinned by litigation Everyone, except lawyers that is, agrees that litigation is out of control but nobody seems to know what to do about it. In many states, some products have limited liability, while others do not, meaning that multiple warnings are printed on the most unlikely articles. In fact, most companies attempt to anticipate the most ridiculous and implausible events in order to protect themselves against litigation. Taken to ridiculous extremes a bottle of beer would have warnings about drinking and driving, breaking the glass and cutting yourself or someone else, swallowing broken glass, taking alcohol where it is prohibited, drinking under age or giving a drink to someone under age, alcoholism, carrying alcohol in your car or over certain state borders, being mugged or falling over while drunk, etc. and this is hardly an exaggeration! In fact, alcohol does carry a number of health warnings regarding cancer risk and other health problems, birth defects, driving and operating machinery. In Colorado, a barman must insure himself against being sued for serving someone who is later involved in a car accident. In the U.S., you can sue a tobacco company for causing your cancer, a car manufacturer for causing an accident or a ski firm for contributing to your ski accident. In fact anything that can however remotely be blamed on someone else, will be! If you are the victim of an accident, you must never discuss your injuries with anyone connected with the other party and must never sign any documents they present to you without legal advice. Put the matter in the hands of an experienced litigation lawyer and let him handle everything. And in case you might forget, there are television adverts advising you of your rights to sue in accident situations, by attorneys claiming special competence at winning huge settlements. Most companies and professionals are so frightened of the courts that many cases do not go to trial, e.g. personal injury and medical malpractice cases, which, apart from the cost of losing, are bad for business. 1.7 The Jury A jury trial, or trial by jury, is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge. It is distinguished from a bench trial, in which a judge or panel of judges make all decisions. In most common law jurisdictions, the jury is responsible for finding the facts of the case, while the judge determines the law. These jurors are responsible for listening to a dispute, evaluating the evidence presented, deciding on the facts, and making a decision in accordance

with the rules of law and their jury instructions. Typically, the jury only judges guilt or a verdict of not guilty, but the actual penalty is set by the judge In the United States every person accused of a crime punishable by incarceration for more than six months has a constitutional right to a trial by jury, which arises in federal court from Article Three of the United States Constitution, which states in part, "The Trial of all Crimes...shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." The right was expanded with the Sixth Amendment to the United States Constitution, which states in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed." If a criminal defendant waives trial by jury and chooses a bench trial, the state cannot ask for a jury trial. Jurors in some states are selected through voter registration and drivers' license lists. A form is sent to prospective jurors to pre-qualify them by asking the recipient to answer questions about citizenship, disabilities, ability to understand the English language, and whether they have any conditions that would excuse them from being a juror. If they are deemed qualified, a summons is issued. 1.8 Civil trial procedure In the United States, a civil action is a lawsuit; civil law is the branch of common law dealing with non-criminal actions. The right to trial by jury in a civil case is addressed by the 7th Amendment, which provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." Following the English tradition, U.S. juries have usually been composed of 12 jurors, and the jury's verdict has usually been required to be unanimous. However, in many jurisdictions, the number of jurors is often reduced to five or six by legislative enactment, or by agreement of both sides. 1.9 Waiver of jury trial The majority of U.S. criminal cases are not concluded with a jury verdict, but rather by plea bargain. Both prosecutors and defendants often have a strong interest in resolving the criminal case by negotiation resulting in a plea bargain. If the defendant waives a jury trial, a bench trial is held.

Chapter II
The United States Constitution The Constitution of the United States, the supreme law of the United States of America is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States. Adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, the United States Constitution is the oldest written constitution still in use by any nation in the world. It has been amended twenty-seven times and the first ten amendments are known as the Bill of Rights. The Constitution holds a central place in United States law and political culture creating the three branches of the national government: a legislature, the bicameral Congress; an executive branch led by the President; and a judicial branch headed by the Supreme Court. It also specifies the powers and duties of each branch. The Constitution reserves all unenumerated powers to the respective states and the people, thereby establishing the federal system of government. 2.1 Articles of the Constitution The Constitution consists of a preamble, seven original articles, twenty-seven amendments, and a paragraph certifying its enactment by the constitutional convention. Preamble We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Article One: Legislative Power Article One describes the Congress, the legislative branch of the federal government. The United States Congress is a bicameral body consisting of two co-equal houses: the House of Representatives and the Senate. The article establishes the manner of election and the qualifications of members of each body. Representatives must be at least 25 years old, be a citizen of the United States for seven years, and live in the state they represent. Senators must be at least 30 years old, be a citizen for nine years, and live in the state they represent. Article Two: Executive power The executive power is vested in a President. The presidential term is four years and the Vice President serves the identical term. According to the Constitution,the President must be a natural born citizen of the United States, at least 35 years old and a resident of the United States for at least 14 years. Article Three describes the judicial branch, including the Supreme Court. The article requires that there be one court called the Supreme Court.Article Three also creates the right to trial by

jury in all criminal cases, defines the crime of treason, and charges Congress with providing for a punishment for it. This Article also sets the kinds of cases that may be heard by the federal judiciary and which cases the Supreme Court may hear first. Article Four: States' powers and limits Article Four outlines the relation between the states and the relation between the federal government. In addition, it provides for such matters as admitting new states as well as border changes between the states.It also establishes extradition between the states, as well as laying down a legal basis for freedom of movement and travel amongst the states. Today, this provision is sometimes taken for granted, especially by citizens who live near state borders, but in the days of the Articles of Confederation, crossing state lines was often a much more costly process. Article Four also provides for the creation and admission of new states. Finally, the fourth section of Article Four requires the United States to guarantee to each state a republican form of government, and to protect the states from invasion and violence. Article Five: Amendments Regardless of the method of proposing an amendment, final ratification requires approval by three-fourths of the states. Article Six: Federal power Article Six establishes the Constitution, and the laws and treaties of the United States made according to it, to be the supreme law of the land. It also validates national debt created under the Articles of Confederation and requires that all federal and state legislators, officers, and judges take oaths or affirmations to support the Constitution. This means that the states' constitutions and laws should not conflict with the laws of the federal constitution and that in case of a conflict, state judges are legally bound to honor the federal laws and constitution over those of any state. Article Six also states "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Article Seven sets the requirements for ratification of the Constitution. The Constitution would not take effect until at least nine states had ratified the Constitution in state conventions specially convened for that purpose, and it would only apply to those states that ratified it.

Since 1787,when it was adopted, the United States Constitution has been amended 27 times and can be amended in the future as well. The procedure for amending the constitution as described in Article V involves two parts. The first part is the proposal of the amendments by a vote of two-thirds majority in both houses of the Congress. The second part is the ratification of the proposed amendment, that is, it should be approved by three-fourths of states or a majority vote of the state legislatures. Of the 27 amendments, the first 10 were ratified together and they are known as the Bill of Rights.

10

2.2 United States Bill of Rights The Bill of Rights is the name for the first ten amendments to the United States Constitution..They were introduced by James Madison to the First United States Congress in 1789 as a series of legislative articles and came into effect as Constitutional Amendments on December 15, 1791, through the process of ratification by three-fourths of the States. The Bill of Rights is a series of limitations on the power of the United States federal government, protecting the natural rights of liberty and property including freedom of speech, a free press, free assembly, and free association, as well as the right to keep and bear arms. The Bill was influenced by George Mason's 1776 Virginia Declaration of Rights, the 1689 English Bill of Rights, works of the Age of Enlightenment pertaining to natural rights, and earlier English political documents such as Magna Carta (1215). The Bill of Rights plays a key role in American law and government, and remains a vital symbol of the freedoms and culture of the nation. One of the first fourteen copies of the Bill of Rights is on public display at the National Archives in Washington, D.C.. 2.3 Amendments First Amendment: addresses the rights of freedom( of religion prohibiting Congress from establishing a religion and protecting the right to free exercise of religion), freedom of speech, freedom of the press, freedom of assembly, and freedom of petition. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Second Amendment: guarantees the right of individuals to possess weapons. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Third Amendment prohibits the government from using private homes as quarters for soldiers during peacetime without the consent of the owners. No Soldier shall, in time of ps. peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. Fourth Amendmentguards against searches, arrests, and seizures of property without a specific warrant or a "probable cause" to believe a crime has been committed. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Fifth Amendment: forbids trial for a major crime except after indictment by a grand jury; prohibits double jeopardy, except in certain very limited circumstances; forbids punishment without due process of law; and provides that an accused person may not be compelled to testify against himself (this is also known as "Taking the Fifth" or "Pleading the Fifth"). This is regarded as the "rights of the accused" amendment, otherwise known as the Miranda rights after

11

the Supreme Court case. It also prohibits government from taking private property for public use without "just compensation", the basis of eminent domain in the United States. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Sixth Amendment: guarantees a speedy public trial for criminal offenses. It requires trial by a jury, guarantees the right to legal counsel for the accused, and guarantees that the accused may require witnesses to attend the trial and testify in the presence of the accused. It also guarantees the accused a right to know the charges against him.In 1966, the Supreme Court ruled that the fifth amendment prohibition on forced self-incrimination and the sixth amendment clause on right to counsel were to be made known to all persons placed under arrest, and these clauses have become known as the Miranda rights. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. Seventh Amendment: assures trial by jury in civil cases. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. Eighth Amendment: forbids excessive bail or fines, and cruel and unusual punishment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Ninth Amendment:declares that the listing of individual rights in the Constitution and Bill of Rights is not meant to be comprehensive; and that the other rights not specifically mentioned are retained by the people. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Tenth Amendment: reserves to the states respectively, or to the people, any powers the Constitution did not delegate to the United States, nor prohibit the states from exercising. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

12

2.4.Subsequant.Amendments(11to27) Amendments to the Constitution after the Bill of Rights cover many subjects. The majority of the seventeen later amendments resaulted from continued efforts to expand individual civil or political liberties.Although the United States Constitution has been amended 27 times, only 26 of the amendments are currently in effect because the twenty-first amendment supersedes the eighteenth. Eleventh Amendment (1795): Clarifies judicial power over foreign nationals, and limits ability of citizens to sue states in federal courts and under federal law. Twelfth Amendment (1804): Specifies the procedure for electing the president and the vicepresident of the US separately by ballot votes. Thirteenth Amendment (1865): Establishes the abolishment of slavery from the US and all the places that fall under its jurisdiction Fourteenth Amendment (1868): : Broadly defines the parameters of the US citizenship, prohibits the states from reducing or diminishing the privileges of citizens and emphasizes their 'right to due process and the equal protection of the law' Fifteenth Amendment (1870): States that the citizens' right to vote shall not be denied by the states or the federal government on the basis of race, color or previous status of servitude Sixteenth Amendment (1913): Authorizes the federal government to collect taxes on income without apportionment Seventeenth Amendment (1913): Establishes the direct election of the senators to the United States Senate Eighteenth Amendment (1919): Prohibits the manufacture, sale, transportation, import or export of intoxicating beverages within the US and all the territories falling under its jurisdiction Nineteenth Amendment (1920): Establishes that the citizens' right to vote shall not be denied on the basis of their gender or sex. Twentieth Amendment (1933): Changes details of congressional and presidential terms and of presidential succession. Twenty-first Amendment (1933): Repeals Eighteenth Amendment. Permits states to prohibit the importation of intoxicating beverages. Twenty-second Amendment (1951): Establishes that the Presidential term is limited to two years and a person shall be elected to the presidential office only once Twenty-third Amendment (1961): Allows the representation of the District of Columbia in the Presidential elections. Twenty-fourth Amendment (1964): Prohibits the non-payment of poll tax or other tax as a basis of denial of the right to vote Twenty-fifth Amendment (1967): The Vice President shall become President in case the President is removed from office or in case of his death. Twenty-sixth Amendment (1971): Prohibits the federal government or the state from denying any citizen who is 18 years or above, the right to vote. Twenty-seventh Amendment (1992): Establishes that any law that increases or decreases the Congressional pay shall not be put to effect until the next term of office of the representatives begins.

13

2.5 Display and honoring of the Bill of Rights In 1941, President Franklin D. Roosevelt declared December 15 to be Bill of Rights Day. In 1991, the Bill of Rights toured the country, visiting the capitals of all fifty states and nowadays it is on display at the National Archives and Records Administration.

14

Chapter III
Capital Punishment Capital punishment in the United States, in practice, applies only for aggravated murder and more rarely for felony murder. Capital punishment existed in the colonies that predated the United States and that were later annexed to the United States under the laws of their mother countries and continued to have effect in the states and territories that they became. The methods of execution and the crimes subject to the penalty vary by jurisdiction and have varied widely throughout time. Thirty-two jurisdictions have banned it by law, others have suspended its use, and others are trying to expand its applicability. There were 37 executions in the United States in 2008, the lowest number since 1994. There were 46 executions in 2010, 44 by lethal injection, one by electric chair in Virginia, and one by firing squad in Utah. The first death sentence in the American colonies was carried out in 1608 on Jose Macias, a male Hispanic then 24 years old from the Jamestown colony, who was accused of spying for the Spanish government. The largest single execution in United States history was the hanging of 38 Dakota people convicted of murder and rape in the Dakota War of 1862. They were executed simultaneously on December 26, 1862, in Mankato, Minnesota. A single blow from an axe cut the rope that held the large four-sided platform, and the prisoners (except for one whose rope had broken, and who consequently had to be restrung) fell to their deaths.The second largest mass execution in United States history was also a hanging: the execution of 13 African American soldiers for their parts in the Houston Riot in 1917. The largest non-military public mass execution in one of the original thirteen colonies occurred in 1723 when 26 pirates were executed in Newport, Rhode Island by order of the Admiralty Court. 3.1 States without capital punishment Historically, several states have been without capital punishment - the earliest being Michigan, which has not carried out a single execution of its own since it entered the Union. Shortly after attaining statehood Michigan abolished the death penalty for ordinary crimes, making it the first English-speaking government in the world to abolish the death penalty for all crimes except treason. In 1963, Michigan amended its constitution to prevent later attempts at reinstatement. Other states long without the death penalty include Wisconsin, Rhode Island, Maine, North Dakota, Minnesota, West Virginia, Iowa, and Vermont. The District of Columbia has also abolished the death penalty; which was last applied there in 1957. The newest two states- Alaska and Hawaii - abolished the death penalty prior to statehood, though in Alaska, some extrajudicial killings took place after statehood. One state, Oregon, abolished the death penalty through an overwhelming majority in a 1964 public referendum, but reinstated it in a 1984 joint death penalty/life imprisonment referendum by an even higher margin, after a similar 1978 referendum succeeded but was not implemented due to judicial rulings.

15

3.2 Recent abolition As of March 2011, the following U.S. states have fully abolished the death penalty: Alaska, Hawaii, Illinois, Iowa, Maine, Michigan, Minnesota, New Jersey, New Mexico, North Dakota, Rhode Island, Vermont, West Virginia and Wisconsin. The District of Columbia has also abolished the death penalty; New Mexico may yet execute two condemned inmates sentenced prior to abolition. In Illinois, where recent abolition legislation does not take effect until July 1, the Governor has stated that he will commute any sentences imposed before then. In 2007, New Jersey became the first state to repeal the death penalty in the modern system of capital punishment,followed by New Mexico in 2009, and Illinois in 2011 However, in states with a large death row population and regular executions, including California and Texas, the death penalty is unlikely to end at any time soon. New Mexico abolished its death penalty statute on March 17, 2009, becoming the second state to abolish the death penalty. The law, signed by Governor Bill Richardson, took effect on July 1, 2009 and replaces the death penalty with a life sentence without the possibility of parole. The law, though, is not retroactive and persons convicted of capital offenses committed before this date may still be sentenced to death under New Mexico's pre-existing death penalty statute. Connecticut is considering legislation to abolish its death penalty in the current legislative session. A bill to abolish the death penalty was vetoed by former governor Jodi Rell in June 2009 after it easily passed in the General Assembly. Current governor Dan Malloy indicated he would sign a bill abolishing the death penalty if it was passed by the General Assembly. The U.S. territory of Puerto Rico has no death penalty.The last execution took place in 1927 and the Puerto Rican legislature abolished the death penalty in 1929. Puerto Rico's constitution expressly forbids capital punishment, stating "The death penalty shall not exist", setting it apart from all U.S. states and territories other than Michigan, which also has a constitutional prohibition.However, capital punishment is still applicable to offenses committed in Puerto Rico, if they fall under the jurisdiction of the federal government, though federal death penalty prosecutions that have occurred in Puerto Rico have generated significant controversy. 3.3 Restrictions on the use of the death penalty The United States Supreme Court has placed two major restrictions on the use of the death penalty. First, the Supreme Court case of Atkins v. Virginia, decided June 20, 2002, that executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment. Generally, a person with an IQ below 70 is considered to be mentally retarded. Prior to this decision, between 1984 and 2002 forty-four mentally retarded inmates were executed. In 2005 the Supreme Court's decision in Roper v. Simmons,(2005), abolished executions for persons under the age of 18 at the time of the crime.

16

3.4 Crimes subject to capital punishment Crimes subject to the death penalty vary by jurisdiction. All jurisdictions that use capital punishment designate the highest grade of murder a capital crime, although most jurisdictions require aggravating circumstances. Treason is a capital offense in several jurisdictions. Other capital crimes include: the use of a weapon of mass destruction resulting in death, espionage, terrorism, certain violations of the Geneva Conventions that result in the death of one or more persons, and treason at the federal level; aggravated rape in Louisiana, Florida, and Oklahoma; extortionate kidnapping in Oklahoma; aggravated kidnapping in Georgia, Idaho, Kentucky and South Carolina; aircraft hijacking in Alabama; drug trafficking resulting in a person's death in Connecticut and Florida; train wrecking which leads to a person's death, and perjury which leads to a person's death in California. Additionally, the Uniform Code of Military Justice allows capital punishment for a list of offenses during wartime including: desertion, mutiny, spying, and misconduct before the enemy. In practice, no one has been executed for a crime other than murder or conspiracy to murder since James Coburn was executed for robbery in Alabama on September 4, 1964. On June 25, 2008 in Kennedy v. Louisiana, the U.S. Supreme Court ruled against Louisiana's death penalty for child rapists, saying "there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons."The Court went further, ruling out the death penalty for any crime against an individual "where the victims life was not taken." Since November 2008, there is only one person on death row facing capital punishment who has not been convicted of murder. Demarcus Sears remains under a death sentence in Georgia for the crime of "Kidnapping With Bodily Injury." Sears was convicted in 2006 for the Kidnapping and Bodily Injury of victim Gloria Ann Wilbur. Wilbur was kidnapped and beaten in Georgia, raped in Tennessee, and murdered in Kentucky. Sears was never charged with the murder of Wilbur in Kentucky, but was sentenced to death by a jury in Georgia for Kidnapping with Bodily Injury. Several people who were executed have received posthumous pardons for their crimes. For example, slave revolt was a capital crime, and many who were executed for that reason have since been posthumously pardoned. 3.5 Methods Various methods of execution have been used in the history of United States but only five methods are currently used. Burning, pressing, breaking on wheel, and bludgeoning were used for a small number of executions, while hanging was the most common method. The last person burned was a black slave in South Carolina in August 1825.The last person hanged in chains was a murderer named John Marshall in West Virginia on April 4, 1913. Although beheading was a legal method in Utah from 1851 to 1888, it was never used. Until the 21st century, electrocution and gassing were the most prevalent methods of execution in the United States. The electrocutions of John Evans and Horace Franklin Douglas, Jr. in Alabama, Jesse Tafero, Pedro Medina, and Allen Lee Davis in Florida, Alpha Otis Stephens in Georgia, William E. Vandiver in Indiana, Frank J. Coppola, Wilbert Lee Evans, and Derick Lynn Peterson in Virginia are often cited by opponents of capital punishment as unacceptable outcomes of such methods. 17

Currently, lethal injection is the method used or allowed in all of the 34 states which allow the death penalty. Nebraska required electrocution, but in 2008 the state's Supreme Court ruled that the method was unconstitutional. In mid-2009 Nebraska officially changed its method of execution to lethal injection.Other states also allow electricity, firing squads, hanging and lethal gas. From 1976 to March 31, 2011, there were 1,245 executions, of which 1,071 were by lethal injection, 157 by electrocution, 11 by gas chamber, 3 by hanging, and 3 by firing squad. In 2004, Utah made lethal injection the only form of capital punishment. The use of lethal injection has become standard. The remaining two states that allow hanging are New Hampshire, who allows it at the decision of the Corrections officials, and Washington, at the decision of the prisoner. Electrocution was the preferred method of execution during the 20th century. Electric chairs have commonly been nicknamed Old Sparky. However, Alabama's electric chair became known as the "Yellow Mama" due to its unique color. Some, particularly in Florida, were noted for malfunctions, which caused discussion of their cruelty and resulted in a shift to lethal injection as the preferred method of execution. Although lethal injection dominates as a method of execution, some states allow prisoners on death row to choose the method used to execute them. Regardless of the method, an hour or two before the execution, the condemned person is offered religious services, and a last meal, the contents of which is often released to the news media. Executions are carried out in private with only invited persons able to view the proceedings; in some cases, journalists have reserved spots, such as in Texas, where the Associated Press is entitled to send a reporter to witness each execution. 3.6 Capital punishment debate Capital punishment is a controversial issue, with many organizations and individuals participating in the debate. Amnesty International and some religions oppose capital punishment on moral grounds, while the Innocence Project works to free wrongly convicted prisoners, including death row inmates, based on newly available DNA tests. Other groups, such as the Southern Baptists, law enforcement organizations, and some victims' rights groups support capital punishment. The United States is one of only three industrialized democracies that still have it. Japan has executed prisoners, like the United States, while South Korea currently has a moratorium in effect. Religious groups are widely split on the issue of capital punishment, generally with more conservative groups more likely to support it and more liberal groups more likely to oppose it. In October 2009, the American Law Institute voted to disavow the framework for capital punishment that it had created in 1962, as part of the Model Penal Code. In total, 138 prisoners have been either acquitted, or received pardons or commutations on the basis of possible innocence, since 1973.. Arguments for and against capital punishment are based on moral, practical, and religious grounds. Advocates of the death penalty argue that it deters crime, is a good tool for prosecutors (in plea bargaining for example),improves the community by eliminating recividism by executed criminals and is a just penalty for the crimes it punishes. Opponents argue that the death penalty is not an effective means of deterring crime, risks the execution of the innocent, is unnecessarily barbaric in nature, and puts a government on the same base moral level as those criminals involved in murder. 18

3.7 Public vs. private execution The last public execution in America was that of Rainey Bethea in Owensboro, Kentucky, on August 14, 1936. It was the last death sentence in the nation at which the general public was permitted to attend without any legally-imposed restrictions. About 1890, several states enacted laws which required executions to be conducted within a "wall" or "enclosure" to "exclude public view." For example, in 1919, the Missouri legislature adopted a statute which required, "the sentence of death should be executed within the county jail, if convenient, and otherwise within an enclosure near the jail." The Missouri law permitted the local sheriff to distribute passes to individuals (usually local citizens) who he believed should witness the hanging, but the sheriffs sometimes denied passes to individuals who wanted to watch. Missouri executions conducted after 1919 were not "public" because they were conducted behind closed walls, and the general public was not permitted to attend. Present-day statutes from across the nation use the same words and phrases, requiring modern executions to take place within a wall or enclosure to exclude public view. Connecticut requires death sentences to be conducted in an "enclosure" which "shall be so constructed as to exclude public view." Kentucky and Missouri statutes contain substantially identical language. New Mexico's statute requires executions be conducted in a "room or place enclosed from public view." Massachusetts law requires executions to take place "within an enclosure or building." North Carolina requires death sentences to be executed "within the walls" of the penitentiary, as do Oklahoma and Montana. Ohio requires, "The enclosure shall exclude public view." Similarly, Tennessee requires "an enclosure" for "strict seclusion and privacy." Today, there are always witnesses to executionssometimes numerous witnesses, but it is the law, not the number of witnesses present, which determines whether the execution is "public." 3.8 Clemency and commutations The largest number of clemencies was granted in January 2003 in Illinois, when outgoing Governor George Ryan, who had already imposed a moratorium on executions, pardoned four death-row inmates and commuted the sentences of the remaining 167 to life in prison without the possibility of parole. When Governor Pat Quinn signed legislation abolishing the death penalty in Illinois in March 2011, he commuted the sentences of the fifteen inmates on death row to life imprisonment. Previously, in1986, in New Mexico governor Toney Anaya commuted all death sentences because of his personal opposition to the death penalty. In 1991 outgoing Ohio Governor Dick Celeste commuted the sentences of eight prisoners, among them all four women on the state's death row. And during his two terms (19791987) as Florida Governor, Bob Graham, although a strong death penalty supporter agreed to commute the sentences of six people on grounds of "possible innocence". 3.9 Curent moratoria Since the reinstatement of the death penalty, Kansas and New Hampshire have yet to conduct an execution, Pennsylvania has executed three men, and South Dakota has executed one

19

man, but the executions were their own wish. Therefore, these four states can be regarded as having "de-facto moratoria." In North Carolina, a de facto moratorium is in place following a decision by the state's medical board that physicians cannot participate in executions, which is a requirement under state and federal law. In Nebraska, the Nebraska Supreme Court ruled, on February 8, 2008, that the use of the electric chair is unconstitutionalspecifically, that its use conflicts with the Nebraska Constitution. As electrocution was the sole legally authorized method of execution in Nebraska, the state had what technically amounts to no legally authorized death penalty, until the introduction of lethal injection in that state in May 2009. On November 25, 2009, the Kentucky Supreme Court placed a moratorium on executions until it adopts regulations for carrying out the penalty by lethal injection.

20

Chapter IV Case Study Randall Dale Adams Randall Dale Adams (born in 1949) was wrongly convicted of murdering police officer Robert W. Woods, and was subsequently sentenced to death. He served more than 12 years in prison, at one point coming within 72 hours of being put to death. His death sentence was reduced through appeal to the United States Supreme Court,and eight years later he was released when evidence was uncovered to prove his innocence. Sentenced to death in 1977 for the murder of a police officer in Dallas, Texas, Randall Dale Adams was exonerated as a result of information uncovered by film-maker Errol Morris and presented in an acclaimed 1988 documentary, The Thin Blue Line. Patrolman Robert Wood was shot to death during a traffic stop on November 28, 1976, by sixteen-year-old David Ray Harris, who framed Adams to avoid prosecution himself. Another factor in the wrongful conviction was the surprise and partly perjured testimony of three eyewitnesses whose existence had been concealed from the defense until the witnesses appeared in the courtroom. A third factor was a statement Adams signed during interrogation that the prosecution considered as an admission that he had been at the scene of the crime. The day before the murder, Adams was walking along a Dallas street after his car had run out of gasoline. Harris happened by, driving a stolen car. He offered Adams a ride and the two wound up spending the afternoon and evening together, drinking beer, smoking marijuana and going to a drive-in movie theater. Adams then returned to a motel where he was staying. Shortly after midnight, Wood and his partner, Teresa Turko, spotted Harris driving a blue car with no headlights. The officers stopped the car and, as Wood approached the drivers side, Harris shot him five times. Wood died on the spot. As the car sped off, Turko fired several shots, but missed. She did not get a license number. She seemed certain that there was only one person in the car the driver. Harris drove directly to his home in Vidor, 300 miles southeast of Dallas. Over the next several days, he bragged to friends that he had offed a pig in Dallas. When police in Vidor learned of the statements, they took Harris in for questioning. He denied having had anything to do with the murder, claiming he had said otherwise only to impress his friends. But when police told him that a ballistics test established that a pistol he had stolen from his father was the murder weapon, Harris changed his story. He now claimed that he had been present at the shooting, but that it had been committed by a hitchhiker he had picked up Adams. Adams, an Ohio native working in Dallas, was taken in for questioning. He denied any knowledge of the crime, but he did give a detailed statement describing his activities the day before the murder. Police told him he had failed a polygraph test and that Harris had passed one, but Adams remained resolute in asserting his innocence. Although polygraph results are not admissible in Texas courts, the results provided some rationale for questioning Harriss story. However, when a police officer is murdered, authorities usually demand the most severe possible punishment, which in Texas, and most other U.S. jurisdictions, is death. Harris was only sixteen and ineligible for the death penalty; Adams was twenty-seven and thus could be executed. 21

At trial before Dallas County District Court Judge Don Metcalfe and a jury, Turko testified that she had not seen the killer clearly, but that his hair was the color of Adamss. She also said that the killer wore a coat with a fur collar. Harris had such a coat, but Adams did not. Adams took the stand and denied having any knowledge of the crime. But then the prosecution sprang two surprises. The first was the introduction of Adamss signed statement, which police and prosecutors claimed was a confession, although it said only falsely, according to Adams that when he was in the car with Harris, they had at one point been near the crime scene. The second was the testimony of three eyewitnesses whose existence had until then been unknown to the defense. One of these witnesses, Michael Randell, testified that he had driven by the scene shortly before the murder and, in the car that had been stopped by the officers, had seen two persons, one of whom he claimed was Adams. The other two witnesses, Robert and Emily Miller, had happened by at about the same time, but claimed to have seen only one person in the car Adams. Because the eyewitnesses were called only to rebut Adamss testimony, prosecutors claimed that Texas law did not require them to inform the defense of their existence before they testified. The weekend after their surprise testimony, however, the defense learned that Emily Miller had initially told police that the man she had seen appeared to be Mexican or a lightskinned African American. When the defense asked to recall the Millers to testify, the prosecution claimed that the couple had left town. In fact, the Millers had only moved from one part of Dallas to another. When the defense asked to introduce Emily Millers statement, Judge Metcalfe would not allow it. He said it would be unfair to impeach her credibility when she was not available for further examination. The jury quickly returned a verdict of guilty and turned to sentencing. Under Texas law, in order for Adams to be sentenced to death, the jury was required to determine, among other things, whether there was beyond a reasonable doubt a probability that he or she would commit future acts of violence. To establish that Adams met that criterion, the prosecution called Dr. James Grigson, a Dallas psychiatrist known as Dr. Death, and Dr. John Holbrook, former chief of psychiatry for the Texas Department of Corrections. Although the American Psychiatric Association has said on several occasions that future dangerousness was impossible to predict, Grigson and Holbrook testified that Adams would be dangerous unless executed. Grigson testified similarly in more than 100 other Texas cases that ended in death sentences. After hearing the psychiatrists, Adamss jury voted to sentence him to death. Twenty one months later, at the end of January 1979, the Texas Court of Criminal Appeals affirmed the conviction and death sentence. Judge Metcalfe scheduled the execution for May 8, 1979. Adams was only three days away from execution when U.S. Supreme Court Justice Lewis F. Powell Jr. ordered a stay. Powell was troubled that prospective jurors with moral qualms about the death penalty had been excluded from service, even though they had clearly stated that they would follow the Texas law. To most observers including, initially, Dallas District Attorney Henry Wade the Supreme Courts language meant that Adams was entitled to a new trial. But a few days later Wade announced that a new trial would be a waste of money. Thus, he said, he was asking Governor Bill Clements to commute Adamss sentence to life in prison. When the governor promptly complied, Wade proclaimed that there now would be no need for a new trial. Adams, of course, thought otherwise, but the Texas Court of Criminal Appeals agreed with Wade. As a result of the governors action, said the court, There is now no error in the case.

22

In March 1985, Errol Morris arrived in Dallas to work on a documentary about Grigson Dr. Death. Morriss intent had not been to question the guilt of defendants in whose cases Grigson had testified but only to question his psychiatric conclusions. When Morris met Adams, the focus of the project changed. Morris learned from Randy Schaffer, a volunteer Houston lawyer who had been working on the case since 1982, that Harris had not led an exemplary life after helping convict Adams. Harris had joined the Army and been stationed in Germany, where he had been convicted in a military court of a series burglaries and sent to prison in Leavenworth, Kansas. A few months after his release, Harris had been convicted in California of kidnapping, armed robbery, and related crimes. After his release from prison in California, and five months after Morris arrived in Dallas, Harris tried to kidnap a young woman named Roxanne Lockard in Beaumont, Texas. In an effort to prevent the abduction, Lockards boyfriend, Mark Mays, exchanged gunfire with Harris. Mays was shot to death and Harris was wounded. For the Mays murder a crime that would not have occurred if Dallas authorities convicted the actual killer of Officer Wood eight years earlier Harris was sentenced to death. Meanwhile, Morris and Schaffer discovered that Officer Turko had been hypnotized during the investigation and initially had acknowledged that she had not seen the killer facts that the prosecution had illegally withheld from the defense. Morris and Schaffer also found that robbery charges against the daughter of eyewitness Emily Miller had been dropped after Miller agreed to identify Adams as Woods killer. The new information, coupled with the fact that Miller initially had described the killer as Mexican or African American, became the basis for a new trial motion. In 1988, during a three-day hearing on the motion before Dallas District Court Judge Larry Baraka, Harris told Baraka. I felt like it is my responsibility to step forward, to be a man, to admit my part in it. And that is why I am trying to correct an injustice. On December 2, 1988, Judge Baraka recommended to the Texas Court of Criminal Appeals that Adams be granted a new trial, and two months later he wrote a letter to the Texas Board of Pardons and Paroles recommending that Adams be paroled immediately. The board refused, but on March 1 the Texas Court of Criminal Appeals unanimously concurred with Baraka that Adams was entitled to a new trial. Three weeks later, Adams was released, and two days after that, Dallas District Attorney John Vance, who had succeeded Wade, dropped all charges. Harris was never tried for the murder of Officer Woods. On June 30, 2004, he was executed for the Mayes murder.

23

Conclusion The U.S. Legal System is nowadays renowned for two main features: its complex structure and for being one of the most profitable branch in the USA. As a matter of fact, the U.S. economy is largely supported by milions of civil suits each year. Moreover, it is well-known that in the United States are more lawyers than in any other state, which is mainly due to some unusual features of the U.S. Law: the litigation and the contingent fee agreement that allow lawyers to get richer and richer with every lawsuit they win. Despite these positive aspects, the U.S. Legal System is far from being a perfect one and many Americans claim that this is a result of some of its uncommon characteristics. For example, some consider the fact that most judges are elected insted of being appointed by qualified, law professionals as a major drawback, because this usually results in bad legal decisions. All in all, the U.S. Legal System, although not perfect, is still one of the most remarkable law systems in the world because it has the great capacity to satisfy the needs of every American citizen, whether they are lawyers, defendants or complainants.

24

Bibliography

Books: 1. 2. 3. 4. Criminal Law Steven L. Emanuel, Renee Samuelson First Trial:Where Do I Sit?What Do I Say? In a Nutshell. Steven H.Goldberg Introduction to the Legal System of the United States Allan Farnsworth The Supreme Court in the American Legal System Jeffrey A. Segal, Harold J.Spaeth, Sara C. Benesh

Websites: www.archievs.gov www.clarkprosecutor.org www.deathpenaltyinfo.org www.justlanded.com www.usconstitution.net www.uscourts.gov

25

Annexes

26

US Constitution

27

Bill of Rights

28

The electric chair

29

Supreme Court building in Washington, D.C.

30

31