Criminal Justice Policy Review - Sage Publications

EditorNanci Koser Wilson IndianaUniversity of Pennsylvania

Associate EditorsLeo Carroll University of Rhode IslandKathleen J. Hanrahan IndianaUniversity of PennsylvaniaPhilip Jenkins Pennsylvania State UniversityR. Paul McCauley IndianaUniversity of PennsylvaniaStephanie Picolo Roger Williams UniversitySherwood E. (Chris) Zimmerman IndianaUniversity of Pennsylvania

Book Review EditorDennis Giever IndianaUniversity of Pennsylvania

Managing EditorTroy Gilbertson IndianaUniversity of Pennsylvania

Sponsoring OrganizationIndiana University of PennsylvaniaDepartment of CriminologyCollege of Humanities and Social Sciences

Membership Sponsoring OrganizationsNortheastern Academy of Criminal Justice SciencesCriminal Justice Section of the American Society

for Public Administration

Editorial OfficeCriminal Justice Policy ReviewDepartment of CriminologyG-1 McElhaney Hall441 North WalkIndiana, PA 15705-1087

Criminal JusticePolicy Review

Volume 12, Number 4 December 2001

Contents

Articles

Dealing With the Modern Terrorist: The Need forChanges in Strategies and Tactics in the New Waron TerrorismJoseph L. Albini 255

Current Practices in the Use of Televised Child Testimony:Questions of Constitutionality and Personal BiasesSharon Boland Hamill, Ernest S. Graham,Emmett Thomason, III, and Renee Huerta-Choy 282

An Analysis of Factors Related to ProsecutorSentencing PreferencesGerard Rainville 295

A Parens Patriae Figure or Impartial Fact Finder:Policy Questions and Conflicts for the Juvenile Court JudgeJoseph B. Sanborn, Jr. 311

X-Rated X-Ray Invades Privacy RightsMichael C. Murphy and Michael R. Wilds 333

Index 344

Call for Papers 347

Sage Publications Thousand Oaks • London • New Delhi

CRIMINAL JUSTICE POLICY REVIEW is a multidisciplinary journal publishing articles writtenby scholars and professionals committed to the study of criminal justice policy through experimentaland nonexperimental approaches. CJPR is published quarterly and accepts appropriate articles, essays,research notes, interviews, and book reviews. It also provides a forum for special features, which mayinclude invited commentaries, transcripts of significant panels or meetings, position papers, andlegislation. To maintain a leadership role in criminal justice policy literature, CJPR will publish articlesemploying diverse methodologies.

MANUSCRIPTS should be typewritten and double spaced. Submit manuscripts in triplicate to Editor,CJPR, Department of Criminology, Indiana University of Pennsylvania, G-1 McElhaney Hall, 441North Walk, Indiana, PA 15705-1087. The cover letter accompanying the manuscript must state thatpublication is not being pursued elsewhere. Manuscripts should not exceed 25 pages. An abstract of150 words or less and a biographical sketch of 100 words or less should accompany the manuscript. Adetailed style sheet is available by mail and may also be viewed at http://www.chss.iup.edu/cr/cjpr/index.htm

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CRIMINAL JUSTICE POLICY REVIEW / December 2001Albini / DEALING WITH THE MODERN TERRORIST

Dealing With the Modern Terrorist:The Need for Changes in Strategies andTactics in the New War on Terrorism

Joseph L. AlbiniInternational Security Consultant, Las Vegas, Nevada

As the newmillennium has arrived, so has the appearance of a new breed of terrorist,highly sophisticated in technological skills, sometimes motivated by political and/orreligious beliefs and sometimes motivated by the monetary incentive to sell his ser-vices as a mercenary. This type of terrorist made an appearance in the United Statesduring the Y2K crisis and, under its cover, appeared and then disappeared creatingfurther terror by now hiding in the shadows. Using the Italian Red Brigades as a casestudy, this article examines how the rules of the game of dealing with terrorists hasbeen crucially altered by this new breed and discusses how these rules will presentnew problems that in turn will necessitate the consideration of serious changes in thetactics and strategies employed by law enforcement agencies and governments as theycarry their fight against terrorism into the future.

There is no question that the nature of terrorist groups has changed dramati-cally within the past decade. Indeed, so quickly has this change taken placethat the mind-set of both those academics who study terrorism and thosegovernmental officials and agents who must deal with its realities on a dailybasis have not yet, it seems, fully been able to adapt to the challenges thatthese changes have perpetuated. Among these changes, we note that, tradi-tionally, terrorist groups were primarily sponsored and financed by the gov-ernments of various countries. Suddenly, around the middle of the 1990s,this all changed. Government intelligence agencies found that they had,without realizing it, lost track of the leaders of terrorist groups, while theleaders of the groups themselves, in many cases, had lost track of theirmembers; so too, group affiliations changed dramatically, the ideologicalbeliefs and principles of many groups were abandoned and the “mercenaryterrorist”—trained specialists who would sell their services for afee—made their appearance. Terrorism experts now began using the termleaderless resistance, a term denoting the fact that terrorist groups are now

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Criminal Justice Policy Review, Volume 12, Number 4, December 2001 255-281© 2001 Sage Publications

composed of small groups or individuals who carry out terrorist attacks(Krane, 2000, p. 1).

The major theme of this article deals with the need to develop new andmore effective diplomatic and other tools as well as nonconventional waysof dealing with this new form of terrorism. In evaluating these newapproaches, the author will draw lessons from the experiences of the Italiangovernment in its successful battle against one of the most violent terroristgroups that has ever existed, one which held Italy enslaved for almost twodecades—The Red Brigades.

History has all too often dispelled the myth that governments like to per-petuate about themselves, mainly, that they never negotiate with terrorists.Ironically, this issue of negotiating has become a vital part of the changesthat governments now have had forced on them as part of the new evolutionof terrorism. Despite the fact that governments would like to continue toperpetuate the myth that they never have and never will negotiate with ter-rorists, negotiation is indeed a vital part of the new mode of dealing with thenew terrorism, a mode without alternatives, which now has been forcedupon them. As Raphael Perl (1996, p. 4) clearly notes, although U.S. policypublicly proclaims “no concessions to terrorists,”U.S. practice has not beenso pure as it has used a variety of resources to gain the safe return of hostagesand has encouraged other nations to do likewise; so too, as Perl furthernotes, the surrender and extradition of accused terrorists by governmentslend testimony to the likely and logical conclusion that negotiation tacticsindeed were employed to enhance this manner of cooperation. A recentexample of this was indicated in an article written by Scott Macleod (2000,pp. 40-42) in which he notes how Hizballah, the historical and well-knownLebanese terrorist group, has now not only driven Israeli soldiers off Arabland by force, it is rapidly establishing itself as a Lebanese political party.The success of this group was grounded not only in its very effective use offorce exemplified by its “martyrs” but also by its purposeful willingness towork within the political system of Lebanon. This illustrates a unique butclear example of the fact that modern terrorist groups can and do use, alongwith force and intimidation, many other tactics which are geared at manipu-lating political systems into creating an environment that will stimulate theuse of arbitration and negotiation with the leaders of such terrorist groups.We should note that the fact that Time Magazine (“Conversation with ter-ror,” 1999, pp. 38-39) was willing to arrange and publish an interview withnone other than Osama bin Laden, leader of the Taliban terrorist group inAfghanistan and a leader wanted for murder by the U.S. government in thebombing ofAmerican embassies abroad, illustrates that there is an open line

256 CRIMINAL JUSTICE POLICY REVIEW / December 2001

between terrorist leaders and a public that is interested in what they have tosay, and indeed, bin Laden had no reservations in expressing the religiousnature of the war he is fighting by stating outrightly that God knew that heand his followers were pleased with the killing of American soldiers in theEmbassy bombings. After President Clinton’s visit to Pakistan in the springof 2000, Clinton promised the military regime there a return to diplomaticand economic partnership with the U.S. if the regime would use its influ-ence with the Taliban (the group that is protecting bin Laden) to turn binLaden over to U.S. authorities (“How much is a terrorist worth?,” 2000, p.8). This is a further example of what Business Week itself calls “hardballdiplomacy.”

Another example of the influence of the politics of terrorism on theactions of governments is vividly illustrated in the rules that were estab-lished, before the trial began, with regard to the trial of the two Libyan ArabAirlines employees accused of blowing Pan American Airways Flight 109out of the sky over Lockerbie, Scotland in 1988; as Locy (2000, pp. 22-23)has noted, the rules specifically stipulated that the two employees would betried as individuals, with the understanding that evidence about whetherLibya or any other government supported or sponsored them would not bepermitted. As Locy further noted, although the families of those victimswho died in the crash did not think that the two on trial for the crime actedalone, this type of ruling, which would not allow information about poten-tial governmental sponsorship for their act, can only be understood as onethat did not wish to permit evidence that could reach or implicate anyhigher-ups or politically important government officials. The trial itself hadan interesting beginningwhen, on the first day, the twoLibyans, after plead-ing innocent, accused Palestinian terrorists of having committed the act andMoammar Gadhafi made his political position clear when he told Britain’sSky TV network that it was “absurd” for anyone to suggest that he hadordered the bombing. As the verdict rendered on January 31, 2001 verified,only one of the twoLibyans,AbdelBasetAl-Megrahi, a Libyan intelligenceagent,was found guilty of placing the bombon the plane; the other,AlAminKhalifa Fhimah, was found innocent. Although some relatives of the vic-tims continued to believe that it was a state-sponsored act of terrorismby theLibyan government, therewas no such accusation rendered by the court. So,too, as we look back on the cultural symbolism of power displayed in thoseearly days of the trial, the western spectators rose as a sign of respect whenthe Scottish judges entered the courtroom whereas the Libyan spectatorsrose only when the two accused terrorists came into the room (Reid, 2000,pp. 1A, 3A). It is interesting to recall along with Tony Lesce (1996, p. 59)

Albini / DEALING WITH THE MODERN TERRORIST 257

that in 1985 in the United States, members of a Chicago street gang, whichwas funded by Libya, were arrested while trying to purchase a missile toshoot down an airliner at Chicago’s O’Hare International Airport. But, asGadhafi himself observed in a recent interview, the only interview he hasgranted to a U.S. journalist in 2 years, “Libya today is not Libya of yester-day because the world today is not the world that was yesterday,” addingthat he, like the people he rules over, now get their news from the Internet(Slavin, 2000, p. 16A). Gadhafi’s statements and attitude expressed in thisinterview illustrate succinctly the arguments that the author is making con-cerning how the nature of terrorism and the methods of how governmentsand leaders are currently dealing with the issues surrounding it have indeedchanged.

There is another specter of reality brought on by the change in the struc-ture and tactics of terrorist groups that Richard Haass (1999, pp. 37-38)highlights when he observes that although today the United States is, eco-nomically and militarily, the most powerful nation in the world, this superi-ority will not last as other centers and sources of power will inevitably cometo the foreground and shake loose America’s current reign of control. Thereis no question that Europe and the European Union still view the UnitedStates as a dynamic power; however, it appears that Europe will continue tocompete not by emulating the American Way, but by building its futureeconomy in a manner that remains consistent with the values and conceptsof European society (The Economist, 2000, p. 21).

This point was illustrated on a diplomatic level in the actions of PresidentClinton who meant well in negotiating a possible peace between India andPakistan, but Fareed Zakaria (2000, p. 44) observes that during his spring2000 visit to India, Clinton displayed an attitude of moral superiority byasking India to contain and restrain its nuclear arsenal, a blatant inconsis-tency when one considers that the United States itself has the largest arsenalof nuclear weapons in the world. Indeed, in the case of Americans visitingColombia, Iran, Yemen, Iraq, Pakistan, Somalia, and several other coun-tries, the animosity has become so openly vehement that John Parrish(2000, pp. 122-129), writing in a mainstream magazine called Stuff, sug-gests that should any American have the courage to go to these countries,they should buy only a one-way ticket and purchase a body bag withinwhich their body can be returned to the United States.

The changes of trade, military, and other alliances between countries arehappening so quickly that the United States can no longer take it for grantedthat nations once interested in an alliancewith theU.S.will find it expedient


to continue such an alliance. Juan Enriquez (1999, pp. 30-49) notes that thissituation is made even more critical by the fact that in Africa, Asia, andEurope, nations are splintering like never before and thus creating newnations at an unprecedented rate. Only time will reveal what types of futurealliances will emerge from these new creations of states.

Along with these new developments, none other than former Prime Min-ister of Israel Simon Peres (1993) concedes that the immediate future holdsno sign of change in the continuing conflicts that have raged between Arabsand Jews in the Middle East. Yet, the power and influence of the Jewishvote, a powerful force in American politics that has aided the establishmentand continuing support of the state of Israel, may soon begin to be eroded bythe force of the growing number of Muslim voters in the American elector-ate. According to the recently formed American Muslim CoordinatingCouncil, there was a concerted effort made by this council to get the esti-mated 6millionMuslims and 2millionArabs, nowU.S. citizens, out to voteduring the presidential election in November 2000 (Witham, 1999, p. 43).One wonders what effect such efforts in the future will have on the politicsand possible changes in alliances, American and otherwise, in the MiddleEast.

The question of the possible growing threat of China towardAmerica hascertainly been the subject of controversy in numerous books and articles;looming over this controversy has been the continuous threat of how theconflict between China and Taiwan could possibly lead to U.S. militaryinvolvement against China. Steven W. Mosher (1990), however, argues thatthe United States has, over the past several decades, consistently misunder-stood the real nature and composition of contemporary communist China,arguing that ideology, political expediency, and manipulation by the Chi-nese government have consistently blinded Americans to the truth, a situa-tion that he feels will have serious consequences in terms of how Americawill be able to deal with the China of the future. The entire issue of this con-troversy has taken on another twist, creating further complications asAmer-ica has suddenly become critical of its ally, Israel, for selling advancedweapons systems to China. The argument is that Israel, after receivingadvanced weapons systems from America, the development of which waspaid for by American tax dollars, opted to sell these to America’s potentialenemy of the future—China. It appears that China has spent $1.5 billion inarms-trade deals with Israel over the past decade (“China: Troubledwaters,” 2000, p. 49). This behavior on Israel’s part resulted in the JointChiefs of Staff, in February 2000, informing the White House that they


would withhold from selling Israel the U.S. top-secret satellite decodersmounted on U.S. warplanes for fear that Israel would resell them to govern-ments unfriendly to the United States (Mann, 2000, pp. 1, 3).

Alongwith these concerns, the development of events in Russia since theelection of its new president, former KGB member Vladimir Putin, has theWest frantically developing hypotheses that range from a belief that rela-tions betweenRussia and theUnited Stateswill becomemore friendly to theopposite belief that another cold war or Cold Peace Era is about to begin.There also is the continuing threat of nuclear material and weapons beingstolen from Russian nuclear facilities (Albini, Rogers, & Anderson, 1999,pp. 25-27). Although there is the general belief that such thefts no longeroccur, a report by Matthew Bunn, a Harvard University nuclear expert,warns that nuclear material in Russia is definitely not safe as incidents oftheft continue (Auster, 2000, p. 10). This warning proved to be justified as aseizure along the border of Uzbekistan marked as “stainless steel scrap”turned out to be material that could be used to build a potentially environ-mentally contaminating “radiological bomb.” This shipment, which wasdestined for either Pakistan or Iran, obviously created a stir in Washingtonas it caused CIA Director George Tenet and FBI Director Louis Freeh topersonally make a trip to Uzbekistan in order to investigate (US News &World Report, 2000, p. 11). Although at this writing Russia shows signs ofmoving toward arms control through its signing of the START II nucleararms reduction treaty (Montgomery, 2000, pp. 1A, 5A), as shown in thepast, treaties are no guarantee that this reductionwill effectively regulate theillicit sale of nuclear material. Unfortunately, at this writing, as JamesHarror (2000, p. 17) points out, the future of Russia looks bleak as theaverage life expectancy has dropped to 67 years and the population, it isestimated, will drop from 143 million to 80 million during the next half-century, conditions that Moscow pollster Gennady Petrov warns may leadthe Russian masses to turn on their leaders and turn their resentment towardthe United States, which they blame for many of their ills.

The issue of arms control and the Russian signing of the START II treatyis made more complex when we consider that the threat of missiles strikingAmerica invokes the reality that such missiles could come from nationsother than Russia; mainly, from terrorist groups in rogue states or, as theU.S. State Department now refers to them, “states of concern”: that is,nations that are openly hostile to the United States. According to Jim Wil-son (2000, pp. 77-79), current intelligence reports predict thatNorthKoreanweapons ofmass destruction could reach targets inHonolulu orAnchorage,Alaska; so too, some weapons experts believe that Iranian and Iraqi rockets


could reach Paris or London. Wilson notes that the only protection theUnited States would have against such enemy attacks would be by develop-ing an effective defensivemissile shield system thatwould track and destroyany incoming missile; however, he notes that the effectiveness of such adefensive shield system would depend on whether the United States canquickly develop a system that works and, in the event that it does, this doesnot mean that the problem is solved because Russia has already warned theUnited States that such a systemwill constitute a violation of the 1972ABMtreaty, which limits the number of defensive missiles either country is per-mitted to install.

Although therewas, at the time of thiswriting, amovement toward estab-lishing treaties that would result in nuclear disarmament among all nationsof the world, the history of treaties has shown that they are often willinglysigned but quickly violated when nations feel their welfare in jeopardy. Sotoo, such treaties would necessitate some means of monitoring and regulat-ing, in which case, we should heed the words of Fred Ikle (1996, p. 128)when he reminds us that any serious attempt at the international regulationof nuclear weapons would be bound to entail troublesome incursions thatwould challenge the traditional prerogatives of national sovereignty.

The very cause and spirit of nuclear disarmament, however, was marredby the disclosure that the U.S. Senate is paving the way for the Pentagon tobegin research for the development of a low-yield nuclear weapon that willhave the ability to target and destroy any deeply buried weapons in the arse-nals of states of concern and/or seek and destroy the bunkers of SaddamHussein and other leaders of such states (Pincus, 2000, pp. 1A, 3A). Thiscan only have the effect of causing terrorist groups to call into question thesincerity of the U.S. government when it makes overtures toward seeking toend the use of nuclear weapons in the future.

The unpredictability of future world chaos is made more suspensefulwhen we realize that Russia continues to become more and more friendlywith China and Iraq and, as F. Gregory Gause III (1999, p. 54) alerts us,because of the continuing of U.S. sanctions on Iraq, there is currently abso-lutely no monitoring or inspection of Iraq’s capacity to develop and/ordeliver weapons of mass destruction (WMD). These sanctions, as an articleinTheEconomist (“Iraq and theWest,” 2000, pp. 23-25) points out, have notbeen effective in weakening Saddam Hussein’s regime; they have, instead,served to enhance the hatred that the common Iraqi citizen has toward theUnited States. So too, there is reason to believe, as Albini et al. (1999, pp.27-28) argue, that Iraq is well on its way to developing a nuclear bomb.


Along with many other groups now joining the terrorism war are envi-ronmental protection groups such as those protecting the welfare of whales;as Begley and Hayden (2000, pp. 58-59) note, some of these groups haveused explosives to sink the vessels of companies that hunt whales.

The many types and incidences of attacks perpetuated by various terror-ist groups have only served to heighten the apprehensions of the generalpopulation, which has indeed created a situation that as sociologist BarryGlassner observes, has caused people to be more afraid than ever before(Labi, 2000, p. 72).

To add to themany facets of potential future crises, JamieDettmer (2000,pp. 24-25) reminds us that the oil-rich and turbulent states of Central Asia,states that harbor a proneness toward supporting Islamic anti-Americanmilitant groups, will concern American diplomats in the coming years; asDettmer notes, these states, such as Afghanistan, Turkmenistan, andUzbekistan—because of their economic links, proximity, and traditionalties to Moscow—will give allegiance to Russia over the United States as theleaders of these states know that they can definitely rely on Russia shouldthey need military assistance.

All of these apprehensions and the emerging and unpredictable but possi-ble alliances that have been discussed thus far constitute a background thatmust be surveyed as one tries to evaluate what forms the future war on ter-rorism will take. There is no question, however, as Mark Juergensmeyer(2000, p. 158) observes, that themajor characteristic ofmany of the new ter-rorist groups is that they are motivated by religious beliefs and causes; thusthere has been an increase in the development of Judaic, Islamic, and Bud-dhist groups. As Simon Reeve (1999) has warned, because of their religiousbeliefs, many Middle-Eastern terrorist groups have come to view Americaand Americans as representing “the Infidel,” an enemy that has to be pun-ished as well as destroyed. It is this aspect of punishment that has becomeprominent in the new attitude of hatred that many foreigners and terroristgroups have come to express toward America. We here repeat and empha-size, as mentioned earlier in this work, how Osama bin Laden, in his inter-view with Time Magazine (“Conversation with terror,” 1999), was veryopen about how he believed that God acknowledges the punishment ofAmerica in the form of attacks on American soldiers.

Along with foreign groups of terrorists, there are also the homegrowntypes. In 1980, Michael Harrington (1980, p. 149) reminded us of the insti-tutionalized nature of inequality of income and wealth among social classesin America. This gap is becoming wider as America enters the new millen-nium. This difference in income, it is believed, could produce strain


between various income and other groups in the United States, a strain thatcould eventually lead to future conflicts between the have’s and have nots,conflicts that could take the form of terrorist acts committed by Americansupon other Americans. There is also the shift noted by Robert C. Christo-pher (1989), a shift that he calls “The De-WASPing of America’s PowerElite,” in which members of new ethnic groups will attain influence andpower in business, education, entertainment, and the media; although thisphenomenon will be advantageous to furthering the success and welfare ofmembers of various ethnic groups, this change also has the potential for fos-tering differences and conflicts based on new ethnic and racial identities.Along with these potential problems are the problems generated by tradi-tional hate-groups such as the Ku Klux Klan and Skin Heads; these repre-sent Americans who view other Americans as their enemies. So too, in thepossible coming war of survival between groups in America, are the mili-tant groups, which James Coates (1987) describes as constituting a move-ment of the Survivalist Right, a movement that began in the 1980s. In the1990s, following the questionable actions of the U.S. federal agenciesinvolved in the incidents at Waco and Ruby Ridge, this movement evolvedinto the creation of right-wing groups that now call themselves militias(Kushner, 1998, p. 116). Although there are conflicting data and opinionsabout the current membership, the seriousness of the threat that they pose,and the exact geographic location of such militia groups, such groups repre-sent a potential for forming a future armed force that simply cannot beignored.

All of this leads to a very disruptive picture of American society in a stateof conflict as we move into the early decades of the 21st century. As notedrecently, even the global spread of AIDS has become recognized as a possi-ble threat to U.S. national security in that the rapid spread of the diseasecould reach proportions where it could serve as a catalyst that could “toppleforeign governments, touch off ethnic wars and undo decades of work inbuilding free-market democracies abroad” (Gellman, 2000, p. 1A).One canbe certain that foreign terrorists will be watching and fanning these poten-tial fires of conflict in any way they can in their effort to continue to punishAmerica. Indeed, the terrorist groups will be able to observe such eventsfrom the sky using high-resolution satellite images for, as CIA DirectorGeorge Tenet recently noted, “anyone who can pay” will be able to buythese electronic devices that were once the exclusive domain of the govern-ment (Breslau, 2000, p. 45). Actually, as Massimo Calabresi (2000, p. 60)informs us, much of the information concerning these satellites is availablefor free in that amateur astronomers have been tracking satellites—spy and


commercial—from the moment they were launched and putting the infor-mation for everyone to read on a Web site called Heavens-Above.com.Calabresi notes further that with such knowledge available to all, it is naiveto view these satellites and the information they transmit as being secretivein nature because enemy sources can avail themselves of this informationjust as readily as the amateur astronomer.

Most experts are predicting that terrorist attacks will continue to takeplace in the United States. There is no question that one of the forms theseattackswill takewill be that of chemicalwarfare as smallpox and/or anthraxviruses will most probably be the chemicals employed against the Ameri-can population (APBNEWS.COM, 2000). This has prompted the FBI tocreate a chemical and biological terrorism unit to respond to such an attackin the nation’s capital—Washington, D.C. (APBNEWS.COM, 1999). TheU.S. government and its officials have concluded that it is a matter of“when” not “if” a terrorist group will use a weapon of mass destructionagainst Americans. Although this form of attack represents a serious poten-tial threat, the author believes that the most visible difference in the comingwar staged by terrorists will be in that invisible form known as criminalhacking, invisible in the sense that it silently attacks computers that are vitalto the welfare and survival of the nation’s infrastructure. Indeed Repre-sentative Curt Weldon of the House Armed Services Committee placedcyber-terrorism at the top of the list ofmodern threats toAmerica’s security,noting that neither missile proliferation nor weapons of mass destructionare as serious a threat (Poulsen, 2000). Although the typical profile of thecriminal hacker is that of the young cyber-skilled cracker who targets cor-porate and other sites, there is a growing awareness that the cyber-criminalof the future will increasingly include terrorists who have found the newweapon of destruction with which they can create havoc among the govern-ments and people that they wish to punish. There is an increasing concernspawned by the recent awareness regarding the training and development ofskilled hackers by states of concern and nations that wish to wreak havoc onother nations by infiltrating their computer systems; needless to say, nationssuch as the United States whose basic livelihood has come to depend oncomputers will be the major targets. We experienced a shocking reminderabout the vulnerability of computers on a worldwide scale when the “lovebug” virus struck around the globe, first attacking sites in Asia, and thenspreading quickly to Europe and the United States, destroying files andprompting vast e-mail shutdowns (Bridis, 2000, p. B1). In total, computersin 20 countries were hit (Teves, 2000, p. 1A).


These terrorist hackers will not fit the typical profile of a teenage hackeras we in America have become accustomed to reading about in the presscoverage of major incidences of hacking in America; instead, these will behackers selected not for their zeal and pride in accomplishing feats that willbring them the respect and envy of their chat room peers, but skilled profes-sionals coming from computer science backgrounds thatwill, like other sci-entists, approach each task with the precision needed to accomplish it.Whereas the typical teenage hacker seeks to hack for the sake ofmaking dis-coveries about new tactics for entering systems such as new “logging on”techniques or new methods by which they can steal passwords, the terroristhacker will have specific assignments with the goal of applying his or herknowledge toward successfully accomplishing each of these tasks. One canbe certain that the majority of these terrorist hackers will be adults, many ofwhom are computer science professionals. As noted by Warren Strobel(2000, pp. 32-33) in his article in US News and World Report, there is evi-dence that foreign governments are indeed sponsoring terrorists whoemploy hacking as a major weapon. This is creating serious issues in inter-national law and international relations as governments will soon need toaddress how these attacks should be dealt with; such attacks, after all, likeother enemy attacks, create harm and destruction of property (in this caseintellectual property) as well as have the capability of disrupting, particu-larly in technologically developed nations, the economic and social func-tioning of entire societies.

There is no question then that terrorism will be a major concern for gov-ernments of leading nations, particularly America, in the coming century.There is also the reality, asBrian Jenkins (1998, pp. 5-6) observes, that thesegovernments have simply not found the answer to successfully dealing withterrorists. As Jenkins notes, the United States has not been able to meet theterrorist challenge by defining it as a crime nor as a mode of warfare in thatboth responses present their own set of problems; he concludes thatwe needto develop new and more effective diplomatic tools as well as conventionaland nonconventional ways of combating terrorism. However, the face ofwar has changed in such a manner that it gives the advantage to the terroristgroups. As noted in a special report by Scientific American (“Specialreport,” 2000, pp. 47-65), the new face of war brings with it the reality thatsmall arms that are readily available in all parts of the world can render asmall army virtually invincible, allowing it to take over an entire country; inmodern warfare, more civilians are killed than soldiers, which disrupts thedaily lives of citizens in modern cities and villages and ultimately demoral-


izes civilian populations; and the new soldiers consist more and more ofchildren who have typically been abducted from their families and turnedintowilling, ruthless, and efficientwarriorswho are only too eager to die fora cause.

It is obvious then that the world, world politics, the nature and composi-tion of alliances among nations, and the face of terrorism have all changed;these changes have called forth the necessity for the exploration of newmethods for dealing with terrorists. As an article in The Economist(“Fighting terrorism,” 1996, p. 26) so clearly puts it, all too often, govern-ments are not certain of the causes that created a terrorist act, so how canthey take adequate measures to prevent such acts; yet, their need to makesome response typically does not result in preventing similar future acts but,instead, results in legislation and other measures that normally have theeffect of ultimately infringing on the rights of ordinary citizens. Those whobelieve in the use of the past and current methods of dealing with terror areobviously not aware that these methods simply will no longer work; in fact,if anything, the use of these tactics may wreak further havoc as theirattempted use will simply convince the modern terrorist that the govern-ments that are willing to use such tactics are totally backward or insensitiveto the nature and reality of the modern terrorist threat and may, out of angerand frustration toward such naivete, see no alternative other than using themodern tactics that they can and will employ. As we emphasized before,these terrorists hate America and want to see Americans punished; there isno value in debating whether this attitude is justified or whether it is ethicalor moral; the fact is that it has become a reality of contemporary life, and sothis reality demands that we rethink our approach to the future methods fordealing with terrorists.

As is true of other areas of problem solving, history has its lessons fromwhich we can draw to formulate future solutions. In the case of terrorism,the history of Italy and its battle with the Red Brigades serves to illustratemany essential aspects for studying and dealing with terrorism. There is noquestion that Italy, during the reign of one of the most brutal groups of ter-rorists—the Red Brigades—experienced terrorism in all its worst manifes-tations. As Jeffrey Simon (1994, p. 321) points out, few terrorist groups canmatch the Red Brigades in their uniqueness, stemming from their incompa-rable record of sheer volume of crime that at times, consisted of more than2000 incidents a year. During the years of its enslavement of Italian society,this group murdered, kidnapped, tortured, kneecapped (shot off the knee-caps of some victims), bombed, and otherwise brutalized the citizens ofItaly, all under the ideology that the brigades, through their actions, would


bring about an egalitarianway of life for all Italians.What it did bring about,instead, was chaos and suffering; however, it also allowed for the carefulstudy of the nature of the beliefs of the terrorist mind and the motivationsthat give the terrorist the will to die for his or her cause. The brigades beganas a utopianMarxistmovement, which, like the other utopianmovements ofthe 1960s, took place among students on university campuses of the worldand had, as its goal, to ultimately overthrow capitalism in theworld. In Italy,the movement began in the Sociology Department of the University ofTrento. As Robert Asprey (1994, p. 1064) notes, the Red Brigades repre-sented a wave of urban insurgencies inspired by the New Left thinking ofHerbert Marcuse, Regis Debray, and others; in the United States, the move-ment manifested itself in the revolutionary activity of the Black Panthers,the Weathermen, and the Symbionese Liberation Army. Originally, the Ital-ian Red Brigade movement was not violent in nature, but became so whenits leadership changed in themid-1970s; with this new leadership also camea change in both the structure and tactics of the brigades. The brigades werestructured as pyramids, consisting of small cells, with each cell containingonly fivemembers, only one ofwhich had contact with the next highest cell;this had the effect of the membership not having knowledge of the activitiesof the other cells and their leaders. If captured and tortured, they could notreveal information that they did not, in fact, have. This feature later provedto be effective in protecting the brigades against the Italian police when thepolice attempted to uproot and destroy them. As we indicated, the brigadeswere born in the Department of Sociology at the University of Trento andthe study of sociology itself, it turns out, was to play a significant role inresearching the phenomenon; that is, the sociologists of Italy and Sicilywould, in their need to understand the phenomenon, come to offer both Italyand the world an awareness and explanation of some of the major issuesassociated with the phenomenon of terrorism itself.

Instrumental to our thesis that governmental repression does not typi-cally result in the solution to the problem of terrorism, the fight against theRed Brigades in Italy serves as an example that shows that repression, whenit is used without other accompanying approaches, does not produce aneffective, lasting solution. Indeed, it should be noted that one of the lessonslearned from Italy’s fight against the Red Brigades is that, during the periodthat the Italian government employed its most repressive measures towardthe brigades, Italy experienced one of the most violent waves of terroristactivity in its history. For itmust be remembered that theRedBrigades aroseout of an atmosphere of social unrest, where the wealthy class of Italy hadno interest in the problems of the poor, no awareness of the existence of the


slums in the major cities of Italy, and had absolutely no interest in discover-ing what factors created such conditions.

The Red Brigades, in their actions, reinforced this theme of “the richagainst the poor” by making certain that, when they employed violence, thepoor never became victims. Indeed, in the case involving the kidnapping ofCiro Cirillo, a senior politician who, after the devastating earthquake thatstruck Naples in November 1980, was given the task of masterminding thereconstruction of the city, the brigades, as part of the ransom demands forhis release, stipulated that the Italian government increase its payments tovictims of the earthquake as well as demanding compensation payments forthose who had been put out of work as a result of the earthquake.

The sociology professors who spawned the movement saw the move-ment as a mode of calling attention to the social ills of society and did notanticipate that the movement would turn into a reign of terror that wouldenslave rather than liberate the masses. But, as Oliverio (1998) observes, avery important element about terrorism lies hidden in the indisputable factthat terrorism stems from social conditions, a fact that, unfortunately, thosein power typically would rather not contemplate, accept, or acknowledge.Her observation calls forth a difficult aspect of terrorism—the one-sidedview of the problem in which it is easier for those who stand to become vic-tims of the terrorist’s activity to blame the terrorist rather than viewing theterrorist himself as a victim. This article highlightsOliverio’s observation inthat it argues later that an understanding of this observation must becomepart of the thinking of thosewhohope to dealwith terrorism in the future.

In the height of the movement, the violence became one of the brigade’smain tactics. Their daring and secretive techniques made the rich feel likethey could not protect themselves, nor could the government offer any assis-tance. The kidnapping of some very well-known businessmen, includingPaoloLazzaroni, themillionaire son of Italy’s “Biscuit King” (themanufac-turer of one of Italy’s favorite biscuits that is dipped into coffee every morn-ing by most Italians), served to prove that no one was safe. Indeed, theLazzaroni kidnappingwas significant in that it was purposefully intended toshow the rich people of Italy that they were under siege in that any one ofthem could be kidnapped anywhere and anytime and that their familieswould suffer the pain of not knowing if they would ever be reunited withtheir kin even if the ransom amount was paid. As Pepper (1978, p. 102)describes this era, he notes that scores, perhaps hundreds of families, wereforced to come to terms with the brigades; they paid the ransom notes inhopes that their children could continue to attend school in Italy rather thanhaving to be sent abroad and the parents themselves sought this solution


rather than having to move their businesses to New York or Brazil to remainsafe fromharm. Indeed, recentlymany Italian businessmen have returned toItaly to continue the business enterprises of their parents who, during theBrigade era, had sent them abroad as children to keep them safe. Peppernotes further that the high cost of the silent “protection” money, money paidin silence without going to the police, created a severe drain on privateindustry in that it restricted or virtually halted the development of businessand other types of community projects in a nation that was rapidly becom-ing weaker from the brigade’s parasitic activity that was ripping away at itsseams.

It should be noted that the policewere helpless in terms of combating thisplague because the Brigades were structured as a secret society with mem-bers pledged to secrecy and the public too frightened to go to the police outof fear of further reprisal. It was a no-win situation for both the police andthe victims. Above all, the lesson that should be learned from this situationis that a nation that is not united in its values and its cohesion against tolerat-ing a given evil becomes its own worst enemy. This lesson was made mani-fest by the kidnapping and murder of Aldo Moro who had been Italy’sChristian Democratic leader for some 20 years. The Italian public lovedMoro; he had all those characteristics that Italians admire; mainly, he washumble, he loved and believed in the democratic process, he was very reli-gious, he abhorred violence in any form, and, above all, he was an honestpolitician. His death wrenched the very soul of Italy in that it forced Italiansto come to grips with the fact that, in the killing of Moro, his death repre-sented an attack on their major values. So too, Moro had been an enemy ofthe Brigades; he felt that they had nothing to offer Italy and that in theiractions they posed an obstruction to the democratic process itself. The Bri-gades, in turn, hated Moro and saw him as a traitor to Italy; therefore, theyexecuted him. This brutal act tore into the hearts of the Italians. Indeed, asSimon (1994, p. 322) notes, it tore into the hearts of some of the members ofthe Brigades themselves causing numerous defections among their ranksand resulting in the arrest of several brigade members, including the personwho had masterminded Moro’s abduction.

The Moro case, then, set the stage for the fall and ultimate destruction ofthe Brigades; it remained for one last serious tactical error, that error beingan attack on America, Italy’s ally, by kidnapping U.S. Brigadier GeneralJames L. Dozier in December 1981. This embarrassed the Italian govern-ment, which was humiliated by the fact that it could not protect members ofthe military of one of its allies and America itself was outraged by the out-right boldness and disrespect displayed by the act itself. This forced both the


Italian and American governments into action. As Rivers (1986, p. 127)describes the reaction of both governments, the Red Brigades became thetarget of a 42-day manhunt involving more than 5,000 Italian police withAmerica sending its crack antiterrorism Delta Team to serve as advisors(Wolf, 1989, p. 78). Scores of Brigade members were arrested and, underinterrogation, they began to break down and reveal information about othermembers and their leaders. This all ultimately led to the safe rescue of Gen-eral Dozier by the elite Italian hostage rescue team—the Nucleo OperativeoCentrale di Sicurezza (Simon, 1994, p. 171). By the time Dozier was res-cued, 20 members of the Red Brigades and a leader were already behindbars (Rivers, 1986, p. 127) with more arrests taking place every day. Thisperiodwas to usher in a newprogram created and enacted by the Italian gov-ernment; indeed, it became a significant period in Italy’s fight against theBrigades and a period that serves to illustrate why the author has employedthe discussion of the Brigades in this work. This discussion leads into hismajor argument: mainly, that new approaches to terrorism can be effectiveand must be explored for dealing with the coming crisis we can expect toencounter with terrorist groups in the new millennium.

The program employed by the Italian governmentwas indeed unique andit has won it attention and praise from other nations fighting the war on ter-rorism. It is true, asmanywould argue, that the programwas successful spe-cifically because it was applied in Italy; however, there are many lessons tobe learned from this approach that could make it useful in the fight againstterrorism in other countries as well. The major characteristics that grantedits success in Italy lie in the fact that as a nation, Italy, with the presence ofthe Vatican, has had a cultural history that has made it a symbol of Catholi-cism for the entire world and, although many Italians as individuals maydisagree with certain beliefs promulgated in the Church’s dogma or edicts,it appears that Italians have come to both seriously accept and respect thissymbol of Catholicism that history has cast upon them.

In its goal and essence, the program reached out to touch the individualsense of guilt of each member of the Brigades and, in so doing, to ask thatthey repent. We agree with Drake (1995, p. 259) that the members had bythis time come to realize that the Italian people were no longer moved by orbelieved in the Brigade’s goal of changing society by means of a revolution.We should add also that as Pepper (1978, p. 103) notes, the Mafia, which inthe early days of the Brigade movement lent support to its actions because itcould make money from the ransoms resulting from its helping with Bri-gade kidnappings, ceased to lend this support when it realized that, ulti-mately, the Brigades intended to annihilate the very social institutions that


historically had created the social setting for the Mafia’s very existence. AsPepper further points out, not only did the Mafia cease its support, it nowbegan to murder brigade members and infiltrate their ranks to expose theirmembership and destroy the very unity of the brigade groups.

We must note that the Italian government’s program was successful inthat it openly called for the members of the brigades to become penitent,that is, to repent for their sins; hence, those who did came to be called thePentiti. The government was clear that the act of surrender would berespected under a law passed in May of 1982, which carried the offer ofamnesty under that law to those members who turned in their badges. Itshould be noted also, as Simon (1994, pp. 322-323) makes clear, that thisoffer on the part of the government definitely must not be confused with thepractice known in other countries as plea bargaining,where the accused bar-gains with the legal system and enters a plea of guilty; instead, for the bri-gade members who accepted the terms of this law, the terms meant that thegovernment literally expected the brigade member to repent for the sin ofhis having engaged in political violence, to do so in the true sense of reli-gious repentance, and as evidence of his sincerity, to turn in the names andlocations of his cohorts; if he did this, the government promised to reducehis sentence. Thus ended an era of terrorism from which Italy had learnedthat when the point was reached where its citizens, its government, and as anation, it had reached consensus, it was able to end one of the world’s mostterrible reigns of terror.

Needless to say, we cannot and would not argue that the methodemployed by the Italian governmentwould be effective in fighting the prob-lem of terrorism in every country; that was not our intent in illustrating theItalian case. Instead, we illustrated the case to note that here was one of themost severe reigns of terrorism theworld has ever known and it was broughtto an end not by armed repression, but instead, by creating a program thatemployed a knowledge, understanding, and a creative willingness thatallowed the Italian government to reach the minds and hearts of the brigademembers and also to reach out in an effort to arbitrate with these terrorists,thus achieving the end of winning the war while keeping its democraticinstitutions intact. Indeed, the issue of keeping democratic institutionsintact is a serious one and one that is extremely pertinent to this argument,one that the author will now address as he moves toward concluding thiswork by calling for the need on the part of all governments of theworld to becreative as they move on to meet the challenge of the future war onterrorism.


We need to note, immediately, that there are many distinct differencesbetween Italy and the United States that make comparisons illustrating thedifferences between the two mandatory. For example, although Italy, in itsearly fight against theBrigades, had a problemwith not being able to rapidlyestablish laws and federal agencies, it nonetheless did have laws against ter-rorism. The United States, however, although it historically has had theagencies in place to fight terrorism, never enacted any laws that specificallydesignated certain crimes as constituting terrorism offenses. As a result, theFBI, the agency in charge of domestic terrorism, has presented elements ofconfusion regarding both the definition of terrorist acts and the recording ofthe number of such acts that occur in America. This, as Mark Hamm (1998)argues, presents serious problems in reference to evaluating the extent andnature of terrorist acts in the United States. First, as Hamm notes, in the FBIdefinition of terrorism, the crime has to be committed as a conspiracyinvolving not one individual but an individual with the support of others.Hence, theUnabomber, because he acted alone, is not considered a terrorist,whereas the person convicted of the Oklahoma City bombing, TimothyMcVeigh, because he had conspiratorial support, would be considered a ter-rorist (Hamm, 1998, p. 61). This issue presents a serious concern for thestudy and social reality of terrorism in the United States in that it has beennoted (Albini, 1999, p. 27) that a major contemporary threat in the realm ofterrorist activity both in the United States and other nations, involves indi-viduals or “loners” who manufacture bombs and then place them in build-ings or send them through the mail. Thus, one of these individuals, arrestedin Las Vegas in April of 1999, was apprehended on suspicion of havingmanufactured and sent three bombs; one exploded in a post office in Dallas,Texas; another, possibly meant for President Clinton, was disarmed inWashington, D.C; and another, addressed to an agent of the Bureau ofAlco-hol, Tobacco and Firearms in Las Vegas, was discovered and disarmedbefore it reached its destination (Las Vegas Review-Journal, 1999, p. 2B).

MarkHamm (1998) further notes that the research efforts of social scien-tists studying terrorism are hampered by the fact that because there are nofederal or state statutes outlawing terrorism in the United States, terrorists,when arrested, must be charged with other crimes such as “malicious dan-ger and destroying by means of an explosive in a federal building” (Title 18of U.S. code, section 844), the charge, in fact, that was brought against theperpetrator of the Oklahoma City bombing (Hamm, 1998, p. 66). As aresult, the statistics on terrorism reported yearly by the FBI represent, asSmith and Damphousse (1998, p. 148) point out, convictions obtained bythe FBI by employing, among others, statutes such as possession and use of


firearms and/or explosive materials, robbery, burglary, conspiracy, and mailfraud. One can observe then that because of this confusion in the definitionof terrorism, the statistics themselves are rendered confusing; thus, it is dif-ficult to determine exactly the volume of domestic terrorism that exists inAmerica. In evaluating these statistics, we need to highlight a very signifi-cant observation made by Annamarie Oliverio, which speaks to theever-present political bias typically found in governmental definitionswhen dealing with the topic of terrorism: mainly, that governmental leadersor governmental bodies are, all too often, too quick to apply the label of ter-rorism to domestic and foreign groups to stigmatize such groups andthereby serve the foreign policy agendas or other political needs of the rep-resentatives of such governments (Oliverio, 1998, pp. 3-24). Thus, as Jona-than White (1998, p. 7) observes, governments in Latin America that werefriendly to the United States committed some very brutal atrocities, allunder the guise of counterterrorism; yet, the U.S. government never definedthese acts as consisting of terrorism. This illustrates, as White notes further,that under U.S. guidelines, some groups not friendly to the United Statescan engage in such acts and be called terrorists while others that are friendlyto the United States can commit identical acts and be viewed not as terror-ists, but instead, as legitimate revolutionaries.

As we enter the new century, there is no question that Italy is in far lessdanger of terrorist attack than the United States. This is because Italy facesless confrontation from both within and outside its boundaries. Italy hasengaged in foreign policy practices that have served to make it more friendsthan enemies and, although the situation may change, Italy seems now atpeacewith theworld. Unlike theUnited States, which has been both praisedand criticized for meddling in the affairs of other countries, Italy has offeredhelp to other countries rather than meddling; thus, in the recent conflict inYugoslavia, as an article in The Economist (1999, pp. 53-54) noted, althoughthe Italian government permitted the North Atlantic Treaty Organization(NATO) to use 14 of its launch pads for attacks on Serbia, it refused to letItaly’s own aircraft engage in the bombing. So too, as the article notes, itviews Serbia as a friend so that when it sent 2,000 troops to Albania, it sentthese forces not as adversaries but to bring, instead, humanitarian aid.Another issue that makes Italy less vulnerable to terrorist attack revolvesaround the politics of the Middle East. Unlike the United States, which hasmade enemies because of its support of the state of Israel, Italy enjoysfriendly relations with many countries in that region. As Cindy Combs(1997, p. 90) points out, Italy has a strong trade relationship with Libya,owning 15% of the Fiat Corporation, and has sold Libya a variety of


weapons including Otomat missiles, Agusta antitank helicopters, acousticmines, and torpedoes. Italy seems also to have recently developed a closerrelationship with the new president of Russia than has the United States; asnoted in an article in Business Week (“Russia,” 2000, p. 72), immediatelyafter ending his meeting with President Clinton, Russian President Vladi-mir Putin hastily departed for Italy to meet with political and business lead-ers there. According to this article, Putin managed to create business ven-tures, including the purchase by an Italian company of Stinol, Russia’slargest manufacturer of refrigerators, and implementing the creation of themutual venture of aRussian-Italian pipeline to carry gas fromRussia to Tur-key via the Black Sea, this venture being propelled by $1 billion in loansfrom Italian banks.

There is no question then that international terrorism is one of the majorproblems facing the world in the new millennium. Experts agree that theUnited States will be a major target and the American people themselves, asthey revealed in a recent survey, rated international terrorism as the numberone “critical” problem facing America in the 21st century (Reilly, 1999, p.99). If the U.S. government responds in its traditional manner, it will reactby giving the government more equipment and laws to fight the terrorists;this will include an increase in its use of wiretapping to monitor telephonecalls. In the use of such tactics, there always arises the issue of the potentialfor the government’s violating the privacy of individuals. America alreadyhas received a serious warning regarding the government’s violation ofhuman rights from Amnesty International. This organization has, in thepast, normally exposed such violations in other countries; now, however, forthe first time, it has named the United States as constituting a “repressivesociety” that systematically violates the rights of millions of its citizens(Puddington, 1999, p. 28). If theU.S. governmentwere to employmore sur-veillance measures in the name of fighting terrorism, it would stand to ventfurther criticism and create an increase in fear on the part of its citizens.Here we can learn a lesson from Italy, for as Donatella della Porta (1995, p.118) has noted, in its fight against theRedBrigades, the repressivemeasuresenacted by the Italian government, when weighed against the degenerationof the civil rights they produced, ultimately did not compensate with anyefficiency the combating of terrorism. The experience of America seems toreveal the same observation in that the spying on millions of law-abidingcitizens by the FBI during its Counter-Intelligence-Program of the 1940sthrough 1970s netted, among its total of 700 operations, amere four convic-tions; this is hardly a good return for the cost of the violations of humanrights in the form of the privacy concerns that it produced (Brandow, 1996,


p. 132). An echo of a similar problem emerging from and surrounding thefear of Middle-Eastern terrorists is already surfacing. As Richard Willing(2000, p. 1A) notes,ArabAmericans and civil libertarians are voicing a pro-test over the fact that the U.S. Justice Department, in 1999, conducted arecord number of 880 wiretaps in reference to terrorism investigations;some of these were linked to Mid-East terrorist groups. There was concernexpressed over the fact that there is no accountability for the proceduresemployed in these operations, as the process is secretive in nature and thereis no record of how many prosecutions resulted from this action.

Such actions are risky in that the United States, like the government ofItaly during its early fight against the Red Brigades, may find that its federalagents are endangering the very freedoms that they profess to protect. Wemust remember that, ultimately, when history reviews the current crisis, themorality and ethical actions of the U.S. government and its agencies will bejudged in terms of how that government treated its own citizens. Americanhistory has taught us that there is a thin line between protection and oppres-sion, a dilemma of which the Anarchist “Red Scare” of the 1920s and theCommunist scare of the “McCarthy Era” in the 1950s serve as constant anddemonic historical reminders.

We come now to our discussion of the main theme of this work as wemove our arguments to a conclusion: mainly, a discussion concerning whatmeasures need to be considered in the new fight against international terror-ism. In doing so, we realize that our suggestions tread on proposals and tac-tics that require a great deal of willingness on the part of the United Statesand world governments and American and world citizens to accept respon-sibility for engaging in the process of enacting such new approaches. Aboveall, theremust evolve on the part of all peoples and governments, a feeling oftrust, for it is the lack of trust among citizens and their governments that haspresented the world with the current problem of terrorism.

First, as Annamarie Oliverio (1998, pp. 9-11) clearly noted and empha-sized regarding the Italian experience with terrorism, one of the main reali-ties that the Italian government came to realize was that terrorism is not aproblem in itself but, instead, is merely a manifestation of much deepersocial problems that exist within the society in which it occurs. If there isone point thatwe need to emphasize in our recommendations regarding newapproaches to dealing with terrorism, it is this one. Unfortunately, the defi-nition of terrorism and the political labeling that so often accompanies thegroups involved blurs the reality that terrorism does not exist in a vacuum.As Schweitzer and Dorsch (1999, p. 45) emphasize, historically, much ofterrorism’s root causes have emerged from the wells of ethnic and religious


conflict, which will be one of the most difficult facets of dealing with theproblem; however, much of modern terrorism is rooted in problems stem-ming from overpopulation, food shortages, and environmental devastation.In helping eradicate such problems, Schweitzer and Dorsch suggest that acooperative terrorism reduction initiative must be undertaken, one notbased on the quick-fixes of government aid programs such as have beenimplemented in the past, but instead, a program of aid that helps both thosecountries that give as well as those that receive the aid, with the ultimategoal of helping the citizens of the countries at risk to climb out of poverty.This aid, it goes without saying, must be in the form of helping create jobs,thus making the citizens of such countries self-sufficient, which would thenresult in giving the citizens of these countries the incentive to fight corrup-tion within their governments, eliminate drug trafficking, and prohibit theimporting of weapons, thus eliminating the very roots that commonlyspawn the development of terrorist movements. Schweitzer and Dorsch(1999, p. 44) suggest also that every effort should be made to enlist the helpofNATO forces by creating the legalmechanismbywhich counterterrorismcould be placed on NATO’s security agenda; they note that this wouldinvolve some serious challenges but feel that the goal is well worth pursu-ing. Schweitzer and Dorsch (1999, p. 41) also call on Americans to reevalu-ate the questions surrounding civil liberties, as they note that a new balancemust be struck between idealism and reality in the coming fight against ter-rorists; they feel that Americans should show tolerance and allow for modi-fication of the traditional practices regarding the protection of freedoms tohelp federal agents to be more effective in this fight. Along with this,Schweitzer and Dorsch (1999, pp. 41-42) suggest that the American publicmust lend its support to federal agencies and recommend that individual cit-izens becomemore actively involved in the day-to-day types of surveillancethat can provide very valuable information concerning terrorist activity; thisinvolves reporting any suspicious activity on the part of strangers in theirneighborhoods, particularly any unusual activity around power or waterplants, aswell as recommending that clerks and business operators, particu-larly those dealing with explosive or other dangerous material, report anysuspicious persons or activities to the proper authorities.

Bruce Chapman (2000, pp. 32-34) raises a very perceptive issue when heargues that the United States has indeed opened its heart and help to a vari-ety of nations in distress; however, Chapman argues that such kindheartedefforts are ultimately made dysfunctional by the fact that, all too often, theUnited States pulls out its support before the task is completed. For exam-ple, in Somalia and in Lebanon, U.S. support was given freely until


American soldiers were killed; soon thereafter, the U.S. troops wereremoved. This type of erratic behavior sends a message that does not helpdevelop confidence in America as a trustworthy nation whose governmentwill see through its commitments to their final and original conclusion. Sotoo, the death of American soldiers does not help build morale for thoseAmerican soldiers who survive these engagements, in that, as Chapmanobserves, these soldiers must ask themselves why their comrades gave theirlives in Vietnam or Somalia when the purpose for the conflict has neverbeen historically or militarily adequately explained or justified.

There is no question that the future foreign policy of the United Statesdemands that policymakers think seriously about the consequences of thesetypes of future military interventions, making certain that goals are clearlystated in the beginning and commitments kept until the problem is fullyresolved. We should have learned this lesson from our intervention inAfghanistan during its struggle against Russia; today, many Algerians whovolunteered to fight alongside the Afghans became and have remained bit-ter toward America and have expressed this bitterness by joining terroristgroups that are targeting the United States, because they were angered anddismayed by the fact that theUnited States pulled out its support, leaving theAfghans and the Algerians to fend for and defend themselves.

Another issue that needs to be addressed in the coming fight against ter-rorists concerns the role of the U.S. intelligence agencies. As BruceBerkowitz (1996, p. 35) noted as early as 1996,most experts at that time hadreached the conclusion that U.S. intelligence was in need of serious reform.The recent security lapses at Los Alamos National Laboratory and otherstories of gross negligence regarding national security raise an alarm thathas a direct bearing on the danger of terrorists successfully staging an attackon American soil. Berkowitz (1996, p. 41) argues that the current intelli-gence community is an artifact of an earlier age and to become more effec-tive in the current fight against terrorism, intelligence agencies mustdevelop at least as much flexibility as corporations. Schweitzer and Dorsch(1999, p. 43) join Berkowitz in his comments, adding that the CIA mustexpand its current range of intelligence-gathering methods and technolo-gies in successfully carrying out its task of identifying and defeating foreignterrorists; they recommend that the CIA begin to rely more on the expertiseof outsiders who often have critical insights concerning terrorist activities.In this regard, David J. Rothkopf (1999, p. 83) argues that we live in “TheDisinformation Age” where deception, misrepresentation, and outright dis-honesty are the rule of the day. As a result, he notes, the average citizen isgiven incomplete information resulting from inadequate reporting of issues


and data by the media, which in turn results in biased and egregiously faultyanalyses of what is occurring in the world. He makes a very striking argu-ment that augments Schweitzer and Dorsch’s (1999) recommendation call-ing for the CIA’s use of outsiders in providing critical insights regarding ter-rorism: mainly, that the media and government agencies have a tendency toemploy and rely repeatedly and religiously on the same small band ofexperts when evaluating crises and/or issues. This, Rothkopf (1999) con-cludes, results in the drawing of conclusions by authoritieswho each tend touse the same databases of information, who consistently confer with andcite one another and thus do not allow for new or alternative interpretationsof political, economic, and social data. This explains why, as Rothkopfobserves, the media may appear to be diverse, yet in reality, its sources forgaining information are remarkably homogeneous and closely knit; it alsoexplains why experts are so often unwilling to challenge the sensibility ofpolitically unsustainable and profinancial community policies.

In his discussion of new trends in dealing with terrorism, Bruce Hoffman(1999, pp. 62-75) suggests that the United States can learn many lessonsabout adequately dealing with terrorism by following the example given byEurope’s approaches. He notes that the United States has tended to treatcounterterrorism much like a moral crusade, whereas Europeans are farmore skeptical of blanket approaches and the use of rigid policies; instead,the Europeans adopt what they view as more practical and more productiveapproaches. Hoffman is quick to note that in no way should these Europeanmeasures be interpreted as Europe not being tough on terrorists as, indeed,Europe has reacted by employing particularly tough measures to the pointthat some critics have argued that its approaches have sometimes been tootough. What Europe has displayed, argues Hoffman, is a willingness to bemore open to using new approaches when the situation warrants their use.By contrast, he notes, neither the economic sanctions nor the use of militaryforce typically employed by the United States has produced any significanteffect in winning the war on terrorism. Hoffman indeed is on target when henotes that there is no single universal solution to the problem of terrorismwhether on a national or international scale. The changing face of terrorism,he argues, demands searching for new solutions as military force or eco-nomic sanctions are of little utility against terrorist and organized criminalgroups that have no formal allegiance to any nation.

And so we end this work by noting that the nature of terrorism haschanged. It is mythical thinking to believe that the old methods will be suc-cessful against the new terrorist groups. Organized criminals and terroristshave joined forces. Together, they now have amassed skilled personnel and


have acquired the new technologies. It is a new form of warfare that they arenow employing. If the world governments have any hope of winning thisnewwar, they had better recognize that the rules have changed and seek newapproaches toward winning the battle.

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CRIMINAL JUSTICE POLICY REVIEW / December 2001Hamill et al. / TELEVISED CHILD TESTIMONY

Current Practices in the Use ofTelevised Child Testimony:Questions of Constitutionality andPersonal Biases

Sharon Boland HamillCalifornia State University, San Marcos

Ernest S. GrahamUniversity of Puget Sound

Emmett Thomason, IIIRenee Huerta-ChoyCalifornia State University, San Marcos

This study surveyed prosecuting attorneys’offices to determine the current practicesinvolving the use of televised testimony of childwitnesses.Members (or designates) ofthe National District Attorneys Association (n = 768) completed questionnaires thatassessedwhether they had ever used televised child testimony andwhether its use hadled to an appeal. Respondents who had never used televised testimony were asked toindicate the reason(s) why they had chosen not to use it. Results suggested that tele-vised testimony is not a common practice among respondents in that only 17.1%of thesample used it. If a respondent did use it, itwas unlikely to lead to anappeal (only 22.9%of the time). Respondents who had never used this type of testimony reported that avariety of legal and practical restrictions, as well as their own personal beliefs, pre-vented them fromdoing so. Results are discussed in terms of the controversy regardingthe use of televised testimony.

At present, a controversy brews over the use of alternative procedures forproviding testimony in cases involving child witnesses. The increase in thenumber of child abuse cases reported to Child Protective Services agencieshas contributed to a consonant increase in the number of children beingcalled on to testify in court against alleged assailants (Cashmore, 1995;

282

AUTHORS’NOTE: This research was supported by a grant from the University EnrichmentCommittee at the University of Puget Sound to the first and second authors.


Goodman et al., 1992; King & Yuille, 1987; McGough, 1997). However, aschildren have played larger roles in courtroomproceedings, child advocateshave voiced concerns regarding the possible traumatic effects of participat-ing in these proceedings (Berliner & Barbieri, 1984; Parker, 1982). Inresponse to these concerns, most states have adopted alternative proce-dures, such as testimony via videotape, to protect witnesses from the poten-tially damaging effects of providing live testimony (Joseph, 1989; Myers,1996). These procedures, which are designed to eliminate or reducewitnessstress, are at the heart of the controversy; they pit the desire to protect childwitnesses against the defendant’s constitutional right to face his or heraccuser(s). Whereas there has been a great deal of discussion on legal andmoral grounds regarding this practice of allowing alternative forms of testi-mony, it is not known how often these practices are actually utilized in caseswith child witnesses or what concerns prevent attorneys from employingthese procedures.

Child advocates across the United States have devised a variety of meth-ods for reducing the trauma of testimony for child witnesses; however, it isthese methods that pose a threat to the defendant’s constitutionally guaran-teed rights. Alternative forms of testimony may be as simple as turning thechild so he or she cannot see the defendant directly or putting up a screenbetween the child witness and defendant to prevent face-to-face contact(Coy v. Iowa, 1988; McGough, 1994; United States v. Thompson, 1990).Other, more controversial methods include pretrial videotaping of thechild’s testimony and live television links that allow children to testify viaclosed circuit television outside the presence of the defendant (Myers,1996). Eachmethod serves to reduce or eliminate direct contact between thechild witness and defendant. However, the 6th amendment to the U.S. Con-stitution guarantees a defendant the right to a face-to-face confrontation ofhis or her accusers, the rationale being that jurors can detect falsehoods byobserving the mannerisms and speech of the witness. The use of alternativemeans of providing testimony such as videotape or closed-circuit televisionprevents witnesses from actually facing the defendant. On this matter, theU.S. Supreme Court has chosen to interpret the constitution very narrowly.In the landmark case, Coy v. Iowa (1988), the Court ruled that such proce-dures interfere with a defendant’s 6th amendment rights because the wit-ness and defendant do not actually face one another. However, the Courtalsomaintains that the right to face-to-face confrontation is not absolute andthe right may be suspended under some conditions (Maryland v. Craig,1990). A fundamental question is whether the protection of child witnessesis one of these conditions.

Hamill et al. / TELEVISED CHILD TESTIMONY 283

The holdings of the Court regarding the use of televised testimony ofchild witnesses have occasioned a substantial number of comments in bothlaw reviews (e.g., Campbell, 1989; Hamilton, 1989; Havens, 1989;Wollitzer, 1988) and the psychological literature (e.g., Goodman, Levine,Melton, & Ogden, 1991; Underwager & Wakefield, 1992), inciting the pas-sions of lawyers, child advocates, and private citizens alike. At the heart ofthe arguments presented in the literature is whether theCourt should protectchildren in the courtroom. Child witnesses are seen by many to be espe-cially sensitive to the stress of legal testimony due to their limited under-standing of the judicial system and their lower status relative to adults. Dueto this sensitivity, they may be in need of special protection when providingtestimony (American Psychological Association, 1990). However, despitethe volume of articles being published that debate theoretical issues regard-ing protection of child witnesses and possible violations of defendants’rights, little knowledge is available regarding prosecutors’ views of tele-vised testimony. In particular, we know little about how often this type oftestimony is actually used orwhy attorneysmight decide against employingthis practice. The current research is an effort to explore these questions.

The primary goal of this study was to obtain information on the use ofalternative means for providing testimony when children serve as witnessesin the courtroom (e.g., videotape or closed-circuit television). This studysurveyed members of the District Attorneys Association (1992) in an effortto determine whether the videotaped testimony of children had been usedand theCourt’s reactions to it. In addition, informationwas solicited regard-ing attorneys’decisions not to use videotaped testimony to identify barriersto its incorporation as a practice with child witnesses.

METHOD

Participants

The survey was sent to each member listed in the 1992 directory of theNational District AttorneysAssociation (n= 2,828). The directory is a com-prehensive list of the prosecutors’ offices in the United States. Participantswere 768 members (or their designates) of the National District AttorneysAssociation (NDAA), representing a response rate of 27.16%. Examinationof response rate by geographical region reveals that survey return was low-est in the Southeastern part of the United States (18.64%) and highest in thePacific region (43.33%). Table 1 summarizes the geographical location of


respondents to this survey and provides the population for each region asreported by the 1990 Census.

Attorneys comprised 95.8%of the respondents; the remainderwere indi-viduals who worked in related offices such as Family Protection Division.On average, respondents had 7.9 years of experience in their jobs (SD =5.76; range = 1 to 36 years).

Measures and Procedure

An introductory letter and a survey assessing the use of televised testi-mony in cases with children were sent to each member of the NDAA.Respondents were requested to provide demographic information (name,address, jurisdiction, position, and years in current position) in the first partof the survey and information regarding the use of alternative procedures forpresenting child testimony in the second portion of the survey. In this sec-ond section, participants were asked to indicate whether their jurisdictionhad any criminal cases in which children testified in court by means of tele-vised testimony (e.g., closed-circuit television, videotape, etc.) since 1988,the yearCoy v. Iowawas decided. These cases include child abuse cases andother criminal cases in which the child was a witness. If they indicated thatthey had used it, they were then asked whether the use of the televised testi-mony had led to an appeal in any of the cases and what the appellate courtruling was on the cases (upheld, reversed, pending). Respondents who saidthat there had been no cases in their jurisdiction in which televised testi-mony had been used were asked to indicate, in their opinion, the reason(s)for not using this technology.


Table 1: Demographic and Response Rate Information for Each GeographicRegion

Number Number ResponseRegion Population Sent Received Rate (%)

Northeast 57,919,744 232 80 34.48Southeast 83,457,240 1,148 214 18.64North Central 56,482,241 735 249 33.88Great Plains 8,901,089 343 83 24.20Mountain 16,117,831 220 77 35.00Pacific 42,405,638 150 65 43.33Total 265,283,783 2,828 768 27.16

Onemonth after sending out the original surveys, the researchers sent outa postcard to remind attorneys who had not responded to please do so assoon as possible. At the completion of data collection, 768 individuals hadparticipated.

RESULTS

Use of Televised Testimony

Overall, the results indicated that children’s televised testimony was nota common practice for the respondents to this survey. Only 131 participants(17.1%) said that children’s televised testimony had been used in their juris-diction since the landmark case, Coy v. Iowa (1988). Appeals in such caseswere fairly uncommon, with only 30 of the 131 respondents (22.9%, repre-senting 30 different jurisdictions) reporting that a defendant had appealed aconviction based on this testimony. Moreover, the appellate court reversedits decision in these 30 cases only 6 times (21.4%).

Reasons for Not Using Televised Testimony

Legal restrictions. It was far more likely for respondents in this study toindicate that they had not used televised testimony in cases with childrenthan to say that they had. Respondents who had not used this type of testi-mony reported that a variety of legal and practical restrictions, as well astheir own personal beliefs, prevented them from doing so. One third of therespondents (33.28%) indicated that some form of televised testimony hadnot been used because legal restrictions either directly prohibited the use ofanything but face-to-face testimony or legal standards for the use of suchtestimonywere too stringent tomeet. Examples of responses citing the diffi-culty in meeting these standards include the following:

Our law does not provide for video depositions in criminal trials. The closed cir-cuit television statute, as designed, is not a helpful tool. (Participant 130)

Real or perceived problems with right of confrontation. (Participant 1591)Difficult preliminary showing that live testimony would be harmful required

under statute. (Participant 1544)Texas law requires a very specific protocol to get the tape in evidence. We also

must have the child available to testify anyway. (Participant 2387)California statute authorizing closed circuit is more restrictive than Coy and

Craig require. (Participant 136)


Court rulings prohibiting its use except under extraordinary circumstance oftrauma to child witnesses. (Participant 65)

Practical limitations. Responses also reflected budgetary or practicallimitations that prevented these prosecutors from using available technolo-gies. It is interesting that 18.58% of the respondents indicated that a lack ofequipment, trained personnel, or funding precluded the use of televised tes-timony (see Table 2).

Personal biases. Although legal and practical limitations reportedly dis-suaded some prosecutors from using televised testimony, some prosecutorscited personal biases as reasons for not using this type of testimony. Seven-teen percent (17.12%) reported that jurors preferred live testimony to sometelevised means. Respondents based these opinions on their own experi-ences. For example,

Jurors are more receptive to, sympathetic toward, and able to empathize with awitness they can see totally andwithout any ofwhat a jurormayperceive of asunfilmed outside influences on the child (Participant 32).

Do not feel videotaped statements are very effective. Also, do not see that itmakes it any easier on victims. (Participant 76)

It is not effective as a rule and should only be used as a last resort. We haven’tbeen in that situation. (Participant 137)


Table 2: Reasons Why There Have Been No Cases in Which Children ProvideLive Testimony

% of Respondents % of Total NumberGiving This Answer of Responses Giving

Response (n = 619)a This Answer (n = 811)b

Legal restrictions 33.28 25.40No equipment/funding/personnel 18.58 14.18Jury likes live testimony 17.12 13.07Child is able to testify 16.80 12.82No appropriate cases 15.51 11.83Settled prior to trial 11.15 8.50Fear of appeal or reversal 4.04 3.08Court dislikes televised testimony 4.68 3.57Other 12.07 7.55

a. Of the 634 participants who indicated they had never used televised testimony, 619 gave atleast one valid response.b. Multiple responses per participant were allowed; consequently, this column reflects whatpercentage of the total number of responses fell into each category.

I believe that there is no substitute for live testimony. A child who stands the testof live courtroom testimony has superb credibility. Efforts to protect childrenfrom live testimony are unnecessary, and damage the state’s case. (Partici-pant 1830)

Personally, it is felt that testimony does not come acrosswell to a jury that wouldrather see a “live” victim and may not understand videotaping as a techniqueto protect the child. Also, we clearly are anesthetized these days to victims onTVand itmay come across thatway to a jury—just another TV show! (Partic-ipant 184)

In the cases I had, the children testified in court. I do not use videotape if I canhelp it because it makes the child less real to the jury. (Participant 177)

It doesn’t go over well with jurors—they think the child looks too comfortable,i.e., not “traumatized” enough. Go figure. (Participant 977)

In addition to the belief that live testimony is better, many respondents(16.8%) felt that the children were able to testify live, thereby suggestingthat the procedure was unnecessary. In particular, a number of respondentsindicated that the manner in which the children were prepared for court-room testimony undercut the need for alternative procedures. Respondents’confidence in a child witness’s ability to provide live testimony can be seenin the following comments:

Because, in my limited experience, the victim has never seemed so intimidatedby the defendant as to prevent testimony. (Participant 982)

Most children can be prepared to testify live in court (Participant 1010)Children are properly prepared to testify in court and do testify ably. (Partici-

pant 1037)Children are prepped thoroughly for trial—courtroom, the people there, what

will happen—and therefore are less frightened by the defendant being there.(Participant 1685)

Children have testified in open court after extensive preparation and work withassigned prosecutor and support services. (Participant 1689)

Thus, the respondents espousing these views emphasize the abilities ofchild witnesses and the support services that the judicial system is able tooffer children who must testify.

A number of survey respondents also had concerns over the court’s will-ingness to hear televised testimony and fear of appeal or reversal if such tes-timony was used. More than 4% (4.68%) of those respondents who did notuse televised testimony indicated that the biases that some judges haveagainst this type of testimony, as well as the great power that they wield inthe courtroom, prevented the respondents from using the technology.


Lack of judicial willingness to attempt to apply modern technology and proce-dures to constitutional principles. (Participant 1783)

Too complicated question of whether judge would permit. (Participant 1251)Lack ofwillingness by judges to bend the rules in anyway to accommodate chil-

dren in the courtroom. (Participant 934)Judges feel that doing this is against mandated court rules and regulations. (Par-

ticipant 270)Judical bias against such testimony—have requested, but judge has yet to per-

mit. (Participant 205)Judge would not allow televised testimony. (Participant 747)

Fear of reversal on appeal was also reported by 4.04% of the respondentswho indicated they had never used televised testimony.

We have preferred to use live testimony to avoid legal challenges. (Partici-pant 2642)

I do not wish to take the chance of a reversal by an appellate court. (Partici-pant 2251).

Tape provides impeachment material due to marginal interview skills. (Partici-pant 970)

Concerns over whether any conviction that could be obtained would be upheldon appeal, due to prior case rulings in Ohio. (Participant 1895)

This last finding is particularly interesting given that the use of such testi-mony was unlikely to lead to an appeal in this sample.

Collectively, these findings reveal that approximately one third of therespondents cited legal limitations as reasons for not using televised testi-mony, and 42.64%of the respondents reported that at least one personal biasprevented them from doing so.

DISCUSSION

Findings from this survey assessing the current practices in the use oftelevised testimony reveal a number of important points. In particular, thefindings provide some preliminary information on how prevalent the use oftelevised testimony might be and suggest that in addition to legal restric-tions, personal biases legal professionals bring to a case may preclude themfrom using it.

First, despite the great deal of debate regarding the use of televised testi-mony and its impact on defendants’constitutional rights, in this sample, rel-atively few prosecutors used the procedure. Granted, some of those who do


not use it voice concerns over the legality of the procedure, which probablyprevents them fromattempting to use such testimony in the first place.How-ever, the legal issues did not represent an overriding problem in this study.These findings suggest that it is important to consider factors other thanlegal issues when trying to determine whether televised testimony will beused. Specifically, what personal biases serve to dissuade prosecutors fromtaking advantage of technology, especially in cases where the witnesses arebelieved to be fragile, as is the case with children?

More than 42% of the legal professionals in this sample cited some per-sonal belief or bias as a reason for opting not to use televised testimony. Aprevalent belief among the respondents seems to be that live testimony ismore effective than televised testimony. The notion that jurors are betterable to discern truthwhen presentedwith livewitnesses is a position held bythe lay public as well as legal professionals; however, empirical researchindicates that a face-to-face evaluation does not lead to a greater ability todetect falsehoods (Leippe, Manion, & Romancyzk, 1992). Thus, this studysuggests that at least some of the decisions made regarding the use of tele-vised testimony rely on faulty information concerning the value of live testi-mony. Given the prevalence of such beliefs and the fact that many jurors,lawyers, and judges already enter the courtroom with biases against childwitnesses (Cashmore & Bussey, 1996; Yarmey & Jones, 1983), prosecutorswho opt to bring children’s testimony into the courtroom in a televised for-mat are facing a considerable challenge. Thus, future studies should not belimited by solely examining jurors’ perceptions of child witnesses or theperceived preference for live testimony in the courtroom but should includethe impact of children’s televised testimony on attorneys’and judges’court-room interactions. In particular, it is imperative that investigations focus onthe conditions under which the officers of the court allow this type of testi-mony, and the manner in which they present the credibility of this technol-ogy to the jurors.

A related finding revealed that 16.8% of respondents believed the proce-dures were unnecessary because children are able to testify live. Commentsemphasized the use of preparatory measures to reduce any anxieties that thechildren might have, especially those related to facing the defendant. How-ever, it is questionable whether these prosecutors’ impressions of the chil-dren’s abilities adequately reflect children’s actual concern over their court-room appearance. For example, Cashmore and Bussey (1996) found thatmagistrates did not expect confrontation with the accused to be as great of aconcern as children typically report that it is. Moreover, there is still muchdiscussion regarding the possible long-term effects of child witness testi-


mony. Perhaps even childrenwho perform “ably” in the courtroomhave dif-ficulty with putting the matter behind them after the trial is over. Futurestudies that focus on comparing the long-term effects of providing testi-mony through a variety of means (e.g., live, videotaped, closed-circuit)would be particularly enlightening on this matter.

Finally, a somewhat surprising finding from this study concerns theavailability of televised technology in most jurisdictions. Of the respon-dents, 18% said that they did not use this technology because they lackedequipment, trained personnel, or funding. Perhaps when attorneys are facedwith limited resources, they opt to invest them in more traditional, acceptedmethods of prosecution, rather than investing them in equipment that mightprove to be controversial. The perceived problems associated with televisedtestimony could make it the least likely candidate for resources when fund-ing is available. Consequently, even if legal concerns and attorneys’ per-sonal biases over televised testimony were laid to rest, the question of theavailability of the technology would still be present.

Collectively, this study has given us somegeneral sense of the acceptabil-ity of televised testimony by prosecuting attorneys and the factors that maypreclude its use. However, the findings should be interpreted with caution,given the study’s limitations. In particular, the generalizability of the resultsare certainly limited by the return rate, particularly in the Southeasternregion of the United States. This was despite follow-up efforts to increasesample size. Given the heavy caseloads and limited resources that manyprosecutors face, the overall response rate was not entirely unexpected.However, confidence in the validity of the findings increaseswhen responserates for this study are examinedmore closely.Almost half (48.5%) of attor-neys/designates from the top 100 cities with populations of more than100,000 responded to the survey1 (U.S. Bureau of the Census, 1996);approximately 46% of prosecutors from all U.S. cities with populations ofmore than 100,000 contributed information reflected in the results. Addi-tionally, the data reflect information from rural as well as a number ofdensely populated urban areas. Thus, although the overall response ratewaslow, response rates for the most highly populated cities were reasonable.

A second limitation was that the manner in which states define their legaljurisdictions varies greatly, thereby presenting considerable challenges tomaking sound estimates regarding the actual prevalence of using such testi-mony. However, given that the goal of this study was to explore reasonsbehind prosecutors’decisions to use alternative forms of testimony and notan attempt to establish prevalence rates, the study’s findings are still infor-mative. Of course, caution should be exercised when interpreting these


findings and should not be used as evidence forwhat “most” prosecutors do.Future studies should consider the use of this type of testimony in cities ofvarious sizes within jurisdictions, thereby enabling researchers to makesound estimates regarding prevalence rates.

CONCLUSION

The main findings from the prosecutors surveyed in this study indicatedthat televised testimony was not a common practice and if a prosecutor didchoose to use the technology, it was unlikely to lead to an appeal or reversalon appeal. Still, the use of televised testimony as a means of presenting evi-dence from child witnesses presents us with many legal and moral issues toconsider. In addition to the potential threats to defendants’ rights, the find-ings underscore the importance of bearing in mind the biases that legal pro-fessionals and the lay public bring into court cases that use televised testi-mony. In particular, researchers must address the issue of prosecutors’,judges’, and jurors’ personal biases regarding technology and the impactthat these biases have on consideration of evidence. This study suggestssome provocative future directions for investigations on this topic, includ-ing why some prosecutors opt to use televised testimony and an investiga-tion of how the characteristics of jurisdictions may influence the use of tele-vised testimony.A fundamental concern driving these investigations shouldalways be the question of how we can protect the rights of defendants whileat the same time protecting child witnesses.

NOTE

1. Surveys were only sent to 85 of the top 100 most populous cities because of the waythat jurisdictions were drawn. For example, Anaheim, California is the 57th most populouscity, but the county seat is Santa Ana, California. A survey was sent to the prosecutor’s officein Santa Ana.

REFERENCES

American Psychological Association. (1990). Brief for Amicus Curiae American Psycho-logical Association in support of neither party. Washington, DC: Author.

Berliner, L., & Barbieri, M. K. (1984). The testimony of the child victim of sexual assault.Journal of Social Issues, 40, 125-137.


Campbell, E. (1989). LB( ) and the confrontation clause: The use of videotaped and in-cam-era testimony in criminal trials to accommodate child witnesses. Nebraska Law Review,68, 372-409.

Cashmore, J. (1995). The prosecution of child sexual assault cases: A survey of NSW DPPsolicitors. Australian and New Zealand Journal of Criminology, 28, 32-54.

Cashmore, J., & Bussey, K. (1996). Judicial perceptions of child witness competence. Lawand Human Behavior, 20, 313-334.

Coy v. Iowa, 487 U.S. 1012 (1988).Goodman, G. S., Levine, M., Melton, G. B., & Ogden, D. W. (1991). The American Psycho-

logical Association brief in Maryland v. Craig. Law and Human Behavior, 15, 13-29.Goodman, G. S., Taub, E. P., Jones, D.P.H., England, P., Port, L. K., Rudy, L., & Prado, L.

(1992). Testifying in criminal court. Monographs of the Society for Research in ChildDevelopment, 57(5, Serial No. 229).

Hamilton, J. (1989). Confrontation clause: Balancing the child victim’s and defendant’srights. University of Missouri–Kansas City Law Review, 57, 645-654.

Havens, D. E. (1989). A question of necessity: The conflict between a defendant’s right ofconfrontation and a state’s use of closed-circuit T.V. in sexual abuse cases. WashingtonLaw Review, 46, 1003-1034.

Joseph, G. P. (1989). Keeping child witnesses out of court. Human Rights, 16, 22-24.King, M. A., & Yuille, J. C. (1987). Suggestibility and the child witness. In S. J. Ceci, M. P.

Toglia, & D. T. Ross (Eds.), Children’s eyewitness testimony. New York:Springer-Verlag.

Leippe, M. R., Manion, A. P., & Romancyzk, A. (1992). Eyewitness persuasion: How andhow well do fact finders judge the accuracy of adults’ and children’s memory reports?Journal of Personality and Social Psychology, 63, 181-197.

Maryland v. Craig, 110 S. Ct. 3160 (1990).McGough, L. S. (1994). Child witnesses: Fragile voices in the American legal system. New

Haven, CT: Yale University Press.McGough, L. S. (1997). Stretching the blanket: Legal reforms affecting child witnesses.

Learning and Individual Differences, 9, 317-341.Myers, J.E.B. (1996). A decade of international reform to accommodate child witnesses.

Criminal Justice and Behavior, 23, 402-423.Parker, J. Y. (1982). The rights of child witnesses: Is the court a protector or a perpetrator?

New England Law Review, 17, 643-693.Underwager, R., & Wakefield, H. (1992). Poor psychology produces poor law. Law and

Human Behavior, 16, 233-243.United States Bureau of the Census. (1996). Census report. Washington, DC: Government

Printing Office.United States v. Thompson, 31 M.J. 168 (C. M. A. 1990)Wollitzer, R. I. (1988). Sixth amendment—defendant’s right to confront witnesses: Consti-

tutionality of protective measures in child sexual assault cases. Coy v. Iowa, 108 S.Ct. 2798 (1988). The Journal of Law and Criminology, 79, 759-794.

Yarmey, A. D., & Jones, H.P.T. (1983). Is the psychology of eyewitness identification a mat-ter of common sense? In S.M.A. Lloyd-Bostock & B. R. Clifford (Eds.), Evaluating eye-witness evidence: Recent psychological research and new perspectives (pp. 14-40).Chichester, UK: Wiley.


SharonBolandHamill is an associate professor of developmental psychology at Cali-fornia State University, SanMarcos. Her areas of interest include child witness credi-bility and multigenerational families.

Ernest S. Graham is professor emeritus at the University of Puget Sound. He has a BSfrom Western Washington University , an MS and Ph.D. from Washington State Uni-versity, and a J.D. from the University of Puget Sound.

Emmett Thomason, III, has a BA in psychology from California State University, SanMarcos.

Renee Huerta-Choy has a BA in psychology from California State University, SanMarcos.


CRIMINAL JUSTICE POLICY REVIEW / December 2001Rainville / PROSECUTOR SENTENCING PREFERENCES

An Analysis of Factors Related toProsecutor Sentencing Preferences

Gerard RainvilleAmerican University

Three types of variables have been identified as related to prosecutor decisionmakingin the screening and settlement stages of criminal case-processing—legal, extralegal,and resource variables. The current analysis examines the degree to which theseclasses of variables affect prosecutor sentence preferences. Ordinary least squaresregression is used to relate factors that prosecutors regard as germane to forming sen-tence preferences to a measure of sentence restrictiveness. Analyses reveal a dimin-ished reliance on legal and extralegal variables in the determination of preferred sen-tences. In their stead, the available correctional placement options within aprosecutor’s jurisdiction as well as the personal values of prosecutors appear todetermine the level of sentence restrictiveness that prosecutors desire.

The scholarly attention devoted to the policy decisions of prosecutors isnegligible relative to the importance of the prosecutor’s role in the adminis-tration of justice (Forst & Brosi, 1977; McDonald, 1979a). In the UnitedStates, the prosecutor is regarded as the “chief law enforcement officer” oftheir jurisdiction (American Bar Association, 1971; Jacoby, 1979) and hasbecome a central figure in determining the outcome of criminal complaints(Adams & Cutshall, 1987; McDonald, 1979b).

Although the amount of research devoted to prosecutors has been inade-quate, a small body of empirical research has examined several aspects ofthe prosecutor’s decision making. Variables affecting prosecutor decisionmaking in regard to filing charges, in accepting a plea, and in other decision-making areas such as in admitting evidence (Spohn & Horney, 1992) andopting whether to prosecute juvenile offenders in adult courts (Bishop, Frazier, &Henretta, 1989; Schiraldi & Ziedenberg, 1999) have all been examined. Onearea that has not been examined extensively is the prosecutors’ decision

295

AUTHOR’SNOTE:Aprevious version of this articlewas presented at theAmerican Societyfor Criminology’s Annual Conference, San Francisco, 2000. The author wishes to thankPaige Harrison and anonymous reviewers for comments on previous drafts.


making in regard to sentencing.1 The purpose of this study is to present ananalysis of variables that prosecutors regard in their conception of an appro-priate criminal sentence.

REVIEW OF PROSECUTORDECISION-MAKING STUDIES

To guide the current analysis, a brief consideration is made of variablesthat have been shown empirically to affect prosecutor decision making atvarious case-processing stages. For example, it has been noted that varia-tions in the seriousness of the offense are correlatedwith both a prosecutor’sdecisions to file charges (Albonetti, 1987; Frase, 1980; Jacoby, Mellon,Ratledge, & Turner, 1982) and to expend greater resources on a case(Albonetti, 1986; Landes, 1971; McDonald, Rossman, & Cramer, 1979).As such, it may be likely that such a variable informs the prosecutor’s pref-erence for the nature of a criminal sentence.

There are three broad classes of variables that have been identified in theprosecutor decision-making literature:

Resource-oriented variables. Such variables are not related to any partic-ular case at hand, but rather are environmental considerations that prosecu-tors must regard in determining their available courses of action in all cases.For instance, the absence of pretrial detention facilities in a prosecutor’s dis-trict may affect a prosecutor’s preference for the denial of bail. When such aresource is scarce, it may be reserved only for those cases thatmost urgentlydemand pretrial detention. A very basic resource-oriented variable is theaverage caseload per prosecutor. The number of cases that prosecutors areexpected to handle should determine the decisions of the prosecutor as tohow to handle their respective volume of cases.

Legal variables. Legal variables are clearly case related. Such variablesgenerally provide justifiable grounds for opting to pursue cases in a particu-lar way. For example, if a case involves a serious crime, a repeat offenderand/or the evidence is strong, it should not be screened out.

Extralegal variables. These are variables for which gray areas exist inregard to the propriety of their use. For example, it is not just for prosecutorsto fail to pursue a case because they object to the lifestyle, language, orman-ner of a victim or witness. However, when the aforementioned variablesclearly affect the reliability of the evidence in a case, such as they would if


the evidence in the case consisted mainly of the testimony of this sole wit-ness, then seemingly irrelevant “extralegal” variables may become legallyrelevant (Adams & Cutshall, 1987). Prejudicial variables are an extremeform of extralegal variables and are rarely appropriate to consider in decid-ing how to pursue a case. Considerations of the offender’s or victim’s raceand/or gender, for example, should not affect the diligence of prosecutors inpursuing justice in a given case.

What has not been examined is the degree towhich prosecutors’personalpreferences serve as a source of variation in case-processing decisions.Jacoby (1979, p. 77) contends that “personal considerations” of prosecutorscertainly weigh on their decisions, but empirical pursuit of the interactionbetween these considerations, including “the prosecutor’s philosophy oflaw and his (sic) perception of the prosecutor’s purpose” and their preferredcase outcomes have been generally lacking.

A review of the variables that have been shown, empirically, to affectprosecutor screening and case settlement decisions are presented below inTable 1.2 The main feature of this review is the ability to classify mostcase-processing variables into three general classes—resource, legal, andextralegal/prejudicial variables.

PROSECUTORIAL SENTENCING PREFERENCES

Although judges pronounce criminal sentences, the prosecutor often rec-ommends sentences to the judge, especially in cases settled by pleas(Alschuler, 1983). The privilege of recommending sentences, however,does not represent the chief mechanism through which prosecutors affectsentencing. In the 1980s, legislatures began to limit the discretionary powerof judges by introducing sentencing guidelines to structure the sentencingprocess. Additionally, legislatures imposed three-strike laws and manda-tory add-ons for particular charges. The net effect of sentencing reformswas a transfer of discretion from judges to prosecutors in regard to sentenc-ing (Morris & Tonry, 1990; Tonry, 1996). Under such conditions, the prose-cutor has great latitude to (effectively) determine the sentence that offendersserve by choosing which charge to file (in full awareness of the presumptivepenalty and the presence of add-ons or three-strike stipulations). Thus,prosecutors may bargain with offenders both by sentence-bargaining (rec-ommending leniency) and charge-bargaining (filing charges with lowerpresumptive sentences). Furthermore, the power of prosecutors to affectsentences has not been significantly altered under conditions in which pleabargains are banned (Carns & Kruse, 1992) or constrained by legislatures

Rainville / PROSECUTOR SENTENCING PREFERENCES 297

(McCoy, 1993). In light of these enduring powers, the dearth of researchinto the sentencing preferences of prosecutors is a gross oversight of crimi-nal justice researchers.

The current studymakes an initial attempt to identify variables that affectprosecutors’preferences for sentences. There has been some theoretical but


Table 1: Variables Related to Prosecutor Decision Making at Various Stages ofCase-Processing (sources of empirical support)

Case screeningResource variables

Screening policy due to caseload (Boland & Forst, 1985).Legal variables

Quality of police evidence (Albonetti, 1987; Boland, Mahanna, & Sones, 1992;Feeney, Dill, & Weir, 1983; Forst, Lucianovic, & Cox, 1977; Spears & Spohn,1997).

Seriousness of the offense (Albonetti, 1987; Frase, 1980; Jacoby, Mellon, Ratledge,& Turner, 1982).

Prior criminal record (Adams & Cutshall, 1987; Albonetti, 1987; Neubauer, 1974).Extralegal or prejudicial variables

Victim relation to offender (Albonetti, 1987; Cannavale & Falcon, 1976; Forst et al.,1977; Spears & Spohn, 1997; Stanko, 1981-1982).

Demographics of offendera (Adams&Cutshall, 1987; Spears&Spohn, 1997; Stanko,1981-1982).

Summary (Plea) or full extent (trial-ready) prosecutionResource variables

Defendant’s costs for trial (Emmelman, 1996; Landes, 1971; Rhodes, 1974).Size of the pool of eligible defendants for trial (Boland & Forst, 1985).

Legal variablesQuality of police evidence (Albonetti, 1986; Feeney, Dill, & Weir, 1983; Forst &

Brosi, 1977; Forst&Lucianovic, 1977;McDonald,Rossman,&Cramer, 1979).Aggravating/mitigating circumstances related to crimeb (Albonetti, 1986;

Emmelman, 1996; Forst & Brosi, 1977; McDonald et al., 1979)Prior criminal record (Albonetti, 1986; McDonald et al., 1979; Pritchard, 1986).

Extralegal or prejudicial variablesMitigating circumstances related to defendantc (Emmelman, 1996; McDonald et al.,

1979).Demographics of defendant (McDonald et al., 1979; Pritchard, 1986).Victim relation to offender (Albonetti, 1986; McDonald et al., 1979).

a. Includes age, race, and gender.b. Includes the seriousness of the crime, in general, but also the presence of codefendants,provocation by victims, and other variables related to the criminal event that diminish orincrease culpability.c. Includes any favorable quality or action on the part of the defendant that defense attorneysmay emphasize to decrease the “value of the case” for prosecutors.

very little previous empirical work on prosecutor sentencing preferences,3

particularly in regard to chief elected prosecutors—those who determinesentencing policy in their jurisdictions.

METHOD

The current study seeks to determine, within the context of a given case,the rationales given by district attorneys for seeking (or not seeking) morerestrictive sentences. Scholars have suggested that prosecutors regard “get-ting time” as perhaps the only suitable form of punishment (Irwin&Austin,1994; Zimring & Hawkins, 1994). Diversion or other less-restrictive sanc-tions may be regarded as “a break” for the offender. In the current study, it isnot assumed that prosecutors prefer restrictive sentences, but that they rec-ognize and can articulate the degree to which they desire more-restrictivesentences. Some rationale for their preferred level of restrictiveness existsand may also be identified.

Sample and Method

The current study utilizes a survey instrument that elicits district attor-neys’ assessments of a suitable sentence for an offender presented in avignette (reproduced in the appendix).4 The survey was conducted by theInstitute for Law and Justice.5 Survey responses are presented for a nation-wide sample of 77 district attorneys.

After the presentation of the vignette, respondents are asked to identifycase factors that inform their preferred sentences.6 After doing so, districtattorneys are asked to conceive of the criminal sentence as consisting of 100units. The number of units that district attorneys claim the defendant shouldspend in a restrictive setting serves as the dependent variable in the currentstudy.7 The relationships between the factors that prosecutors identify asimportant in forming their preferred sentence and the degree of restrictive-ness of their preferred sentence are examined below. A single variable—thenumber of restrictive placement options available to district attorneys—isnot self-reported as it is an environmental variable that respondents are notlikely to self-report as a factor in their conception of a preferred sentence.

Bivariate Results—Difference of Means

Attempts were made to code district attorneys’ narrative responses intothe broad categories of legal, extralegal/prejudicial, and resource-oriented


factors. Several legal rationales were reported as relevant to sentencingpreferences, including the defendant’s use of drugs, his or her recidivistnature, and the potential harm associated with the nature of his or her crime.Two extralegal rationales were commonly cited—the age of the defendantand his or her work history. A resource consideration that affected sentenc-ing preferences was the availability of restrictive placement options in therespondent’s jurisdiction.8 Finally, three factors that are difficult to catego-rize were commonly reported. The first was a common claim that somecomponent of a less restrictive sentence would benefit the defendant. A sec-ond was the statement that probation had failed in the past to achieve itsdesired results. The final was a somewhat tautological claim that any otherapproach (beyond the one preferred by the respondent) was destined to fail.These variables are discussed more extensively in the concluding section.

Table 2 presents how often variables were reported as important in deter-mining a sentence. Means in independent sample t tests reveal the direction(and significance) of preferences for restrictive sentences of district attor-neys for each of the identified variables. For instance, the mean number ofsentence units that should be devoted to restrictive settings for respondentswho regard the defendant’s recidivism as an important consideration in sen-tencing is higher than themean for thosewho do not. As such, recidivism, inthe present case, serves to inform a preference for a more restrictive sen-tence among the study respondents.

The variable that was identified by the largest number of district attor-neys as important in sentencing was the drug use of the defendant. Some-what surprisingly, those who cited drug use as a variable in sentencingdesired no more or less of a restrictive sentence than those who did not.Though cited often, drug use does not appear to be linked to a preference formore restrictive sentences, possibly reflecting a split among district attor-neys in their conception of suitable criminal justice approaches to dealingwith drug use.

There were three rationales for which significant differences were foundbetween differing groups of respondents:

• District attorneys in jurisdictions with a greater number of restrictive place-ment options felt that significantlymore units of a sanction should be spent ina restrictive setting than those with fewer restrictive placement options,

• district attorneys who identified the defendant’s recidivism as a consider-ation in sentencing felt that significantly more units of a sanction should bespent in a restrictive setting than those who did not, and


• district attorneys who identified a belief that the defendant would benefitfrom a less restrictive placement devoted significantly fewer units of thesanction to restrictive placements than those who did not identify such abelief.

Multivariate Results

The extent to which the variables identified in Table 2 account for thevariation in the restrictiveness of preferred sentences may be determinedthrough regression. Additionally, variables that remain or become signifi-cant determinants of preferred sentences, controlling for all others, may berevealed through regression. For each of the variables, a dummy is created


Table 2: Difference of Means Tests by Identified Variables (sample = 77 districtattorneys)

SignificanceWhat Is Important of differencein Sentencing? Response n Mean (two-tailed)

Legal variables1) the offender’s recidivism No 60 18.8

Yes 17 31.1 .0162) the drug use of the offender No 45 20.9

Yes 32 19.41 .6593) the potential harm due to the No 58 20.4

offender’s modus Yes 19 20.0 .918Extralegal variables

1) the youthfulness of the offender No 60 21.57Yes 17 12.5 .064

2) the stable work history of No 61 20.5the offender Yes 16 19.23 .762

Resource variables1) the number of restrictive placement < 3 33 15.98 .029

options (this variable is not ≥ 3 40 23.2self-reported)

Other variables1) the need for rehabilitation of No 61 22.1

the offender Yes 16 11.2 .0162) the inevitable failure of other No 62 21.57

correctional approaches Yes 15 14 .0973) the failure of probation No 62 20.6

Yes 15 17.5 .559

that is consistentwith the coding inTable 2 (0 if “X is not important”; 1 if “Xis important in sentencing”). Table 3 presents the regression results on thedependent variable of the number of units of the sanction that district attor-neys prefer that the defendant spend in a restrictive setting.

The overall regressionmodel is significant and explains about 35%of thevariation in the dependent variable. Three variables were significant whencontrolling for all others: The resource variable measured as the number ofrestrictive placement options available to district attorneys, the belief thatsome benefit to the defendant would be gainedmore readily in a less restric-tive setting, and the statement that approaches other than that preferred bythe respondent were destined to fail.9

It is surprising to note that no legal or extralegal variables were signifi-cant in the regression model.10 The legal variable relating to the recidivistnature of the defendant failed to attain significance in the regression, yetwas nearly significant at the p< .01 level in the previous bivariate analysis.


Table 3: Ordinary Least Squares Regression Results

What is important in sentencing?

Variable Coding B SE t (sig.)

Constant .693 5.97 .117Legal variables

1) the offender’s recidivism 0 = No; 1 = Yes –6.41 4.16 –1.562) the drug use of the offender 0 = No; 1 = Yes 3.17 3.17 .9993) the potential harm due to the

offender’s modus 0 = No; 1 = Yes 5.43 3.73 1.462Extralegal variables

1) the youthfulness of the offender 0 = No; 1 = Yes –3.59 4.41 –.8162) the stable work history of

the offender 0 = No; 1 = Yes –3.68 3.36 –1.12Resource variables

1) the number of restrictiveplacement options Interval 7.88 2.166 3.64***

Other variables1) the need for rehabilitation

of the offender 0 = No; 1 = Yes –10.78 4.31 –2.70*2) the inevitable failure of other

correctional approaches 0 = No; 1 = Yes 11.18 4.36 2.56*3) the failure of probation 0 = No; 1 = Yes –1.24 5.05 –.245

Note: Dependent variable: Number of units of sentence to be spent in restrictive setting.N =77 district attorneys; R2 = .351; F = 3.781***.*p < .05 (two-tailed). **p < .01 (two-tailed). ***p < .001 (two-tailed).

DISCUSSION

The limitations of the current study should be acknowledged to temperthe credence given to the study’s findings and their implications. It isgranted that the design and sample size could be dramatically improved, butthe method and data generated are suitable for the purposes of conducting apreliminary analysis of sentencing preferences.

The first limitation is in the lack of variability of case factors. Thevignette did not present a White offender to one set of respondents and aBlack offender to others, nor were cases with evidence of differing strengthpresented to respondents, and so on. What may appear as a limitation, how-ever, actually helps to underscore the type of variation this study seeks tofind—variation among prosecutors. The research question is not, Do prose-cutors want longer sentences when evidence is stronger? but rather, Pres-ented with the same case, what factors are regarded as important by differ-ent prosecutors and how does this affect sentencing preferences?

A second criticism of the study may be that sentencing preferences iden-tified through a case vignettemethodology do not reveal the realworld pref-erences of prosecutors. First of all, a tradition of using vignettes to discernprosecutors’ preferences (for a review of this literature see McDonald,Rossman, & Cramer, 1979) exists and has been regarded as an acceptablemeans of studying those areas of prosecutors’ case-processing decisionswhere no official data exist (Spohn & Horney, 1992).

In regard to the specifics of the vignette presented in this study, the defen-dant in the vignette is not an atypical defendant. As a repeat offender with acrime modality that may be charged as a misdemeanor or felony, the defen-dantmay be themedian defendant—or, in thewords of several respondents,“Not the worst guy in the world, but not the best either.” As such, the ambi-guities of the presented case may elicit a wider variety of attitudes, ratio-nales, and justifications for sentencing preferences thanmore extreme cases(that are clearly suited for more- or less-restrictive placements). Nonethe-less, there are cases, at the poles, for which the current case vignette will notextend.

A final criticism is that a sample of 77 district attorneys from across thecountry may not be representative of the larger population of elected prose-cutors. There are two distinct criticisms. The first is that of sample size. Thesample employed is not particularly low by convention. Studies with prose-cutors as respondents commonly sample fewer prosecutors (Bishop,Frazier, & Henretta, 1989; Lagoy, Senna, & Siegel, 1976) or respondentsfrom fewer sites (McDonald et al., 1979). Such studies often employ


samples of convenience as well, owing to the noted avoidance of researchcollaborations on the part of prosecutors (Forst, in press) and nonresponseto mail surveys. More important than the size of the sample is whethernonresponse to the survey led to a nonrepresentative sample. The initialsample of district attorneys included three population strata (i.e., the “repre-sentativeness” of the sample was with regard to the size of jurisdictions thatdistrict attorneys served). The proportion of the total sample that eachstratum represents is matched in the final sample of actual respondents. Assuch, no clear, systematic nonresponse with regard to the size of jurisdic-tions was noted. Needless to say, results should be regarded with somedegree of caution.

The current study suggests that two classes of variables—legal and extra-legal variables—that have been correlated in countless examinations ofother case-processing decisions, are not major determinants of prosecutors’preferences in regard to sentencing. Ideally, those variables that shouldinform other prosecutor decisions—that is, legal variables (cf. James, 1995,for the duty of prosecutors to attend solely to legal case variables)—shouldserve to inform the preferred case outcomes of prosecutors. However, thisdoes not appear to be the case. In the multivariate analysis in the currentstudy, the recidivist nature of the defendant nearly attained significance as alegal variable related to sentencing preference.However, no legal or extrale-gal variables led to significantly more- or less-restrictive sentencing prefer-ences, controlling for other variables. This finding suggests that furtheranalysis of sentencing preferences may focus on other classes of variablesthat are not indigenous to specific cases, such as resource variables and, asJacoby (1979) noted, the personal values of prosecutors.

The current study finds that the choice set of the prosecutor, in regard tothe nature of available placement options, serves as the most significantdeterminant of sentencing preferences, when controlling for other vari-ables. The normative implications of this finding then are that those sen-tenced in jurisdictions with a greater array of restrictive placements aremore likely to be placed in restrictive settings. If this were, in fact, the case,there are grounds to object to such a justice system (believing that justiceshould be uniform across jurisdictions). However, it would be naïve toimagine that resources are distributed across jurisdictions in a uniformman-ner. As such, the finding that prosecutors’ preferences are subject to theresource constraint of their available choices is hardly surprising or novel(see Mellon, Jacoby, & Brewer, 1981), though it may be regarded as


problematic. It is perhaps obvious, though the implications are grand, thatincreasing the placement options of prosecutors may increase the level ofrefinement in their sentencing preferences.

Three variables were identified that are neither legal, extralegal, norresource variables. Two of these variables led to significant differences inpreferred sentences between district attorneys who did and did not identifythem:

• For district attorneys who expressed a belief that the defendant could benefitfrom a less restrictive setting, not surprisingly, less restrictive sentenceswerepreferred.District attorneys commonly cited a need for drug treatment and aneducational component for the offender and opted to devote fewer units ofthe sentence to restrictive settings. Both of these treatment components wereequated with a rehabilitative correctional approach that was, in turn, equatedwith less-restrictive placements.

• A second significant variable was the belief that correctional approaches thatdiffer from the respondents’ preferred approach were bound to fail. Respon-dents who identify such a rationale prefer restrictive sentences over lessrestrictive ones. Unlike the previous variable that identified a componentassociatedwith less-restrictive approaches as a justification for a less-restric-tive sentence, this variable is relatively self-reflective in nature. Respondentsrarely made a pretense of identifying a justifying virtue within their preferredapproaches. Many simply claim that they believe in punishment, which islinked intimately with more-restrictive correctional approaches.

Both of these variables link preferred correctional approaches with par-ticular levels of restrictiveness. Such an unquestioned linkage may lead dis-trict attorneys to fail to recognize correctional options with regard to twodistinct correctional dimensions—the level of restrictiveness and the degreeof availability of treatment components. Such thought leads to a binaryregard for sentencing outcomes of “hard time” versus “beating a rap.”Though such an approach may maximize the district attorney’s politicalcapital as a “tough on crime” official, it may undermine crime prevention,failing to match offenders with appropriate correctional resources.

Related more to the second variable, tautological justifications may alsoserve as a convenience to district attorneys but could ultimately prompt leg-islatures and criminal justice reformers to seek to structure sentencing out-comes around more concrete principles (as has been done already inresponse to, arguably, unprincipled sentencing on the part of the judiciary).


CONCLUSION

In conclusion, the sentencing preferences of district attorneys are deter-mined chiefly by the array of correctional options available in jurisdictions.Additionally, themanner inwhich district attorneys conceive of these place-ment options bears on the refinement of their placement decisions. Someevidence of a polar regard for less-restrictive/rehabilitative approaches andmore-restrictive/punitive approaches was noted. Generating correctionaloptions that combine these two distinct dimensions—level of restrictive-ness and level of treatment components—in a less stereotypical manner,should refine prosecutors’ sentencing preferences.

Legal and extralegal variables that emanate from the particulars of a case,though chief determinants of screening and case settlement decisions, werenot found to be determinants of sentencing preferences.As such, sentencingpreferences seem to be informed by identifiable principles related to correc-tional resources but also to variables that are neither indigenous to the caseat hand nor informed by resource constraints. Precise identification of thesevariables andwhether they relate to just or efficient case outcomes is criticalundone business for scholars of prosecution.

APPENDIX

JoeA. is a nighttime burglar of residences. He does not carry a gun or a knife. Hehas a pattern of breaking into houses when no one is home. He has one previousconviction for burglary of a house. He also has a juvenile offense for burglary. Hehas been on probation before and the probation agent reports that he generally com-plied with reporting requirements. He has also paid the majority of his fines.

Joe A. has a part-time job in a printing shop and is a fairly reliable employee. Hehas tried to get full-time work but no position is available at his current employers.He has lived at the same apartment for the past 2 yearswith twoother friends and thelandlord reports that he is fairly reliable on rent payments. His parents live in thearea and he helps support them when he can. Joe A. dropped out of school in the11th grade.

Joe A. is single and 22 years old. He frequently uses drugs and alcohol with hisfriends. Although he had a positive urinalysis for cocaine at the time of his arrest,Joe A. does not feel that his drug and alcohol use affects his behavior.


NOTES

1. One reviewer noted that several state statutes explicitly limit the role of the prosecutorin the determination of sentences. I do agree that the prosecutor is not empowered with a“sentencing function.” Judges traditionally impose sentences, but prosecutors may establishcase-processing policies or advise the court in such ways as to influence sentencing out-comes. In this, there are ends (in regard to the sentences imposed) that prosecutors hope toaffect in any given criminal case. The focus of this examination is, therefore, on the ends dis-trict attorneys would seek if they were the central arbiters of a criminal case.

2. A liberal conception as to what is deemed as empirical evidence of variables beingrelated to the decision to screen a case, accept or offer a plea, or go to trial is employed.Empirical methods to demonstrate relationships include quantitative analyses with suitablecontrols applied, ethnographic descriptions, and prosecutor self-report of variables theydeem as central to their decision making.

3. Notable exceptions are evaluations of mandatory sentencing reforms that consistentlyfind no initial or lasting modification of the going rate for criminal offenses and rarely aneffect on the rate of targeted crimes (Dickey & Hollenhurst, 1999; Loftin, Heumann, &McDowall, 1983; Stolzenberg&D’Alessio, 1994). Such findings suggest that changes in theseriousness of the offense as reflected by changes in the law do not alter prosecutors’prefer-ences for sentences. Another exception is McDonald, Rossman, and Cramer (1979), whofound that the seriousness of the defendant’s prior record was found to be unrelated to thesentence recommendation.

4. A similar method, using vignettes, was employed by McDonald et al. (1979) who useda decision simulation method in which assistant prosecutors choose from an array of cardswith labels such as “basic facts of the case,” “aggravating/mitigating circumstances,” and soon, and are asked to assist a less experienced prosecutor in deciding on a “bottom-line” pleaand sentence arrangement. Unlike the current study, respondents in McDonald et al. (1979)are to suppose they are in a hypothetical jurisdiction (the nature of which is specified) so thatjurisdictional differences are held constant.

5. Survey responses were returned between the summer of 1994 and January 1995. Theoriginal sample consisted of 112 district attorneys. The response rate was 68.8% with noindicators of systematic nonresponse from jurisdictions within specific population strata.Though the data set contains several features that make it particularly suitable for examiningsentencing preferences, one reviewer commented on potential generalizibility problemsassociated with the age of the data. A few factors may mitigate these problems. First,responses were provided well after the main wave of legislative structuring of criminal sen-tences had occurred (Tonry, 1996). As such, the prosecutor’s level of discretion hasremained, in relative terms, constant since the time of the survey.Additionally, the expansionof nontraditional prosecutorial approaches throughout and after the response period (such asneighborhood and community prosecution approaches) is unlikely to shift sentencing pref-erences in cases such as those presented in the vignette. Such approaches generally seekinformal solutions to low level crime and public order problems. The vignette features acrime modality (nighttime breaking and entering) that may not be dealt with informally.

6. Respondents are asked to identify what they regard as important in determining thesentence for the offender.


7. Such a formulation of the dependent variable, rather than eliciting a preferred sentencelength, avoids a reflection of the average sentence length within a jurisdiction.

8. This resourcemeasure consisted of the number of various forms of incapacitative sanc-tions—jail, prison, boot camp, intensive supervision, and so on, that were available in therespondent’s jurisdiction.

9. In a stepwise regression, these same three variables entered in the following order: (a)“all other approaches would fail,” (b) the number of restrictive placements, and (c) the needfor a less restrictive setting for the defendant. No additional variables entered the stepwiseregression. This three-variable model accounted for 27% of the variation in sentencepreferences.

10. In F-bloc tests, the addition of the two extralegal variables failed to significantlyimprove on a model that initially included only legal variables. The addition of the three“other” variables (as a bloc) significantly improved amodel including only legal variables.

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Albonetti, C. (1986). Criminality, prosecutorial screening, and uncertainty: Toward a theoryof discretionary decision making in felony case processing. Criminology, 24, 623-644.

Albonetti, C. (1987). Prosecutorial discretion: The effects of uncertainty. Law and SocietyReview, 21(2), 291-313.

Alschuler,A. (1983). Implementing the criminal defendant’s right to trial:Alternatives to theplea bargaining system. University of Chicago Law Review, 50, 931-1050.

American Bar Association. (1971). Standards relating to the prosecution function and thedefense function. In Project on standards for criminal justice. New York: Institution ofJudicial Administration.

Bishop, D., Frazier, C., & Henretta, J. (1989). Prosecutor waiver: Case study of a question-able reform. Crime and Delinquency, 35(2), 179-201.

Boland,B.,&Forst, B. (1985). Prosecutors don’t always aim to pleas.Federal Probation, 49,10-15.

Boland, B., Mahanna, P., & Sones, R. (1992) The prosecution of felony arrests, 1988. Wash-ington, DC: Bureau of Justice Statistics.

Cannavale, F., Jr., & Falcon, W. (1976). Witness cooperation. Lexington, MA: LexingtonBooks.

Carns, T., & Kruse, J. (1992). Alaska’s ban on plea bargaining reevaluated. Judicature, 75,310-317.

Dickey, W., & Hollenhurst, P. (1999). Three-strikes laws: Five years later.CorrectionsMan-agement, 3(3), 1-18.

Emmelman, D. (1996). Trial by plea bargaining: Case settlement as a product of recursivedecisionmaking. Law and Society Review, 30(2), 335-360.

Feeney, F., Dill, F., & Weir, A. (1983). Arrests without conviction: How often they occur andwhy. Washington, DC: Government Printing Office.

Forst, B. (in press). Prosecution and sentencing. In J. Wilson & J. Petersilia (Eds.), Crime.San Francisco: ICS.


Forst, B., & Brosi, K. (1977). A theoretical and empirical analysis of the prosecutor. Journalof Legal Studies, 6, 177-191.

Forst, B., & Lucianovic, J. (1977). The prisoner’s dilemma: Theory and reality. Journal ofCriminal Justice, 5, 55-64.

Forst, B., Lucianovic, J., & Cox, S. (1977). What happens after arrest? Washington, DC:Institute for Law and Social Research.

Frase, R. (1980). The decision to file federal criminal charges: A quantitative study of prose-cutorial discretion. University of Chicago Law Review, 47(2), 246-330.

Irwin, J., & Austin, J. (1994). It’s about time: America’s imprisonment binge. Beverly Hills,CA: Sage.

Jacoby, J. (1979). The charging policies of prosecutors. In W. McDonald (Ed.), The prosecu-tor (pp. 75-97). London: Sage.

Jacoby, J., Mellon, L., Ratledge, E., & Turner, S. (1982). Prosecutorial decisionmaking: ANational Study. Washington, DC: Department of Justice, National Institute of Justice.

James, D. (1995, March/ April). The prosecutor’s discretionary screening and chargingauthority. The Prosecutor, 22-29.

Lagoy, S., Senna, J., & Siegel, L. (1976). An empirical study of information usage for prose-cutorial decision making in plea negotiations. American Criminal Law Review, 13,435-472.

Landes, W. (1971). An economic analysis of the courts. Journal of Law and Economics, 14,61-107.

Loftin, C., Heumann, M., & McDowall, D. (1983). Mandatory sentencing and firearms vio-lence: Evaluating an alternative to gun control. Law & Society Review, 17(2), 287-318.

McCoy, C. (1993). Politics and plea bargaining: Victim’s rights in California. Philadelphia:University of Pennsylvania Press.

McDonald, W. (1979a). Preface to the prosecutor. In W. McDonald (Ed.), The prosecutor.London, Sage.

McDonald, W. (1979b). The prosecutor’s domain. In W. McDonald (Ed.), The prosecutor(pp. 15-51). London: Sage.

McDonald, W., Rossman, H., & Cramer, J. (1979). The prosecutor’s plea bargaining deci-sions. In W. McDonald (Ed.), The prosecutor (pp. 151-197). London: Sage.

Mellon, L., Jacoby, J., &Brewer,M. (1981). The prosecutor constrained by his environment:A new look at discretionary justice in the United States. Journal of Criminal Law andCriminology, 72(1), 52-81.

Morris, N.,&Tonry,M. (1990).Between prison and probation: Intermediate punishments ina rational sentencing system. New York: Oxford University Press.

Neubauer, D. (1974). After the arrest: The charging decision in Prairie City. Law and SocietyReview, 8, 495-518.

Pritchard, D. (1986). Homicide and bargained justice: The agenda setting effect of crimenews on prosecutors. Public Opinion Quarterly, 50(2), 143-159.

Rhodes, W. (1974). An economic analysis of the criminal courts. Unpublished Ph.D.dissertation, University of Minnesota.

Schiraldi, V., & Ziedenberg, J. (1999). The Florida experiment: An analysis of the impact ofgranting prosecutors discretion to try juveniles as adults: San Francisco: Justice PolicyInstitute.


Spears, J., & Spohn, C. (1997). The effect of evidence factors and victim characteristics onprosecutors’ charging decisions in sexual assault cases. Justice Quarterly, 14(3),501-524.

Spohn, C., & Horney, J. (1991). The law’s the law, but fair is fair: Rape shield laws and offi-cials’ assessment of sexual history evidence. Criminology, 29(1), 137-161.

Spohn, C., & Horney, J. (1992). The limits of legal reform. In C. Spohn & J. Horney (Eds.),Rape law reform: A grassroots revolution and its impact. New York: Plenum.

Stanko, E. (1981-1982). The impact of victim assessment on prosecutors’ screening deci-sions. Law and Society Review, 16, 225-240.

Stolzenberg, L., & D’Alessio, S. (1994). Sentencing and unwarranted disparity. Criminol-ogy, 301, 32.

Tonry, M. (1996). Sentencing matters. New York: Oxford University Press.Zimring, F., & Hawkins, G. (1994). Incapacitation: Penal confinement and the restraint of

crime. Cambridge, UK: Oxford University Press.

Gerard Rainville is a doctoral candidate and dissertation fellow at AmericanUniver-sity, Washington, DC. His main research interests are prosecution, sentencing, andthe accountability of criminal justice officials.


CRIMINAL JUSTICE POLICY REVIEW / December 2001Sanborn / PARENS PATRIAE FIGURE

A Parens Patriae Figure orImpartial Fact Finder:Policy Questions and Conflictsfor the Juvenile Court Judge

Joseph B. Sanborn, Jr.University of Central Florida

For several decades, juvenile courts functioned like clinics. Judges assigned therewere instructed to assume a variety of roles: jurist, psychologist, counselor, sociolo-gist, and parent. The In re Gault decision in 1967 granted juvenile defendants severalconstitutional rights that transformed juvenile courts into criminal court–like opera-tions. Juvenile court judges have not been told whether they should continue to bepaternal or emulate their counterparts in adult court; research has not addressed thissubject. In this study, 100 juvenile court workers (judges, prosecutors, defense attor-neys, probation officers) from three juvenile courts (urban, suburban, rural) wereinterviewed to ascertain how judges operate in juvenile court and what these workersperceive to be the proper role for the judge. The data show that most workers believethat the role of the juvenile court judge is and should be unique.

THE PROBLEM IN PERSPECTIVE

The Traditionally Different Role of a Juvenile Court Judge

TheAmerican systemof adversarial criminal justice expects its judges tobe neutral and impartial, especially at the trial stage. The judge’s obligationto perform duties impartially is cited in Canon 3 of the Model Code of Judi-cial Conduct (American Bar Association [ABA], 1999, p. 8). Impartialityhas been interpreted by experts tomean that judges should be passive, disin-terested, or disengaged when they decide cases (Leubsdorf, 1987; Marcus,1992; Shaman, 1996; Waynick, 1991).

For more than six decades after juvenile courts emerged in 1899, theexpectations of judges who handled delinquency cases there were quite dif-ferent from those of criminal court judges. Even in matters of crime,

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juvenile courtswere designed to operatemore like clinics than courts of law,pursuing the young offender’s rehabilitation rather than punishment.Instead of an adversarial process of fact-finding, juvenile courts employedmore of an inquisitorial approach, in which all parties—including the judge—were actively involved in finding out how to help the youthful offender(Fox, 1970; Melli, 1996). Rather than serving as neutral and impartial factfinders, judges were instructed to act very interested and engaged and tobehave like benevolent parents, a parens patriae figure who was concernedprimarily with the best interests of the child (Dunham, 1958; Lou, 1927;Mack, 1909). Although there is reason to question how benevolent andparental juvenile court judges have ever been (In re Gault, 1967), the paren-tal expectations of these judges remained largely unchanged and unchal-lenged until 1967.

In that year, the United States Supreme Court, in In re Gault, not onlyextended four trial-related constitutional rights to juvenile defendants fac-ing delinquent charges but also objected towhat had transpiredwhen judgesacted like parents at the adjudicatory hearing or trial. The implication ofGault was that judges legitimately could act like parental figures only dur-ing the pretrial and postadjudication stages of the juvenile court’s operation(Garff, 1973). Three years later, in In reWinship (1970), the Supreme Courtfurther supported its suggestion that trial judges in juvenile court are sup-posed to be impartial in fact-finding, if not to emulate criminal court judges,by raising the burden of proof needed to adjudicate or convict a delinquentyouth from a preponderance of evidence to beyond a reasonable doubt.Words like implication and suggestionmust be used in this context becausethe Supreme Court never clearly delineated many items, including itsexpectations regarding the role of the judge at the adjudicatory level in adelinquency matter. In the three decades since theGault andWinship cases,the Supreme Court has not engaged in any further constitutional renovationof the delinquency aspect of juvenile court procedure nor has it given anyfurther clarification as to what judges are expected to do in these cases injuvenile court.

Current Assumptions of the Juvenile Court Judge’s Role

Despite the Supreme Court’s lack of clarity and the absence of research,the ruling assumption of the day is that in delinquency cases the role of juve-nile court judges at the adjudicatory hearing parallels that of their criminalcourt counterparts. Juvenile justice textbooks simply assert this propositionas a given (Bartollas & Miller, 2001; Champion, 1998; Clement, 1997;


Drowns & Hess, 2000; Elrod & Rider, 1999; Siegel & Senna, 2000; White-head & Lab, 1999). Bolstering this assumption is yet another assumption,which is that punishment of offenders has replaced rehabilitation as themis-sion of the juvenile court. The developments that purportedly support thisview are twofold, both dealing with recent revisions of juvenile court stat-utes in nearly every jurisdiction. First, many legislatures have amended thepurpose clauses of their juvenile court law in the delinquency category so asto add provisions that call for punishment, accountability, and protection ofsociety, suggesting that juvenile courts should adopt a “get tough” attitude,especially with serious and chronic offenders. In a related issue, nearlyevery jurisdiction has modified juvenile court law so as to facilitate thetransfer of serious and chronic juvenile offenders to criminal court for trial.Together, these statutory revisions have been interpreted by experts to con-stitute a criminalization of juvenile court, meaning that the delinquencyaspect of the court is becoming a clone of criminal court by seeking the pun-ishment rather than rehabilitation of juvenile delinquents (Bazemore &Feder, 1997; Bazemore & Leip, 2000; Elsea, 1995; Fagan, 1999; Feld,1990, 1991b, 1993).

An alternative reading of events from Gault until today could lead tosome very different conclusions (or assumptions) about the nature of thejuvenile court process and the judge’s role in that forum. First, it could beargued that the Supreme Court’s limited intervention into juvenile courtdestroyed neither the judge’s parens patriae relationship to the youth nor thecourt’s obligation to attempt the rehabilitation of delinquents (Friedland,1995;Key Issues, 1993;Martin, 1992; Smith&Dabiri, 1995). For example,after theGault andWinship decisions had been delivered, the PennsylvaniaSupreme Court was asked whether defendants in delinquency matters wereconstitutionally entitled to jury trial in juvenile court. The first reasonoffered as to why juvenile defendants did not need trial by jury was thePennsylvania court’s belief

that the judges in the juvenile courts do take a different view of their role thanthat taken by their counterparts in the criminal courts. (In re Terry/McKeiver,1970, pp. 354-355)

The Pennsylvania court never explained what it meant by “differentview.” In upholding this ruling, the U.S. Supreme Court not only reprintedthe lower court’s belief about juvenile court judges in its decision, but alsoadded that jury trial would compromise the juvenile court’s rehabilitationmission (Logan, 1998) and also would

Sanborn / PARENS PATRIAE FIGURE 313

remake the juvenile proceeding into a full adversary process and will put aneffective end to what has been the idealistic prospect of an intimate, informalprotective proceeding. (McKeiver v. Pennsylvania, 1971, p. 545)

In addition, the recent statutory revisions do not require a conclusion thatjuvenile courts have abandoned either rehabilitation of delinquents or thetraditional role of their judges. For one thing, measures that facilitate thetransfer of serious and chronic offenders to criminal court actually allowjuvenile courts to avoid becoming even more punitive and less focused onthe best interests of the youth.Retaining themost serious young criminals injuvenile court encourages the system to employ long sentences in veryrestrictive facilities, which promote punishment and incapacitation morethan rehabilitation. Similarly, whereas punishment-related provisions havebeen added to many states’ purpose clauses, it is more important that reha-bilitation and family-oriented clauses have not been deleted from the juve-nile court statutes. Instead, juvenile courts have been instructed that theirmission is to employ both rehabilitation and punishment with delinquents(Hemmens, Fritsch, & Caeti, 1999), suggesting that serious punishmentshould be reserved for serious offenders (Applegate, Turner, Sanborn,Latessa, & Moon, 2000; Sanborn, 1994a).

In the end, two very different and untested interpretations of recent juve-nile justice history produce two very different assumptions about the cur-rent nature of the juvenile justice process and the role of the judge in thatprocess. The prevailing assumption perceives substantial equality in theprocessing of criminal charges between juvenile and criminal courts, whichhas important implications. That interpretation can add fuel to the campaignof those who want to abolish the delinquency jurisdiction of juvenile courtsdue to its redundancy. That interpretation already has added impetus toother serious developments as well, such as being used to justify the factor-ing of juvenile court delinquency records into subsequent criminal courtsentencing (Sanborn, 1998). The plausibility of the alternative assumptionwould, among other things, call into question the appropriateness of suchdevelopments.

Previous Research on the Juvenile Court Judge’s Role

There has been very little analysis of the judge’s role in delinquencycases in juvenile court, especially inside juvenile court. Many observers


have focused, instead, on the need for the judges who handle delinquencymatters to be proactive in promoting the juvenile court’smission in the com-munity, developing prevention programs, ensuring delivery of quality treat-ment services, and securing resources to fund these initiatives (Edwards,1992; McGee, 1985; National Council, 1989; Rubin, 1985). Theseproactive responsibilities typically are cited as what differentiates the roleof the juvenile court judge from the criminal court judge.

In terms of actual research, two studies from the 1970s found that thenumber of years on the benchwas related to the judges’being rehabilitation-or punishment-oriented in delinquency cases; more years of service meantjudges were more punishment oriented (Schumaker & Anderson, 1979;Susman, 1973). In the next decade, a statewide survey of juvenile courtworkers found that orientation (treatment vs. punishment/just deserts) wasrelated to court function; whereas defense attorneys and probation officersfavored rehabilitation, prosecutors and judges preferred just deserts(Farnworth, Frazier, & Neuberger, 1988). More recently, a Florida study ofjudges’ delinquency sanctioning orientation discovered most judgesbelieved juvenile court dispositions should be geared primarily to protectsociety, although rehabilitation was ranked higher than punishment as acourt priority (Bazemore & Feder, 1997). Finally, another state survey ofjuvenile court judges found them receptive to various aspects of restorativejustice (Bazemore & Leip, 2000).

Previous research, then, has accomplished very little in examining thejudge’s role in handling delinquency cases in contemporary juvenile courts.To date, no research has inquired of judges or other juvenile court workersas to whether the judge’s role in delinquency matters should or does differfrom the judge’s role in criminal court prosecutions. Interestingly, otherstudies have inquired of juvenile court workers as to whether prosecutorsand defense attorneys should or do operate differently in juvenile courtcompared to criminal court. On one hand, unlike criminal court prosecu-tors, juvenile court prosecutors were portrayed by their fellow workers asexperiencing conflict between promoting the best interests of the child ver-sus seeking to protect the public from juvenile crime (Sanborn, 1995). Simi-larly, unlike the unidimensional criminal court advocate, juvenile courtdefense attorneys were seen as being torn between representing the youth’slegal interests (the advocate role) as opposed to furthering the child’s treat-ment interests (the guardian role) (Sanborn, 1994b).


DIMENSIONS OF THE STUDY

Research Design and Method

This research was designed to investigate whether there are special roles,concerns, conflicts, and relationships experienced by judges who presideover delinquency matters in juvenile court. The study focused on the per-spectives of various juvenile court personnel to determinewhat, if anything,is special or different about being a judge in a juvenile court (as opposed tocriminal court); 100 workers from three juvenile courts were interviewed inthis regard.

An open-ended survey interview was employed by the researcher; a uni-form set of questions was asked to standardize the results and ensure accu-rate recording. A number of answers were simply yes or no, but these werefollowed by opportunities for the interviewees to amplify the meaning ofpoints they made; responses were then categorized accordingly. The inter-views were designed to take approximately 30 minutes; they were adminis-tered during the summer of 1994.1

Research Sites

Three juvenile courts were selected to gather sufficient numbers ofdiverse juvenile court workers to participate in the study and to determinewhether geography or size of the caseload or court had any bearing on thevarious perceptions of the juvenile court personnel (Feld, 1991a). The firstcourt was located in a large urban center (Court A), the second was in a sub-urban setting (Court B), and the third was from rural surroundings (CourtC). All three were situated in a northeastern state. The northeastern statecontained a number of characteristics typical in juvenile matters. For onething, although the state’s statute had been amended in the purpose clausearea to reflect concern for protecting the public from juvenile crime, the pri-mary mission of the court in delinquency matters was identified as pursuingwhat was best for the delinquent youths and their families. Second, juvenilecourts in this state have been given jurisdiction over delinquent acts, statusoffenses, and dependency and neglect situations. Only those juvenile courtworkers who had experience with the delinquency calendar were inter-viewed in this study, however. Finally, like virtually all other states, thejuvenile court statute of the northeastern state gives no guidance as to therole of the judge at various proceedings in delinquency matters.


The county in which Court A sat consisted of one major city. In 1994,approximately 10,000 delinquency petitionswere referred to juvenile court.There were 6 judges, 22 assistant district attorneys (including supervisors),and 17 assistant public defenders (including supervisors) assigned to full-time duty in the urban court; all participated in this study. Court-appointedand privately retained attorneys represented about 25% of the juveniledefendants. A sample of 10 of these lawyers was randomly selected fromcourt lists, which depicted the attorneys who appeared most frequently inCourt A. Of the 130 probation officers in the urban juvenile court, 10 wererandomly selected to be interviewed.

Court B was found in a county that served as a major suburban outlet forthe community in which the urban court was located. There was one formerindustrial city within the county limits but the predominant character of thecounty was suburban. There were nearly 2,000 delinquency petitions filedin 1994. Two masters, 4 judges, 2 assistant district attorneys, and 2 assistantpublic defenders,who handled 70%of the caseload,worked part-time in thejuvenile court; all participated in this study. Five of the 35 probation officerswho worked in Court B and 5 private attorneys were randomly selected forthe review.

Court C was situated in what was mostly a rural county with two majortowns. There were almost 800 delinquency petitions filed in 1994. Twomasters, 1 judge, 1 assistant district attorney, and 1 public defender, whohandled 85% of the caseload, were assigned to part-time duty in the ruralcourt; all participated in this study. Five of the 21 probation officers whoworked in Court C and 5 private attorneys were randomly selected for theinterview.

Altogether, 15 judges, 25 prosecutors, 20 public defenders, 20 privatecounsel, and 20 probation officers participated in this study.

RESEARCH FINDINGS

Special Roles, Concerns, and Conflicts

The respondents were first asked if, overall, there should be a differencein the judge’s role in juvenile versus criminal courts.Only 9 individuals, 8 ofwhom were from Court A and 6 of whom were prosecutors, claimed eitherthat there should be no difference at all or that the only difference involved aduty on juvenile court judges’ parts to balance the interests of the offenderand the community (which is arguably also an obligation of the criminal


court judge). The vast majority (91%) of the workers, however, perceived aclearly unique responsibility for the juvenile court judge; those in the ruralcourt were only slightly more likely than workers in the suburban and urbancourts to perceive a difference in the juvenile court judge’s role (seeTable 1). This distinct job concerned a duty to be particularly active andassertive, especially at disposition, in understanding both the youth and therehabilitation programs available to the juvenile justice system, and in indi-vidualizing the juvenile court’s response so as to promote the rehabilita-tion/best interests of the child. The urban public defenders added that juve-nile court judges should also seek to preserve the family and to adjudicatejuveniles only when absolutely necessary.

The respondents reinforced the idea of the difference in the juvenile courtjudge’s role when they were asked to identify this person’s paramount con-cern. More than one half of the workers and nearly equal proportions of theindividuals from all three courts declared that the child’s rehabilitationshould be the judge’s top priority. However, prosecutors clearly preferred(as did many judges) for the judge to balance the interests of the youth withthose of society. Finally, several workers wanted judges either to conductfair trialswhile also furthering the child’s best interests or to promote justicein general (see Table 2).

The workers were then asked if there was something special or differentabout the juvenile court judge’s role in making three decisions that mustalso be made in criminal court: detention or bail, adjudication or trial, anddisposition or sentencing. Whereas an overwhelming majority of therespondents thought that juvenile court judges should operate just like theiradult court counterparts at the trial stage (i.e., like a neutral fact finder), sim-ilar numbers of workers maintained that both the detention and dispositiondecisions called for very different considerations in juvenile court (seeTable 3).

According to most respondents, rather than looking only at the youth’spotential dangerousness and the protection of society, the judge should beconcerned about the child’s welfare, problems at home, and the parents’ability to care for and supervise the juvenile at the detention stage. Partici-pants from the suburban court unanimously supported the judge’s obliga-tion to return the child home and to avoid the use of detention if at all possi-ble; workers from the urban and the rural courts were only slightly lesscommitted to this proposition. Similarly, everyone but 4 prosecutors and 1judge fromCourtA identified a unique duty for the juvenile court at disposi-tion. This special responsibility involved the judge’s being very active in


Table 1: Percentages of Court Workers Describing Differences in Role of Juvenile Versus Criminal Court Judges

Court Worker Court

Differences Judge Prosecutor Defender Private Probation Total A B C

Rehabilitate juvenile 86.7 76.0 100 95.0 100 91.0 87.7 95.0 100Balance child and society 13.3 16.0 0.0 0.0 0.0 4.0 6.2 0.0 0.0None 0.0 8.0 0.0 5.0 0.0 5.0 6.2 5.0 0.0

Note: A = urban; B = suburban; C = rural.

Table 2: Percentages of Court Workers Identifying Paramount Concerns of Juvenile Court Judges

Court Worker Court

Paramount Concern Judge Prosecutor Defender Private Probation Total A B C

Rehabilitate juvenile 46.7 20.0 65.0 80.0 70.0 55 53.8 60.0 53.3Balance child and society 40.0 64.0 5.0 10.0 20.0 29 27.7 30.0 33.3Fair trial and child 13.3 0.0 20.0 5.0 10.0 9 9.2 5.0 13.3Justice 0.0 16.0 10.0 5.0 0.0 7 9.2 5.0 0.0


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Table 3: Percentages of Court Workers Giving Affirmative Responses to Special Roles for Juvenile Court Judges

Court Worker Court

Court Stage Judge Prosecutor Defender Private Probation Total A B C

Detention 93.3 76.0 100 90.0 75.0 86 83.1 100 80.0Adjudication 6.7 8.0 0.0 15.0 15.0 9 6.2 10.0 33.3Disposition 93.3 84.0 100 100 100 95 92.3 100 100Certification 100 36.0 100 100 100 84 76.9 95.0 100


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conducting a thorough investigation into the child’s needs, an inquiry thatwas supposed to focus on myriad aspects of the youth’s life, rather than onmerely the crime and record.

Between detention and disposition, however, the vastmajority of respon-dents wanted their judges to observe criminal court–like neutrality at theadjudicatory hearing. Only 1 private counsel and 1 probation officer fromeach court, 2 urban prosecutors, and 1 rural judge held that it was appropri-ate for juvenile court judges to reduce the level of proof necessary to adjudi-cate a youth if the latter was believed to be in need of the court’s help.

The workers were also asked to define the role of the judge at the certifi-cation stage,where the decision ismadewhether to transfer the defendant tocriminal court. Much like detention and disposition, certification wasdescribed by a vast majority of respondents as requiring a special judicialexpertise in deciding which youths were beyond the rehabilitation capaci-ties of the juvenile system; 16 prosecutors (all but one of whom were fromCourt A) wanted judges to simply weigh the interests of the child againstthose of the community at transfer.

The next question asked whether judges experienced role conflict ateither the adjudicatory or disposition stages. Nearly three fourths of theworkers believed that judges experienced conflict at the adjudicatory hear-ing; only prosecutors tended to think judges were not torn between neutral-ity and paternalistic concerns at trial (see Table 4). Almost equal numbers ofindividuals from the urban, suburban, and rural courts perceived conflict.They maintained that judges at least occasionally adjudicated defendantswho were not guilty beyond a reasonable doubt to channel them officiallyinto rehabilitation programs and/or deferred adjudication for both guiltyand not guilty youths to help these children without giving them a delin-quent record.

Fewer respondents ascertained a conflict for the judge at the dispositionlevel; only judges believed they were not torn between promoting the inter-ests of the community versus those of the child (see Table 4). Only a slightmajority of Court A workers argued conflict existed at sentencing; manyothers from this court explained, however, that their answer would havebeen affirmative if the court had had sufficient finances and resources to betough on delinquents and to represent the interests of society. Actually, amajority of the respondents from Court B thought there was no sentencingconflict for the judge because the community’s interests were definitely notequal in importance to the child’s in their court. Surprisingly, two thirds ofthe workers from Court C perceived conflict at this stage, despite the


Table 4: Percentages of Court Workers Giving Affirmative Responses to Role Conflicts for Juvenile Court Judges

Court Worker Court

Court Stage Judge Prosecutor Defender Private Probation Total A B C

Adjudication 53.3 40.0 100 90.0 75.0 71 70.8 70.0 73.3Disposition 26.7 44.0 65.0 55.0 75.0 54 55.4 40.0 66.7


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relative absence of serious crime; a lack of adequate resources was cited asthe source of the conflict.

The final two behavior-oriented questions asked whether judges did any-thing they should not do, and, conversely, whether judges did not do thingsthey should do. More than three fifths of the respondents (62%) answeredthe first question positively; prosecutors and public defenders were particu-larly critical here (see Table 5). Workers from the urban court complainedmore frequently than those from the suburban and rural courts that judgescommitted wrongs in juvenile court. Similarly, more than two thirds of thesample (68%) stated that judges were not doing all that they should. Again,the respondents from Court A were more likely than those from Courts Band C to identify judges not fulfilling their obligations.

Almost one third of the sample, especially defense counsel and urbancourt workers, accused judges of reducing the level of proof required toadjudicate defendants so as to extend help to apparently needy, but possiblyinnocent, youths. Both prosecutors and public defenders, again from theurban court, were prone to argue that judges inappropriately deferred adju-dications; whereas prosecutors noted that the “deferreds” usually repre-sented merely another extension of leniency to the offender, defendersobserved that many other nonconvictable defendants had been givendeferreds as a compromise verdict when acquittal was actually supportedby the evidence. Two other complaints mentioned by at least 10 workersincluded urban court judges’ taking over of a case by pressuring opposingcounsel to hasten or even to omit the presentation of evidence and wit-nesses, and the tendency of judges from all three courts to rely too heavily(or even exclusively) on the probation officer’s evaluation of certification ordisposition issues (see Table 5).2

With respect to nonfeasances, judges were most often accused of notworking hard enough, not paying enough attention to cases, and not suffi-ciently examining treatment alternatives for juvenile offenders; this com-plaint occurred most often in Court A. Urban court workers were criticalthat judges in their jurisdiction were no longer responsible for conductingreviews of dispositional orders. Instead, one judge, who held neitheradjudicatory nor dispositional hearings, supervised all reviews so as toexpedite the process. Several prosecutors and public defenders from CourtsA and B complained also that judges did not give them enough time to con-duct a full hearing and would not stay out of the trial. Finally, a number ofprosecutors and one rural judge maintained that judges were ignoring theseverity of the crimes committed by many juveniles (see Table 5).3


Table 5: Percentages of Court Workers Citing Malfeasances and Nonfeasances of Juvenile Court Judges

Court Worker Court

Judge Prosecutor Defender Private Probation Total A B C

MalfeasancesReduce proof 6.7 20.0 80.0 30.0 15.0 31 36.9 20.0 20.0Defer adjudication 0.0 60.0 40.0 5.0 10.0 26 33.8 15.0 6.7Take over case 0.0 24.0 45.0 15.0 5.0 19 29.2 0.0 0.0Rely on probation 13.3 20.0 20.0 20.0 0.0 15 15.4 15.0 13.3

NonfeasancesNot working 20.0 20.0 40.0 40.0 40.0 32 38.5 20.0 20.0No reviews 6.7 24.0 25.0 0.0 5.0 13 20.0 0.0 0.0Not giving time 0.0 24.0 35.0 0.0 0.0 13 16.9 10.0 0.0Ignoring crime 6.7 40.0 0.0 0.0 0.0 11 13.8 5.0 6.7

Note: A = urban; B = suburban; C = rural. Includes nonfeasances cited by at least 10% of the court workers.

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Special Relationships, Status, and Training

The respondents were next asked whether the juvenile court judge’s rela-tionshipwith opposing counsel and the probation officer should be differentthan the interactions among these individuals in criminal court. More thantwo thirds of the workers (68%) and majorities in all five groups of person-nel (especially public defenders) answered positively. Public defenders andthe urban courtmembersweremore likely than those from the suburban andrural courts to limit the extent of the judge’s special relationship to includeonly the probation officer. The judges and many workers in Courts B and Cfavored a complete partnership involving the judge, opposing counsel, andthe probation officer. Most personnel in all three courts acknowledged thatthe judge did indeed enjoy a specialworking relationshipwith the probationofficer. The urban court workers, however, were particularly adamant aboutthe implausibility of a complete partnership among the four major charac-ters in juvenile court; the relationship between prosecutors and publicdefenderswas described as too adversarial, if not antagonistic, to permit anykind of partnership to develop.

Only judges and the probation officers tended to believe that the formerdid not rely too heavily upon the latter in juvenile court decision making;Court A members were particularly likely to perceive this reliance as exces-sive. Some workers defended this heavy reliance because probation officerswere the only ones who thoroughly knew the defendant, the family, treat-ment programs, and what would likely work to the benefit of the youth.Numerous prosecutors and public defenders, especially from the urbancourt, accused judges, however, of desiring merely to move cases and of notdemanding accountability from probation officers; instead, some judgeswere described as simply deferring completely to whatever probation offi-cers devised as treatment plans.

Majorities in all five groups of workers and more than two thirds of thesample (68%) stated that the juvenile court judge occupied a lesser statusthan that enjoyed by the criminal court judge. This feeling was more preva-lent in the suburban and rural courts than in the urban court. Less than onethird of the respondents (32%) held that juvenile court served as a trainingground for judges;4 only probation officers tended to perceive juvenilecourts as operating in this capacity. Workers from the suburban and ruralcourts were much more likely than those from Court A to describe juvenilecourt as staffed by rookie or inexperienced judges.

Only a handful of workers (including 4 urban judges) thought judges didnot require special training to work in juvenile court. The vast majority of


respondents (92%) countered that judges needed special training in childpsychology, family dynamics, treatment programs, and institutional regi-mens to do a good job in juvenile court. Nevertheless, except for 2 workersfrom Court A, the respondents held that the judges in their courts receivednothing more than on-the-job training.

Types, Power, and Needed Changes

Next, the workers were asked whether different types of judges appearedin juvenile court. Only 10 individuals answered negatively; 5 were judgesand 6 were from Court C. Most respondents simply divided the judges intoeither punishment versus rehabilitation camps (especially probation offi-cers) or prosecution versus defense categories (especially prosecutors andprivate counsel).

Another 20 individuals from Court A contrasted two of their judges asbeing legally oriented as opposed to resolving cases from a gut instinctapproach. Several urban court members described one of their judges as acompromiser, who adjudicated almost every defendant but also grantedprobation in virtually every case. Finally, a number of respondents differen-tiated judges who did not care about the job versus those who truly believedin the juvenile court’s mission, and those who were rubber stamps of theprobation officer versus those who were independent thinkers.5

Only one fifth of the sample thought judges were vested with too muchpower in juvenile court. Of these individuals, 2 were private counsel, oneeach from the suburban and rural courts. Five public defenders and 2 proba-tion officers from Court A joined 11 urban prosecutors in complaining thatjudges had no one to answer to in juvenile courts. Judges were perceived asbeing not accountable in their decision making because the rarity of appealsmeant juvenile court cases were subject to little, if any, outside scrutiny.

Finally, the respondents were asked if changes were needed in the role ofthe juvenile court judge; less than one half (43%) answered affirmatively.Changeswere recommended bymore urban court workers than suburban orrural court members; more prosecutors and public defenders were con-vinced of the necessity for role changes than were the other respondents.Only 1 suburban judge saw a need for a change in his role in juvenile court;he was joined by 8 others who maintained judges required more trainingbefore being allowed to work in juvenile court. Three other changes werementioned by 8 individuals: more accountability, more neutrality at trial,and more time taken at trial and disposition. Of the prosecutors, 5 wantedjudges to regard juvenile crime more seriously and to remember the com-


munity’s interests. Finally, 4 individuals suggested that judges rely less onprobation officers.6

DISCUSSION

The data challenge a variety of assumptions about the role of the juvenilecourt judge and the nature of the juvenile court process. Contrary to today’sprevailing assumption, the pursuit of youthful offenders’ rehabilitation stillappears to be considered by nearly all of thosewhowork in juvenile court asthe primary concern and responsibility of the juvenile court judge. It isinteresting that neither the location of the court nor the occupation of theworker affected that perspective. Moreover, judicial responsibility was per-ceived to be relevant to all stages of the juvenile court except for theadjudicatory hearing. Judges were described as needing to conduct thor-ough examinations of defendants, their families, and their homes so as tofurther the chances of both rehabilitating the youth and preserving the fam-ily. Problematic, however, was the perception of most workers in all threecourts that the rehabilitation concern affected the adjudicatory hearing aswell. Contrary to the assumptions and directions of Gault and Winship,many workers reported judges’wrongly reducing the level of proof to adju-dicate youths who appeared to need the court’s help and/or inappropriatelydeferring adjudications so as to get the child help without establishing adelinquent record.

Contrary to the assumptions and findings of previous research that hasdocumented a “geography of justice” within the juvenile justice system(Feld, 1991a), the data from this study suggest there may be as much ormore variation or “geography” within juvenile courts as between them.Majorities in all three courts described judges with very different orienta-tions and behavior.

Finally, there were several results that contradict the wishes, if notassumptions, of rehabilitation-oriented defenders of juvenile court. First,the ideal situation, where all court personnel work in unison toward theyouth’s rehabilitation, was not identified as existing in any of the courts andwas considered impossible in the very adversarial urban court. More dis-couraging, perhaps, is that juvenile court judges were perceived as occupy-ing a lesser status than their counterparts in criminal court by majorities inall three courts, whereas juvenile court was portrayed as a training groundfor judges by most workers in the suburban and rural courts. Most damag-ing, nevertheless, are two other findings. First, although nearly everyrespondent stated that juvenile court judges needed special training, nearly


every worker claimed that judges were not receiving this training.Relatedly, between the “notworking” and “not giving time” responses iden-tified in Table 5, almost one half of the personnel alleged that juvenile courtjudges were not fulfilling their responsibilities by personally determiningthe treatment needs of the youths. This position was reinforced by most ofthe workers, who claimed that the judges relied too heavily on the recom-mendations of probation officers. These criticisms were most pronouncedin the heavy volume urban court. They may lend credibility to recent obser-vations by some critics who contend that the goal of juvenile justice is nei-ther punishment nor rehabilitation, but rather “actuarial justice” or simplythe efficient processing of cases (Kempf-Leonard & Peterson, 2000).

CONCLUSIONS AND IMPLICATIONS

Before any conclusions and implications can be drawn from this study itmust be acknowledged and even emphasized that this was exploratoryresearch, which involved only 100 workers in three juvenile courts. Thedata are regional and meaningful analysis was precluded by the small sam-ple size. Nevertheless, the agreement among personnel that there is stillsomething special and different about the role of the juvenile court judgewas widespread and suggests that this view may not be limited to these par-ticular courts.

It seems reasonable to conclude, then, that in many juvenile courts todayrehabilitation is still perceived to be the primary responsibility of the judgeas well as the primary mission of the court. This result would be consistentwith the primary message of most states’ purpose clauses. In that respect,juvenile court judges who actively pursue the rehabilitation of youthfuloffenders and the preservation of their families arguably are adhering to thedictates of Canons 2 and 3 of the Model Code of Judicial Conduct, whichrelate the judge’s duty to be faithful to the law (ABA, 1999). Of course, tothe extent that this purpose clause message permeates virtually every aspectand nearly all hearings in the juvenile court process, it may be unrealistic,and even unreasonable, to expect all judges to turn this paternal concerncompletely off during the adjudicatory hearing. In addition, there may because for concern as to whether juvenile court judges are sufficientlyinformed about the youths’ problems and their solutions and/or spendingadequate time and attention in developing rehabilitation dispositions.


Another conclusion that appears plausible is that claims of the juvenilecourt’s criminalization have been exaggerated. To be sure, some judges insome juvenile courts are likely to be fairly punitive with serious and chronicoffenders. Current juvenile court statutes are tending to mandate such aresult. This does not convert, however, to an across-the-board abandonmentof rehabilitative interventions for all juvenile offenders. The prospect of atwo-tiered juvenile court, which divides its offender population by offenseand record and responds more punitively to the more serious population, islogical and consistent with both the purpose clauses and mandatory sen-tencing provisions of many states’ statutes (Sanborn, 1994a).

These conclusions, in turn, raise at least three questions having implica-tions for juvenile and criminal court policies. The first question is whetherrelatively nonserious young offenders typicallywill elicit paternal concernsfrom judges and perhaps from others, such as defense attorneys (Sanborn,1994b). If the answer to this question is yes, it may be unrealistic to expectgreat success with policies that seek increased punishment for these offend-ers in juvenile court. In other words, perhaps legislatures should expectjuvenile court judges to pursue the rehabilitation, and not the punishment,of at least nonserious offenders.

The second question is related to the first and askswhether the legislatureshould mandate training for juvenile court judges. Unlike the infliction ofpunishment, the dispensing of rehabilitation requires knowledge of both theproblems youths experience and the treatment programs that are availableto resolve those problems; juvenile court judges who have not been trainedcannot be expected to advance the cause of rehabilitation. Similarly, a pol-icy that would require judges to document for the court record all the con-siderations and efforts that were devoted to the youth’s disposition couldhelp dispel the perception that judges do not fulfill their responsibilities torehabilitate juveniles.

The third question is related to the first two and askswhether the presenceof a rehabilitation ethic (and judges who operationalize it in juvenile court)compromises the due process foundation of a juvenile court adjudication. Ifthe answer to this question is yes, it may be constitutionally problematic toadopt policies that allow these adjudications to result either in very punitivejuvenile court sanctions or sentence enhancements in subsequent criminalcourt sentencing.

Much more research and reflection will be required to successfullyresolve these questions and policy issues.


NOTES

1. The data in this study were collected in the summer of 1994, the last opportunity theresearcher had to devote a sustained period of time to conducting the interviews. Inasmuch asthe research occurred at the height of the most recent juvenile crime wave, the authorbelieves the data are not compromised by their age. Informal conversations with numerousjuvenile court workers since that year add support to the belief that fundamental changeshave not occurred in the interim.

2. Six or fewer respondents cited the following misbehaviors by judges: in Court A, forc-ing plea bargains, punishing delinquents, and deferring to the Department of Public Welfarein decidingwhere youths should be incarcerated; in Courts A andB, deferring to prosecutorsand bending rules of evidence; and in Court C, using their own philosophy.

3. Six or fewer workers accused judges of not: pushing for more resources, followingrules of evidence, ruling properly on motions, and certifying enough defendants to criminalcourt in the urban court; controlling the prosecutor in the suburban court; and forcing peopleto do their jobs in the urban and rural courts.

4. Among the majority who claimed that juvenile court did not serve as a training groundfor judges were many who described juvenile court service, instead, as either a dumpingground/punishment or a retirement area/graveyard.

5. Three or fewer workers described judges as plea bargainers, beginners, resourceconservers, political, and consensus builders versus ignoring others.

6. One or two workers recommended that judges should review their own dispositions,force probation officers to do their job, bemore uniform in their decisionmaking, and be lessintimidated and controlled by the prosecutor.

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Feld, B. C. (1991a). Justice by geography: Urban, suburban, and rural variations in juvenilejustice administration. Journal of Criminal Law and Criminology, 82, 156-210.

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CRIMINAL JUSTICE POLICY REVIEW / December 2001Murphy, Wilds / X-RATED X-RAY INVADES PRIVACY RIGHTS

X-Rated X-Ray InvadesPrivacy Rights

Michael C. MurphyLangston University atOklahoma State University, Tulsa

Michael R. WildsNortheastern State University atOklahoma State University, Tulsa

X-rated X-ray machines utilizing backscatter technology are strip-searching unsus-pecting travelers as they pass through our nation’s border and airport checkpoints.These machines not only check for explosives, drugs, or other contraband, but alsoare capable of counting hairs on a man’s chest or measuring the depth of a woman’snavel. At the same time the machines are checking for contraband, they can producean X-rated image comparable in quality to those found in Playboy magazine. Thisarticle focuses on the efficacy of the device, the need to protect society, and individualprivacy rights in light of the boundaries provided by Fourth Amendment search andseizure laws. Supporting arguments advanced for use of backscatter technologyinclude (a) the enhanced security to society, (b) reduced invasiveness of the search,and (c) the reduction in health risks associated with the use of the devices. Opposingarguments focus upon the slippery slope and unacceptable degree of intrusion uponthe privacy rights of the individual. The article concludes by framing the legal argu-ments within an analysis of the opportunity costs associated with implementation ofthe X-rated X-ray devices.

Scientific advances in technology are rapidly rendering traditional barriersof privacy obsolete. For example, parabolicmicrophones can detect conver-sations through closed windows from a distance of two blocks. Thermalimaging can detect body images behind concrete walls. Vapor sensors candetect alcohol on a driver’s breath from a distance of 3 feet. And mostrecently, X-rated X-ray machines are strip-searching travelers as they passthrough customs and security checkpoints at our nation’s borders and air-ports (Turay, 2000).

Using what is known as backscatter technology, these X-ray machinesproject low-power doses of X-ray energy at travelers who are suspected of

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carrying drugs, weapons, or contraband through security or border check-points. Similar to a sonogram, beams of low-power energy rays are pro-jected at and reflect from an object being scanned at differing rates accord-ing to their density (Schlesinger, 2000). Materials with low atomicnumbers, such as organic compounds like weapons, explosives, or drugs,are highlighted and discriminated in the projected image (Rutan, 2000).Therefore, the backscatter machine operator is capable of detecting travel-ers who might be carrying cocaine, marijuana, plastic explosives, or com-ponent weapons through security checkpoints.

The downside is that the images generated by backscatter devices are soclear they reveal every nook and cranny of a traveler’s body. By integratingdigital technology with the backscatter scan, the machine operator is able tomap a very realistic picture of the traveler pinpointing not only weapons,drugs, and contraband, but also the traveler’s breasts, buttocks, and genita-lia. In fact, the resolution is so clear that the operator can literally count thehairs on a man’s chest or measure the depth of a woman’s navel. Essentially,machine operators are capable of strip-searching travelers and capturingtheir naked images on their high-tech digital computer camera as they passthrough security checkpoints.

MAGNETOMETER VERSUSBACKSCATTER TECHNOLOGY

The primary reason the federal government supported backscatterresearch in 1992 was to fill the security void presented by magnetometerscurrently used in airports, schools, courthouses, and at border checkpoints(Hawn, 1999). Magnetometers, more commonly known as metal detectors,work by generating a magnetic field. The magnetic field is transferred toany conducting material, such as metal, that passes through the portal of themagnetometer. The transferred magnetic field creates electrical currentswithin the metal and forces it to produce a magnetic field of its own. Themagnetometer detects this change in the magnetic field and signals theoperator that metal is present in the portal. However, plastic explosives arenot made of metal. They consist of carbon, oxygen, and nitrogen compo-nents that are virtually undetectable by traditional magnetometers. Accord-ingly, security agents must supplement magnetometers with explosivesniffing dogs, vapor detectors, or chemical swabs to detect plastic explo-sives or component weapons (Yeaple, 1991, pp. 61-68). Backscatter iscapable of detecting both metallic and nonmetallic objects; therefore, suchtechnology is superior to the currently used magnetometer technology.


In fact, backscatter technology has been so successful at detecting weap-ons, drugs, and other contraband that the government is planning to expandits use of the devices (Hawn, 1999). Currently, the government is using thetechnology at various military bases, embassies, prisons, border check-points, the White House, and other high security facilities (Hawn, 1999).The backscatter devices are also being used at customs checkpoints atmajorinternational airports such as Atlanta, Chicago, Dallas, Los Angeles,Miami, New York Kennedy, Washington Dulles, and Newark Internationalairports (U.S. CustomsOfficials Use X-rays to See All, 2000). It is estimatedthat by the end of 2001, backscatter devices will be installed in almost everymajor airport in the United States.

ISSUES, IMPLICATIONS, ANDLEGAL PRECEDENTS

The implementation and success of backscatter technology inevitablylead to conflict. Personal privacy often loses in the triumph of technology.Anytime technology enables law enforcement to electronically strip-searchsuspects, questions of decency and individual privacy surface. Accordingly,the salient legal issue becomes, At what point does backscatter become anunreasonable search or seizure of a person, papers, or personal effects?

When confrontedwith issues of privacy and unreasonable search and sei-zure, the Supreme Court looks to the Fourth Amendment for guidance. TheFourth Amendment protects the “right of the people to be secure in theirpersons, houses, papers, and effects, against unreasonable searches and sei-zures.” The overriding purpose of the Fourth Amendment is to ensure thatreasonable expectations of personal privacy and dignity are balancedagainst the powers of the government in executing searches and seizures(Boyd v. United States, 1886). Accordingly, the Fourth Amendment pro-tects against unwarranted intrusions on individual privacy by the govern-ment. Before theCourt will justify an exception to the FourthAmendment’sprobable cause and search warrant provisions, the government must showthat the need to protect society outweighs the actual, subjective expecta-tions of privacy and, second, that the expectation of privacy is one that soci-ety is prepared to recognize as “reasonable” (Katz v.United States, 1967).

The issue of what is reasonable is still being litigated by the courts. Theconcept of reasonable suspicion is not readily, or even usefully, reduced to aneat set of legal rules (Illinois v. Gates, 1983). Generally, the Court looks tothe “totality of the circumstances—the whole picture.” The Court looks tothe probability rather than certainty that criminal activity is afoot (United

Murphy, Wilds / X-RATED X-RAY INVADES PRIVACY RIGHTS 335

States v. Cortez, 1981). The degree of “reasonable suspicion” for a custodialinterrogation must be supported by objective, articulable facts and circum-stances that surround the event (Terry v. Ohio, 1968). Some factors thatmight be cited as objective, articulable circumstances include the follow-ing: (a) the location of the search, (b) degree of intrusiveness, (c) searchtime, (d) physical contact, (e) exposure of intimate body parts, (f) amount offorce employed, and (g) the extent of deprivation of personal dignity (Valid-ity of Border Searches and Seizures by CustomsOfficers, 2000). Although asingle factor in isolation might not constitute reasonable suspicion, severalfactors considered in their totality might amount to reasonable suspicion(Florida v. Royer, 1983). The most predominant factor the Court scrutinizesis whether the methods employed by law enforcement are the least intrusivemeans “reasonably” available in a “reasonably” short period of time (U.S. v.Montoya de Hernandez, 1985). By doing so, the Court strives to preservethe greatest degree of individual expectations of privacy while protectingthe security and safety of society.

Unfortunately, this creates a flexible standard where the term reason-ableness is difficult to define. Each case is evaluated according to the cir-cumstances surrounding the search or seizure (United States v. Sokolow,1989). Ultimately, the Court must determine what degree of intrusivenesson individual privacy is reasonable in light of the “substantial and real risk”to public safety (Chandler v. Miller, 1997).

Border and airport searches present elevated threats to the safety andsecurity of society. Generally, the traveler’smoderate delay is justified as anadministrative, border, or consent search. Because the governmental needto protect society is heightened, the Court reduces the Terry requirement ofreasonable suspicion. However, the nature and quality of the intrusion onthe individual’s Fourth Amendment interests must still be balanced againstthe importance of the governmental interest alleged to justify the intrusion(U.S. v. Place, 1983).

ARGUMENTS SUPPORTINGBACKSCATTER TECHNOLOGY

We are already accustomed to submitting our bodies and our personaleffects to searches when the government’s interest in security and safety isjustified. On a daily basis, we routinely submit to security checks at court-houses, border checkpoints, airports, schools, military bases, and other sen-sitive government installations. In such instances, the courts have justifiedthe commonplace use of magnetometers, electronic wands, and similar


devices as exceptions to the probable cause and warrant requirements of theFourth Amendment under the rubric of administrative searches, bordersearches, or implied consent searches (U.S. v. Montoya de Hernandez,1985; Schneckloth v. Bustamonte, 1973). Therefore, neither the public’sacceptance nor the Court’s legal justification of the government’s enhancedsecurity measures employed in nonpublic, semipublic, or highly controlledforums is at issue. The issue more narrowly focuses on how backscatterdevices differ from the already accepted and legally sanctioned use of mag-netometers in terms of (a) enhanced security, (b) reduced searchinvasiveness, and (c) fewer health risks.

Enhanced Security

The enormous drug and security crisis in the United States justifies theselective use of backscatter devices. Annually, more than 165,000 illegalaliens, 700,000 pounds of cocaine, and 10 million pounds of marijuanacrossed security checkpoints within the United States (Hawn, 1999). Thethreat of hijacking and terrorism lurks in the minds of travelers as 1.5 mil-lion passengers board American-based flights every day (Rogers, 1997).Without question, the current security measures employed by law enforce-ment are not adequate.

When the safety of members of society is at risk, the government morereadily justifies the use of enhanced security measures. In nonpublicforums, such as prisons or military bases, the need for safety and security isparamount. Similarly, in semipublic forums, such as schools or courtrooms,the government enjoys a heightened need for security measures. An ele-vated need for security and safety exists in highly controlled public forumssuch as border checkpoints, public airports, or highly sensitive governmentinstitutions. Based on a greater need to protect members of society, theSupremeCourt will even justify a blanket, suspicionless search as an excep-tion to the probable cause and search warrant requirements of the FourthAmendment (Camera v. Municipal Court, 1967).

Reduced Search Invasiveness

Regarding time, a backscatter scan is relatively short and noninvasive.Although time varies according to the object being scanned, most scans canbe completed in less than 10 minutes. A backscatter scan of an individualtakes less than 1 minute (Burton, 1999). Scanning an automobile at theNogales border checkpoint takes a mere 30 seconds, and a scan of a


truckload of bananas takes fewer than 6 minutes (Burton, 1999). However,the time required to explain the process and the legal options to the traveleraverages almost 10 minutes. As such, the total time for a backscatter scanmay vary, depending on the traveler’s previous knowledge of the device andthe process. Even with the added time for explanation of the device, a back-scatter scan takes less time and is considerably more economical than thealternative of strip-searching a traveler or manually unloading a truck whilelooking for hidden contraband (Kabbany, 1999).

In airports, security agents offer the backscatter scan as an alternative to ahand or strip-search. If a traveler is suspected of smuggling drugs, weapons,or other contraband, customs agents allow the suspect to choose between abackscatter scan or a physical search. Although most travelers cite delayand time as their primary reasons for choosing a hand search over a back-scatter scan, these numbers change radically when the suspect is given thechoice between a strip-search or waiting 12 hours for drugs to pass throughthe digestive system (Murphy, 2000).

Fewer Health Risks

Backscatter scans are also cleaner and less intrusive than hand searches.Operators are not required to touch a suspect’s body when conducting abackscatter scan. Because physical contact is eliminated, the risk of diseasetransmission is radically reduced. Without question, a backscatter scan isconsiderably less intrusive than the cold hands of a prison guard performinga strip or cavity search (Bell v. Wolfish, 1979).

As to radiation concerns, backscatter X-rays are low-energy radiationrays that reflect off, rather than penetrate, the body. Because they reflectrather than penetrate, the radiation exposure is considerably less than thatcontained in a normal healthX-ray. A personwould have to be scannedwithbackscatter approximately 80,000 times merely to receive the amount ofradiation contained in one dental X-ray (Heinsmann, 1999). Furthermore,the radiation in one encounter with a backscatter scan is considerably lessthan the radiation received from6minutes of exposure to the sun at sea level(Technology Projects, 2001). Therefore, any arguments against backscatterassociated with increased risks of cancer or other disease are groundless.

CONCLUSION

Backscatter technology is superior to outdated magnetometer technol-ogy. The time required for a scan is minimal. It eliminates the need to touch


sensitive body parts of a suspect, minimizes any risks of disease transmis-sion, and is considerably less intrusive than a cavity search. Essentially,backscatter is cleaner, safer, faster, less intrusive, andmore economical thanold-fashioned search methods that are currently employed by law enforce-ment personnel. More important, backscatter technology fills the voidfound in magnetometer searches because it detects plastic explosives andcomponent weapons.

ARGUMENTS OPPOSINGBACKSCATTER TECHNOLOGY

Opponents of the utilization of backscatter technology argue that it is anexcessive invasion of privacy. In fact, privacy is the pivotal point of the con-flict. It is a fundamental right that is cherished by American citizens andprotected by our legal traditions. Consider these words from our legal heri-tage: “It is not the breaking of his doors, and the rummaging of his drawers,that constitutes the essence of the offense, but it is in the invasion of his inde-feasible right of personal security, personal liberty and private property,where that right has never been forfeited by his conviction of some publicoffense. . . . It is the invasion of this sacred right which underlies and consti-tutes the essence of the Fourth Amendment’s protections” (Boyd v. UnitedStates, 1886). Jurist Louis Brandeis described privacy as “the right to be letalone” and as the “most fundamental of all rights cherished by a free peo-ple . . . the most comprehensive of all rights, and the right most valued bycivilized men” (Olmstead v. United States, 1928).

Utilization of X-ray search devices allows unreasonable, subjectivesearches of an innocent traveler when little or no evidence of criminal activ-ity is present. The backscatter device effectively reduces the traveler’s bodyto the same legal status as a piece of luggage on a conveyer belt. Expecta-tions of privacy in one’s body are considerably greater than those associatedwith one’s car, clothing, or luggage. To allow this heightened degree of sub-jectivity is to open the door to blanket searches of all travelers. Such unbri-dled discretion in the hands of law enforcement officers causes a substantialFourth Amendment intrusion into personal privacy.

Probable cause and warrants are no longer required prior to searching airtravelers. Although drug courier profiling alone is not sufficient to consti-tute the reasonable suspicion necessary to allow law enforcement to detainan airline passenger, it may contribute to a number of circumstances justify-ing further scrutiny of the traveler (Reid v. Georgia, 1980). Sufficient suspi-cion may be “aroused” by profile characteristics of the traveler. However,


profiling can be abusive, self-fulfilling, and subjective. Federal CircuitJudge Warren Ferguson observed that the Drug Enforcement Agency’s(DEA’s) profiles have a chameleon style of adapting to any particular set ofobservations. In one case, a suspicious profile existed because the travelerdeplaned first (United States v. Moore, 1982). In another, a suspicious pro-file existed because the traveler deplaned last (United States v. Mendenhall,1980). In a third, a suspicious profile existed because the traveler deplanedin the middle (United States v. Buenaventura-Ariza, 1980). A one-wayticket was suspicious in one case, a round-trip ticket was suspicious inanother (Duke, 2001). Due to the great American drug war, almost anythinggoes. As former Supreme Court Justice and Bill of Rights advocateThurgood Marshall admitted, “If it’s a dope case, I won’t even read the peti-tion. I ain’t giving no break to no dope dealer” (Haupt & Neary, 1987).

Furthermore, the repugnant invasion of the sanctity of the individual isconducted in an offensive manner. “Voyeur vision” devices perpetrate anelectronic strip-search that graphically exposes and records every minutedetail of a person’s entire body. The device effectively tells travelers to“drop your pants” or “pull up your skirts.” The security officer is able toview not only the cup size of the breasts, the firmness of the buttocks, andthe size of the genitalia, but may also use a joystick to digitally enlarge,enhance, or magnify any desired part of the body for closer scrutiny. Thisjoy stick gives the operator the ability to virtually count the number of hairson a man’s chest, determine if a man has been circumcised, or tell if awoman is in hermenstrual period (SearchingQuestionsOver Scan, 2000, p.9).

Potential abuses of the X-rated search process and recorded imagesabound.Magnetometerswere initially deployed at airports and other highlycontrolled security checkpoints. Now, such devices are familiar sights athigh schools, middle schools, and even grade schools. The process of intru-sion into one’s daily life is rapidly becoming routine as society becomesdesensitized to the creeping encroachment on individual privacy. Increasingintrusions on privacy at venues other than border checkpoints or airportsnaturally follow. Voyeur vision X-ray devices may soon become a familiarsight at high school activities, concerts, or even sports events. Hence, theslippery slope of eroding privacy begins.

CONCLUSION

When government mandates (or individuals choose) security, there isalways a price to be paid. This price may be referred to as a tradeoff or an


opportunity cost. For example, suppose that the federal government passesa law that reduces the speed limit to 5 miles per hour (MPH) on major high-ways. Such a policy would increase safety and reduce injuries and deaths.But, what would be the tradeoff cost? A 50-mile trip would take 10 hours at5MPH, as opposed to 1 hour at a speed of 50MPH.The price is 9 hours. Theopportunity costs of 9 lost hours vary andmay translate to an entireworkdayor lost leisure time with one’s family.

Airport security measures, including X-ray vision devices, representincreased security tradeoffs and lost opportunity costs. In July 1996, theexplosion of TWA Flight 800 on Long Island exacerbated public fear. Thegovernment responded by initiating more passenger screening, profiling,and passenger-baggage matching. Three now famous questions wereetched in American minds. Did you pack your own bags? Have your bagsbeenwithin your control at all times?Did anyone give you any gifts or pack-ages to carry?Another questionwas asked at check-in: Can I see some iden-tification? Authorities told travelers to arrive at the airport one half to onehour earlier than before the new measures were implemented.

Such security measures cost each individual and society something.Robert Hahn, director of AEI-Brookings Joint Center for RegulatoryStudies, estimated the initial costs required to install and operate baggagescreening devices in 1996 to be in excess of 4 billion dollars. In his opinion,lost opportunity costs due to longer wait time at security checkpoints weresomewhere between 9 and 18 billion dollars (Hahn, 1996).

Travelers have alternatives to travel by air. The increased costs anddelays associated with increased airport security measures make land travelvia automobile, rail, and bus more attractive. Unfortunately, the fatality ratefor road travel is 1.4 deaths per 100 million miles compared to 0.16 deathsfor travel by air (Allen, 2000). Ironically, the purpose of enhanced airportsecurity measures is to save lives, when in fact, they might actually increaseoverall death rates. The unintended consequence of these heightened airportsecurity measures is that 60 additional deaths might occur due to increasedland travel (Hahn, 1996).

Individuals and government must choose between these tradeoffs. So,who shouldmake the choice? Should the individual or governmentmake it?Does enhanced public security outweigh the individual’s interest in pri-vacy?Government justifies its right to intervene based on the duty to protectsociety from harmful third party externalities and costs. For example, if youdrive 100 MPH, you may harm others and that becomes a basis for govern-ment regulation.


The danger in allowing government to choose the tradeoff lies in itspotential to abuse its power. It might harass individuals, profile “undesir-able” groups, chill free expression, invade the sanctity of the individual, anderode privacy. Such is the case with X-rated X-ray vision. What are thetradeoffs that you are willing to pay for increased security in airports,schools, sports events, shopping malls, and even public restrooms? Can yousay what price you are willing to pay? Are you willing to be strip-searchedand photographed at an increasing number of public venues by a bunch ofhigh-tech peeping Toms?

REFERENCES

Allen, M. (2000, March 5). X-ray device too intrusive, critics say. The Grand Rapids Press,p. A4.

Bell v. Wolfish, 441 U.S. 520 (1979).Boyd v. United States, 116 U.S. 616, 625 (1886).Burton, J. (1999, May 1). Smugglers’ foe.Chief ExecutiveMagazine, 22. Retrieved October

6, 2001, from http://www.as-e.com/inthenews/smugglers.htmlCamera v. Municipal Court, 387 U.S. 523 (1967).Chandler v. Miller, 520 U.S. 305 (1997).Duke, S. (2001). The drug war on the Constitution. Retrieved April 27, 2001, from

http://www.cato.org//realaudio/drugwar/papers/duke.htmlFlorida v. Royer, 460 U.S. 491, 502 (1983).Hahn, R. (1996). The cost of antiterrorist rhetoric. Regulation, 19, 4.Haupt, D., & Neary, J. (1987, September). Justice revealed. Life, 105.Hawn, C. (1999, November 29). Yes, we have no illegals. Forbes, 164 (13), 144.Heinsmann,D. (1999,November 23). Customs agents at Chicago airport get better lookwith

body scanner. Chicago Tribune, p. A31.Illinois v. Gates, 462 U.S. 213, 232 (1983).Kabbany, J. (1999,May6).Kinder, gentlerweapons hawked.TheWashingtonTimes, p.A5.Katz v. United States, 389 U.S. 347 (1967).Murphy, D. (2000, January 17). Airport scanner under fire. Tulsa World, p. 22.Olmstead v. United States, 277 U.S. 438 (1928).Reid v. Georgia, 448 U.S. 438 (1980).Rogers, J. (1997, Summer).Without bombs, borders, and boarding:Combating international

terrorism at United States airports and the fourth amendment. Suffolk Transnational LawReview, 20, 501.

Rutan, S. (2000, March). Securing open land borders. Journal of International Security, 10,3.

Schlesinger, H. (2000, April). Border guard. Popular Science, 256 (4), 62.Schneckloth v. Bustamonte, 412 U.S. 218 (1973).Searching questions over scan. (2000, August 22). Belfast News Letter, 9.Technology Projects. (2001). National law enforcement and corrections technology center.

Retrieved April 28, 2001, from http://www.nlectc.org/techproj/nij_p25.html


Terry v. Ohio, 392 U.S. 1 (1968).Turay, I. (2000, January 17). Airport X-rays protested as “X-rated.” The Atlanta Journal and

Constitution, p. A1.U.S. customs officials use x-rays to see all. (2000, April 30). Houston Chronicle News Ser-

vices Star Edition, p. 8.United States v. Buenaventura-Ariza, 615 F.2d 29, 32 (2nd Cir. 1980).United States v. Cortez, 449 U.S. 411 (1981).United States v. Mendenhall, 446 U.S. 544, 564 (1980).United States v. Montoya de Hernandez, 473 U.S. 531 (1985).United States v. Moore, 675 F.2d 802 (6th Cir. 1982).United States v. Place, 462 U.S. 696 (1983).United States v. Sokolow, 490 U.S. 1 (1989).Validity of Border Searches and Seizures by Customs Officers, 6 A.L.R. Fed 317 (2000).Yeaple, J. (1991, October). The bomb catchers. Popular Science, 239 (4), 61.

Michael C. Murphy is the business programs director and director of interns forLangstonUniversity atOklahoma StateUniversity, Tulsa.He previously served as theSmall Business Institute director for a decade, and taught courses for the Universityof Oklahoma Graduate School, Tulsa Community College, and Rogers State College.He is licensed to practice law in Oklahoma and Illinois.

Michael R. Wilds is an assistant professor in criminal justice and legal studies forNortheastern State University at Oklahoma State University, Tulsa. He has alsotaught at the University of Tulsa School of Law, Oklahoma City University School ofLaw, and Richland College in Dallas. He has worked with the U.S. Attorney’s office,and maintains a law practice in Oklahoma and Washington, D.C.


CRIMINAL JUSTICE POLICY REVIEW / December 2001INDEX

INDEX

to

CRIMINAL JUSTICE POLICY REVIEW

Volume 12

Number 1 (March 2001) pp. 1-88Number 2 (June 2001) pp. 89-180Number 3 (September 2001) pp. 181-252Number 4 (December 2001) pp. 253-348

Authors:

ALBINI, JOSEPH L., “Dealing With the Modern Terrorist: The Need for Changes in Strat-egies and Tactics in the New War on Terrorism,” 255.

AVITABILE, NANCY, see Davis, R. C.BERNARD, THOMAS J., and ERIC HAINS, “Small Denomination Paper Currency as the

Focus of Supply-Reduction Drug Policy,” 3.BREWSTER, MARY P., “Legal Help–Seeking Experiences of Former Intimate–Stalking

Victims,” 91.CLARKE, ALAN, see LAMBERT, E.COPELAND, MICHAEL, see Jilka, M.CRAWFORD, CHRIS, see Jilka, M.DAVIS, ROBERT C., EDNA EREZ, and NANCY AVITABILE, “Access to Justice for

Immigrants Who are Victimized: The Perspectives of Police and Prosecutors,” 183.DEAN, CHARLES W., see Hirschel, J. D.DUMOND, DORIS, see Hirschel, J. D.ENGVALL,ROBERTP., “Belonging to theWorld:Women’s Rights and AmericanConstitu-

tional Culture by Sandra F. VanBurkleo,” 178.EREZ, EDNA, see Davis, R. C.GOULD, LAWRENCE, see Jilka, M.GRAHAM, ERNEST S., see Hamill, S. B.HAINS, ERIC, see Bernard, T. J.HAMILL, SHARON BOLAND, ERNEST S. GRAHAM, EMMETT THOMASON, III,

and RENEE HUERTA-CHOY, “Current Practices in the Use of Televised Child Testi-mony: Questions of Constitutionality and Personal Biases,” 282.

HARMON, TALIA ROITBERG, “Guilty Until Proven Innocent: An Analysis ofPost-Furman Capital Errors,” 113.

344


HECK, WILLIAM P., RALPH KEEN, JR., and MICHAEL R. WILDS, “Structuring theCherokee Nation Justice System: The History and Function of the Cherokee Nation Mar-shal Service,” 26.

HIPPENSTEEL, DARYL, see Stinchcomb, Jeanne B.HIRSCHEL, J. DAVID, CHARLES W. DEAN, and DORIS DUMOND, “Juvenile Curfews

and Race: A Cautionary Note,” 197.HUERTA-CHOY, RENEE, see Hamill, S. B.JILKA, MICHAEL, ROBERT SCOTT, LAWRENCE GOULD, CHRIS CRAWFORD, and

MICHAEL COPELAND, “Questioning the Concept of Excessiveness With Respect toAlternative and New Age Methods and Uses of Force,” 235.

KEEN, RALPH JR., see Heck, W. P.LAMBERT, ERIC and ALAN CLARKE, “The Impact of Information on an Individual’s

Support of the Death Penalty: A Partial Test of the Marshall Hypothesis Among CollegeStudents,” 215.

LEIP, LESLIE, see Senjo, S. R.LEMLEY, ELLEN C., “Designing Restorative Justice Policy: An Analytical Perspective,”

43.MURPHY, MICHAEL C., and MICHAEL R. WILDS, “X-Rated X-Ray Invades Privacy

Rights,” 333.NOVAK, KENNETH J., and CHARLOTTE L. SEILER, “Zoning Practices and Neighbor-

hood Physical Disorder,” 140.RAINVILLE, GERARD, “An Analysis of Factors Related to Prosecutor Sentencing Prefer-

ences,” 295.SANBORN, JOSEPH B., JR., “A Parens Patriae Figure or Impartial Fact Finder: Policy

Questions and Conflicts for the Juvenile Court Judge,” 311.SCOTT, ROBERT, see Jilka, M.SEILER, CHARLOTTE L., see Novak, Kenneth J.SENJO, SCOTT R., and LESLIE A. LEIP, “Testing and Developing Theory in Drug Court:

A Four-Part Logit Model to Predict Program Completion,” 66.STINCHCOMB, JEANNE B., and DARYL HIPPENSTEEL, “Presentence Investigation

Reports: A Relevant Justice Model Tool or a Medical Model Relic?” 164.THOMASON, EMMETT, III, see Hamill, S. B.WILDS, MICHAEL R., see Heck, W. P.WILDS, MICHAEL R., see Murphy, M.

Articles:

“Access to Justice for Immigrants Who are Victimized: The Perspectives of Police and Pros-ecutors,” Davis et al., 183.

“An Analysis of Factors Related to Prosecutor Sentencing Preferences,” Rainville, 295.“Current Practices in the Use of Televised Child Testimony: Questions of Constitutionality

and Personal Biases,” Hamill et al., 282.“Dealing With the Modern Terrorist: The Need for Changes in Strategies and Tactics in the

New War on Terrorism,” Albini, 255.“Designing Restorative Justice Policy: An Analytical Perspective,” Lemley, 43.“GuiltyUntil Proven Innocent:AnAnalysis of Post-FurmanCapital Errors,”Harmon, 113.

INDEX 345

“The Impact of Information on an Individual’s Support of the Death Penalty: A Partial Testof the Marshall Hypothesis Among College Students,” Lambert and Clarke, 215.

“Juvenile Curfews and Race: A Cautionary Note,” Hirschel et al., 197.“Legal Help–Seeking Experiences of Former Intimate–Stalking Victims,” Brewster, 91.“A Parens Patriae Figure or Impartial Fact Finder: Policy Questions and Conflicts for the

Juvenile Court Judge,” Sanborn, 311.“Presentence Investigation Reports: A Relevant Justice Model Tool or a Medical Model

Relic?” Stinchcomb and Hippensteel, 164.“Questioning the Concept of Excessiveness With Respect to Alternative and New Age

Methods and Uses of Force,” Jilka et al., 235.“Small Denomination Paper Currency as the Focus of Supply-Reduction Drug Policy,” Ber-

nard and Hains, 3.“Structuring theCherokeeNation Justice System: TheHistory and Function of theCherokee

Nation Marshal Service,” Heck et al., 26.“Testing and Developing Theory in Drug Court: A Four-Part Logit Model to Predict Pro-

gram Completion,” Senjo and Leip, 66.“X-Rated X-Ray Invades Privacy Rights,” Murphy and Wilds, 333.“Zoning Practices and Neighborhood Physical Disorder,” Novak and Seiler, 140.

Book Reviews:

“Belonging to theWorld:Women’s Rights andAmericanConstitutional Culture by Sandra F.VanBurkleo,” Engvall, 178.


347

Criminal Justice Policy Review, Volume 12, Number 4, December 2001 347© 2001 Sage Publications

CALL FOR PAPERSCriminal Justice Policy Review is multidisciplinary and welcomesarticles from scholars and professionals committed to the study of jus-tice policy through both quantitative and qualitative methods. Crimi-nal Justice Policy Review is published quarterly and includes articles,review essays, book reviews, and research notes. Special issues mayinclude proceedings, legislation, or related matters.

Submissions must be typewritten and double spaced. Manuscriptsshould follow the style guidelines of the Publication Manual of theAmerican Psychological Association, 5th edition. Submissionsshould not exceed 25 pages and should include an abstract of 150words or less and a biographical sketch of 100 words or less. Adetailed style sheet is available by mail and may also be viewed athttp://www.chss.iup.edu/cr/cjpr/index.htm.

Send three copies to Nanci Koser Wilson, EditorCriminal Justice Policy ReviewDepartment of CriminologyG-1 McElhaney Hall441 North WalkIndiana, PA 15705-1087

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