contract. Advanced societies, Holmes noticed, no longer settle contractual disputes in such a barbaric fashion. These societies have evolved to the point where liability is now premised on objective and external standards that separate moral responsibility from legal obligation, and wholly eliminate concerns regarding the actual guilt of the wrongdoer. Holmes noted that common-law principles require judges and juries to interpret contractual relations from the perspective of an average person with ordinary intelligence, regardless of how a particular agreement may have actually been understood or performed by the parties themselves. The importance of The Common Law rests in its rejection of the idea that law is a logical system and that legal systems obey the rules of logic. In his most famous quotation, Holmes concluded, The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. Holmes’s jurisprudence led to the conclusion that judges first make decisions and then come up with reasons to explain them. His approach, which has been characterized as cynical, touched a nerve with succeeding generations of legal scholars. He had a profound effect on the development of sociological jurisprudence and LEGAL REALISM. Sociological jurisprudence and legal realism were twentieth-century schools of thought that emphasized the need to examine social, economic, and political forces rather than confine the study of law to logic and abstract thought. Holmes joined the faculty of the Harvard Law School in 1882, then left after one semester to accept an appointment as justice on the Supreme Judicial Court of Massachusetts, the highest tribunal in the state. In 1899 he was appointed chief justice of that court, and he served in that position until 1902, when President THEODORE ROOSEVELT named him to the U.S. Supreme Court. His service on the Supreme Court gave Holmes the opportunity to apply his philoso- phy. He believed that judges should not impose their private beliefs on law, especially law created by a legislature. When reviewing the constitutionality of legislation, Holmes said a legislature can do whatever it sees fit unless a law it enacts is not justified by any rational interpretation of, or violates an express prohi- bition of, the Constitution (Tyson & Brothers United Theatre Ticket Offices v. Banton, 273 U.S. 418, 47 S. Ct. 426, 71 L. Ed. 718 [1927]). Holmes was skeptical about his ability to determine the “goodness or badness of laws” passed by the legislature, and felt that in most situations he had no choice but to practice judicial restraint and defer to the desires of the popular will. Holmes’s dissenting opinion in LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), is recognized as his most famou s opinion. It is based on the idea of judicial restraint. In Lochner Holmes disagreed with the majority, which struck down a New York law that limited the number of hours a baker could work during a week. The majority held that the law violated the “liberty of contract” guaranteed by the FOURTEENTH AMENDMENT, which provides that no state is to “deprive any person of life, liberty, or property, without due process of law” (§ 1). In his dissent Holmes suggested that the majority had based its decision on its members’ personal ideological preference for freedom of contract, and not on the Constitution. He said it was improper to overturn a legislative act simply because the Court embraced an eco- nomic theory antagonistic to government work regulations. But Holmes rarely deferred to the popular will in cases raising free speech questions under the FIRST AMENDMENT. If the law must correspond to powerful interests in society, Holmes rea- soned, then all facets of society must be given a fair opportunity to compete for influence through the medium of public speech . In GITLOW V. NEW YORK, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), Holmes dissented from a decision upholding the conviction of a man who had been arrested for violating the New York Criminal Anarchy Law (N.Y. Penal Law §§ 160, 161 [ch. 88, McKinney 1909; ch. 40, Consol. 1909]) by advocating the establishment of a socialist government. In his dissent he argued for “the free trade in ideas” as the best way of testing the truth of particular beliefs. He stated that FREEDOM OF SPEECH must be permitted unless it is intended “to produce a clear and imminent danger.” This “clear-and-imminent- danger” test for subversive advocacy was first IF THERE IS ANY PRINCIPLE OF OUR CONSTITUTION THAT MORE IMPERATIVELY CALLS FOR ATTACHMENT THAN ANY OTHER IT IS THE PRINCIPLE OF FREE THOUGHT —NOT FREE THOUGHT FOR THOSE WHO AGREE WITH US BUT FOR THE THOUGHT THAT WE HATE . —OLIVER WENDELL HOLMES JR. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 298 HOLMES, OLIVER WENDELL, JR. labeled by Holmes as the “clear-and-present- danger” test in SCHENCK V. UNITED STATES, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919). It remains influential as a way of protecting what Holmes termed the marketplace of ideas. Holmes also contributed to modern FOURTH AMENDMENT jurisprudence. In OLMSTEAD V. UNITED STATES , 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), the Supreme Court ruled that incrimi- nating evidence illegally obtained by the police was admissible against a DEFENDANT during prosecution. Foreshadowing the Court’s later recognition of an EXCLUSIONARY RULE that prohi- bits prosecutors from using illegally obtained evidence during trial, Holmes wrote that the “government ought not to use evidence” that is “only obtainable by a criminal act” of the police. While acknowledging the legitimate objectives of law enforcement, Holmes concluded that it was “a less[er] evil that some criminals should escape than that the government should play an ignoble part.” Despite Holmes’s substantial reputation, he is not without critics. BUCK V. BELL, 274 U.S. 200, 47 S. Ct. 584, 71 L. Ed. 1000 (1927), is the case most frequently cited to point out fault s in his jurisprudence. In his majority opinion in Buck, Holmes upheld the constitutionality of a state statute (Va. Law of March 20, 1924, ch. 394) authorizing the sterilization of “feeble-minded” (mentally retarded) persons. Reviewing the family history of Carrie Buck, her mother, and her daughter, Holmes stated, “Three genera- tions of imbeciles are enough.” He believed that sterilization was the best way to end the procreation of mentally retarded persons, and in looking at these three generations of women he believed they were all mentally retarded. Later evidence suggested that none of the three were in fact mentally retarded. The case also suggested that deference to legislative acts, such as forced sterilization, was not an unfettered good and that questions of morality and justice have a place in the law, despite Holmes’ s protests to the contrary. Holmes’s jurisprudence also sugges ted that the law is what the government says it is. This approach, called LEGAL POSITIVISM, was called into question in the 1930s and 1940s with the rise of totalitarian regimes in Germany and Italy and the rule of Stalin in the Soviet Union. Many legal scholars criticized positivism as lacking a basis in morality and fundamental societal values. Holmes retired from the Supreme Court in 1932. He died in Washington, D.C., on March 6, 1935, two days before his 94th birthday. FURTHER READINGS Alschuler, Albert W. 2000. Law without Values: The Life, Work, and Legacy of Justice Holmes. Chicago: Univ. of Chicago Press. Burton, David H. 1998. Taft, Holmes, and the 1920s Court: An Appraisal. Madison, NJ: Fairleigh Dickinson Univ. Press. Coper, Michael. 2003. “The Path of the Law: A Tribute to Holmes.” Alabama Law Review 54 (spring). George, Robert P. 2003. “Holmes on Natural Law.” Villanova Law Review 48 (February). Available online at http:// www.law.harvard.edu/students/orgs/jlpp/Vol31_No1_ Georgeonline.pdf; website home page: http://www.law. harvard.edu (accessed July 30, 2009) Kellogg, Frederic R. 2002. “Holmes, Common Law Theory, and Judicial Restraint.” John Marshall Law Review 36 (winter). CROSS REFERENCES Clear and Present Danger; Judicial Review; Labor Law; “The Path of the Law” (Appendix, Primary Document). HOLOGRAPH A will or deed written entirely by the testator or grantor with his or her own hand and not witnessed. State laws vary widely in regard to the status of a holographic will. Some states absolutely refuse to recognize any will not in compliance with the formal statutory requirements pertain- ing to the execution of the will. Many states that do not recognize holographic wills executed by their own citizens within their borders will nevertheless admit a holographic will to probate if it was validly executed in accordance with the statutory requirements of another jurisdiction that recognizes such wills. HOME RULE The right to local self-government including the powers to regulate for the protection of the public health, safety, morals, and welfare; to license; to tax; and to incur debt. Home rule involves the authority of a local government to prevent state government inter- vention with its operations. The extent of its power, however, is subject to limitations prescribed by state constitutions and statutes. When a municipality or other political sub- division has the power to decide for itself GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HOME RULE 299 whether to follow a particular course of action without receiving specific approval from state officials, it acts pursuant to such powers. For example, a town exercises its home rule powers when it puts the issue of allowing the sale of alcoholic beverages within its borders on the ballot. HOMELAND SECURITY DEPARTMENT There were gaps in the U.S. system for detecting and deterring terrorist acts in the homeland, which became clear on SEPTEMBER 11, 2001. The DEPARTMENT OF HOMELAND SECURITY was the GEORGE W. BUSH administration’s plug for those gaps. The department’s main goal is to protect U.S. citizens against terrorists. It brings together personnel from 22 agencies to protect the nation’s borders, help state and local safety officials better respond to catastrophes, research treatments against biological threats, and coor- dinate intelligence on terrorists. The adminis- tration’s rationale: better communication is the key to achieving those goals; the Depart- ment of Homeland Security is the key to better communication. In January 2002 Republicans drafted legisla- tion to create the department. In November of that year, the U.S. House and Senate passed the Homeland Security Act, and President Bush signed it. The cabinet department melded 22 agencies as varied as the Coast Guard, the Customs Service, the IMMIGRATION and NATURALI- ZATION Service, and the Transportation Security Administration. It was the biggest change in U.S. government since the DEPARTMENT OF DEFENSE was created in 1947. Former Pennsylvania governor and Vietnam veteran Tom Ridge became the first secr etary of the department. In March 2002 Ridge revealed the Homeland Security Advisory System, which formally merged into the department in 2003. The system is based upon five alerts, which are each given a color reflecting the applicable threat level. Under the system, green is consid- ered to be a low threat, blue is a guarded threat, yellow is an elevated threat, orange is a high threat, and red is a severe threat. Since the system’s inception, the threat level has never been green or blue, and it has predominantly stayed at yellow. James Loy and Michael Chertoff followed Tom Ridge as subsequent secretaries of the department. Loy and Chertoff likewise served under President Bush. After BARACK OBAMA was elected President in 2008, Janet Napolitano became the secretary of the department. By 2008 the department had grown to include many compartments. These compart- ments are focused generally on information sharing and analysis, preven tion and protection, preparedness and response, research, commerce and trade, travel security, and immigration. The department employs 216,000 individuals and is one of the nation’s largest cabinet departments. The department has faced criticism primar- ily on the grounds of its alleged inefficiency. In 2008, media reports indicated that the depart- ment was responsible for $15 million worth of failed contracts from projects such as baggage screening and trailers for Hurricane Katrina evacuees. In 2009 the department released warnings to law enforcement agencies that right-wing extremism poses an increasing threat to the United States. Information released by the department reflected that right-wing terrorists were growing in number, as the result of recruitment campaigns based upon fears related to a down economy. The recruitment is also said to be based on racism related to the election of Obama, the nation’s first African American President. In the final week of the year, Napolitano came under severe criticism for commenting, “The system worked,” after security checks in Amsterdam had failed to stop a Nigerian passenger from boarding a Tom Ridge, former secretary of the Department of Homeland Security, unveils the agency’s five-level, color-coded warning system on March 12, 2002. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 300 HOMELAND SECURITY DEPARTMENT transatlantic flight, bound for Detroit, with a syringe and explosive chemicals, which he ignited while the plane was in the air. The passenger’s father had alerted the American authorities about the dangers that he feared his son posed, weeks before the incident. FURTHER READINGS Cmar, Thomas. 2002. “Office of Homeland Security.” Harvard Journal on Legislation 39 (summer): 455–74. Department of Homeland Security Annual Performance Report. for Fiscal Years 2008-2010. Available online at www.dhs.gov (accessed May 21, 2009). Jarrett, Peggy Roebuck, comp. 2003. The Department of Homeland Security: A Compilation of Government Documents Relating to Executive Reorganization. Buffalo, N.Y.: W.S. Hein. May, Randolph J. 2002. “Will We Be Safe at Home?” Legal Times 25 (Sept. 2): 38. Moore, John Norton. 2010. Legal Issues in the Struggle Against Terror. Durham: University of North Carolina Press. Nemeth, Charles P. 2010. Homeland Security: An Introduc- tion to Principles and Practice. Boca Raton, Fla.: Auerback Publications. CROSS REFERENCES Ridge, Thomas Joseph; Terrorism. HOMELESS PERSON An individual who lacks housing, including one whose primary residence during the night is a supervised public or private facility that provides temporary living accommodations; an individual who is a resident in transitional housing; or an individual who has as a primary residence a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings. The National Coalition for the Homeless (NCH), which publishes reports and studies of the homeless, has noted that several national estimates of homelessness exist at any given time, and depending on the source, there are inconsistencies in the numbers. The best estimates translate to a figure approximating one percent of the U.S. population annually; the Coalition, estimating “on the high end” in its September 2009 report, put that number at 3.5 million persons. According to the U.S. Conference of Mayors Report for 2008, 19 of the 25 cities reporting experienced an increase in homelessness be- tween 2007 and 2008. Twelve of the 25 cities reported an increase due to housing foreclo- sures, and had to turn people away due to lack of capacity. (Another six reporting cities lacked sufficient data to make a determination as to reasons for increased numbers.) On average, over 90 percent of persons living on the streets were single adults; two percent were unaccom- panied minors. The average length of stay for single men in emergency shelters was 69 days; for women, 51 days, and for families, 70 days. Unemployment, cutbacks in social service programs, a lack of affordable housing, and the deinstitutionalization of mentally ill patients are some of the circumstances that have led to people living in shelters or on the streets. There is no fair stereotype of homeless persons: They include the young and old, individuals and entire families, and all races and ethnicities. According to the U.S. Conference of Mayors Report for 2008 (as reported in the September 2009 updated statistics kept by the NCH), the homeless population was estimated to be 42 percent African American; just under 40 percent white; 1 3 percent Hispanic; four percent Native American; and two percent Asian, these figures varying widely according to the area of the country. Additionally, the report indicated that 13 percent of homeless indivi- duals in the reporting cities were physically disabled, while one in four (26 percent) was considered mentally ill. Nineteen percent were victims of DOMESTIC VIOLENCE, 13 perce nt were veterans, and two percent were HIV-positive. The same report indicated that approximately 19 percent of homeless people were employed. By sheer number alone, the rights of these persons have become important societal and legal issues. A homeless man sleeps on a park bench. Several states have enacted local laws recognizing the right to shelter, but state agencies, due to expense and overcrowding, often cannot keep up with the demand. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION HOMELESS PERSON 301 Shelter Although federal law provides for emergency shelter for homeless families in most states, there is no federal or constitutional right to shelter. In 1987 the Stewart B. McKinney Homeless Assistance Act (42 U.S.C.A. § 11301) was passed to provide public resources and programs to assist the homeless populati on. Under the act, the federal government is required to provide underutilized public build- ings for use by people who are homeless. In National Law Center v. United States Department of Veterans Affairs, 964 F.2d 1210 (D.C. Cir. 1992), a homeless rights group sought to enforce compliance with the MCKINNEY ACT. The court agreed with the plaintiffs and held that the government must comply with the McKinne y Act by allowing homeless people access to underused federal property. Because the federal courts have refused to recognize a federal constitutional right to shelter, several states have enacted their own laws to recognize such a right. Many of these statutes require that cities provide shelter for people who are homeless, but they do not outline enforcement procedures. Although sta- tutes require state agencies to provide shelter, the agencies often cannot keep up with the demand, citing expense and overcrowding. In Atchison v. District of Columbia, 585 A.2d 150 (D.C. App. 1991), a court imposed daily fines on a shelter for failure to provide services. The level of fines combined with the cost of litigation stimulated the adoption of an emer- gency act that allowed the agency to provide a shelter program based on the availability of funds. Economic Assistance Public assistance for the homeless remains a prominent political issue. As the government began cutting welfare programs, people who were homeless found it increasingly difficult to rise above the poverty level. In addition, substantial cuts to welfare programs created the possibility that more people would be forced into homelessness. Existing public assistance programs of ten fail to help those who are homeless. Some programs req uire that recipients have tempo- rary or permanent addresses, effectively elimi- nating otherwise eligible recipients. Some peo- ple who are homeless are provided temporary housing in “welfare hotels.” A welfare hotel is inexpensive housing that is used for temporary instances. In 1995 federal legislation was intro- duced to control welfare spending and to reduce welfare dependence. (H.R. 1157, 104th Cong., 1st Sess.). The features of this legislation included discontinuing welfare benefits to certain groups and creating state demonstration projects to reduce the number of homeless families in welfare hotels. The mortgage and FORECLOSURE crises of 2008 and 2009 prompted specific response. The American Recovery and Reinvestment Act of 2009 (P.L. 111-5) created a $1.5 billion Home- lessness Prevention and Rapid Re-Housing Program(HPRP)intendedtoassistfamilies either homeless or facing homelessness with emergency funds for rent payments, security deposits, utility bills, and other housing expenses. The program wa s t o b e administrated through t he DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD). Addit ionally, t he Protec ting Tenants at Foreclosure Act (H.R. 1247) was e nacted in May 2009 to protect te nants living in foreclosed properties. Education One alarming aspect of the growth of the homeless population is the increasing numbers of families and children who have nowhere to live. Children are more strongly affected by homelessness than are adults because they are less able to overcome a lack of food, shelter, health care, and education. Many children in homeless families lack the transportation, documentation, and even clothing needed to attend public schools. State residency guidelines typically require children to attend school within the district in which their parent or guardian lives. Homeless children cannot meet these residency require- ments. Because education is often critical to overcoming poverty and homelessness, the McKinney Act specifically addresses the issue of education for children who are homeless. The act ensures that these children have every opportunity for a public school education. It requires states to revise their residency require- ments in order to give such children a free education. Another barrier to the education rights of children without a home is the inability to track education and medical records. Students can be GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 302 HOMELESS PERSON refused enrollment if they have no documenta- tion of previous schooling. The McKinney Act requires local education agencies to maintain records that can be readily available when a student moves to a new school district. Under the act, children must also have equal access to special-education programs in the public school system. Voting The right to vote is expressly stated in the U.S. Constitution. Because most states require that a citizen have a permanent residence in order to vote, the right to vote is often den ied to people who are homeless. The right to vote provides a way for a person who is homeless to be heard— by electing public officials who are sympathetic to the concerns of people who are without a home. New Jersey was one of the first states to allow people who are homeless the right to vote. The only requirement is that they meet the age and residency requirement of the state’s consti- tution. They can satisfy the residency require- ment by specifying a place they regard as home and providing the name of at least one contact who can verify their residence in that place. By 1994, 13 states had legislation protecting the voting rights of people who are homeless. In Collier v. Menzel, 176 Cal. App. 3d 24, 221 Cal. Rptr. 110 (1985), three persons who were homeless listed a local park as their address on a voter-registration card. The court held that they had satisfied the residency requirement because they had indicated a fixed habitation in which they intended to remain for an extended period. In addition, even though a city ordi- nance prohibited camping and sleeping over- night in the park, the court held that denying the voter registration would violate EQUAL PROTECTION . The 2004 and 2008 national elections were fraught with allegations that certain nonprofit “voter registration” groups had exceeded their authority in their efforts to recruit new voting registrants. For example, in the weeks leading up to the 2006 national elections, the media televised several instances of third-party groups bestowing money and gifts on inner-city and/or homeless persons in return for their efforts to register and vote, many times with a commit- ment to vote for a certain party or issue. Antihomeless Legislation With an increased homeless population comes increased concern on the part of members of the general public when they find members of that population loitering on the streets. Vagran- cy ordinances were passed to keep people who are homeless from staying too long in any one location. Many of these statutes have been labeled antihomeless legislation because they particularly target behavior over which some homeless people have no control. In Papachristou v. Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972), eight homeless people challenged their conviction for violating a vagrancy ordinance. The U.S. Supreme Court held that the ordinance was vague and that it criminalized otherwise inno- cent conduct. In this and similar cases, the Court has stated that these “crimes” do not cause any harm to others that outweighs the violation of the rights of the individuals arrested. Protections against an illegal SEARCH AND SEIZURE also apply to people who are homeless and to their belongings, even though their belongings might not be located in a traditional home setting. In State v. Mooney, 218 Conn. 85, 588 A.2d 145 (1991), police officers searched belongings of a homeless man that were found under a bridge embankment. As a result of the search, the man was arrested and charged with ROBBERY and felony MURDER. The man appealed his conviction, claiming that it had been an illegal search because the police had lacked a warrant to search his home, a cardboard box. The court agreed with the man that he had a reasonable expectation of privacy in the con- tents of his belongings. It disagreed, however, with his contention that he had an expectation of privacy in the bridge abutment area. When people without a home are arrested and jailed, their property is often destroyed or stolen while they are incarcerated. Laws that target people who are homeless are thus viewed as unreasonable searches and seizures of property. In Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1 992), a CLASS ACTION suit was brought on behalf of thousands of homeless people. The court agreed that certain city ordinances unfairly targeted those people and that resulting arrests and seizures of property were in violation of their constitu- tional rights. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HOMELESS PERSON 303 Another rising statistic is that of hate crimes against the homeless. The NCH reported that in 2006 alone, the number of attacks had risen 65 percent. For the first six months of 2008, there were 26 reported assaults on homeless persons, 13 of which resulted i n deaths. As of late-2009, no federal l egislation had yet been passed, but a few states had acted individually. For example, Alaska was the most recent state to classify a homeless person as a “vulnerable person,” which serves to enhance punishment for crimes agains t them. Finally, there appeared to be an increasing trend for many urban areas to enact legislation prohibiting the homeless from begging or panhandling among the general public. As of 2008, of the 224 cities surveyed in a NCH study, 43 percent prohibited begging and/or aggressive panhandling in particular public places; 39 percent had loitering laws; 27 percent prohib- ited sitting or lying down in certain public places; and 28 percent prohibited camping out in particular public places. FURTHER READINGS Baker, Donald E. 1990–91. “Anti-Homeless Legislation: Unconstitutional Efforts to Punish the Homeless.” University of Miami Law Review 45 (November 1990– January 1991). Hanrahan, Patricia M. 1994. “No Home? No Vote. Homeless Are Often Denied That Most Basic Element of Democracy.” Human Rights 21 (winter). Jarrett, Beth D., and Wes R. Daniels. 1993. “Law and the Homeless: An Annotated Bibliography.” Law Library Journal 85 (summer). Mathews, K. Scott. 1991. “Rights of the Homeless in the 1990s: What Role Will the Courts Play?” University of Missouri–Kansas City Law Review 60 (winter). National Coalition for the Homeless. 2009. “Fact Sheets.” Available online at http://www.nationalhomeless.org/ factsheets/; website home page: http://www.nationalho- meless.org/ (accessed September 25, 2009,). Siebert, Patricia. 1986. “Homeless People: Establishing Rights to Shelter.” Law and Inequality Journal 4. Tolme, Paula. 2003. “Banning Begging.” Newsweek 141. Wright, James. 2009. Address Unknown: The Homeless in America. New Brunswick, NJ: Transaction Publishers. HOMEOWNER’S WARRANTY An insurance protection program offered by a number of builders of residential dwellings in the United States. Homeowner’s warranty, commonly known as HOW, was developed by the Home Owner’s Warranty Corporation and protects the original homeowner of a new home for a period of ten years against major structural defects. If such defects occur, the builder, and not the original buyer, is financially responsible for their repair. In a number of states, similar warranty protec- tion is afforded by statute. HOMESTEAD The dwelling house and its adjoining land where a family resides. Technically, and pursuant to the modern homestead exemption laws, an artificial estate in land, created to protect the possession and enjoyment of the owner against the claims of creditors by preventing the sale of the property for payment of the owner’s debts so long as the land is occupied as a home. Laws exempting the homestead from liabili- ty for debts of the owner are strictly of U.S. origin. Under the English common law, a homestead right, a personal right to the peaceful, beneficial, and uninterrupted use of the home property free from the claims of creditors, did not exist. Homestead rights exist only through the constitutional and statutory provisions that create them. Nearly every state has enacted such provisions. The earliest ones were enacted in 1839 in the Republic of Texas. Homestead exemption statutes have been passed to achieve the public policy objective of providing lodgings where the family can peacefully reside irrespective of financial adver- sities. These laws are predicated on the theory that preservatio n of the homestead is of greater significance than the payment of debts. Property tax exemptions, for all or part of the tax, are also available in some states for homesteaded property. Statutory requirements prescribe what must be done to establish a homestead. A probate homestead is one that the court sets apart out of the estate property for the use of a surviving spouse and the minor children or out of the real estate belonging to the deceased. A homestead corporation is an enterprise organized for the purpose of acquiring lands in large tracts; paying off encumbrances, charges attached to and binding real property; improv- ing and subdividing tracts into homestead lots or parcels; and distributing them among the shareholders and for the accumulation of a fund for such purposes. HOMESTEAD ACT OF 1862 The HOMESTEAD ACT OF 1862 was a landmark in the evolution of federal agriculture law. Passed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 304 HOMEOWNER’ S WARRANTY by Congress during the Civil War, it had an idealistic goal: it sought to shape the U.S. West by populating it with farmers. The law’s Northern supporters had pursued a vision of taming the rough frontier for several decades, as a means both to create an agrarian base there and to break the institution of SLAVERY that was entrenched in the South. To achieve this end, they engineered a vast giveaway of public lands. The HOMESTEAD Act provided 160 acres of land for a small filing fee and a modest investment of time and effort. The overly optimistic la w failed in several ways. Most important, it was exploited by railroads and other powerful interests for profit. After making basic changes to it Congress finally repealed the law in 1977. The Homestead Act arose from the struggle between the North and the South that culmi- nated in the Civil War (1861–65). During this struggle, the nation followed two competing paths of agricultural development: the industri- alized North favored giving public lands to individual settlers, while the South clung to its tradition of slave labor. From the early 1830s, Northern proponents of the free distribution of public land, organized around the Free-Soil party and later in the REPUBLICAN PARTY, had their ideas blocked by Southern opponents. The secession of Southern states in 1861 cleared the way for passage of the Homestead Act in 1862, against a backdrop of other important legislation that would define national agricul- ture policy for the next century: the Morrill Land-Grant College Act, the PACIFIC RAILROAD ACT , and the creation of the AGRICULTURE DEPART- MENT . The Homestead Act went into effect on January 1, 1863, just as President ABRAHAM LINCOLN signed the EMANCIPATION PROCLAMATION freeing slaves. In this context of controversy and war, the Homestead Act offered a simple plan to achieve the goals of the North. As yet not fully settled, western states would be populated with a flood of homesteaders—individual farmers whose hard work would create a new agricultural industry. On its face, the law was generous. Anyone who was at least 21 years of age, the head of a family, or a military veteran was qualified to claim land; moreover, citizens and immigrants alike were entitled to participate. They paid a small filing fee in return for the temporary right to occupy and farm 160 acres. The land did not become theirs immediately; the law stipulated that it had to be improved, and only after living on and maintaining it for five years would the homesteader gain ownership. Proponents viewed the law with an almost utopian fondness: Through the federal government’s largesse, a new West would be created. In actual application, the act did not achieve this happy outcome. Although the East offered sufficient rainfall, the West was unforgiving. There, harsh land and arid conditions made farming 160 acres a dismal prospect for the settlers, who lived in houses usually made of sod. Often, they simply needed more acreage in order to succeed. In addition, homesteaders seldom had the best land. By bribing residents who bought the land for them, or simply by filing fraudulent claims, speculators managed to reap the lion’s share of land at public expense. It is estimated that only a quarter of the trillion acres made available through the Homestead Act ever served their intended purpose. The bulk of this land went to corporate interests, particularly in the railroad and timber indus- tries, rather than individual settlers. The Homestead Act left a complicated legacy to U.S. law. Its passage was a triumph for Northern states in their decades-long battle to control the destiny of national agricultural policy. But its limitations and its exploitation meant that the vision of those states could scarcely be realized. Congress made changes to the law during its 105-year history—chiefly, modifying the limits on acreage that it made Between the passage of the Homestead Act of 1862 and the year 1934, more than 1.6 million homestead applications were filed by settlers such as this family in Custer County, Nebraska (c. 1870–89). BETTMANN/CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION HOMESTEAD ACT OF 1862 305 available—but these amendments did little to alter the act’s net effect on the course of national agricultural policy. The law was finally repealed in 1977. Popularly romanticized during the nineteenth century and even into the twentieth, the Homestead Act is now widely viewed by scholars as a failed experiment and a lesson in the contrasts between the intentions and out- comes of law. FURTHER READINGS Buckley, F.H. 1995. “The American Fresh Start.” Southern California Interdisciplinary Law Journal 4 (fall). Chen, Jim. 1995. “Of Agriculture’s First Disobedience and Its Fruit.” Vanderbilt Law Review 48 (October). Nore, Michael J. “‘Burn This without Fail’: The Downfall of Oregon’s Sen. John H. Mitchell.” 1995. Oregon State Bar Bulletin (October). CROSS REFERENCES Agricultural Law; Railroad. HOMICIDE The killing of one human being by another human being. Although the term homicide is sometimes used synonymously with MURDER, homicide is broader in scope than murder. Murder is a form of criminal homicide; other forms of homicide might not constitute criminal acts. These homicides are regarded as justified or excusable. For example, individuals may, in a necessary act of SELF-DEFENSE, kill a person who threatens them with death or serious injury, or they may be commanded or authorized by law to kill a person who is a member of an enemy force or who has committed a serious crime. Typically, the circumstances surrounding a killing deter- mine whether it is criminal. The intent of the killer usually determines whether a criminal homicide is classified as murder or MANSLAUGH- TER and at what degree. English courts developed the body of com- mon law on which U.S. jurisdictions initially relied in developing their homicide statutes. Early English common law divided homicide into two broad categories: FELONIOUS and non- felonious. Historically, the deliberate and pre- meditated killing of a person by another person was a felonious homicide and was classified as murder. Non-felonious homicide included justifiable homicide and excusable homicide. Although justifiable homicide was considered a crime, the offender often received a pardon. Excusable homicide was not considered a crime. Under the early common law, murder was a felony that was punishable by death. It was defined as the unlawful killing of a person with “malice aforethought,” which was generally defined as a premeditated intent to kill. As U.S. courts and jurisdictions adopted the English common law and modified the various circumstances that constituted criminal homi- cide, various degrees of criminal homicide developed. Modern statutes divide criminal homicide into two broad categories: murder and manslaughter. Murder is further divided into the first degree, which typically involves a premeditated intent to kill, and the second degree, which typically does not involve a premeditated intent to kill. Manslaughter nor- mally involves an unintentional killing that resulted from a person’s CRIMINAL NEGLIGENCE or reckless disregard for human life. All homicides require the killing of a living person. In most states, the killing of a viable fetus is generally not considered a homicide unless the fetus is first born alive. In some states, however, this distinction is disregarded and the killing of an unborn viable fetus is classified as homicide. In other states, statutes separately classify the killing of a fetus as the crime of feticide. The law generally requires that the death of the person occur within a year and a day of the fatal injury. This requirement initially reflected a difficulty in determining whether an initial injury led to a person’s death, or whether other events or circumstances intervened to cause the person’s death. As FORENSIC SCIENCE has devel- oped and the difficulty in determining cause of death has diminished, many states have modi- fied or abrogated the year-and-a-day rule. Justifiable or Excusable Homicide A homicide may be justifiable or excusable by the surrounding circumstances. In such cases, the homicide will not be consid ered a criminal act. A justifiable homicide is a homicide that is commanded or authorized by law. For instance, soldiers in a time of war may be commanded to kill enemy soldiers. Such killings are considered justifiable homicide unless other circumstances suggest that they were not necessary or that they were not within the scope of the soldiers’ duty. In addition, a public official is justified in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 306 HOMICIDE carrying out a death sentence because the execution is commanded by state or federal law. A person is authorized to kill another person in self-defense or in the defense of others, but only if the person reasonably believes that the killing is absolutely necessary in order to prevent serious harm or death to himself or herself or to others. If the threatened harm can be avoided with reasonable safety, some states require the person to retreat before using DEADLY FORCE.Most states do not require retreat if the individual is attacked or threatened in his or her home, place of employment, or place of business. In addition, some states do not require a person to retreat unless that person in some way provoked the threat of harm. Police officers may use deadly force to stop or apprehend a fleeing felon, but only if the suspect is armed or has committed a crime that involved the infliction or threatened infliction of serious injury or death. A police officer may not use deadly force to apprehend or stop an individual who has committed, or is committing, a MISDEMEANOR offense. Only certain felonies are considered in determining whether deadly force may be used to apprehend or stop a suspect. For instance, a police officer may not use deadly force to prevent the commission of larceny unless other circumstances threaten him or other persons with imminent serious injury or death. Excusable homicide is sometimes distin- guished from justifiable homicide on the basis that it involves some fault on the part of the person who ultimately uses deadly force. For instance, if a person provokes a fight and subsequently withdraws from it but, out of necessity and in self-defense, ultimately kills the other person, the homicide is sometimes classi- fied as excusable rather than justifiable. The distinction between justifiable homicide and excusable homicide has largely disappeared, and only the term justifiable homicide is widely used. Other Defenses Other legal defense s to a charge of criminal homicide include insanity, necessity, accident, and in toxication. Some of these defenses may provide an absolute defense to a charge of criminal homicide; some will not. For instance, a successful defense of voluntary intoxication generally allows an individual to avoid prosecu- tion for a premeditated murder, but typically it will not allow an individual to escape liability for any lesser charges, such as second-degree murder or manslaughter. As with any defense to a criminal charge, the accused’s mental state is a critical determina nt of whether he or she had the requisite intent or mental capacity to commit a criminal homicide. Euthanasia and Physician-Assisted Suicide The killing of oneself is a suicide, not a homicide. If a person kills another person in order to end the other person’spainorsuffering,thekillingis considered a homicide. It does not matter if the other person is about to die or is terminally ill just prior to being killed; the law generally views such a killing as criminal. Thus, a “mercy killing,” or act of EUTHANASIA, is generally considered a criminal homicide. As medical technology advances and the medical profession is able to prolong life for many terminally ill patients, a person’s right to die by committing suicide with the help of a physician or others has become a hotly contested issue. In the 1990s, the issue of physician-assisted suicide came to the forefront of U.S. law. Dr. JACK KEVORKIAN, a Michigan physician, helped approximately 130 patients to commit suicide. Michigan authorities prose- cuted Kevorkian for murder on a number of occasions, but because aiding, assisting, or causing a suicide is generally considered to be separate from homicide, Kevorkian initially SOURCE: U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the United States, available online at http://www.ojp.usdoj.gov/bjs/ homicide/homtrnd.htm#contents (accessed on Au g ust 14, 2009). Rate per 100,000 population Year 0 10 5 25 20 15 30 35 40 45 37.1 5.1 4.9 37.7 5.7 6.3 37.6 5.4 4.2 3.3 2.7 20.5 3.3 2.5 20.6 Homicide Rate, by Race of Victim, 1976 to 2005 199019801976 2000 White Black Other 2005 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION HOMICIDE 307 . population Year 0 10 5 25 20 15 30 35 40 45 37.1 5. 1 4.9 37.7 5. 7 6.3 37.6 5. 4 4.2 3.3 2.7 20 .5 3.3 2 .5 20.6 Homicide Rate, by Race of Victim, 1976 to 20 05 199019801976 2000 White Black Other 20 05 ILLUSTRATION. accumulation of a fund for such purposes. HOMESTEAD ACT OF 1862 The HOMESTEAD ACT OF 1862 was a landmark in the evolution of federal agriculture law. Passed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E. and seizures of property were in violation of their constitu- tional rights. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HOMELESS PERSON 303 Another rising statistic is that of hate crimes against