Conservatism in American Crime Films

[madmusic]

By
Timothy O. Lenz
Florida Atlantic University

This article uses conservative crime films from the founding era of modern conservatism, the late 1960s and early 1970s, to explain conservative legal thought, specifically popular rather than professional thinking about law, rights, justice, and courts. The primary focus is on Dirty Harry and Death Wish, two films whose explicitly conservative themes provide excellent insights into the change from liberal to conservative thinking about crime. The primary objective is to increase understanding of legal conservatism, the dominant influence on contemporary criminal justice policy. The article uses the crime control and due process models of justice to explain conservative attitudes and policies, with special attention paid to the relationship between law and order.

http://www.albany.edu/scj/jcjpc/vol12is2/lenz.pdf

[rpannier]

1. The term that p*ss*s me off the most is

Legal Technicality

There are not technicalities. There are Laws and Constitutional Protections on one side and the violations of peoples rights on the other

[paulsby]

2. you apparently haven't spent a lot of time in court

there are actual ABUSES or rights, and there are technicalities.

i've seen plenty of examples of both.

i LIKE the fact that we have a nice rule of law and that process (vs. results) are what matters in legal analysis.

but damn, does it make for some ridiculous technicalities at times

and fwiw a technicality doesn't always work FOR a defendant. i've seen some work AGAINST them.

[rpannier]

3. My father is a retired federal judge

The term is used too much by the losing side and the whining public when they don't get what they want

Person is released because

No Miranda Warning --> Technicality
Entrapment --> Technicality
Warrantless Search --> Technicality

[madmusic]

5. Exactly

And most people who call them technicalities have no idea of the history of these, like the third degree. And many who condemn the Warren court don't realize he was a prosecutor and attorney general, which means he knew what went on in the trenches.

This is a good line from the article:

Quick Change (1990) is a crime comedy where Grimm (Bill Murray), disguised as a clown, robs a New York City bank and then attempts to flee the city. Confronted by an armed yuppie who mistakenly thinks Grimm is burglarizing his apartment, Grimm facetiously asks him, “From Woodstock to Charles Bronson in 20 years?” This humorous question is also very interesting. How did we get from there, due process liberalism, to here, crime control conservatism?

[paulsby]

6. and you are listing actual abuses

whereas, as i said, it goes MUCH farther than that, such as TECHNICALITIES.

a perfect example (not a criminal trial) is the lily ledbetter case. that was a TECHNICALITY, based on a poorly written law. that was later rewritten, as it should have been

[madmusic]

4. Example?

What is a common technicality that gets defendants off? Is there one? Defendants lose most often on technicalities. Filing too late, even just a day or two too late, failure to raise the issue below, and it could be a very important constitutional issue that could "get the defendant off on a technicality." The newer one is harmless error, which means the government can cheat as long as it's harmless error. That's the funny one.

It's extremely rare to get of because of no Miranda warning or an illegal search any more.

Maybe the Arizona immigration law will wake some people up to the idea that an unlimited police state isn't all that great after all, and due process does matter.

[paulsby]

8. fwiw, it's not "illegal" or a violation of rights

not to give miranda warnings.

this is a misunderstood principle

but if one questions, when there are two triggers present (custody and interrogation), then the answers are excludable.

but i generally wasn't referring to miranda.

and if you say it's "extremely rare" to get off because of excluded testimony ( a la miranda) or illegasl search, you are HIGH.

many many cases are dropped before they ever GET to the ACTUAL trial, because for example a 3.5 or 3.6 hearing excludes evidence thus making an actual trial impossible

again: see selection bias

i'll give you one example of the type of technicality i am talking about.

officer arrests joe blow (name changed to protect the "kind of " innocent for stealing pineapples from a field.

the owner of the field agrees to prosecute.

case was thrown out because the officer and prosecutor charged the WRONG statute. they charged the generic theft statute. and it WAS theft. but there is a more specific statute under hawaii law that refers to theft of agricultural products (and is actually a more serious charge). since jeapardy had attached, and the guy had already charged, his attorney made a motion to dismiss based on the fact that since there was a more specific charge, and it was not charged, and hawaii case law said the more specific charge must rule, his client deserved a dismissal. the case got dismissed

now, unless you claim that this "maliceless" error, that actually was MORE lenient towards the defendant (since the crime charged was a lesser charge), and DID meet the elements of the crime (he committed theft) somehow violated his rights and was abusive , then you would admit - no, it was a TECHNICALITY

stuff like this happens all the time.

it was a minor crime, and the prosecutor certainly wasn't going to appeal the decision. it's just ONE example (and i have seen scores ) of the types of technicalities i am talking about

and again, unless you have participated IN court process frequently, your knowledge comes from teevee and third hand. so, i suggest you only know what others tell you, not what reality is

there are ABUSES and there are TECHNICALITIES

that's one example

another thing many peopel don't understand is that at the district court level, the judges almost always lean strongly towards the defendant, because even if they make a wrong decision, as long as it is biased towards the DEFENDANT, the prosecutors almost never appeal or make a fuss because they just want to clear their caseload, and it's just a misdemeanor anyway. i have seen this happen at district level, whereas at superior court level, they actually rule on the law.

one exception is domestic violence. domestic violence cases are so political that this rule does not apply. prosecutors will charge cases that they would not charge IF it was NOT domestic violence, because they'd rather err on the side of caution so to speak, even though they are only supposed to charge when they believe they can prove it BEYOND A REASONABLE DOUBT. the court has also eroded many protections for defendants under the war on DV, as well as of course the war on drugs. two areas of law that MAKE bad law quite frequently.

i'm friends with defense attorney fwiw, and they are the FIRST to admit that there are clearly silly technicalities in the law, and that first and foremost their JOB is to get their client OFF, not to seek justice. i have no problem with that, that's the system but even THEY don't pretend otherwise. at least not when they are "off the record"

fwiw, in any system based on RULE OF LAW there necesssarily will be technicalities. i think that's a good thing. it shows that people are ruling based on THE LAW, not "common sense" or "justice" or any other "results based" rationale.

[mitchum]

7. America's greatest living crime novelist is a wingnut conservative

[fishwax]

9. Elmore Leonard is a wingnut conservative?

:)

[mitchum]

10. No, James Ellroy is the wingnut in question

Leonard is good, but...:)

[fishwax]

11. yeah, I figured that's who you meant

just having fun :)