JUDGING CRIMES

The title doesn't promise the under-the-bedclothes magazine for teenaged boys of all ages that ate Penthouse's lunch in much the same way Wal-Mart and Target divided K-Mart's among themselves.  ("It's a deal.  You get the high-margin items, we get the high-volume, and K-Mart gets to keep everything else.")

No, I'm earnestly trying to distill the maxims that govern judicial work.  I find they tend to come in pairs, like:

• Judges have the authority to make basic decisions about the acceptability of violence in society.
• Judges have no responsibility for the consequences of their decisions about the acceptability of violence in society.

Judges are pretty open about this pair, although you often have to search for them beneath puffy clouds of words.  Justice Scalia was being unusually direct (and terse) when he acknowledged that the Court's recent revision of the sixth amendment has the effect of frustrating society's efforts to curtail domestic violence, adding this mea non culpa:

This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free.

In that passage, there's only a thin veneer of rhetoric covering the two maxims.

More typically diffuse is a famous passage by the late Judge Richard Arnold of the Eighth Circuit (the federal appeals court that hears cases from a Big Dipper-shaped slice of mid-America stretching from North Dakota to Arkansas).  (Arnold was profiled in post 235.)

You only need to know two things about this passage.  First, Arnold announced a new constitutional doctrine, one invented by himself and his two colleagues, which was promptly overruled by the U.S. Supreme Court.  Second, the effect of his new doctrine was that jurors in a murder case could not be informed that the victim, a 10-year-old girl, was dead.  Her death ceased to have any reality inside the courtroom.  (O death, where is thy sting?  Right here, outside the courtroom door.)  Here it is:

It will inevitably be remarked that our opinion focusses more on the conduct of the police than of the alleged murderer. If Williams is indeed guilty, and if he goes free as a result of our holding, then complete justice may not have been done, even though Williams has served 14 years in prison. A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.

(The link is to a recent Second Circuit case that quoted this passage.)

This is a remarkable passage in any number of ways, not least of them being that the New York Times singled it out for quotation in Judge Arnold's obituary (scroll down).  Another is that Justice Brennan termed it an "insightful and stirring defense of the constitutional limitations placed on law enforcement authorities" (78 Minnesota Law Review at 2) - even though, if you'll notice, by its own terms it applies to judges and Supreme Court justices, too, a point so foreign to Brennan's thinking that he apparently didn't even perceive it, the way those who speak one language fluently can have no phonemic awareness of certain sounds in another language.

(The linked Wikipedia article provides as an example Japanese people and the "R" and "L" sounds.  It might also have mentioned the difference between "pin" and "pen" - which I've been told exists, but can't hear in normal speech.)

But for purposes of our maxims it's enough to note that:

• Judge Arnold accepted that his opinion didn't produce "perfect justice".  Imperfect justice - that is, justice that isn't just, a/k/a "injustice"  - is a pretty remarkable thing for any justice system to accept as a norm, much less (as Brennan's encomium suggests) an ideal.
• Arnold disclaimed any personal responsibility for the injustice he produced, saying it was merely "one of the costs" of the Bill of Rights.
• The particular constitutional doctrine was invented by him in the very same opinion that said our "country is built on the assumption" that the doctrine was a good idea - yet another example in our case law of an anomaly in the space-time continuum.  (Curiously, when the doctrine was rejected by the Supreme Court just one year later, causing the country's foundation to crumble in part, the effect was felt in California, not Arnold's Arkansas or the dead girl's Iowa.)

So Arnold was saying he had the power - indeed, the responsibility - to invent new constitutional doctrines even when they produce injustice.  But he wasn't responsible for the injustice his invented doctrines produced, because our "country is built on the assumption" (assumption, mind you, not a principle or declaration) that justice in such cases would actually be undesirable.  (Or, rather, that "the cost is worth paying" - when judges resort to vague metaphors, it usually means they want to disguise their meaning, probably most of all from themselves.)  Hey, don't blame me - I'm just channeling the Framers!

Now, it might seem at first glance that the two maxims are, as lawyers like to say, "in tension with" each other, even if they aren't quite contradictory.  Doesn't it produce intellectual disquiet in judges - cognitive dissonance - to hold them both in your head at one time?  No, obviously.  Eric Hoffer explained why not (see post 273): both maxims are required by "the Constitution" and devotion to "the Constitution" is a higher duty than intellectual coherence.  The maxims offer power without guilt.  Their incompatibility isn't a flaw: it's the secret of their appeal.