JUDGING CRIMES

In an 1875 speech that is still quoted around the Web (here, and here), Michigan's Civil War Lieutenant Governor (well, someone had to keep the seat warm) Charles S. May praised the institution of the jury.  He contrasted (quite rightly I believe) "the aggregate wisdom of twelve men" to the findings of a judge, which "is but the wisdom of one man[.]  Do the scriptures say untruly, then, and is there no safety in a multitude of counsel?"

He then turned his eye from civil to criminal cases:

But it is in another and greater field that the trial by jury becomes a matter of supreme concern to the citizen, and rises to the dignity of one of the chief props and bulwarks of civil liberty.  Here its use cannot well be questioned.  Here, certainly, it needs no defense.  The leaning of the law, in criminal causes, should be to the side of protection and humanity.  And so it is declared to be.  The State is great and powerful, and overshadows the individual; and though it be necessary for its good that crime be prevented and punished, yet the State is not greatly harmed by the escape of a guilty man.  But the conviction and punishment by death or lingering imprisonment of an innocent man is a thing unspeakably shocking.  No care can be too great to prevent such a tragedy.  "Better," then, says the humane maxim, "that ninety-nine guilty men should escape rather than one innocent man should suffer."  And all our human hearts and sympathies respond amen to this.

This is, I think, a very modern attitude, widely adopted by judges from the Parthenon on down: the essential difference between civil and criminal litigation lies in its effect on the litigant.  A criminal prosecution involves, in this corner, the champeen, Leviathan.  And in the opposite corner, the challenger, Underdog.   And no one else is involved.

Myself, I think everyone else is involved.  Enforcement of the criminal law isn't necessary for the "good of the State", as May said, but for the good of people who are victimized by its violation.  Seven years ago, Justice Stevens, of all judges, quoted Holmes' pithy summary of the core rationale:

In his 1881 lecture on the criminal law, Oliver Wendell Holmes, Jr., observed: "The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed."

Lt. Gov. May is right that if a guilty person escapes punishment, it doesn't hurt the State.  It hurts the State's citizens instead.  We'll leave to one side the alienation experienced by so many victims of violent crime.  Quite apart from that, the escape of the guilty makes it that much harder for dangerous people to believe the State's warnings against antisocial behavior.  Each escape chips away at the psychopath's sole reason for not inflicting pain on others.

The effect of that on people who never step inside a courtroom can be profound in ways that might seem surprising.  For example, last month a team of researchers published an article examining "the relationship between child abuse and adult obesity, relative to other risk factors such as demographics, food insecurity, inadequate fruit and vegetable consumption, and physical inactivity, in a representative sample of California women."

What they found was that "[e]xposure to child abuse is associated with adult obesity among California women, even accounting for other relevant variables."  The authors describe this as a public health issue, and so it is, but that's not all it is.  "Exposure to child abuse" is a scientifically-precise euphemism for child abusers who aren't successfully prosecuted.

When child abusers aren't stopped by the state, one result is adult obesity in the victims.  The June study wasn't unique:  other studies, looking at different data, have come to similar conclusions.  Still others tie childhood abuse not only to adult obesity but to many other behaviors that are, in themselves if not in their causes, considered serious public health issues.

Dorothy Rowe, an Australian psychologist quite well-known in Britain, recently published a piece in New Scientist pointing out the similarities between the symptoms of hyperactivity and those of fear:

You are at home awaiting the arrival of the person on whom you feel your life depends. The person is very late. You try to watch TV but can't concentrate. You move from chair to window, from window to door. You make phone calls, check diaries, traffic news. A friend phones to chat, and you rudely tell them to hang up. The line must be kept clear.

You are exhibiting hyperactivity, impulsiveness, distractability and emotional lability (instability and changeability). A psychiatrist with no context for your behaviour might say you have been stricken with attention deficit hyperactivity disorder, because the symptoms of ADHD look the same as the symptoms of fear.

Rowe adds (in words not available on the Web): "There is another reason why doctors fail to see that these are the symptoms of great fear.  Like adults, children fear many things, but one thing all children fear is adults."  Children who live in fear - especially those who live in fear of the adults whose role in the child's life is to protect him or her - can hardly be expected to concentrate, to sit still, to be normal, happy children.

For the past few years, American media has been full of stories about the rising rates of obesity - here's a particularly vivid chart - and the fantastic leap in the number of children diagnosed with ADHD and treated with methamphetamine-like drugs such as Ritalin.  What doesn't get mentioned is that these rates are connected, and both began skyrocketing (why does that sound more vivid than plain "rocketing"?) a generation after American courts switched our society from an unconditional to a conditional criminal law.  (See post 5.)   

"[T]he State is not greatly harmed by the escape of a guilty man."  But the state's children are.

This week the Supreme Court approved a new Federal Rule of Appellate Procedure, Rule 32.1.  Unless Congress  disapproves of the rule change - not much chance of that - the rule will become effective next January 1.  The rule provides:

A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007.

The second clause is a shameful compromise with the forces of obscurantism, but still the rule is a welcome, if long overdue, attempt to shine a little light into the dank sewers of the judicial system.

The strength of the common law system - the source of its political legitimacy as a non-democratic generator of law governing a democratic society - is that it chains together the intellects of judges across time.  If 20 judges hear cases involving the same issue at roughly the same time, assuming that most (not necessarily all) of the judges are of average intelligence and honesty, and 15 of them arrive at the same conclusion, there's something like a 75% chance that solution is a reasonable one.

If, however, 20 judges hear cases involving the same issue over the course of many years, and 14 judges follow the lead of their predecessor, there's roughly a 73.7% chance the approach they adopt is a practical one, because the impracticality of an unworkable rule will always become apparent over time.   In the real world, practicality is an even more important consideration than reasonableness, as Hedley observed four centuries ago. 

What made the common law so powerful was precisely its lack of self-consciousness.  The judges thought in terms of concrete problems, and sought workable solutions.  As other, future judges applied the lesson of the old case to a new reality, they tinkered with the rule laid down in the earlier case.  They didn't do so for the purpose of perfecting the rule, of establishing it once and for all in its crystalline form, but to deal with the new variation on the old facts. 

One might say that the principles of the common law, in the quasi-codified form in which law students are required to learn them, emerged from the welter of cases.   That, I think, is what Holmes meant with his famous opening of The Common Law, when he said that "the life of the law has not been logic: it has been experience" - although it's typical of Holmes' style that it should be hard to pin down his precise meaning. 

But I think it's much more accurate to say that the principles of the common law are simplifications of it.  The strength of the common law was that it linked together the brainpower of many judges, and matched sets of lawyers, over time.  It was parallel processing across the fourth dimension.  That made it smarter than any one of its judges, because it was based on the life experiences of numberless litigants over the course of centuries.  No single judge, no matter how brilliant, could possibly attain that kind of intellectual scope. 

Attempts, such as the Restatements, to reduce the common law to a set of cast-in-concrete rules not only inhibited its future development, but unavoidably reduced it to something a single human brain could comprehend. 

When appellate judges prohibit lawyers from citing their "unpublished" opinions, they are reducing the flow of new ideas into the legal system.  They are frustrating the very system that gives them their authority to announce new law.  They are attempting to impose their own will on the development of the law itself, by deciding which decisions should be considered "precedential" and which should not.   But, because each judge, no matter how brilliant as an individual, is infinitely less knowledgeable than the whole of the common law, attempts to dictate the development of the common law can only dumb it down.

In my experience, judges "unpublish" decisions in three circumstances:

(1) When they aren't trying to dictate to the future.  This is probably the largest (as well as the only legitimate) category, described by MF in the comment to an earlier version of this post.  Many cases are, in fact, routine.  I think of these as the okay-you-got-the-surveillance-video-DNA-and-fingerprints-but-is-that-sufficient-evidence-to-convict? cases.

The problem is that judges are roughly as competent at predicting the future utility of their opinions as American car manufacturers are at foreseeing shifts  in their market.  The only reason a competent lawyer would want to cite an unpublished decision is because it says something not found in a published decision, or says it better. 

(2) When the judges on the panel are doing something they don't want to be seen doing.  When judges want to evade the authority of existing precedent but can't think of a legitimate reason for altering the case law, they issue an unpublished opinion.  When judges realize that one party really ought to win, but they like the other party (or the other party's attorney) more, they issue an unpublished opinion. 

Unpublished opinions are a way for appellate judges to pretend not to do what they're really doing.   They make it easy for weak-willed panel members to go along with their unscrupulous colleagues, because they can so easily rationalize the result: Oh, well, it's not like it's going to become a precedent.  It's a one-time deal.  (That's why the advent of unpublished opinions was a godsend to bribe-takers on the bench.)

(3) When the judges are too lazy, dumb or incapacitated by drink, drugs or old age to oversee the work of their clerks.  This is far more common than one would prefer to believe.  Tony Mauro reports that Judge Alex Kozinski argued against permitting citation to unpublished opinions because "they are drafted 'entirely' by law clerks and staff attorneys.   He added, 'When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway.'"

So we're to understand that federal judges regularly feed spoiled sausages to the parties seeking justice in their courts?  Comparing judicial decision-making to Bismarck's famous sausage factory is perhaps even more provocative than Judge Kozinski intended: exactly how much horse-trading, or horsemeat-grinding, goes on in the cloakrooms of the Ninth Circuit? 

Kozinski's "entirely" is no doubt an exaggeration, but his point, I'm sure, is valid.  With many unpublished decisions it's hard to know which is more disrespectful: to suggest the judges didn't read the opinion before signing it, or to suggest they did. 

Mauro reports that "some federal judges have argued that if this category of opinions can be cited and used as precedent, they will take more time to decide and write, sharply increasing the backlog of cases."  In short, the judges will have to work harder to produce opinions they aren't ashamed of.  Feeling sympathetic yet?

But there's an even more basic reason why the caseload argument is a red herring.  Federal appellate judges have enormous control over their own caseload.   I don't mean they can choose what cases to hear (with some significant exceptions, such as habeas corpus).  But they don't have to devote 50 pages to deciding every issue in two or three alternative ways.  If they reverse a case on one point, they aren't required to tell us about the half-dozen points on which they agree with the trial judge. 

Appellate judges could enforce rules of procedure by refusing to consider issues raised for the first time on appeal.  They could, at least in theory, resist the temptation to show how smart they are by raising issues on their own.  They could let the lawyers do the work, contenting themselves with deciding cases presented to them.  They don't, strictly speaking, have to make use of all the research dug up by their clerks. 

Most federal appellate opinions could be cut by half or two-thirds without anyone noticing except Lexis and Westlaw, who charge by the page.  And those law school libraries that have become dependent on revenue from photocopiers to pay for staff parties.