Indiana Supreme Court

This article shows how Progressive-Era state actors in Chicago employed open-ended, low-level criminal charges directed at regulating the moral health of the community to criminalize interracial relationships-even though interracial marriage had been legal in Illinois since 1870. Capacious legal definitions of offenses like vagrancy, disorderly conduct, adultery, and fornication allowed police officers and judges to delineate moral and immoral relationships along racial lines. Using newspaper articles, writing from contemporary social reformers, and court reports, this article reconstructs the treatment of interracial couples in the Chicago legal system to show how discretion in criminal law can reinforce racial hierarchy. I offer three historical arguments: first, that individual arrests and prosecutions of interracial couples labeled lawful, interracial relationships as a form of unlawful "vice," second, that large-scale raids on spaces for interracial socialization reinforced the criminality of interracial intimacy in a segregated city, and third, that singling out interracial couples allowed the state to exercise control through intrusive forms of punishment like probation and institutionalization.

Although judges may be well intended when taking an oath to be impartial when they reach the bench, psychological and legal literature suggests that their legal approaches, behaviour, and decision-making processes are subconsciously impacted by biases stemming from and influenced by their attitudes, ideology, backgrounds, and previous experiences. Drawing from prior models of sources of bias in legal contexts and existing literature on judges, this paper discusses and models potential sources of pro-prosecution bias in judges with prosecutorial backgrounds. These include (1) professional and self-selection into the judiciary; (2) prosecutorial socialization and attitudes that can shape a prosecutorial mindset; and (3) the effects of common unconscious biases, confirmation bias and role induced bias, that may shape judicial behaviour through formed beliefs and approaches stemming from the prosecutorial mindset and selection into the judiciary. As the vast majority of judges are former prosecutors in the U.S. as well as in many other countries, this paper considers possible ways to deal with pro-prosecution bias and the potential importance of diversifying judges' professional backgrounds.

M O N T A N A T H E M A G A Z I N E O F W E S T E R N H I S T O R Y 62 In 1974, I had just graduated from George Washington Law School in Washington, D.C., and wished to return to Montana to practice law.At that time,aspiring lawyers who had not graduated from Montana’s law school had to take and pass a written Montana Bar examination in order to be licensed to practice law in the state. Since there was no review course for the Montana Bar exam, I prepared by taking the District of Columbia bar review course for general principles of law, and I purchased a set of Montana ’s 1947 Revised Codes Annotated to study up on laws unique to Montana. I did not study Montana’s new constitution,nor,as far as I can recall,were there any questions on the Bar exam dealing with Montana constitutional law.1 I was sworn to practice law in Montana in 1974 and promptly commenced upon the general practice of law with my father-in-law, Wilbur P. Werner, in Cut Bank. There, I represented rural Montanans in­ matters dealing with contracts, land purchases and sales, land titles, wills and probates, domestic relations , oil, gas, and minerals, and litigation, and other matters. But I still had no particular reason to study Montana’s 1972 Constitution or its history. Montana was a leader in adopting uniform laws promulgated by the National Conference of Commissioners on Uniform State Laws,and those,along with Montana’s other thorough statutory schemes and jurisprudence, informed and resolved any legal issues that I came up against in my practice. I was called on, from time to time, to represent indigent persons charged with criminal offenses. It was in one of these cases that I first turned to the Montana Constitution. I was amazed at the breadth of the rights protected in Article II—all the rights I had learned about in my GW constitutional law class and subsequent bar review course. All of the rights then protected federally were included in Article II and some in expanded form in section 24, titled Rights of the Accused, but the Montana Constitution contained other rights not textually protected in the U.S. ­ Constitution, such as the rights to a clean and healthful environment, to individual dignity, to participate in government, to examine documents and observe the deliberations of public bodies, to­individual ­privacy, and a very strong right of suffrage, to name a few. I was elected Glacier County Attorney in 1979.2 Immediately, deputy county attorney Larry Epstein and I had what I would call a “Come to Jesus” talk with the law enforcement officers with whom we worked: respect the law and the constitutional rights of the accused,and we will back you to the hilt; abuse those, and you will find it hard to convince us to file charges.Over the next fourteen years,Larry and I lost only one case because of the violation of a constitutional right of the defendant; there, the evidence at issue was gathered not by our local officers, but by officers in another jurisdiction. In 1993, I was appointed by Governor Marc­Racicot to serve as a justice on the Montana Supreme Court, filling the vacancy created when Justice R. C. McDonough (a former district court judge and delegate to the Montana Constitutional Convention) retired. It was then, as a justice, that I became intimately familiar with, and a passionate advocate for, the Montana Constitution. In the twenty or so years following the adoption of the 1972 Constitution,the state’s fairly conservative Supreme Court and its constitutional jurisprudence tracked, for the most part, federal interpretations Commentary b y J I M N E L S O N One Lawyer’s Reflection on Montana’s Constitution on its Fiftieth Anniversary ASK US ABOUT ADVERTISING in Montana The Magazine of Western History. Call (406) 444-4708 or email tryan@mt.gov for more information. C O M M E N T A R Y | A U T U M N 2 0...