Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P13 pdf

she founded a women’s auxiliary, the Philadelphia Female Anti-slavery Society, and was elected president of the group. Her new position caused a rift within the Society of Friends, and some sought to revoke her membership. Undeterred by the conflict, Mott was an organizer of the Anti-Slavery Convention of American Women in 1837. Stanton, the daughter of a lawyer and U.S. congressman, had studied her father’slaw books. In 1840 she married Henry Brewster Stanton, a lawyer and abolitionist. The com- mand for the wife to “obey” her husband was left out of their wedding vows. Like Mott, Stanton and her husband were active members of the American Anti-Slavery Society. Following her meeting with Mott in London, Stanton returned to the United States where she began to travel and speak on the subject of women’s rights. In 1848 Stanton helped circulate peti- tions that led to the enactment of a New York State married women’s property bill. This law allowed married women to keep in their own name property they brought into the marriage. The law also gave them the righ t to keep the wages they had earned and to retain guardianship of their children in cases of separation or DIVORCE. In 1848, Stanton and Mott met with Mott’s sister, Martha Coffin Wright, along with Jane Hunt and Mary Ann McClintock to organize the long-awaited women’s rights convention. The plan was to hold a meeting in Seneca Falls, New York (where Stanton lived), on July 19 and 20, with follow-up meetings to take place in Rochester, New York. An announcement in the Seneca County Courier, a local periodical, stated that there would be “A Convention to discuss the social, civil and religious condition and rights of woman” and gave the particulars. The first day of the meeting was to be exclusively for women who were “earnestly invited to attend”, with the second day open to the general public to hear a speech by Lucretia Mott. The historic meeting took place at the Wesleyan Church chapel in Seneca Falls. Despite the plan to have the first day for women only, a large crowd of both men and women sought entry to the locked chapel. A male professor from Yale volunteered to enter through an open window and once the doors were opened, the crowd streamed in. Approximately 100 to 300 people were in attendance, including many men who supported the idea of women’srights. Although the majority was Caucasian, there were also some African Americans in attendance. Because none of the women felt capable of overseeing the proceedings, James Mott presided. On the first day, Elizabeth Cady Stanton presented the organizers’ Declaration of Senti- ments and Resolutions. The Seneca Falls declara- tion was carefully patterned on the Declaration of Independence that had been crafted by the colonial revolutionaries. The declaration written primarily by THOMAS JEFFERSON stated that all men are created equal. The Seneca Falls declaration held that “all men and women” are created equal and are endowed with inalienable rights includ- ing life, liberty, and the pursuit of happiness. The Declaration of Independence listed 18 charges against George III, the king of England. The Declaration of Sentiments described 18 charges of “repeated injuries and usurpations on the part of man toward woman” including the denial of the right to vote, unfair laws regarding separation and divorce, and inequality in regard to religion, education, and employment. It stated the hope that the convention in Seneca Falls would be followed by a series of conventions throughout the country. The 12 resolutions enunciated in the Declaration of Sentiments called for the repeal of A depiction of Elizabeth Cady Stanton speaking to attendees of the Seneca Falls Convention on July 19, 1848. Stanton presented the “Declaration of Sentiments and Resolutions.” CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 108 SENECA FALLS CONVENTION laws that enforced unequal treatment of women, the recognition of women as the equals of men, the granting of the right to vote, the right for women to speak in churches, and the equal participation of women with men in “the various trades, professions, and commerce.” After much discussion and debate, the Decla- ration of Sentiments and Resolutions was passed largely as written. The biggest obstacle was the resolution that called for women’s right to vote, known as woman suffrage. Numerous attendees, men and women alike, felt that the right to vote was too radical an idea to gain public acceptance. Lucretia Mott was open to discarding the resolution, but Stanton held firm with strong support from the prominent African American abolitionist FREDERICK DOUGLASS. After Douglass stated that “Suffrage is the power to choose rulers and make laws, and the right by which all others are secured,” the woman suffrage resolution passed by a very narrow margin. After two days of vigorous discussion and debate, 100 women and men signed the Seneca Falls Declaration, although some later removed their names after being subjected to intense criticism. A storm of sarcasm and protest broke out after the convention prompting Frederick Douglass to write that a discussion of ANIMAL RIGHTS would have brought forth less opposition than a call for women’s rights. James Gordon Bennett, publisher of the widely read New York Herald, published the entire declaration as a gesture of ridicule. Welcoming the publicity, Stanton and many of the Seneca Falls attendees hailed Bennett’s move as a way to disseminate their message on a broader scale. For the next several decades, Stanton, Mott and temperance supporter SUSAN B. ANTHONY led the struggle for women’srightsincludingthe vote. Stanton helped co-found the National Woman Suffrage Association (NWSA) in 1869. The following year the FIFTEENTH AMENDMENT that secured the right to vote for African American males was ratified by Congress. In 1876 Mott and the NWSA issued a Declaration and Protest of the Women of the United States that renewed the fight for women’s rights and sought the IMPEACHMENT of political leaders who permitted women to be taxed while denying them representation and who also did not allow women on juries thus denying them the right to a trial by a jury of their peers. Mott, who continued to actively support the abolition of slavery as well as temperance, peace, and women’s rights, died in 1880. In 1890 the NWSA merged with a rival organization, the American Woman Suffrage Association, to form the National American Woman Suffrage Associ- ation. Stanton was elected president. She was succeeded in 1892 by Anthony. In 1878 Stanton had drafted a federal woman suffrage amendment that continued to be introduced in each new term of Congress. Stanton died in 1902 and her amendment continued to be brought up until it was passed in the form of the NINETEENTH AMENDMENT to the U.S. Constitution in 1920. At the time that woman suffrage passed, only one signer from the 1848 Seneca Falls Convention, Charlotte Woodward, lived long enough to cast her ballot. Despite the long delay before women were politically enfranchised, the movement that emanated from the Seneca Falls convention made slow but inexorable progress. Some colleges began to admit women as students and more states enacted married women’s property acts. FURTHER READINGS Bernhard, Virginia, and Elizabeth Fox-Genovese, eds. 1995. The Birth of American Feminism: The Seneca Falls Women’s Rights Convention of 1848. Naugatuck, Conn.: Brandywine. Davis, Sue. 2008. The Political Thought of Elizabeth Cady Stanton. New York: New York Univ. Press. Griffith, Elisabeth. 1985. In Her Own Right: The Life of Elizabeth Cady Stanton. New York: Oxford Univ. Press. Miller, Bradford. 1995. Returning to Seneca Falls. Herndon, Va.: Lindisfarne Books. CROSS REFERENCES “Seneca Falls Declaration of Sentiments” (Appendix, Primary Document); Women’s Rights. SENIOR CITIZENS Elderly persons, usually more than 60 or 65 years of age. People in the United Sta tes who are more than 60 years of age are commonly referred to as senior citizens or seniors . Th ese terms refer to people whose stage in life is generally called old age, though there is no precise way to identify the final stage of a normal life span. Peoplearesaidtobeseniorcitizenswhenthey reach the age of 60 or 65 because those are the ages at which most people retire from the workforce. U.S. law and society recognize the special needs of senior citizens. The most important aid to senior citizens is the SOCIAL SECURITY program. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SENIOR CITIZENS 109 Scamming the Elderly S ENIOR CITIZENS are often the victims of street crimes, such as ROBBERY and ASSAULT. But they are more often the target of trained con artists who use a variety of techniques to trick senior citizens into giving them money for their fraudulent schemes. Whether it is a promise of a lucrative investment, a free vacation, or a great deal on home repair, senior citizens too often succumb to a variety of scams. The FEDERAL TRADE COMMISSION (FTC) reported that in 2007 it received CON- SUMER FRAUD complaints that amounted to $1.2 billion of losses. An estimated 50 percent of phone scam victims are over the age of 65, though by 2007, the FTC reported that only 11 percent of its FRAUD complaints originated by phone. Con- victed con artists report that senior citizens are more trusting than younger persons. Some commentators attribute this to the fact that senior citizens in the early 2000s grew up and matured in a society that was less threatening. Never- theless, a study by the AMERICAN ASSOCIA- TION OF RETIRED PERSONS indicates that the stereotypical victim—a lonely, forgetful, gullible senior—bears little resemblance to the persons who are scammed. Victims are relatively affluent, educated, well-informed, and connected with their communities. Most, however, are not aware that con artists use the telephone to accomplish their fraudulent schemes. They believe that the person on the other end of the phone line is honest and hardworking. A common scam involves bogus prize announcements. A senior will receive a phone call and be told that he has won the grand prize in a contest. The senior is told either to buy a product or pay shipping and taxes ranging from $200 to $24,000. When the prize arrives, it turns out to be cheap junk, worth a small fraction of the amount the senior has paid. Con artists also use junk mail for their fraudulent contest solicitations. One of the scams that is most financially ruinous to a senior, whether it is done by phone or mail, is a “contest” set up in stages. The solicitations announce that the senior is in a select group eligible for a grand prize but that she must send in an entry fee to participate. Once the fee, ranging from $5 to $20, is paid, the process is repeated over and over, as the contest promoters make more solicita- tions to the senior. Each time the senior “advances” from one stage to another, she must pay a new entry fee. Some seniors have lost tens of thousands of dollars by spending $5 to $20 at a time. Another phone scam is based on convincing the victim that an extremely profitable business opportunity is avail- able, but only for a limited time. With the promise of becoming millionaires, some seniors have sent thousands of dollars to con artists who give little, if anything, in return. Fewer than 10 percent of people cheated out of their money report the FRAUD to authorities. Some seniors are embarrassed or ashamed to report the crime, fearing that they will look foolish for their gullible behavior. Some con artists even keep con games going by threatening to expose seniors to their family and friends. Another scam plays on the anger and shame of seniors who have been duped by fraudulent telemarketers. A caller offers to help the senior recover the money the senior had paid to other dishonest companies in hopes of receiv- ing a prize. The caller asks the senior to pay a fee ranging from $200 to $800 for this service. The services typically turn out to be worthless. The “bank examiner” scam has been perpetrated on senior citizens for gen- erations. An elderly person, usually living alone, gets a call from a con artist posing as a bank examiner. The senior is told that the examiner is investigating a bank teller suspected of embezzling money by falsifying withdrawal receipts. The teller gives each customer the amount asked for and steals a small amount with each transaction. The con artist asks the senior to withdraw $5,000 from his savings account and give it to a detective waiting outside the bank. The money, the senior is told, will be used as evidence and returned with a reward. Once the senior hands over the money, he usually never hears from the con artist. Some scams, however, involve a second call and a plea for another $5,000 withdrawal. Fraudulent home repair services are a bane to all consumers, but seniors are often the victims. A large ORGANIZED CRIME group, known by law enforcement agen- cies as the Travelers, move from town to town. They go into a neighborhood and tell homeowners that they have finished a home repair job nearby and are willing to fix their houses with leftover materials at an extremely low price. These scam artists demand their money up front. Whether it is painting the exterior of a house, fixing a leaky roof, or sealing a driveway, these con artists do little or no work and are quickly out of town before the home- owners realize they have been tricked. Because of the growing population of senior citizens, law enforcement agencies have sought to educate seniors about telephone fraud and other common scams. Pamphlets distributed to senior citizens and community programs tell seniors to hang up the phone if they are pressured to part with their money and to toss the “you've won a prize” mailing in the wastebasket. As Internet-savvy people reach old age, it is likely that they will become more susceptible to online fraud, which in the early 2000s accounts for 64 per cent of the fraud reported to the FTC. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 110 SENIOR CITIZENS More than twenty-five million Americans receive old-age benefits each month under federal OLD-AGE, SURVIVORS, AND DISABILITY INSUR- ANCE , and those payments amount to almost $20 billion a year. Senior citizens who are age sixty- five or older qualify for a full benefit payment by having been employed for the mandatory minimum amount of time and by having made contributions to Social Security. A person may retire at age sixty-two and receive less than full benefits. There is no financial need requirement to be satisfied. Because of enormous financial pre ssures on the Social Security program, changes have been made that will push the retirement age higher in the coming decades. Person s born b efore 1950 can retire at age 65 with full benefits based on the average income during working years. Those born between 1950 and 1960 can retire at age 66 with full benefits. For those born in 1960 or later, full benefits will b e awarded for retirement at age 67. Senior citizens are also protected by the MEDICARE program. This program provides basic HEALTH CARE benefits to recipients of Social Security and is funded through the Social Security Trust Fund. Medicare is divided into a hospital insurance program and a supplemen- tary medical insurance program. The hospital insurance plan covers reasonable and medically necessary treatment in a hospital or skilled nursing home, meals, regular nursing care services, and the co st of necessary special care. Medicare also pays for home health services and hospice care for terminally ill patients. Medicare’s supplementary medical insur- ance program is financed by monthly insurance premiums paid by people who sign up for How to Avoid Being Defrauded L B ocal law enforcement agencies, state attorneys general, the federal Consumer Protection Agency, and groups such as the A merican Associ- ation of Retired Persons provide information to senior citizens on how to avoid being defrauded. These organizations advise the following: n Watch out i f a caller promi ses prizes for buying products such as vitamins, beauty and health aids, or office supplies. These pro- ducts are sold at outrageously inflated prices, costing a buyer $500 to $2,000 for items with a value of less than $100. n Never give a caller your credit c ard number or checking account number. n Be especially cautious if a caller reaches you when you are feeling lonely. The person may call day after day until you feel that the caller is a friend, not a stranger trying to sell you something. n If you think a caller i s dishonest, hang up the phone. If a caller is trying to cheat you, it is not rude to end the conversatio n. n Never act in haste. If a caller is pressuring you to make a quick decision, consult with friends and family or your state or local consumer protection office before taking a financial risk. n Always remember that if you really win a prize, you w ill get it absolutely f ree, with no fee required. n Beware if you have been cheated by con artists. They sell i nformation to other con artists, who are likely to c all. n Remember, con artists are liars. They will say anything to get your money. n If it sounds too good to be true, it usually is not true. Be skeptical of offers that promise rewards greatl y out of proportion to your investment. Family members who are concerned that their elderly relatives may have or might be scammed should loo k for behavior changes that might suggest shame or embarrassment over being defrauded. They should also seek to review financial state- ments of their relatives and to review any written solicitations for money that their relatives are interested in making a donation. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SENIOR CITIZENS 111 coverage, combined with money contributed by the federal government. The government con- tributes the major portion of the cost of the program, which is funded out of general tax revenues. Persons who enroll pay a regular monthly premium and also a small annual deductible fee for any medical costs incurred during the year above the amount funded by the government. Once the deductible has been paid, Medicare pays 80 percent of any medical bills. Some warm-weather states such as Arizona and Florida have senior citizen retirement communities. These planned communities al- low only senior citizens to buy or rent housing. Many seniors feel more independent and secure in a retirement community than in an ordinary neighborhood. Legal provisions in a retirement community’s development plan are incorporated into the deeds of all property owners, prohibiting, for e xample, children from residing in the community. In this way, the special nature of the neighborhood is preserved. However, not all senior citizens wish to retire from the workforce. Amendments to the federal Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C.A. § 621 et seq.) have eliminated the age of mandatory retire- ment for most employees and have made the act applicable to more workers. The AD EA itself prohibits employers from discriminating on the basis of age. Senior citizens also are concerned about crime. Because of their physical vulnerability and personal isolation, they are robbed more often than are the members of other age groups. Seniors are also the most likely group in society to be swindled. The AMERICAN ASSOCIATION OF RETIRED PERSONS and state and local governments seek to educate senior citizens about mail and telemarketing schemes that defraud thousands of seniors each year. FURTHER READINGS Breaux, John B., and Orrin G. Hatch. 2003. “Confronting Elder Abuse, Neglect, and Exploitation: The Need for Elder Justice Legislation.” Elder Law Journal 11 (spring). Gallo, Nancy R. 2008. Elder Law. Clifton Park, NY: Delmar Cengage Learning. Hang Up on Fraud. 1995. Office of Minnesota Attorney General Hubert H. Humphrey III. Hines, Jeffrey. 2002. “Telemarketing Fraud upon the Elderly: Minimizing Its Effects through Legislation, Law En- forcement and Education.” Albany Law Journal of Science & Technology 12 (summer). United States. Congress. Senate. Special Committee on Aging. 2000. Elder Fraud and Abuse: New Challenges in the Digital Economy: Hearing before the Special Commit- tee on Aging, United States Senate. Washington, D.C.: Government Printing Office. United States. Department of Justice and the U.S. Depart- ment of Health and Human Services. 2000. Our Aging Population: Promoting Empowerment, Preventing Vic- timization, and Implementing Coordinated Interventions: A National Symposium. Washington, D.C.: U.S. Department of Justice. CROSS REFERENCES Age Discrimination; Consumer Protection; Death and Dying; Elder Law; Health Care Law; Health Insurance; Pension. SENIOR INTEREST A right that takes effect prior to others or has preference over others. For example, a first mortgage is an interest that is senior to a second mortgage and all sub- sequent mortgages. SENIORITY Precedence or preference in position over others similarly situated. As used, for example, with reference to job seniority, the worker with the most years of service is first promoted within a range of jobs subject to seniority and is the last laid off, proceeding so down the line to the youngest in point of service. The term may also refer to the priority of a lien or encumbrance. A person who holds a LIEN or has an encumbrance against the property of another, so that her claim must be satisfied before any others, has seniority or priority. An employee has seniority if he is among those with the most years of service at the place of employment. Such seniority entitles the employee to compete for promotion to jobs for which junior (less senior) employees would be ineligible or would receive less consideration. Traditionally, it also gives him the status of being among the last to lose his job in case of lay-offs. In the 1984 case of Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S. Ct. 2576, 81 L. Ed. 2d 483, the Supreme Court upheld the validity of a seniority system that protected the jobs of white firefighters with seniority at the expense of recently hired black firefighters. The fire department in Memphis, Tennessee, implemented the traditional seniority principle GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 112 SENIOR INTEREST of “last hired, first fired.” In 1981 three white firefighters who otherwise would have kept their jobs under the system were laid off for a month while minority firefighters with less seniority continued working. This change in the seniority system resulted from an INJUNCTION to enforce consent decrees that resolved equal employment opportunity cases in Memphis. The lower court fashioned the decrees to remedy the past discriminatory practices of the fire department in its hiring and promotion of minorities. The district court concluded that the seniority system was not a bona fide one under section 706(g) of Title VII of the CIVIL RIGHTS ACT OF 1964 since lay- offs made pursuant to it would have a racially discriminatory effect. The court, therefore, di- rected the modification of the system to increase and maintain the percentage of black firefighters. The court of appeals affirmed the revision of the seniority system but disagreed with the holding that the system was not bona fide. On CERTIORARI, the Supreme Court decided that the district court exceeded its authority in issuing the injunction that ultimately led to the lay-off of the senior white firefighters. The injunction was not a proper remedy. There was no finding that any of the black employees protected by the revised system had been a direct victim of DISCRIMINATION, a requirement imposed by the Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). The Court, however, did not decide whether the CONSENT DECREE was valid or whether the Memphis Fire Department could, on its own, protect the jobs of black firefighters at the expense of their white colleagues who had more seniority. In another important case, the Supreme Court considered whether the Americans with Disabilities Act of 1990 (42 U.S.C.A. § 12101 et seq.) requires an employer to reassign an individual with a disability as a reasonable accommodation when another employee is entitled to hold the position under an established seniority system. US Airways, Inc. v. Barnett,535 U.S. 391, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002). The Court held that a conflict between a seniority system and a proposed accommodation should be analyzed to determine whether the requested accommodation is reasonable in light of all the circumstances. Ordinarily, the Court said, a proposed accommodation will not be reasonable if it conflicts with a seniority system. However, the Court continued, if an employer shows that the proposed accommodation will violate a seniority system, a plaintiff-employee may nevertheless show that “special circum- stances” warrant a finding that the accommoda- tion is “reasonable” on the facts of the particular case. The plaintiff-employee has the BURDEN OF PROOF to show that such “special circumstances” exist. In BARNETT, a seniority system was linked to longstanding employer practice but was not part of a COLLECTIVE BARGAINING AGREEMENT approved by the employer and the employee’sunion.Inits analysis, the Court relied primarily on CASE LAW involving collectively bargained seniority systems to conclude that accommodations conflicting with seniority systems should generally be found unreasonable absent special circumstances, and it remanded the case for further proceedings. Lower courts have since struggled to define the scope of “specials circumstances.” CROSS REFERENCES Affirmative Action; Civil Rights; Employment Law; Equal Protection; Labor Law . SENTENCING The post-conviction stage of the criminal justice process, in which the defendant is brought before the court for the imposition of a penalty. If a DEFENDANT is convicted in a criminal pro- secution, the event that follows the verdict is called “sentencing.” A sentence is the penalty ordered by the court. Generally, the primary goals of sentencing are punishment, deterrence, incapacitation, and rehabilitation. In some states, juries may be entitled to pronounce sentence, but in most states, and in federal court, sentencing is performed by a judge. For serious crimes, sentencing is usually pronounced at a sentencing hearing, where the PROSECUTOR and the defendant present their arguments regarding the penalty. For violations and other minor charges, sentencing is either predetermined or pronounced immediately after conviction. Sentencing in the United States has under- gone several drama tic transformations. In the eighteenth century, the sentencing of criminal defendants was left to juries. If a defendant was convicted, the jury decided the facts that would affect sentencing, and a predetermined sentence was imposed based on those findings. In the late eighteenth century, legislatures began GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SENTENCING 113 to prescribe imprisonment as punishment, replacing such punishments as public whipping and confinement in stocks. Beginning in the late nineteenth century, legislatures began to pass statutes that left sentencing to the discretion of judges. This movement toward indeterminate sentencing allowed judges to order a sentence tailored to the needs of both the defendant and society. Under sentencing statutes, a sentence could be any combination of PROBATION, fines, restitution (repayment to victims), imprisonment, and COMMUNITY SERVICE. Judges were allowed to consider a wide range of evidence in fashioning a sentence, including MITIGATING CIRCUMSTANCES. In the 1950s Congress passed a spate of federal legislation requiring that judges impose mandatory minimum sentences for drug off- enses. These laws directed that defendants must serve a minimum number of years in prison upon conviction for certain offenses, and prevented judges from reducing sentences in consideration of mitigating factors. In the 1960s, these laws came under attack for failing to deter drug crimes. Moreover, prosecutors were reluctant to prose- cute mandatory minimum cases because they were considered unjustly severe. By the late 1970s, indeterminate sentencing had fallen into disfavor. Many perceived that crime rates were soaring, and a powerful lobby emerged demanding sentencing reform. These critics argued for longer prison sentences, and they also pushed for uniformity in sentencing, noting that discreti onary sentencing produced widely varying sentences for the same crime. Several states’ legislatures enacted sentenc- ing guidelines in the 1970s and early 1980s. These guidelines increased punishment for criminal offenses and limited judicial discretion in sentencing by identifying the punishment required upon conviction for a particular offense. Under many of the new sentencing statutes, Felony Convictions by State and Federal Courts in 2004 SOURCE: U.S. De p artment of Justice, Bureau of Justice Statistics, State Court Sentencin g o f Convicted Felons, 2004. a Does not include negligent manslaughter. b Includes rape. c Includes motor vehicle theft. d Includes embezzlement. Number of felony convictions Murder a Sexual assault b Robbery Aggravated assault Larceny c Fraud/forgery d Possession Trafficking Drug offenses Property offenses Violent offenses Burglary 0 50,000 100,000 150,000 200,000 250,000 8,400 190 38,850 1,380 33,190 415 94,380 465 93,870 53 119,340 1,365 97,470 10,403 161,090 2,022 201,760 22,450 State Courts Federal Courts ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 114 SENTENCING PAROLE for prison inmates was either abolish ed or restricted to certain offenses. Conservatives hailed this “truth-in-sentencing” framework as a victory over liberal judges. Liberals endorsed sentencing reform because it purported to eliminate the possibility of racial disparity in sentencing. Following the lead of these state legislatures, Congress passed the Sentencing Reform Act of 1984 (SRA) (Pub. L. No. 98-473, 98 Stat. 1987 [1984][codified in 18 U.S.C.A. §§ 3551–3556 (1988 & Supp. V 1993)]). The SRA abolished parole for federal prisoners and reduced the amount of time off granted for good behavior. The SRA also established the U.S. SENTENCING COMMISSION (USSC) and directed it to create a new sentencing system (28 U.S.C.A. §§ 991(b), 994(a)(1)-(2) [1988]). Between 1984 and 1987, the USSC crafted the Federal Sentencing Guide- lines. Since C ongress did not object to the guide- lines, t hey became effective on November 1, 1987 (28 U .S.C.A. § 994 [1988 & Supp. V 1993]). The Federal Sentencing Guidelines shifted the focus in sentencing from the offender to the offense. The guidelines categorize offenses and identify the sentence required upon conviction. Judges were allowed to increase or decrease sentences or depart from the guidelines, but only if they had a very good explanation and clearly stated the reasons on the record. Upward departures, or increases in sen- tences, were easy to achieve under section 1B1.2 of the sentencing guidelines. This section allowed the sentencing judge to consider all “relevant conduct,” including the circumstances surrounding the conviction, offenses that were committed at the same time as the charged offense but were not charged, prior convictions, and acts for which the defendant was previously tried but acquitted. In limited circumstances, judges could decrease a sentence. For example, a judge could downwardly depart if the defendant accepted responsibility for the crime or committed the crime to avoid a more serious offense. Prose- cutors often challenged decreased sentences on appeal, and they usually won because the guide- lines called for adherence in all but exceptional cases. Prosecutors received tremendous discretion in the sentencing process, and they virtually took over the sentencing process in federal court. Under the guidelines, prosecutors could easily increase or decrease a sentence by tinkering with the number of counts either in the initial charge or pursuant to a plea agreement. For example, a prosecutor may not use evidence of certain conduct in pursuing a criminal charge. However, upon conviction or a guilty plea, the prosecutor could, in the sentencing hearing, introduce that evidence to increase the defen- dant’s sentence. At this point, if the prosecutor was able to prove by a preponderance of the evidence that the defendant committed the acts, the court was obliged to increase the defendant’s sentence. Furthermore, state police officers and pro- secutors could make secret decisions about what cases to refer to federal prosecutors. State prosecutors could thus pressure defendants to enter a guilty plea in state court to avoid federal sentencing. The decision on whether to move the court for a downward departure in exchange for substantial assistance to law enforcement was also left to the prosecutor. At first, many federal judges refused to recognize the Federal Sentencing Guidelines. In Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989), the U.S. SUPREME COURT held that the guidelines did not violate the separation-of-powers doctrine and were not an excessive delegation of legislative power. However, over time, federal judges criticized the rigidity of the guidelines and the loss of discretion. Ultimately, the Supreme Court rethought its position and overturned Mistretta v. United States,.InUnited States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court acknowledged that the guidelines could be useful for a judge but held that district courts should read the sentencing guidelines as “effectively advisory." The guidelines now serve as one factor among several that courts must consider in determining an appropriate sen- tence. The Booker decision also instructed the courts that “reasonableness" is the standard controlling appellate review of district court sentences. As part of the Comprehensive Crime Control Act of 1984 (Pub. L. No. 98-473, Title II, October 12, 1984, 98 Stat. 1976 to 2193), Congress passed legislation requiring mandatory minimum sen- tences for drug and firearm offenses (Pub. L. No. 98-473, §§ 503(a), 1005(a), 98 Stat. 2069, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SENTENCING 115 2138 [1984][amending 21 U.S.C.A. § 860 (formerly § 845a), 18 U.S.C.A. § 924(c)]). In 1986, as public fears of drug abuse increased, Congress enacted the Anti-Drug Abuse Act of 1986 (Pub. L. No. 99-570, 100 Stat. 3207 [1986]). This act created mandatory minimum sentences for drug trafficking and distribution, using the quantity of the drug involved to determine the minimum terms of imprisonment. In 1988, Congress broadened the mandatory minimums to cover CONSPIRACY in certain drug offenses (Anti-Drug Abuse Act of 1988 [Pub. L. No. 100-690, § 6470(a), 102 Stat. 4377 (21 U.S.C.A. §§ 846, 963 [1988])]). The 1988 act also established a minimum sentence for simple possession of crack cocaine. Under 21 U.S.C.A. § 844(a) (1988 & Supp. II 1990 & Supp. III 1991), a first-time offender caught with five grams of a mixture or substance containing a “cocaine base” must be sentenced to no less than five years in prison. In contrast, a person must possess at least five hundred grams of powder cocaine to receive a five-year sentence (21 U.S.C.A. §§ 841(b)(1)(B) (ii)-(iii) [1982 & Supp. V 1987]). As with mandatory sentencing guidelines, criticism built over two decades as to sentencing disparity between crack cocaine and powder cocaine. The fact that 85 percent of convicted crack cocaine dealers are black raised the issue of race. Beginning in the 1990s the U.S. Sentencing Guidelines Commission itself expressed misgiv- ings at the crack cocaine sentencing scheme, but it continued to enforce the 100-to-1 ratio. Once the guidelines became advisory, district court judges began tackling this issue, reducing the amount of prison time for crack dealers. The Supreme Court, in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), addressed how far courts could go in deviating from the crack cocaine guidelines in fashioning a sentence. The Court ruled that appellate courts must assess sentences based on a “reasonableness" standard. A judge may consider the disparity between crack and powder cocaine sanctions in fashioning an appropriate sentence. In 1994 Congress moved to limit the applicability of mandatory minimums to low- level, nonviolent drug offenders. Under 18 U.S.C.A. § 3553(f), a judge may use the guidelines instead of the statutory minimum sentence if (1) the defendant does not have a criminal history of more than one point (one minor convic tion, such as a petit misde- meanor); (2) the defendant did not use violence or credible threats or a firearm in the offense and did not coerce another to do so; (3) the offense did not result in death or serious bodily injury; (4) the defendant was not an organizer of others in the offense and was not engaged in a continuing criminal enterprise (such as a RACKETEERING scheme or the functioning of a street gang); and (5) by the time of the sentencing hearing, the defendant has informed the prosecutor of all the facts surrounding the case, including facts regarding offenses related to the case. Also in 1994, Congress exercised its power over sentencing by passing the VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994 (Pub. L. No. 103-322, September 13, 1994, 108 Stat. 1796). Under provisions of this act, violent offenders convicted of their third felony must be sentenced to life imprisonment (Pub. L. No. 103-322, §§ 70001–70002, 108 Stat. 1796, 1982– 1985 [1984][codified as amended at 18 U.S.C.A. §§ 3559, 3582(c)(1)(A) (1988)]). The Supreme Court also used the SIXTH AMENDMENT to strike down sentencing schemes that permitted a judge to increase a criminal sentence. The Court has prohibited the use of any sentencing scheme that allows a judge to impose a sentence above the statutory maxi- mum based on a fact, other than a prior conviction, not found by a jury. It established the standard in Apprendi v. New Jersey, 530 U.S. 466, 120 Ct. 2348, 147 L.Ed.2d 435 (2000). In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2005), the Court ruled that the state of Washington’s sentencing guidelines system violated the Sixth Amend- ment. In 2007 the Court, in Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L. Ed.2d 856 (2007), invalidated a California determinate sentencing law that gave judges the ability to raise the maximum sentence based on additional facts. Mandatory minimums are not the same as the Federal Sentencing Guidelines. Mandatory minimum sentences remove all discretion from the sentencing judge, whereas the guidelines allow for some leeway. In United States v. Madkour, 930 F.2d 234 (2d Cir. 1991), Michael P. Madkour, a recent graduate of the University of Vermont with no criminal record, received a mandatory minimum sentence of five years in federal prison GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 116 SENTENCING for possessing more than one hundred mari- juana plants with an intent to manufacture marijuana. Under the guidelines, the prison sentence would have been 15 to 21 months. The most common punishments identified in state statutes are community service, proba- tion, fines, restitution, and imprisonment. In the 1990s, some southeastern states authorized sentences of hard labor on chain gangs. Many states have also reinstated the death penalty. Death penalty sentences are usually delivered by a jury, not a judge, and only after a hearing. Criminal defendants are sentenced at a sentencing hearing. In the hearing, the judge may consider all relevant evidence, testimony, and a presentence report from a probation or court services officer. The rules of evidence do not apply in presentencing hearings, so HEARSAY and other fallible evidence may be introduced. In both federal and state courts, the sen- tencing hearing is preceded by a PRESENTENCE INVESTIGATION and report. These are conducted by a court services or probation officer, who then submits the report to all parties to the prosecution. At the hearing, the prosecutor and defendant are entitled to argue against the recommendations for sentencing made in the presentence report. In many states, courts still possess the authority to craft sentences within the bounds of sentencing statutes. In these states, criminal statutes contain a sentencing provision that identifies minimum and maximum punishments for specific crimes. For example, in Georgia a person convicted of hunting alligators without a license “shall be punished by a fine of not less than $500.00 and, in the discretion of the sentencing court, imprisonment for not more than 12 months” (Ga. Code Ann. § 27-3-19). This means that the judge must order a fine of at least $500 and may also order imprisonment of up to 12 months. Many states have also passed so-called three-strikes-and-you’re-out laws. Under these laws, when a person receives a third criminal conviction, the person’s sentence is enhanced considerably. California’s version of the three- strikes law has been at the center of attention in the legal community due to two high-profile cases that eventually reached the U.S. Supreme Court. Under California’s law, if a person with two prior felony convictions is convicted for a third time, he or she will receive a greatly enhanced sentence. Cal. Pen. Code Ann. § 667 (West 1999). Some defendants have received convictions of 25 to 50 years for petty thefts. In one California case, Leandro Andrade was convicted of stealing five videotapes from a K- Mart store. The petty theft charges were tried as felonies, and when he was convicted, he received two consecutive 25 years sentences. In another case, Gary Ewing, who was on parole from a nine-year prison term, was convicted of stealing three golf clubs. He received a sentence of 25 years. Both Andrade and Ewing appealed their sentences, alleging that California’slawconsti- tuted CRUEL AND UNUSUAL PUNISHMENT in violation of the EIGHTH AMENDMENT to the U.S. Constitution. The Supreme Court disagreed with both Andrade and Ewing. In Ewing v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003), the Court held that Ewi ng’s sentence was not grossly disproportionate and, thus, not in violation of the Eighth Amendment. The crime he had committed constituted a felony, and the decision of the California legislature to enhance the sentence of a repeat offender was within its discretion. The Court also upheld the conviction of Andrade in Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, L. Ed. 2d (2003). The Andrade’s case, the court found that the U.S. Court of Appeals for the Ninth Circuit had erred in granting HABEAS CORPUS relief because a California state court had not contradicted established federal law when it ruled that the California statute was constitu tional. The Ninth Circuit had previously ruled that the three- strikes law violated the Eighth Amendment. Opponents of determinate sentencing claim that it will result in increased crowding of pri- sons and greater costs of incarnation. Proponents note that the enhanced sentencing will result in long-term cost savings because repeat of fenders will no longer be on the street. These supporters say that the state and federal governments will save on property loss, losses from pain and suffering, lost wages, police security, and medical insurance costs resulting from the crimes of these offenders. Some judges who have become dissatisfied with high rates of RECIDIVISM have exercised their sentencing discretion by meting out innovative punishments intended to address the specific criminal conviction or the conviction history of the specific criminal. For example, a judge in Wilmington, North Carolina, gave a shoplifter GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SENTENCING 117 . sen- tences for drug and firearm offenses (Pub. L. No. 98 -473, §§ 503(a), 1005(a), 98 Stat. 20 69, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SENTENCING 115 2138 [ 198 4][amending 21 U.S.C.A. §. PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 114 SENTENCING PAROLE for prison inmates was either abolish ed or restricted to certain offenses November 1, 198 7 (28 U .S.C.A. § 99 4 [ 198 8 & Supp. V 199 3]). The Federal Sentencing Guidelines shifted the focus in sentencing from the offender to the offense. The guidelines categorize offenses