no clear consensus against executing mentally retarded defendants who had been convicted of murder. However, just 13 years later the Court found that “standards of decency” had evolved to a point at which mentally retarded defen- dants could no longer be made subject to capital punishment without violating the cruel and unusual punishment clause of the Eighth Amendment ( ATKINS V. VIRGINIA, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 [U.S. 2002]). The Court emphasized the fact that since Penry 18 states had passed legislation excluding the mentally retarded from the class of defendants who are eligible for capital punishment. Apply- ing the same type of analysis in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), the Court found that there was no national consensus prohibiting the EXECUTION of juvenile offenders over age 15. However, in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), the Court ruled that juveniles who are under the age of 18 when they commit capital crimes may not be sentenced to death. The Court likewise found sufficient proof of consensus against making rape defendants as a class that was eligible for capital punishment, stressing that only one jurisdiction in the country at the time of its dec ision allowed capital punishment for the rape of an adult woman (Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 [2002]). Death b y electrocution has been challenged several times as being inconsistent with “evolving standards of d ecency”.Inaseries of Florida cases, the U.S. Supreme Court denied CERTIORARI in appeals where the PETI- TIONER offered proof that during the execution the electric chair was engulfed by flames and that smoke had emanated from the inmate’s head. B ut the F lorida Supreme Court ruled that death by electrocution does not violate the Eighth Amendment’s prohibition of cruel and unusual, citing evidence that execution by electrocution renders an inmate instan- taneously unconscious, thereby making it impossible to feel pain when the electrical current is properly maintained (Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999); cert denied, 528 U.S. 1182, 120 S. Ct. 1222, 145 L. Ed. 2d 1122 [2000]). Capital Punishment for DWI-Related Offenses Many observers expected the “evolving stan- dards of decency” test to be invoked by a North Carolina DEFENDANT when prosecutors sought to impose the death penalty for crimes he committed during a 1996 drunk-driving inci- dent that left two college students dead. Thomas Richard Jones was charged and convicted on one count of driving while impaired, one count of ASSAULT with a deadly weapon, three counts of assault with a deadly weapon inflicting serious injury, and two counts of first-degree murder under the FELONY-MURDER RULE. During the penalty phase, the jury rejected the prosecu- tion’s arguments for capital punishment, in- stead sentencing Jones to life in prison. When Jones appealed his CONVICTION,the North Carolina Supreme Court did not review his sentence under an Eighth Amendment analysis. Rather, the state’s high court ruled that any sentence that Jones might have received for first-degree murder would not have been justified, because a first-degree murder charge can only be supported by proof that the defendant possessed a “specific intent” to commit the crime. At a minimum, the court said, proof of SPECIFIC INTENT requires evidence that the defendant had “an actual intent to undertake the conduct resulting in death; thus, even if the killing itself was not intended, the actual intent to torture, poison, starve, or SOURCE: U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment, 2007. PRISONERS EXECUTED UNDER CIVIL AUTHORITY IN THE UNITED STATES, 1977 TO 2007 Total prisoners executed: 1,099 Executions by method: 1,099 Other races 14 Hispanic 81 Lethal gas 11 Hanging 3 Firing squad 2 Black 373 White 631 Electrocution 154 Lethal injection 929 Capital Punishment ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 248 CAPITAL PUNISHMENT imprison the victim must be present … for the killing to qualify as first-degree murder.” The North Carolina Supreme Court rejected the state’s argument that specific intent could be “implied” from the defendant’s reckless conduct (State v. Jones, 538 S.E. 2d 917 [N.C. 2000]). No state court since State v. Jones has successfully prosecuted a defendant for first-degree murder arising out of a drunk-driving-related offense. Racial Bias In 1983 Professor David C. Baldus, of the University of Iowa College of Law, published a study on the capital punishment system in the state of Georgia. The figures he assembled showed that between 1973 and 1979, killers whose victims were white were 11 times more likely to be sentenced to death than were killers whose victims were black. Baldus’s study was used by death row inmate Warren McClesky in an appeal that came before the U.S. Supreme Court (McClesky v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262). Although the Court accepted the validity of the study, it found the statistics “insufficient to demonstrate unconstitutional discriminatio n ” or “to show irrationality, arbitrariness, and capriciousness.” Other studies have yielded equally disturb- ing numb ers regarding the statistical differences between the system’s treatment of blacks and whites. For example, between 1976 and 1995, a total of 245 co nvicts were executed; 84 percent of their victims were white, although fewer than 50 percent of all murder victims are white. Many critics argue that statistics demonstrating racial bias in the administration of capital punishment prove that the death penalty, even if constitutional in concept, is unconstitutional as applied in the United States—violating at least the EQUAL PROTECTION clause of the FOURTEENTH AMENDMENT. Justice Lewis F. Powell Jr., who voted with the majority in McClesky to deny a racial-bias challenge to the capital punishment system, later informed a biographer that he since had come to regret his vote. Consideration of Mitigating Factors In general, the jury m ay not be precluded from considering, and may not refuse to consider, any relevant mitigating evidence in determin- ing whether capital punishment is the appropriate sentence for a particular defen- dant. However, the Eighth Amendment does not require courts to instruct a jury during the penalty phase that it has both an obligation and the authority to consider the mitigating factors deemed relevant by state law (Bu chanan v. Angelone, 522 U.S. 269, 118 S. Ct. 757, 139 L. Ed. 2d 702 [1998]). Instead, it is suff icient for a court to i nstruct the jury that it must impose a life sentence if, after conside ring “all the evidence,” the jury does not believe that capital punishment is justified. Once convicted and sentenced to death, death row inmates may again cite mitigating factors in making an appeal for leniency or CLEMENCY from the state’s PAROLE board or another EXECUTIVE BRANCH department. Such appeals often cite mitigating factors that existed either before, after, or at the time the crime was committed. However, parole boards and related executive branch departments are under no obligation to give mitigating evidence any weight and may typically reject a death row inmate’s request for clemency without providing any reason for doing so. For example, the Texas Parole Board was flooded with requests to grant clemency to Karla Faye Tucker, a death row inmate who had been convicted of brutally killing two people with a pickax during a 1983 robbery. Despite evidence that Tucker was 23 years old and high on drugs at the time of the crime, that she had been addicted to drugs since she was eight years old, and that she had been a prostitute since age 14, the sentencing jury found more compelling other evidence showing that Tucker had a history of violent behavior, that she had received sexual gratification every time she struck one of the victims with the pickax, that she had talked of killing two others to prevent them from telling police about the murders, and that she had planned future crime sprees to raid drug labs, kill the people who worked there, and steal their property. During her 14 years on death row, how- ever, Faye underwent a religious conversion to Christianity that many people believed was sincere. In fact, religious leaders from around the world, including Pope John Paul II, made personal appeals to have Tucker’s sentence commuted to life in prison. The European Parliament and the UNITED NATIONS also publicly sought clemency for Tucker. The Karla Faye Tucker who was on death row, they all said, was not the same person who had committed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CAPITAL PUNISHMENT 249 the gruesome murders more than a decade earlier. The Texas BOARD OF PARDONS and Paroles refused to stay the execution, finding that neither Tucker’s gender nor her religious conversion were sufficient grounds to com- mute her sentence. “Mercy was already consid- ered by the jurors when they sentenced her to die,” the chairman of the pardons and parole board said. Then-Texas governor GEORGE W. BUSH also rejected T ucker’s requests for cl em- ency. Tucker challenged the adequacy of the Texas executi ve-clemency procedures, but the Texas Court of CRIMINAL Appeals concluded that “[a]n inmate has no constitutional or inherent right to COMMUTATION of her sentence” (Ex part e Tucker, 973 S.W. 2d 950 [Tex. Crim. App. 1998]). Clemency, the court wrote, is a matter that rests solely within the “unfettered discre- tion ” of the executive branch of the state government. On February 3, 1998, Tucker becamethefirstwomantobeexecutedin Texas since the CIVIL WAR. Deterrent Effect Since the beginning of the twentieth century, many studies have been conducted on the deterrent effect of capital punishment. More often than not, the results have proven inconclusive; no hard evidence exists to verify the theory that the threat of such a harsh punishment will sway criminals from their actions. In fact, some statistics indicate that the opposite is true; in some instances, states that employ capital punishment have a higher incidence of HOMICIDE than neighboring states that do not employ the death penalty. The Costs of Capital Punishment I n 1989 the state of Florida executed 42-year-old Ted Bundy. Bundy con- fessed to 28 murders in four states. During his nine years on death row, he received three stays of EXECUTION. Before he was put to death in the electric chair, Bundy cost taxpayers more than $5 million. In a country where some 65 percent of the population favors the death penalty, many people may feel that Bundy got what he deserved. A further question, however, is whether U.S. taxpayers got their money’s worth. When a single sentence of death can cost millions of dollars to carry out, does it make economic sense to retain the death penalty? The actual execution of an inmate is typically quick, simple, and inexpensive; the capital punishment system is far more complex and costly. To resolve issues of unconstitutionality that the Supreme Court found in Furman v. Georgia (408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 [1972] ), states found it necessary to introduce a complex appeals process that would guarantee the rights of death row inmates. Capital trials are much more expensive to carry out than are their noncapital counterparts because of the price at stake, the life of the accused. Evidence gathering is also more expensive: Evidence must be collected not only to determine the guilt or innocence of the accused but also to support or contradict a sentence of death. All sentences of death face a mandatory review by the state supreme court, which increases legal fees. More- over, in Florida, the state supreme court spends half of its time reviewing death penalty cases. If a case advances farther in the state or federal appeals process, the costs continue to rise. Appeals of a death sentence guaran- tee great expense to the taxpayer, as the state pays both to defend and to PROSE- CUTE death row inmates. Public defenders in such appeals openly admit that their goal is delay, and prosecutors and state attorneys slow the process by fighting access to public records and allowing death row defendants to sweat out their cases until the last minute. Abolitionists believe that the existing system cannot be repaired and must be abandoned. The alternative sentence, life IMPRISONMENT without PAROLE, achieves the same result as capital punishment, they argue. Like the death penalty, a life sentence permanently removes the con- vict from the community against which he or she committed CRIMES, and it is far less expensive. A 2008 report by the California Commission on the Fair Administration of Justice estimated that the annual cost of the state death penalty system was $137 million dollars. Half of that amount goes to housing 670 inmates on death row; it costs $90,000 per year more to keep an inmate on death row compared to incarcerating an inmate in a maximum security system who has been sentenced to life imprisonment without the possibility of parole. According to a study by the Indiana CRIMINAL LAW Study Commission released in 2002, executions cost the state GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 250 CAPITAL PUNISHMENT The U.S. Supreme Court justices in the Furman case, both concurring and dissenting, often referred to studies that showed no conclusive correspondence between c apital punishment and the frequency with which capital crimes were committed. A later accounting revealed that during the m oratorium o n capital punishment, from 1967 to 1976, t he nation al homic ide ra te nearly doubled. Since then, depending on the study c onducted, e vidence has been presented t o show that capital punishment h as no dete rrent effect; that the implementation of the death penalty is directly related to a decrease in capital crime; and that the implementation of the death penalty is directly related to an increase in capital crime. Although some opponents of the death penalty are quick to argue that capital punish- ment has no deterrent effect, many supporters feel that the purpose of capital punishment is retribution, not deterrence. Many individuals, especially those with close ties to the victims, are more often concerned that the particular convicted criminal pay for the crime than that other persons be deterred through punishment of the PERPETRATOR. Morality and Emotion Emotions might have played a part in the Furman decision. Burger, in his dissent, warned that the Court’s “constitutional inquiry … must be divorced from personal feelings as to the morality and efficacy of the death penalty.” Justice HARRY A. BLACKMUN, who joined Burger in his dissent, later renounced his belief in the death penalty for reasons that another justice saw as partly personal. 38 percent more than the costs of keeping an inmate incarcerated for life. Similarly, a 1993 study at Duke Univer- sity showed that between 1976 and 1992, the state of North Carolina spent in excess of $1 billion on executions or $2.16 million per execution. A 2008 report by the Kansas Department of Corrections found that capital cases are 70 percent more expensive than compa- rable non-capital cases. The median death penalty cost $1.26 million. Not only are the costs of execution excessive but so too are the t ime delays. It is not unusual for an individual to wait on death row for more than ten years. In the 1995 case Lackey v. Texas (514 U.S. 1045, 115 S. Ct. 1421, 131 L. Ed. 2d 304), Clarence Allen Lackey, who had been on death row for 17 years, claimed that such a duration constituted CRUEL AND UNUSUAL PUNISHMENT . Although his MOTION was denied, Justices JOHN PAUL STEVENS and STEPHEN BREYER admitted that the concern was not without warrant. Opponents of capital punishment point out that abandoning the death penalty would make available many millions of dollars as well as thousands of hours that the courts could allocate to other aspects of the criminal justice system. The amount of money necessary to execute a single inmate might be used to put several criminals behind bars for the remainder of their lives. Supporters of capital punishment agree with detractors on one issue: The death row appeals process is far too complex and expensive. However, whereas opponents of the death penalty use this as a reason to reform SENTENCING, supporters use it as a reason to reform the system of appeals. Supporters argue that thorough reform of the appeals process would free up as much money as abolish- ing the death penalty; expenses could be cut while capital punishment is retained. Immediately following the execution of Bundy, Chief Justice WILLIAM H. REHNQUIST called for changes in the procedure for appealing death sentences. Noting that the Supreme Court had turned down three emergency appeals by Bundy in the hours just prior to his execution, the chief justice said, “Surely it would be a bold person to say that this system could not be improved.” In a 1995 interview, President BILL CLINTON , a staunch supporter of capital punishment, called the appeals process ridiculous and in need of reform. Clinton, like other supporters of the death penalty, saw appeals reform as paramount if capital punishment is to be efficiently and effectively carried out. Congress responded by enacting the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132). The act sought to limit the number of post- conviction petitions for HABEAS CORPUS filed by death row inmates. Since its enactment the Supreme Court has issued numerous rulings on the act’s provisions; most of its rulings have sustained strict time limits and procedural rules that limit appeals, but the number of execu- tions per year remains low. As of 2008, over 3,200 inmates were on death row, yet the annual rate of executions fluc- tuates between 40 and 70. It is likely that a number of death row inmates will die from natural causes. Supporters also argue that too many rights are provided to death row inmates. The appeals process is too kind to convicts, they argue, and ignores the pain that persists in the aftermath of the criminals’ actions. Family members of victims of capital crimes are expected to wait years, while perpetrators abuse the system to forestall execution of the sentence imposed. FURTHER READING Streib, Victor L. 2003. Death Penalty in a Nutshell. St. Paul, Minn.: Thomson/West. CROSS REFERENCES Cruel and Unusual Punishment; Due Process GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CAPITAL PUNISHMENT 251 In 1994, in Callins v. Collins, 510 U.S. 1141, 114 S. Ct. 1127, 127 L. Ed. 2d 435, Blackmun wrote a dissenting opinion in which he con- demned the practice of capital punishment in the United States. He argued that “no combination of procedural rules or substantive regulations ever [could] save the death penalty from its inherent constitutional deficiencies”— “arbitrariness, discrimination, caprice, and mis- take.” Justice ANTONIN SCALIA criticized Black- mun’s position, writing that Blackmun had based his dissent on intellectual, moral, and personal reasons, rather than on the authority of the Constitution. Adequacy of Resources for Capital Defenses In 2007 the AMERICAN BAR ASSOCIATION issued a report indicating that most states operate with capital defense systems that are underfunded and staffed with unqualified lawyers who lack resources to provide adequate defenses for death row inmates. Based on this report, the ABA requested a national moratorium on the death penalty. Death Penalty Statistics and Trends Despite the controversy, the constitutionality of capital punishment has been upheld and continues to be an acceptable practice in 36 states. As of January 1, 2009, a total of 3,297 inmates were on death row throughout the United States. In 2008 a total of 37 persons in nine states were executed, including 18 inmates in Texas. Between 1977 and 2007, the highest number of inmates executed in one year was 98 in 1999. FURTHER READINGS Banner, Stuart. 2002. The Death Penalty: An American History. Cambridge, MA: Harvard Univ. Press. Bedau, Hugo Adam, and Paul G. Cassell, eds. 2004. Debating the Death Penalty: Should America Have Capital Punishment? New York: Oxford Univ. Press. Bigel, Alan I. 1994. “Symposium on Capital Punishment— Justices William J. Brennan, Jr., and Thurgood Marshall on Capital Punishment: Its Constitutionality, Morality, Deterrent Effect, and Interpretation by the Court.” Notre Dame Journal of Law, Ethics, and Public Policy (Thomas J. White Center on Law and Government). Foley, Michael A. 2003. Arbitrary and Capricious: The Supreme Court, the Constitution, and the Death Penalty. Westport, CT: Praeger. Rodriguez, Roxanne. 2001. The Modern Death Penalty: A Legal Research Guide. Buffalo, NY: W.S. Hein. Von Drehle, David. 1995. Among the Lowest of the Dead: The Culture of Death Row. New York: Times Books. CROSS REFERENCES Criminal Law; Criminal Procedure; Criminology; Witherspoon v. Illinois. CAPITAL STOCK All shares constituting ownership of a busines s, including common stock and preferred stock. The amount of shares that a corporate charter requires to be subscribed and paid, or secured to be paid, by shareholders. The amount of stock that a corporation may issue; the amount actually contributed, subscribed, or secured to be paid on. The liability of the corporation to its shareholders after creditors’ claims have been settled. The valuation of the corporation as a business enterprise. Capital stock is distinguishable from the property and assets of the corporation. The property of a corporation fluctuates and may be greater or less than the original capital invested, but the capital stock remains intact and unaffected by the vicissitudes of business. Undivided profits, or surplus, are not part of the capital stock, although they are included in the general capital or assets of the corporation. The capital stock of a corporation serves only corporate purposes. It functions as security for the creditors of the corporation who have relied on its existence, because it cannot be diverted or withdrawn to the detriment of corporate creditors. Capital stock is sometimes regarded as a trust fund. CAPITALIZE To regard the cost of an improvement or other purchase as a capital asset for purposes of determining income tax liability. To calculate the net worth upon which an investment is based. To issue company stocks or bonds to finance an investment. The owner of a business may capitalize the expense of renovating a factory to maximize his or her after-tax profits, since such expens es may be used to decrease the pretax profits, thereby reducing the amount of profits subject to TAXATION. An individual may compute the net worth of shares of stock, in order to treat them as capital assets for INCOME TAX purposes. Such treatment often results in more favorable rates of taxation on the profits made when assets are sold because they are considered capital gain s. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 252 CAPITAL STOCK CAPITATION TAX An assessment levied by the government upon a person at a fixed rate regardless of income or worth. Since it is a tax upon the individual, and not upon merchandise, a capitation tax is frequently labeled a head tax. A POLL TAX is a capitation tax. CAPTION The standardized heading of a legal instrument, such as a motion or a complaint, which sets forth the names of the parties in controversy, the name of the court, the docket number, and the name of the action. v CARDOZO, BENJAMIN NATHAN Benjamin Nathan Cardozo was a New York state court judge, an ASSOCIATE JUSTICE on the U.S. Supreme Court, and an influential legal scholar. Cardozo was born May 24, 1870, in New York City, the youngest son in a family of six children. His parents were descendants of Portuguese and Spanish Jews who had settled in New York before the Revolutionary War. His father, Albert Cardozo, was a trial court judge who was forced to resign his seat because of allegations, which were never proved, of improper conduct involving the then corrupt New York City government. Cardozo was tutored during his early life by well known clergyman and teacher Horatio Alger and entered Columbia College at the age of fifteen. He earned a bachelor’s degree in 1889 and a master’s degre e in 1890, then enrolled at Columbia Law School. He was granted admis- sion to the New York state bar in 1891 without having received his law degree. After completing his legal training and passing the BAR EXAMINATION, Cardozo began practicing appellate law with his brother. He soon became a prominent practitioner in his own right in the fields of corporate and COMMERCIAL LAW. He often acted as consultant to other law firms, writing appeal briefs for other lawyers and appearing frequently before the New York Court of Appeals, the state’s highest court. His extensive appellate experience led him to write his first book, Jurisdiction of the Court of Appeals of the State of New York, published in 1903. In addition, judges often appointed him to act as referee in complicated matters of commercial law, one of his areas of specialty. In 1913, after 23 years in private practice, Cardozo was nominated and elected as a judge on the New York Supreme Court, the state’s trial-level bench. Only six weeks later, he was designated to serve temporarily as an associate judge on the Court of Appeals. He remained a temporary judge of the Court of Appeals unt il 1917, when he was appointed to fill a vacant and permanent seat, and in 1926 he was elected chief judge. During his tenure on the Court of Appeals, Cardozo made his mark as an influential and celebrated jurist and moved the New York court to the forefront of the nation’s state courts. With respect to TORT LAW, the court under Cardozo greatly expanded the protection of- fered to individuals injured by the NEGLIGENCE of others. In MACPHERSON V. BUICK MOTOR CO., 217 N.Y. 382, 111 N.E. 1050 (1916), per haps Cardozo’s most influential tort opinion, the court held Buick liable for the negligent construction of a defective wheel that injured a purchaser who had bought the car not from Buick but from an automobile dealer. Cardozo’s decision to look beyond the contractual rela- tionship between the buyer and seller to the manufacturer for redress helped lay the ground- work for the development of PRODUCT LIABILITY, now a common feature of the law, which allows for recovery for injuries even if the consumer had no contractual relationship with the manufacturer. But Cardozo was also willing to impose some commonsense limits on tort liability. In the classic decision Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928), he authored the majority opinion establishing that a person can be held negligent only for a harm or injury that is foreseeable and not for every injury that follows from the negligence. As Cardozo put it, “[T]he orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of duty.” Cardozo’s influence was also strongly felt in the law of contracts. He wrote the majority opinion in Wood v. Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (1917), perhaps his best known and most widely quoted decision concerning the implied elements of a contract. In Wood and his other contract law decisions, Cardozo made clear his views that, whenever possible, courts should attempt to instill fairness in an ambigu- ous contract by analyzing and interpreting its THE GREAT TIDES AND CURRENTS WHICH ENGULF THE REST OF MEN DO NOT TURN ASIDE IN THEIR COURSE AND PASS THE JUDGES BY . —BENJAMIN CARDOZO GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CARDOZO, BENJAMIN NATHAN 253 implicit terms to cover situations that the parties may not have provided for explicitly. In 1932, when ninety-year-old Oliver Wen- dell Holmes Jr., announced his retirement from the U.S. Supreme Court, politicians, lawyers, and legal scholars publicly campaigned for Cardozo to succeed him. President HERBERT HOOVER , though impressed with Cardozo’s credentials and intellect, was initially lukewarm about nominating him to the Court. Two other New Yorkers, Chief Justice Charles E. Hughes and Justice HARLAN F. STONE, were already on the Court and others in Hoover’s administration were concerned about appointing a second Jewish justice to serve in addition to Justice LOUIS D. BRANDEIS. After Stone offered his resignation (which was not accepted) to make room for Cardozo, Hoover was eventually persuaded to ignore the politics of geography and anti-Semitism and named Cardozo to the Court. On February 24, 1932, Cardozo was confirmed unanimously by a voice vote of the Senate, though he was said to be reluctant to leave his fam ily and friends in New York and move to Washington, D.C., to accept the seat. Though he served on the Court for only six years, Cardozo authored a number of significant decisions. He authored the majority opinion in the CIVIL RIGHTS case Nixon v. Condon, 286 U.S. 73, 52 S. Ct. 484, 76 L. Ed. 984 (1932). Condon held that a resolution by a state party executive committee, under purported authority of a Texas statute (Vernon’s Ann. Civ. St. Tex. art. 3107), which excluded blacks from primary elections, violated the EQUAL PROTECTION Clause of the FOURTEENTH AMENDMENT. Cardozo, for the most part, supported Presid ent Franklin D. Roosevelt’s NEW DEAL legislation, writing the majority opinions in Helvering v. Davis, 301 U.S. 619, 57 S. Ct. 904, 81 L. Ed. 307 (193 7), and Steward Machine Co. v. Davis, 301 U.S. 548, 57 S. Ct. 883, 81 L. Ed. 1279 (1937), which upheld the constitutionality of the UNEMPLOYMENT COM- PENSATION (SOCIAL SECU RITY Act § 901–910, 42 U.S.C.A. § 1101–1110) and old-age benefits programs (Social Security Act § 201 et seq., 42 U.S.C.A. § 401 et seq.) of the SOCIAL SECURITY ACT Benjamin N. Cardozo. PHOTOGRAPH BY HARRIS & EWING. COLLECTION OF THE SUPREME COURT OF THE UNITED STATES. Benjamin Nathan Cardozo 1870–1938 ❖ ❖ ◆ 1870 Born, New York, N.Y. ◆ ◆ ◆ 1890 Earned master's degree from Columbia 1903 Jurisdiction of the Court of Appeals of the State of New York published 1924 The Growth of the Law published 1926 Elected chief judge of Court of Appeals 1914–18 World War I 1938 Died, Port Chester, N.Y. 1861–65 U.S. Civil War ◆ ◆ ◆ 1937 Wrote majority opinion in Palko v. Connecticut 1939–45 World War II 1913 Elected to New York Supreme Court 1917 Appointed to permanent seat on Court of Appeals; wrote majority opinion in Wood v. Duff-Gordon 1921 The Nature of the Judicial Process published ◆ ◆ ◆ 1928 Wrote majority opinion in Palsgraf v. Long Island Railroad 1932 Nominated to U.S. Supreme Court by President Hoover ▼▼ ▼▼ 1850 1900 1925 1950 1875 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 254 CARDOZO, BENJAMIN NATHAN OF 1935. Cardozo also authored a number of significant CRIMINAL LAW decisions while on the Court, including Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937). In Palko, the Court held that the Due Process Clause of the Fourteenth Amendment of the Constitution did not require that the DOUBLE JEOPARDY Clause contained in the FIFTH AMEND- MENT be applied to the states. Cardozo favored a “selective incorporation” approach to the Fourteenth Amendment, writing that only select protections of the first eight amendments that “represented the very essence of a scheme of ordered liberty, … principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental, ” should be imposed upon the states. Palko represented the beginning of the Supreme Court’s long struggle to formulate a test for applying the Due Process Clause of the Fourteenth Amendment as a limit on states’ powers. Cardozo, though remembered for his ma- jority opinions, was not afraid to disagree with the majority and wrote some equally significant and stirring dissents while on the Court. In Carter v. Carter Coal Co., 298 U.S. 238, 56 S. Ct. 855, 80 L. Ed. 1160 (1936), one of many cases arising out of constitutional challenges to Roosevelt’s New Deal legislation, the Court in a6–3 vote struck down the 1935 Bituminous Coal Conservation Act (15 U.S.C.A. §§ 801– 827), which authorized fixed prices to help stabilize the coal industry. Cardozo maint ained that the law was constitutional and necessary to combat the economic problems created by the Great Depression. He wrote that “[a]fter making every allowance for differen[ces] of opinion as to the most efficient CURE, the student of the subject is confronted with the indisputable truth that there are ills to be corrected, and ills that had a direct relation to the maintenance of commerce among the states…. An evil existing, and also the power to correct it, the lawmakers were at liberty to use their own discreti on in the selection of the means.” Cardozo’s body of legal scholarship is not limited to the many important judicial opinions he authored as a state court judge and U.S. Supreme Court justice. He also wrote a number of books which have become classics of legal thought and judicial philosophy. His lectures on the decision-making process that he delivered at Yale Law School and Columbia University early in his career were published in 1921 as a group of essays in The Nature of the Judicial Process, which is still widely used as a textbook for first- year law students. He also wrote The Growth of the Law (1924), The Paradox of Legal Science (1928), and Law and Literature (1931). In all his books, Cardozo so ught to define the difficult issues faced by a judge in deciding cases, as well as his beliefs about how the entire legal system could function most effectively. Cardozo, who never married and remain ed close to his family throughout his life, was a shy and reclusive man described in one book about the history of the Court as “the hermit philosopher.” He remained on the Supreme Court until 1938 when he died of heart trouble at the age of 68. He is b uried i n the Cardozo family plot in the cemetery of Shearith Israel congregation at Cypress Hills, Long Island. FURTHER READINGS Congressional Quarterly. 2004. Guide to the U.S. Supreme Court. 4th ed. Washington, D.C.: Congressional Quarterly. Elliott, Stephen P., ed. 1986. A Reference Guide to the United States Supreme Court. New York: Facts on File. Kaye, Judith S. 1999 “Poetic Justice: He Was a Great Common Law Judge, Responsive to His Times; As Business Relationships Became More Com plex and Attenuated, Benjamin Nathan Cardozo Created New—and Lasting—Standards.” American Lawyer 21 (December). Levy, Beryl H. 2007. Cardozo and Frontiers of Legal Thinking. Whitefish, MT: Kessinger. Pollard, Joseph P. 1995. Mr. Justice Cardozo: A Liberal Mind in Action. Buffalo, NY: Hein. CARE Watchful attention; custody; diligence; concern; caution; as opposed to negligence or carelessness. In the law of NEGLIGENCE, the standard of reasonable conduct determines the amount of care to be exercised in a situation. The care taken must be proportional to the apparent risk. As danger increases, commensurate caution must be observed. Slight care is the care persons of ordinary prudence generally exercise in regard to their personal affairs of minimal importance. Reasonable care, also known as ordinary care, is the degree of care, diligence, or precaution that may fairly, ordinarily, and properly be expected or required in consideration of the nature of the action, the subject matter, and the surrounding circumstances. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CARE 255 Great care isthedegreeofcarethatpersonsof ordinary prudence usually e x ercise with respect to their personal a ffairs of great importance. Another type of care is that which a fiduciary—a person having a duty, created by his or her undertaking, to act primarily for another’s benefit—exercises in regard to valuable possessions entrusted to him or her by another. CARJACKING The criminal taking of a motor vehicle from its driver by force, violence, or intimidation. The U.S. JUSTICE DEPARTMENT categorizes the crime of carjacking as a “completed or attempted ROBBERY of a motor vehicle by a stranger to a victim.” Carjacking incidents emerged in increasing numbers in the 1980s and 1990s, after their initial appearances in Detroit. According to a report filed with the Bureau of Justice Statistics in 1999, an average of 49,000 carjackings occurred in the United States each year between 1992 and 1996. During this time, about half of all attempted carjackings were successful, though the most carjackings (84 percent) did not result in injuries to the victims. Carjackers are often thought by the public to target older persons, women, and tourists— groups of conspicuous vulnerability. However, statistics from 1992 to 1996 show that indivi- duals between the ages of 25 and 49 were more likely to be the victims of such a crime (3.6 out of every 10,000 persons) than in dividuals ages 50 or older (0.9 out of every 10,000 persons). Moreover, males during this time span were more likely to be victims (3.1 out of every 10,000 persons) than females (1.9 out of every 10,000 persons). The makes and models of the cars targeted for carjacking vary from city to city, and it is not only the expensive, top-of-the-line cars that are taken but also older and less pricey AUTOMOBILES. This may be because carjackings are more CRIMES of opportunity than of premeditation. Carjackers simply wait for an unaware driver, an open window, or an unlocked door. According to the Bureau of Justice Statistics report in 1999, persons with an average annual income of between $35,000 and $49,999 were more likely to be victims (3.2 out of every 10,000) than those who made $50,000 or more per year (2.4 out of every 10,000). Carjacking was formally introduced to Congress during its spring 1992 session by Representative Charles E. Schumer (D-NY). Over the next several months, a new law involving the crime was discussed and devel- oped into the Anti-Car THEFT Act of 1992 (18 U.S.C.A. § 2119). The focus was not entirely on carjacking, but rather on car theft, which had become the number one property crime in the United States, with automobiles constituting more than 50 percent of the property U.S. citizens lost to theft. In the fall of 1992, Pamela Basu and her 22-month-old daughter were carjacked in Maryland. Basu was forced from her car by two men and, in a struggle to keep her daughter from being hurt, became caught in the seat belt outside the car. She was dragged almost two miles bef ore she was freed from the seat belt; her daughter, still in her car seat, was thrown from the vehicle a short time later. Basu died of massive internal injuries; her daughter was physically unharmed. The publicity sur- rounding this crime helped fuel the movement that led to the passage of a provision in the Anti-Car Theft Act of 1992 that made carjack- ing a federal offense. President GEORGE HERBERT WALKER BUSH signed the act into law on October 25, 1992. The statute’s provision regarding carjacking was as follows: Whoever, possessing a firearm, as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—1) be fined under this title or imprisoned not more than 15 years, or both. 2) If serious bodily injury … results, be fined under this title or be imprisoned not more than 25 years, or both, and 3) if death results, be fined under this title or imprisoned for any number of years up to life, or both. Within a few months of its passage, the federal carjacking statute was challenged under the DOUBLE JEOPARDY Clause of the U.S. Constitution. According to the FIFTH AMENDMENT, no person shall “be subject for the same offence to be twice put in JEOPARDY of life or limb,” meaning that no one can be tried twice for the same crime. After the carjacking statute was passed, people who used a firearm during the commission of a carjacking were not only subject to punishment GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 256 CARJACKING under that statute but also faced mandatory punishment under 18 U.S.C.A. § 924(c), which outlaws the use or carrying of a firearm in relation to a violent crime. The issue came to a head in United States v. Singleton, 16 F.3d 1419 (5th Cir. 1994), when the presiding judge ruled that both the firearm portion of the carjacking statute and the gun statute proscribed the same conduct, and Congress had not shown that it would impose cumulative punishment under these two statutes. Therefore, the gun count in the carjacking statute violated the Double Jeopardy Clause. Within several months of Singleton, amend- ments to the carjacking portion of the Anti-Car Theft Statute were debated in the House of Representatives and Senate. The result was a provision in the VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994, Pub. L. No. 103-322, 108 Stat. 2119, which was signed by President BILL CLINTON. The provision made two significant amendments to 18 U.S.C.A. § 2119. The first was that a death sentence can be handed down in cases in which a carjacking victim is killed. The second was that “possessing a firearm, as defined under section 921 of this title” was deleted and replaced with “with the intent to cause death or serious bodily harm.” This removed the double jeopardy problem identi- fied in Singleton. Although carjacking has been made a federal crime, several states also have legislation on the subject. One is Florida, which has a big tourist industry. In the late 1980s and early 1990s, an increasing number of tourists, most of them foreign, were victims of carjackings in Florida. Because tourists in well-marked rental cars were common carjacking victims, Florida passed legislation in 1993 (F.S.A. § 320.0601) that outlawed company logos and license plates that made rental and leased cars obvious. Florida’s legislators felt that tourists warranted this extra protection for three main reasons. First, tourists are, more often than not, unfamiliar with the area and are more likely to become lost or end up in a high-crime area. Second, tourists often carry more cash than natives, which makes them prime robbery targets. And finally, fewer tourists are likely to return and testify in court about a crime. By granting tourists the right to drive unmarked rental cars, Florida made them less vulnerable to the crime of carjacking. FURTHER READINGS Bodette, David C. 2001. “Criminal Law—United States v. Boucha: The Sixth Circuit Interprets the ‘Person or Presence’ Requirement of the Federal Carjacking Statute.” The Univ. of Memphis Law Review 32 (fall). Bogenn, Tim. 2003. Grand Theft Auto: Vice City Official Strategy Guide. Upper Saddle, NJ: BradyGames. Bureau of Justice Statistics Web site. 2004. Carjackings in the United States, 1993–2002. Available online http://www. ojp.usdoj.gov/bjs/abstract/c02.htm; website home page: http://www.ojp.usdoj.gov (accessed July 11, 2009). Kretzmar, Allan Jon. 1998. “I Would Rather Face a Carjacker in Court Than Have a Carjacker Come to My Funeral! The Debate over Carjacking, Legislation, and Anti-Theft-Anti-Carjacking Devices.” Univ. of West Los Angeles Law Review 29 (annual). Michenfelder, Mary C. 1995. “The Federal Carjacking Statute: To Be or Not to Be? An Analysis of the Propriety of 18 U.S.C. § 2119.” Saint Louis Univ. Law Journal 39 (spring). Norborg, Chris. 2000. “Conditional Intent to Kill Is Enough for Federal Carjacking Conviction.” Journal of Criminal Law and Criminology 90 (spring). Rand, Michael R. 1994. Carjacking: National Crime Victimi- zation Survey. Washington, D.C.: Justice Department of Justice. Available online at http://www.ojp.usdoj.gov/ bjs/pub/ascii/c.txt; website home page: http://www.ojp. usdoj.gov (accessed July 11, 2009). Wing, F. Georgann. 1994. “Putting the Brakes on Carjacking or Accelerating It? The Anti Car Theft Act of 1992.” Univ. of Richmond Law Review 28 (April). VICTIMS OF MOTOR VEHICLE THEFT, 1993 TO 2002 a SOURCE: U.S. Department of Justice, Bureau of Justice Statistics, National Crime Victimization Survey, “Car j ackin g , 1993–2002.” Rate of victimization (per 10,000 persons) Victims 5.0 4.0 3.0 2.0 1.0 0 Total White Black Hispanic Male Female 1.7 1.5 3.3 2.6 2.3 1.1 a Average number of carjacking victimizations per year: 38,000 Carjacking ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CARJACKING 257 . So. 2d 413 (Fla. 1999); cert denied, 528 U.S. 11 82, 120 S. Ct. 122 2, 145 L. Ed. 2d 1 122 [20 00]). Capital Punishment for DWI-Related Offenses Many observers expected the “evolving stan- dards of. possibility of parole. According to a study by the Indiana CRIMINAL LAW Study Commission released in 20 02, executions cost the state GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 25 0 CAPITAL. Hoover ▼▼ ▼▼ 1850 1900 1 925 1950 1875 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 25 4 CARDOZO, BENJAMIN NATHAN OF 1935. Cardozo also authored a number of significant CRIMINAL LAW decisions while