JUDGING CRIMES

Ronald Dworkin's work is routinely described with such daunting superlatives as "the most important systematic contribution to Anglo-American legal philosophy made since the mid-1960s" (hard to tell if that's intended as a compliment, and you have to pay money to view the concluding paragraph online, so I guess we'll never know), although it seems strangely unphilosophical to dye one's hair, as he appears to have done in this official photo.  That magisterial stare, and then that hair, like Caesar wearing a propeller beanie.

Now, far be it from me to be judgmental.  It's certainly no more ridiculous for a 76-year-old philosopher to have blond hair than it is for Robert Plant, at age 59, to be prancing around with a full head of ringlets. 

Well, no, I take that back.  It's more ridiculous, after all, since men who sing soprano have long been known for non-receding hairlines, according to this remarkably scary-looking hair doc.

 Anyway, Dworkin published a piece last summer in the New York Review of Books telling his readers that the conservatives on the Supreme Court spent the 2006-07 term "overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed."  The doctrines being overruled "aimed at ... establishing a criminal process that is fair as well as effective."

No, really, I'm not kidding.  Click on the link if you don't believe me.  He really, honestly used those two adjectives to describe our criminal justice system.  Has anyone else done so, in your memory?

But then, if you examine the words closely, you'll see he didn't actually say that the doctrines succeeded in establishing a criminal process that was either fair or effective, only that the justices aimed to.  And then you can define the adjectives in various ways.  "Fair" can mean that a guilty-as-sin murderer has a 50/50 chance of walking.  What, after all, is fairer than a coin flip?

Still, I don't mean to be mean.  Dworkin only practiced law for four years, quitting while Barack Obama was still in diapers.  His practice was limited to Sullivan & Cromwell, and learning to practice law by working as an associate at a big New York firm is like learning how to sail by washing dishes on a cruise ship.  Criminal law is populated by people who are notably unconsoled by philosophy, and I'm sure it's far outside his interests.  He's a good liberal, so he knows the Court's criminal procedure decisions of the previous 45 years were Good Things.

But who were they good for?  The answer appears so obvious that at first it seems the only choice is between cynical wisecracks.  As the even-older Anthony Lewis wrote in an even-more-recent edition of the New York Review of Books, the new conservative Court is "hostile to ... the rights of criminal defendants". 

It's self-evident, isn't it, that protecting the rights of criminal defendants is good for criminal defendants?

At a micro level, dealing with one defendant at a time, the Supreme Court's method for protecting their rights has proved remarkably beneficial for certain individual defendants.  But on the macro level, looking at criminal defendants as a class, the picture is not nearly so clear.

Consider these drearily familiar statistics:

On December 31, 2006 —

    – 2,258,983 prisoners were held in Federal or State prisons or in local jails -- an increase of 2.9% from yearend 2005, less than the average annual growth of 3.4% since yearend 1995.
    – there were an estimated 501 prison inmates per 100,000 U.S. residents -- up from 411 at yearend 1995.
    – the number of women under the jurisdiction of State or Federal prison authorities increased 4.5% from yearend 2005, reaching 112,498, and the number of men rose 2.7%, totaling 1,458,363.

As we all know, that's a lot of prisoners.  Human Rights Watch says: "The country that holds itself out as the 'land of freedom' incarcerates a higher percentage of its people than any other country."  (Um, that's actually "land of the free.")  Even if, for the sake of accuracy, that ought to read "than any other country you could imagine yourself voluntarily choosing to live in," that's still pretty stunning.

I haven't looked hard enough to find prison population figures for 1961, but if you take a look at this chart you'll see 1961 is the base camp at the foot of Everest.  (You can find a more elegantly-presented version of the chart on page 43 of this pdf .)  Almost as soon as the Supreme Court began the federal takeover of criminal procedure in 1961, the prison population began climbing up to the sky.

If one looks only at the two variables - Supreme Court intervention in state criminal law and prison population - one would hardly be able to avoid the conclusion that the judiciary's policy has had a less-than-wholly-benign  effect on criminal defendants as a whole.

But surely that can't be right.  It must be a coincidence.  Right? 

In part, sure.  There are lots and lots of partial explanations for the weird growth of the prison population in America - which is, really, a very strange social development.  But to assert that the policy pursued by the courts isn't one of those explanations is to discount the importance of the courts themselves.  After all, if their policies don't have a real-world effect, why do they bother?

I don't think it's a coincidence at all.  And I think Dworkin actually suggests why not, though I suspect he didn't have this in mind when he talked about effectiveness and fairness.  The underlying idea of the whole judicial project since 1961 is that criminal law is a zero-sum game: that a detriment to the prosecution is a benefit to the defense, and vice versa.  Dworkin buys it: in his world-view, fairness and effectiveness in the criminal law are opposing values.  (Mind you, I'm pretty confident he hasn't actually thought about it, but that's what his second-hand rhetoric translates into.)

But life is far more complicated than that world-view allows.  What the courts have done since 1961 is decrease the risk of punishment.  Even if you're caught red-handed - hell, even if you take the police to the body - you might still walk.  Our democratic branches of government can't alter that, because the courts have decreed it to be required by the Constitution.  So our democratic branches alter a different variable - the severity of the punishment.  They increase the sentences.

This, I think, is a perfectly logical and, on the terms imposed by the Supreme Court, entirely reasonable course of action for Congress and state legislatures to pursue.  It's also socially destructive: we've raised a generation of young men who think it's normal for daddy to be in jail.  But which governmental institution first started spinning the top?

Still, I don't think we should criticize the elderly gents harumphing in the pages of the New York Review of Books  for failing to notice.  At their age, they have every right to hunker down behind their psychological defenses. 

A law school classmate briefly worked for one of those thousand-lawyer mills that are regularly featured in the trade press.  When I made some comment about the number of hours such places require their associates to bill, he said, "The thing is, after a while they start believing they really worked all those hours!"

Now, admittedly, most of the big law firms, even those who have slimmed down their letterheads to the currently fashionable two-names-without-a-comma, don't go quite so far as James O. Mill, the retired Boston police officer who moved to New Hampshire and started a lucrative sideline running an investigations business.  According to the Massachusetts Supreme Judicial Court,

During 1993, 1994, and 1995, the defendant spent every business day at the Middlesex Superior Court, either in the court room assigned to clerk-magistrate Joseph Marshall or in Marshall's office. Beginning in April, 1994, Marshall handled most of the appointments of counsel for indigent defendants and motions for investigation funds. When the designated bar advocate was not in the courtroom, Marshall would deviate from the master list and appoint one attorney from among a group of four who were typically in the courtroom. Those four attorneys moved for investigation funds in every one of their cases and always retained the services of Mills Investigations. Marshall "rubber-stamped" his allowance of these motions off the record and in his back office where the defendant usually spent three hours a day socializing with Marshall.

For fiscal year 1993, the defendant billed CPCS [Committee for Public Counsel Services] for approximately $107,000 for investigative services. For fiscal year 1994, the defendant billed CPCS for approximately $197,000, representing 5,483 hours of investigative services. On forty-four occasions, the defendant submitted bills with more than twenty-four hours of work attributed to a single day. For fiscal year 1995, the defendant billed CPCS for approximately $359,000, representing 10,057 hours of investigative services. The defendant submitted 211 bills in which he claimed to have worked well over twenty-four hours in a single day (with some days as long as seventy-two hours).

There are 8,760 hours in a year (8,784 in a leap year), so billing 10,057 was pretty impressive.  As I say, I think that would be relatively uncommon among the associates of even the biggest law firm. 

I was reminded of my classmate's comment about the awesome power of self-delusion when I read about a mini-scandal that may have contributed to Conrad Burns' political downfall.  Four days before the election the Billings Gazette ran an AP story that began:  "Republican Sen. Conrad Burns received a $2,000 campaign donation from an attorney one day before recommending him for a federal judgeship five years ago."

The lawyer in question, Sam Haddon - that's "your honor" to you - is a former officer with both the Border Patrol and the old Narcotics Bureau (the DEA, several bureaucratic reorganizations ago).  This made him a natural for a job that consists, to a soul-crushing extent, of ordering the imprisonment of immigrants and addicts - the two categories of offenders that account for 65% of federal prisoners.  But that's not why he's a federal judge today, and every day for the rest of his life. 

Burns' spokesman tried to spin the suspicious timing by changing the subject: "To somehow insinuate that Sam Haddon wasn't qualified to earn his appointment on the merits is absurd."  No doubt Haddon was fully qualified.  But then, even in a state as unpopulated as Montana, with its bar of just 3,000 in-state members, there are doubtless several hundred other lawyers as qualified as Haddon. 

What made Haddon stand out from the crowd - what made his resume shine among the dross crossing a Senator's desk (whatever dross is, exactly, other than a handy cliche) - was his generosity.  As the Gazette reported, Haddon and his wife "frequently donated to Republican candidates and causes, giving $4,000 to Burns' 2000 campaign and thousands of dollars over the years to GOP committees and lawmakers."

The timing of that last $2,000 contribution was unfortunate, and perhaps typical of a soon-to-be ex-Senator with the gift of the gaffe (who else would publicly tell firefighters they did a "'piss-poor job' of battling a fire near Billings"?).  But the pattern of gifts was hardly out of the ordinary.  You don't get to be a federal judge unless you've made yourself useful to your state's senior senator of the President's party, and shovelfuls of money are always useful.  Federal judgeships are the last pure strain of the ol' Andy Jackson spoils system.

When the Supreme Court, a couple years ago, gave the green light to extortion by state judges, Justice O'Connor wrote separately to condemn the entire practice of electing judges.  She concluded: "If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges."

The assumption behind those words is that there's an alternative to judges being conscious of what side their bread is buttered on.  My impression is that appointed judges in general, and federal judges in particular, believe in a fantasy called "merit selection."  In this fantasy, judges acquire power because they deserve it.  Not, for example, because they reliably donated large sums of cash to politicians of the party temporarily in power. 

Nor because they served as loyal soldiers of the state party for years before being on hand when President Reagan needed to redeem his campaign promise to appoint a woman to the Supreme Court.  I'm an admirer of Justice O'Connor.  She was far more grounded in reality than any of the current members of the Court.  Her opinions were consistently coherent - which you might think is damning by faint praise, until you try to read a Breyer or Souter opinion.  But the only influence merit had on her appointment to the Supreme Court was that it allowed her past the initial screening.

After a certain number of years of wielding virtually unlimited power, many federal judges seem to feel a need to justify to themselves why they were touched by the fairy godfather's wand.  The psychological process that makes them want to believe they were chosen on the basis of merit isn't difficult to understand.  Or, as my classmate would say, "The thing is, after a while they start believing they deserved it!"

"Prestige" has a specialized meaning in the legal profession.  "Prestigious" is a precise synonym for "powerful" and a somewhat looser synonym for lucrative.  The equivalence with big bucks isn't perfect: a billboard practice might be lucrative but it's not  prestigious.  Nonetheless,  as a rule of thumb, the word "prestige" is used in the legal world to refer to power and money.

A second, related rule of thumb: Lucrative = boring.    Prestigious firms can be identified by the sky-high salaries they offer law school graduates, but the salaries are high for the same reason the witch's house is made of gingerbread.  No one would submit to stressful tedium for less.

The tedium of prestigious legal work is no paradox: smart and ambitious people won't do uninteresting work unless they're paid exceptionally well, and they draw the line at degrading work unless the pay is outrageous.   One of the bon mots customarily attributed to Churchill, the one about haggling over the price, is generally understood to refer to the recruitment practices of prestigious law firms.

The lawyer as family retainer has long since faded into the hazy distance of nineteenth-century English fiction, but lawyers at prestigious firms remain a variety of servant.  They're corporate butlers, involved in the dynamism of capitalism the way a highly skilled caddy is involved in the Masters golf tournament.  High pay is compensation in the psychological as well as financial sense.

I would have thought that Cravath, Swaine & Moore was the the most prestigious of all firms - in fact, its website says it is - but this survey says it's fallen to number two.  Kind of a Harvard / Yale thing, I suppose.

Balzac said that behind every great fortune there is a great crime.  I'm not prepared to say that behind every prestigious law firm there is the monthly practice of mail fraud, but in the case of Cravath, Swaine & Moore, there's an earthier sort of crime.

At least, that's according to John T. Noonan, Jr., who himself followed the power path to prestige.  In his book Bribes - the only fat footnoted book about the law ever to be published without a subtitle, though the hardback edition does have a wordy blurb on the front cover - Noonan describes the receivership proceedings involving Williamsport Wire Rope Company, which he describes as "a small corporation coveted by its chief creditor, Bethlehem Steel."

Bethlehem Steel, in turn, was represented by Hoyt A. Moore.  Yes, that Moore.  (Still ... Hoyt??  Shouldn't it have been his mother's aristocratic maiden name, or, failing that, a name shared by at least one post-Ethelred English king?)  According to Noonan, Moore oversaw the shoveling of $250,000 to a federal judge, Albert W. Johnson, who ordered the smaller company into receivership and then "manipulated its receivership so that eventually in 1937 Bethlehem was able to acquire the company at a bargain price."

Moore was put on trial but got off by pleading the statute of limitations - a litigation coup oddly unmentioned on the firm's website.  However, his partner Swaine once wrote that Bethlehem was Moore's principal client, adding, "No lawyer ever unreservedly gave more of himself to a client."  It's hard to be less reserved than a criminal, but what he gave wasn't so much of himself.

Anyone who thought I was exaggerating when I wrote that "being a junior associate at a large law firm is the worst job in the legal world" (post 25) should read Marc Galanter's article in Law.com examining lawyer jokes told by lawyers themselves.  Galanter explains the source of the humor, found (as so often) in bitter experience:

In the 1960s the annual number of law school graduates doubled, and continued rising for another 20 years. At first, the profession became much younger: The smaller numbers of older lawyers were joined by much larger cohorts of young attorneys, so the profession formed an age pyramid with a wide base of younger lawyers and a smaller peak of senior ones.

Now, however, these baby boomers are in their fifties and sixties. The top of the age pyramid has widened, while its base has remained stable. The legal profession continues to grow, albeit more slowly. But all the growth is of older lawyers. This increases pressure on firms to thin their upper ranks to make room for ambitious younger people by mandating earlier retirement, or departnering those whose performance lags behind ever-rising standards. In short, the partnership tournament -- once something that only had to be endured at the beginning of a law firm career -- now lasts until the end.

Yesterday Law.com began an article about judicial pay this way: "Trial court judges in 17 states have received pay raises in the past six months, but on average their salaries remain on par with first-year associates at the nation's largest law firms." 

There are two reasons why salaries for first-year associates at the biggest firms are high.  First, as James Stewart showed us two decades ago, the big law firms are economically dependent on a steady inflow of new associates (and a nearly equivalent outflow of senior associates) to bring in revenue without sharing the profits.   The big firms effectively subsidize the law schools that churn out the graduates they want, by giving the graduates the money needed to repay enormous student loans. 

Second, being a junior associate at a large law firm is the worst job in the legal world.   A first-year associate at a big firm is  self-condemned to perform drudgery, much of it literally as well as existentially meaningless, for the financial benefit of an organization in which she is highly unlikely ever to own an equity stake.   Bright, ambitious lawyers won't abase themselves that way for less than top dollar. 

So comparing the salary of judges to that of first-year associates in big firms is pretty meaningless.  It makes more sense to look at the average salary of lawyers as a profession.  According to the Bureau of Labor Statistics, the 2004 average was a bit less than $100,000, assuming a 40-hour week and 50-week year. 

The mean salary for state court trial judges is $117,328, according to the National Center for State Courts.  So the state judge is actually ahead of the game, financially speaking.  But, even so, money is the least attractive part of being a judge.  Judgeships are for lawyers who want power as well as money.  If we assume for purposes of argument that the average state judge could command a premium in private practice, say a million dollars per year, then it follows that the state judge who earns $117,328 values the power of the office at more than $882,672. 

Being a judge is an extremely well-compensated gig.  It's just that some of the richest compensation doesn't come in the form of money.