JUDGING CRIMES

Webster's defines peroration as "the concluding part of a discourse and especially an oration" but that's a curiously flat way to put it.  A literary analysis of sermon structure gets to the real point: the peroration of a sermon is a "[r]ecapitulation and amplification of the argument designed to arouse emotion in the listener."

Much of the religious symbolism of the courtroom is obvious: the cavernous public room, the rows of uncomfortable wooden pews all facing one direction, the figure in the black robe facing the opposite direction, the large wooden structure centered on a raised platform to serve as a focal point, the stereotyped, kitschy artwork, the requirement that the audience stand up and sit down on cue, the bar beyond which only the initiated may venture, even the iconostasis from behind which the black-robed authority figure emerges (though, it must be admitted, judges are more likely to decorate in bordello scarlet than your average vestry committee).

But some of the ways in which the judiciary has assumed the role of state religion are less obvious, such as the high degree of faith necessary to believe that Supreme Court justices really receive regular revelations from the Framers.  (See post 233.)   And the perorations commonly tacked onto the ends of opinions. 

The Judge Arnold rhetoric quoted in post 274 was a peroration: it was the concluding section of his opinion and its elevated tone was intended to have an emotional impact on the reader, as it evidently did on Justice Brennan and the obituary-writers of the New York Times - not to mention the judges of the Second Circuit who recently quoted it twice.  Here's the last three sentences again:

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.

This, I think, is far more revealing than insightful.  The rhetorical strategy of euphemism is in full flower: the case involved a pedophile, who had previously been found not guilty of molesting or raping two little girls on the basis that he suffered from an "irresistible impulse" to rape them, and who murdered his most recent 10-year-old victim.  (Opinions in the case refer to him as a "former mental patient", but he was institutionalized by court order and not because it was medically indicated - his only psychological diagnoses were pedophilia and antisocial personality disorder, though you have to read the record to discover that fact.)

So what Arnold was really saying was: "In the long run, the prepubescent girls of America are both freer and safer if a person with the irresistible impulse to rape them, who has acted on that impulse multiple times and who killed at least one of his victims, is permitted to select new victims from among them."

That's not really fair, of course.  Arnold said "in the long run" and he counseled us not to confine our attention to the case at hand.  So what he really meant was: "The prepubescent girls of America are both freer and safer if lots of pedophiliac murderers, not just this one, are set loose among them."

No?  Then how about: "pedophiliac murderers are both freer and safer if the state is prohibited from punishing them."  That makes sense, at least.  But then, as Tonto might have asked, "What do you mean by 'we', Judge Arnold?"

It's not a coincidence that the case involved the murder of a 10-year-old, or that the linked Second Circuit case involved the murder of a crack-using prostitute.  The social status of the victim is critically important to the disposition of criminal cases.  Imagine that the victim in either case was a federal judge.  Do you think we'd hear the same rhetoric about how we'd all be freer and safer if we just accepted that judges get iced from time to time?

Arnold, you'll notice, didn't say "safe" or "free."  He used the comparative forms of those words.  His point was that the actions of the police officer posed a greater threat to our safety and freedom than the actions of the murderer.  The police officer in question asked the murderer to consider whether his victim's parents deserved to give their little girl a Christian burial.  So put on your blindfold, pick up the scales - no, wait, pick up the scales first, then put on the blindfold and tell me if you agree that asking that question poses a greater threat to our freedom and safety than kidnapping and killing one of us.

When Arnold's decision was reversed by the U.S. Supreme Court, Justice Byron White observed that "four Members of the Court, including myself, were of the view that [the detective in the case] had done nothing wrong at all, let alone anything unconstitutional."  So our freedom and safety is more threatened by a policeman doing something that 44% of the justices of the Supreme Court think entirely right and proper than by a pedophile kidnapping and killing a child.

(What does that say about 44% of the Supreme Court? - is that why Justice Brennan found the words so "stirring"?)

Assume for a moment (it's difficult, I know) that Arnold actually thought about the words he included in his peroration.  In that case, the real question raised by his opinion was: Who gets to decide what makes us freer and safer?  There's nothing in the opinion to indicate that Arnold understood that his opinion raised that question, but nonetheless he effectively answered it: The people don't get to decide.  Judges do.  Or, rather, the Founding Fathers do, communicating their desires through the earthly medium of judges.

And so finally we get to the real issues decided by Judge Arnold: Which is better for federal judges, allowing the people to make fundamental decisions about freedom and safety in their society, or making those decisions on their behalf?  Which is better for the legal profession, to allow a client to render his own case unwinnable or to prevent him from doing so? 

No wonder those judges on the Second Circuit like Arnold's peroration so much.