JUDGING CRIMES

While recently clearing a layer of wood-pulp debris from my office ("Don't toss that!  It might come in handy some day."), I came across a law review article by Richard D. Friedman, Framer of the current sixth amendment. 

Friedman has written a few gazillion articles about the confrontation clause -- in fact, it's difficult to find a recent article about the confrontation clause that he didn't write -- but this one was published before the March, 2004 constitutional convention that amended the amendment.  (Surprisingly few delegates showed up.  Only nine, in fact.)

It's about the forfeiture principle, the subject of a forthcoming Supreme Court opinion, Giles v. California, which is featured prominently in Professor Friedman's blog.  The article was published in the Israel Law Review, and it's called "Confrontation and the Definition of Chutzpa."  (For the missing final "h" in khutspe, see this discussion.)

The article has many excellent things to say.  The alternative to Friedman's approach -- the one adopted by New Mexico courts, in fulfillment of their historical mission to preserve the state's late 19th-century culture -- amounts to a double or nothing bet.  If a criminal feels lucky, he might as well commit a second crime by killing or intimidating witnesses to the first.  If he gets by with the second crime, he gets away with the first one, too.

So basically American courts are faced with a choice between (a) entrusting the physical safety of witnesses and the integrity of their own judicial processes to the discretion of violent criminals, in the hope that they won't feel lucky; or, (b) Friedman's recommended robust forfeiture principle. 

Judges find it a very difficult choice, for a reason well stated in the Friedman article I'm fixing to recycle: they prefer to think of the accused's constitutional rights as absolute.  Toward the end of the article, discussing the victimization of children, Friedman includes these paragraphs:

Fourth, if a child's caretakers are genuinely concerned that, no matter what precautions are taken, testifying will cause the child severe trauma, they simply need not require her to do so.  Of course, if absent her live testimony secondary evidence of the prior statement is inadmissible, the probability of securing a conviction against the accused may diminish to the vanishing point.  And, when the accused is in fact guilty, that is a very unfortunate result.  But it is nothing new.  Often prosecutions are lost, or never brought, because the complaining witness is unwilling to testify.  Again, the case of adult rape provides a prime example.

Finally -- a point that will not have universal appeal -- I find disturbing an approach that says to the accused, in effect, "Well, perhaps you have a fundamental right at stake here, but someone else would be hurt if we allowed you to invoke it against the state and yet insisted on prosecuting you".  Perhaps it is too late in this "age of balancing" to argue against such willingness to balance away the rights of accused against the state.  But I prefer viewing the accused's fundamental rights, at least at their core, as truly fundamental and not subject to be balanced away.

Now, Friedman is obviously a very smart guy, and he's an almost infinitely better writer than the average law professor, and I've been told secondhand that he's a good guy -- a true gentleman -- possessed of a fine sense of humor. 

So how come it's not obvious to him, as it is obvious to me, that his approach involves "balancing" quite as much as the approach he deplores?  ("Balancing," in a judicial context, is an euphemism for choosing, of course.  See post 248 and post 332.)  Specifically, he balances away a child's right to protection from the community. 

I know that in the courtroom, we have to pretend that the particular crime charged is the only one the criminal ever committed, but who believes that about a pedophile?  I think it's safe to assume that a man who's sexually attracted to children will experience that attraction about as often as any other man is sexually attracted to objects of his desire, which is to say, roughly, whenever they come within his field of vision.

Volumes of social science data show that child sexual abusers routinely "report vastly more victim-involved incidents than those for which they were convicted."  (That's from "Child Sexual Molestation: Research Issues," National Institute of Justice Research Report (NCJ-163390, June 1997), which apparently isn't available on-line but can be ordered here.)

So it's not just "a very unfortunate result" when a guilty child sexual abuser goes free.  It amounts to sentencing additional children to sexual abuse.   Friedman proposes balancing away those children's rights, too. 

That has consequences for non-pedophile, peace-loving, minding-their-own-business adults, too, as described here.  The rights of those future adult victims of grown-up abused children are also subordinated to Friedman's elegantly simple conception of the sixth amendment.

At the highest level, Friedman also proposes balancing away the rights of the American people, who are guaranteed a republican form of government in their Constitution.  That means a government controlled by the people themselves. 

Why can't the people of the various states have the type of government they want? -- one in which guilty pedophiles are stopped before they re-offend, and punished before they can make child sexual exploitation seem like a low-risk activity for those so inclined.  (Well, okay, punished so that we can gradually restore the vanishing perception that it's a high-risk activity.)

Friedman's point, or rather his assumption, is that these things don't count.  All he's really saying is that the accused's rights shouldn't be balanced against the prosecution's interest in securing the conviction of a guilty person.  Inside the courtroom, no one else has "standing" to intervene in a criminal prosecution, so therefore (it follows, as night follows dawn) no one else has any rights that a judge is bound to respect.

Friedman, in short, accepts the basic assumption on which our current criminal justice system rests, which is that real life and what happens during the course of a criminal trial must be kept strictly segregated, and only the latter counts. 

His uncritical acceptance of the big-picture status quo is certainly one reason for his incredible influence over the judicial guardians of received wisdom.  Last year, for instance, the Ninth Circuit asked him how to rule in a confrontation clause case and meekly did as they were told, giving him credit. 

He advised them (if the court's paraphrase is to be trusted) to base their decision on policy considerations, in order to prevent prosecutors from getting up to tricks (footnote 8).  Policy considerations are so much more preferable than balancing tests, of course.  Intent of the Framer and all that.

Good ol' Anonymous posted a comment to the main road of this post explaining the origin of the Judge Pregerson Memorial MixMaster, even supplying a link to a New York Times article explaining the judge's deep involvement in the development of the project.   As a district judge, Pregerson oversaw litigation that fattened the Westlaw database by 13 opinions over the course of 25 years, even continuing to sit as trial judge by designation after his elevation to the Ninth Circuit.

I'm pretty sympathetic to the goal of ameliorating the community disruption caused by freeway construction.  Community-buster Robert Moses, I'm convinced, bore more responsibility than any other individual for New York's decline into the ungovernable city. 

Still, I can't help but suspect that it's within the realm of possibility that the California Department of Transportation, which signed the consent decree overseen by Pregerson, didn't put up much of a fight when its legal opponents demanded it receive $2.2 billion to spend. 

Consent decrees, by which executive branch agencies pretend to lose lawsuits in order to bind their legislatures without all the muss and fuss of the democratic process, give judges the glory of increasing spending in the public eye while leaving to legislators the unpleasant task of trimming other budget items during contentious late-night committee meetings. 

Consent decrees are another type of community-busting: replacing Jacobean mob rule with the more decisive rule of a king and his lawyer-courtiers.  Still, dubious methods frequently produce beneficial effects.  It's just money, after all.

So the green sign dedicating the freeway interchange to Judge Pregerson can be viewed as a reward for his his hard judicial labor ordering other people to perform hard real labor.  Viewed in that way, it's an odd honor - even if, as I suggested, a cheap and rather ambiguous one.  Naming rights are apparently considered valuable things, in some contexts.  Isn't there something a bit ... odd about a federal judge accepting something of value as additional compensation for doing his job?

But, I think, that's not the right way to look at it.  I think the interchange was named for him in very much the same spirit in which the airport freeway itself is officially named the Dan Ryan Freeway, or Glenn Anderson Expressway, or whatever.  

It's the true Chicago spirit.  On my first visit to Chicago, every downtown street corner had paint on the pavement reminding me to visit "Mayor Jane Byrne's ChicagoFest."  You could register your car or renew your driver's license at "Secretary of State JIM EDGAR's" storefront operations.

Pregerson's name on the interchange isn't a monument to his judicial service.  It's an acknowledgment that he was the political boss in charge of the project.

(Here's part 1 of this epic.)

How can you tell when a judge is up to something?  One sure giveaway is the emotive adjective or adverb.  I always tell my students that the strongest argument is the quietest: "The Supreme Court just decided this issue last week."  You don't have to raise your voice or work on anyone's emotions on those rare occasions when the law has truly boarded up all the escape routes.

When federal judge Jerome Frank went on about the "satanic" police serving the "brutalistic" regime in Coney Island, it was because he couldn't carry the day by calmly setting forth the facts and the law.  The hysteria (or, if you're feeling generous, faux-hysteria) of his language was intended to justify the result he reached. 

As a federal judge, he had no authority to substitute his view of the facts for those of the jury and New York state judges, but he got around that by claiming the Nuremberg defense in reverse: I was only disobeying orders.   If he had discussed the facts calmly, as the federal district judge had done (see post 338), it would have been obvious that he wasn't, after all, faced with the same moral imperative as an Auschwitz prison guard.

When Noia's case was argued (and argued) before the Supreme Court, it fell to Justice Brennan to explain why a congressional statute that said "shall not" meant "may."   (See post 339.)  To do so he reached deep into his bag o' modifiers:

Our decision today swings open no prison gates. Today as always few indeed is the number of state prisoners who eventually win their freedom by means of federal habeas corpus.   Those few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair-minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. Noia, no less than his codefendants Caminito and Bonino, is conceded to have been the victim of unconstitutional state action. Noia's case stands on its own; but surely no just and humane legal system can tolerate a result whereby a Caminito and a Bonino are at liberty because their confessions were found to have been coerced yet a Noia, whose confession was also coerced, remains in jail for life. For such anomalies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its historical role in the struggle for personal liberty to be the ultimate remedy. If the States withhold effective remedy, the federal courts have the power and the duty to provide it. Habeas corpus is one of the precious heritages of Anglo-American civilization. We do no more today than confirm its continuing efficacy.

Pretty affecting, isn't it? -- so long as you keep yourself from remembering just exactly how society "grievously wronged" Noia: it allowed him to confess to a murder, a confession that the jury found to be voluntary and which was corroborated by the confessions of his two co-conspirators, and then it allowed him to choose not to appeal his resulting conviction. 

Fay v. Noia was a 6-3 decision, with Justice Black in the majority.  Harlan, Stewart and Clark dissented.  Six years later, however, the composition of the Court had changed with Thurgood Marshall replacing Clark and Abe ("Pete Rose") Fortas replacing Goldberg.  

When he wrote the majority opinion in Kaufman v. U.S., Brennan didn't need either Goldberg or Black, and so he could dispense with the cloak of humility.  Black dissented in Kaufman.  In response, Brennan wrote that habeas corpus "contributes to the present vitality of all constitutional rights whether or not they bear on the integrity of the fact-finding process."

The second part of that sentence is very important, for reasons given below.  But look again at the first part: have you ever seen anything so exquisitely devoid of meaning?  Just think for a moment about how you'd go about "contributing" the capacity to live, grow, or develop to an inanimate object.  The real significance of that  string of words becomes apparent only when you look at what it was written in response to.  In his dissent, Black had written:

Surely, it cannot be said of Kaufman, an admitted armed robber, that he is a person whom "society has grievously wronged and for whom belated liberation is little enough compensation."

Black was quoting Brennan's own words of six years earlier.  He was even using Brennan's rhetorical trick of starting his sentence with "Surely."  Brennan's response - that bit about contributing to the vitality of an abstraction - was his way of breaking the news that he hadn't meant a single word of his heart-tugging peroration in Fay v. Noia.  Whether or not Noia had been a "victim," one "whom society has grievously wronged", was entirely beside the point.

Because, according to Brennan, the accuracy of a verdict should not distract one from the real purpose of habeas corpus, which has nothing to do with justice to any individual.  Rather, its purpose is to provide a mechanism for enforcing constitutional rights "whether or not they bear on the integrity of the fact-finding process." 

That means: whether or not a criminal is truly guilty of killing or raping or robbing another human being.  It also means: whether or not the freed criminal will interpret his liberation as permission to kill, rape and rob some more.  It means: justice, either to the individual defendant or to his past and future victims, isn't the goal of our justice system.

The goal, for Brennan, was the concentration of power in the federal judiciary.  And if you think that's going too far, remember that Justice Brennan is also the judge who wrote that a federal judge has the "inherent power" to act as prosecutor, victim and judge in the same case.  That code phrase "inherent power" means power not granted by the Constitution, of course.  (See post 32 and post 261.)  

Brennan was committed to a vision of a nation ruled by judges.  Fay v. Noia and Kaufman v. U.S. reveal that he viewed any sort of intellectual dishonesty as a justified means to that all-worthy end.

I was inspired to set out on this epic by Christopher L. Eisgruber's (see post 333) description of Brennan: "his jurisprudence depended so thoroughly on functional considerations about the judiciary's role as a defender of vulnerable minorities and individuals".  

This is yet another example of Eisgruber's uncritical adoption of every received idea about the law.  (See post 329.)  The chief distinguishing feature of Brennan's jurisprudence was his utter contempt for the most vulnerable of individuals, those whose vulnerability was objectively demonstrated, a grossly disproportionate number of whom were members of minority groups: victims of crime.

What Eisgruber is referring to is Brennan's sentimental rhetoric in such cases as Fay v. Noia.  That rhetoric was, indeed, in tune with the received ideas of law professors of the era - that was why Brennan wrote like that. 

What Eisgruber overlooks, because it's impossible to reconcile with what his professors told him and he's unable to consider the possibility that his valued mentors could be wrong, is Brennan's occasional confession, in cases such as Kaufman, that he didn't mean a word of his own gushing stuff.  He wrote like that because it worked: it successfully manipulated those same unsophisticated professors and assorted naive journalists into accepting the judiciary's authority to shrug off attempts at control by what Brennan called "the political branches" -- his perjorative term for democracy.

In 1972, Noia was arrested for conspiracy to transport stolen Post Office bonds.  He told both the arresting officer and the judge that he was the Noia, but I haven't been able to find out what happened to him after that.

Caminito, Bonino and Noia all confessed to murdering Murray Hameroff.  They were tried together, and the jury found their confessions voluntary.  Noia chose not to appeal.  But after 14 years, Caminito got a federal judge to vacate his conviction, based on the judge's finding that the police acted "satanically" by questioning him "almost continuously" for 27 hours, leaving him alone in an unheated cell for 7 of them.  (See post 338.)

That last bit sounds like I'm being sarcastic, doesn't it?  Check it out: 222 F.2d at 699-701.  Caminito testified that he and Noia got together in the cells (this must have been during the "almost" rather than the "continuously" part) and agreed on a story to tell the cops.  (At 701, if you're following along.) 

After all, isn't that exactly what you would do if you were desperate for the torture to stop - sit down with your friend, talk it over, and make sure your confessions meshed in the details?  It's part of the ludicrousness of Jerome Frank that he flung around psychoanalytic lingo without first obtaining any concept of human psychology.

(His embrace of doctrinaire Freudianism, mid-50s incarnation, has this in common with his denunciation of the Brooklyn cops: both rest on the idea that other people are helpless puppets.)

Anyway, once Caminito got his conviction overturned, his buddy Bonino asked, "What about me?"  Four judges of the N.Y. Court of Appeals heaved a big sigh and said: "Since the United States Court of Appeals, Second Circuit, has held that the writ of habeas corpus must issue to his codefendant Caminito, because his confessions were inadmissible, the defendant Bonino should, in the interest of justice, receive a new trial with his (Bonino's) confessions excluded."  135 N.E.2d at 52.

Three judges, however, weren't so sure: "As to Caminito, the United States Court of Appeals drew factual conclusions widely different from those made by the jury and accepted by us as having reasonable basis in the record.  In reversing now as to Bonino, we are assuming, and acting on the assumption, that the Federal courts would similarly revise our interpretation of the record.  In our view, we have no right or duty to do so."  135 N.E.2d at 754 (Desmond, J., dissenting).

Okay, two down.  That left only Charles Noia, who confessed, was convicted, and never appealed.  A New York trial judge held: "That fraud and misrepresentation were employed to secure the alleged confession which is the only substantial evidence in this case has been authoritatively established in the United States Court's findings, in ruling on the Caminito writ of habeas corpus."  158 N.Y.S.2d at 686.

Of course, Jerome Frank said that Caminito's confession was involuntary, being the product of "brutalitarian" tactics (which isn't exactly the same as fraud - would you buy a used car from this man?).  He didn't talk about Noia's.  But the judge was right about the "authoritatively established" part.  It didn't matter whether the federal court was right, or even rational, because it had the authority, and that's the important thing in the legal system.

The state trial court judge thought it was intolerable to keep Noia in prison on the basis of "a manifestly unlawful conviction".  However, the Appellate Division pointed out that the trial judge's decision was, itself, manifestly unlawful: "No appeal was taken.  This being so, the court was without authority to grant the application."  163 N.Y.S.2d at 797.  The Court of Appeals affirmed, agreeing that as Noia had waived his right to appellate review, his only recourse was to ask the Governor for clemency.  148 N.E.2d at 142.

Naturally, Noia turned next to the federal courts.  The district judge dismissed his petition for habeas corpus (183 F.Supp. 222) but Jerome Frank's old court, the Second Circuit, reversed on a 2-1 vote.

When the majority ordered the writ of habeas corpus to be issued, ordering Noia's release from prison, it was acting on the authority of a statute that said:  "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State ..." 

How to interpret that?  It depends on what the meaning of "shall not" is.

The dissenting judge - Leonard P. Moore, who succeeded to Frank's seat upon the latter's death - thought it meant something along the lines of "shall not", but he was voted down.  He characterized the majority opinion this way:

The doctrine now enunciated by the majority is that whenever a group of appellate judges wish to depart from previously settled principles, they may find that 'extraordinary circumstances' exist and that such a finding entitled them to ignore on an ad hoc basis all otherwise applicable principles.  (300 F.2d at 366.)

That's not unstrong stuff. 

Anyway, in January, 1963, 22 years after Murray Hameroff (who?) breathed his last, Charles Noia's case was argued for two days in the United States Supreme Court.  Really.  That's what the opinion says: "Argued Jan. 7 and 8, 1963."

It was a simple case, raising just a single issue: if a state court affirms a state conviction on strictly state law grounds, can federal judges ignore the state court's ruling a re-decide the case on federal law grounds?   There was a catch, though: the question was to be answered by federal judges.

The result of all that palaver was, I think, one of the Supreme Court's finest - in the sense of "most characteristic" - moments.   Justice Brennan wrote the majority opinion explaining that when Congress said federal courts "shall not" issue the writ when the petitioner had not pursued his state remedies, it meant "may." 

Brennan reasoned that, because the requirement that a state prisoner first present his federal claims to state court was originally developed in the federal courts as a matter of professional courtesy, therefore when Congress enacted a statute that flatly prohibited federal courts to issue the writ in any other circumstance, it didn't prohibit federal courts from issuing the writ in other circumstances.

It sounds like I'm being sarcastic again, doesn't it?  372 U.S. at 419-20.  And reiterated at 372 U.S. at 434-35.

To support his conclusion that night was day, Brennan relied on the Reviser's Notes to 28 U.S.C. § 2254, which in turn relied on Ex parte Hawk, 321 U.S. 114 (1944).   A few pages later, however, when considering a different point (whether a prisoner should be required to seek certiorari review of his state conviction), Brennan wrote:

It is also true that Ex parte Hawk, 321 U.S. 114, a decision cited in the Reviser's Notes to 2254, intimated in dictum that exhaustion might comprehend seeking certiorari here.  321 U.S., at 116-117.  But that passing reference cannot be exalted into an attribution to Congress of a design patently belied by the unequivocal statutory language.  

Unfortunately, Brennan neglected to explain to the rest of us how to distinguish between those situations in which such exaltation was appropriate and those in which it was not.

Brennan, who was a master of sentimental 19th-century prose style ("precious" was one of his favorite adjectives), prettied up his wine-into-water miracle with lots of flowery words, like these:  "We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in the Anglo-American jurisprudence: 'the most celebrated writ in the English law.'" (That last is, to my mind, rather like describing Delaware as the fairest of the states east of Maryland.)  

After quoting fellow Supreme Court justices that "'there is no higher duty than to maintain it undisturbed'" (none?), Brennan reached the high-water mark of habeas hyperbole:

These are not extravagant expressions.  Behind them may be discerned the unceasing contest between personal liberty and government oppression.  It is not accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth century, but also in America from our very beginnings, and today.

Note the only two choices: personal liberty or government oppression.  Which side are you on? 

Before you answer, recall that the Supreme Court is the government, and six of its members had just declared themselves free to disregard a statute enacted by Congress.  "Oppression," in Brennan's usage, was democracy when it interfered with the powers of government, specifically that of the courts.  The "personal liberty" he was talking about was that of federal judges. 

By the way, in case you'd forgotten about the "central role" habeas corpus has played in our national crises, Brennan helpfully dropped a footnote to remind us that after the Civil War was over, the Supreme Court ruled that during wartime civilians could only sometimes be subjected to martial law.  So next time we have a Civil War, we'll know.

Also, the Court once considered the case of men incarcerated for involvement in Aaron Burr's fantastic conspiracies of imperial dominion.  And during World War II the Court denied habeas petitions filed by condemned saboteurs who had been secretly landed by German submarines on American beaches. 

Brennan's final example was the Court's ruling, in the final months of World War II, that a Japanese-American woman who had succeeded in proving her loyalty could, after three years' incarceration, no longer be held indefinitely in a Utah camp (although Justice Douglas's opinion for the Court sidestepped the separate question whether she would be allowed to return to her California home).

Far from being "central" to the Second World War, the Civil War, and the run-up to the War of 1812, these legal disputes hardly even qualify as marginal.  It would be insulting the memory of Justice Brennan to suggest he believed a word of what he wrote.

Six years later he confirmed it was all eyewash.

John Ferling's book Adams versus Jefferson: The Tumultuous Election of 1800 is one of those books of serious popular history that requires you to first plough through a prolonged introduction designed to bring up to speed everyone who dozed through 10th grade history.  But once you get past the World Book-style pen portraits of the protagonists - and so long as you can tolerate the author's spendthrift use of derogatory adjectives to describe James Madison - you can find a lot of information and insight. 

While the judiciary as an institution is hardly mentioned, Ferling provides this extremely useful summary of the dominant political outlook of our third branch (well, third in the order in which it's mentioned in the Constitution, if in no other sense):

[A]s was true of most Federalists, [John] Adams was alarmed by signs that America was democratizing. Before political parties existed in the 1790s, Adams had published warnings about how partisan electioneering – what he called the "Cankerworm" that had brought down every previous republic – would corrupt the American political system.  When caught between powerful rival interests, democratic politicians inevitably would be driven to deceit, he had predicted.   Virtue and integrity would vanish.  Revenge and malice would prevail.  Voters would be duped and the press misled, pushing the system toward an unsavory end – a democratic tyranny in which the majority plundered the minority.  For Adams, the notion that government could realize the will of the people was disingenuous.  Society was divided into so many competing interests that a single popular will seldom existed.  Furthermore, while humankind was all one species, Adams insisted that "Man differs by Nature from Man almost as much as Man from Beast."  It was impossible that all could have their way or be fulfilled.  Instead, Adams favored a system in which the brightest and most virtuous men could be drawn into public life but then be insulated from the necessity to pander to the popular thirst.  If somehow the independence of good men could be preserved, so that they could govern prudently and judiciously, the result would be good government for the greatest number.

Those last two sentences come closer than anything else I can remember reading to describing the politics of the judicial branch. 

Most judges don't see it as a question of politics, I think.  At most, they might grudgingly admit that those two sentences capture something of their idealized self-image.  They might even say that they "strive" (a favorite judge's word) to achieve that ideal.

But the Federalist concept of good government is politics, all right.  It's big-picture politics, not the poll-tested where-we-stand-on-the-issues politics of "pander[ing] to the public thirst", but politics all the same.

All the tedious, predictable studies about "drifting" Supreme Court justices look at the issues between the parties and ignore the meta-politics of the Court itself.  Supreme Court judges "drift" in only one direction: toward greater concentration of power in "the brightest and most virtuous men" (and, grudgingly and only lately, women) in the name of preventing "democratic tyranny" - although the justices and their lower-court servants prefer the adjective "majoritarian."  (See post 54.)

The odd thing about Ferling's book is that he seems to think the Jeffersonian Republicans won the election of 1800.  For the first 28 years, that was true enough.  But looking back on it from the perspective of 207 years, it seems obvious that the Federalists are in charge.

The Supreme Court has long been in the habit of using the phrase "political branches" to describe the democratically-elected branches of government.  Westlaw counts 141 SCOTUS opinions making use of that phrase.   As a propaganda trick - excuse me, I mean talking point - it's comparable to the Court's use of the word "majoritarian" as a pejorative.  (See post 54 and post 265.) 

Not only is "political" frequently charged with a negative meaning in America ("playing politics," "politics as usual"), but calling the executive and legislative branches "political" implies the Court isn't  - it's just a government agency that decides issues of "public policy."  (1,805 SCOTAL mentions of that phrase.)  As to any superficial definitional similarity between "political" and "policy" - look!  An oyez!  Three of them!  Now, then, moving on to the next case, counsel ...

Our courts are even more political in a big-picture way, though.   Their policies - which never, ever work out the way they're intended, anyway - are in some respects the least of it.  I found a wonderful encapsulation of the meta-politics of the American judiciary in a most unlikely place: Simon Winder's The Man Who Saved Britain: A Personal Journal into the Disturbing World of James Bond.  It's a book about Britain in the post-War years, and particularly during the No Future 70s, when the author was growing up.  Amid much Tim Moore-style humor, James Bond is diagnosed as a nation's final instrument of post-Imperial denial.  And then we come to this:

What should we make of Bond's chief, the remarkable M?  He is a figure in the Bond mythology on a par with Blofeld and retains as astonishing potency.  If post-war Britain had expressed its debt to Bond in a landscape dotted with temples then M would undoubtedly get a substantial building to himself (this is an easy and enjoyable game with any number of temple layouts - at its best played with a more Asian sense of duality, forces of evil or violence also getting their place: it is easy to imagine a slightly disturbing folk cult growing up around Oddjob, say, and a lovely alcove for Pussy Galore).  In a sense, M is more of a religious force than Bond himself - a Jupiter to Bond's Mercury; Wotan to Bond's Loge.  The books in effect make him the father of the nation, the figure who is always awake and alert and who, through silent coup after silent coup (delivered via the figure of Bond), keeps us all safe.  He therefore incarnates in its perfect form the Conservative ideal: of patrician omnipotence over a silent, uncomprehending, safe, passive flock.

It was only as I read that last sentence that I realized who M reminds me of: the person the average American judge sees in the mirror.

In an interview, B.F. Skinner, the great apostle of American behaviorism, once summed up the basic concept of the criminal law.  Statutes, he said, are "statements of contingencies backed up by the political systems of the country."  He meant that laws control people's behavior by providing aversive stimuli:

An aversive stimulus is the opposite of a reinforcing stimulus, something we might find unpleasant or painful.

A behavior followed by an aversive stimulus results in a decreased probability of the behavior occurring in the future.

This both defines an aversive stimulus and describes the form of conditioning known as punishment.  If you shock a rat for doing x, it’ll do a lot less of x.  If you spank Johnny for throwing his toys he will throw his toys less and less (maybe).

(That's from a very useful online summary provided by Professor C. George Bouree.)

An ideal system of criminal justice -  I think this is intuitively obvious, but it's also in line with behaviorist theory - would combine a 100% chance of discovery/punishment with a graduated system of punishments:  conditional discharge (i.e., warning); probation; weekend jail sentence; jail; prison.  In such a world, the certainty that committing a crime would produce  an unpleasant or painful stimulus would ensure that only the incorrigible - the psychopaths - would ever need to be sent to prison.

Described like that, my ideal system of criminal justice sounds like a cage with levers in a psych dept laboratory, but I think normal human society ran pretty much along those lines for long stretches of our history.  In his early masterpiece The Pursuit of the Millennium, the late Norman Cohn wrote:

To an extent which can hardly be exaggerated, peasant life [in the Middle Ages] was shaped and sustained by customs and communal routine. ...  Social relationships within the village were regulated by norms which, though they varied from village to village, had always the sanction of tradition and were always regarded as inviolable. 

Familial relationships, of course, added another enmeshing network.  In such a society, it must have been very difficult to commit a violent crime secretly.   The near-certainty of discovery must have been a  powerful disincentive. 

A possible illustration of this point, from a different historical era, is provided by Jill Mocho's terrific Murder & Justice in Frontier New Mexico 1821-1846 . (1821-1846 was the interval between Mexico's independence and the American invasion.)  Mocho's researches uncovered just 11 homicide cases for that entire 25-year span.  Doubtless many other homicides escaped  the archives because the alcalde never found anyone to prosecute - but, if anything, that only proves the point.  Social isolation made villagers vulnerable to mobile strangers, but their social self-sufficiency protected them from themselves.

Also, such tightly-knit communities, with extended kinship structures, were not good laboratories for raising psychopaths.  Too much stability.  Too many other people involved in the child's life.  Too many positive role models.

But watch what happens in behaviorist theory if the risk of discovery/punishment slips much below 100%.  The association between committing a crime and the aversive stimulus is weakened, or even ceases to exist, so that being caught and punished seems less like an effect produced by the commission of the crime and more like a random stroke of bad luck.  A different kind of association is created:

B. F. Skinner’s entire system is based on operant conditioning.  The organism is in the process of “operating” on the environment, which in ordinary terms means it is bouncing around its world, doing what it does.  During this “operating,” the organism encounters a special kind of stimulus, called a reinforcing stimulus, or simply a reinforcer.  This special stimulus has the effect of increasing the operant -- that is, the behavior occurring just before the reinforcer.  This is operant conditioning:  “the behavior is followed by a consequence, and the nature of the consequence modifies the organisms tendency to repeat the behavior in the future.”

When the risk of being caught/punished is reduced, committing crime becomes associated with pleasure: the pleasure of power and dominance over others, the pleasure of sadism, or the various pleasures available to a person who has suddenly come into money. 

It's not hard to see that the two most significant trends in American criminal law for the past half-century have been directed toward (a) decreasing the probability of a guilty criminal being punished (that's the purpose of the numerous  non-textual exclusionary rules invented since the 1960s); and (b) increasing the severity of punishment.  We've been moving aggressively toward a society that is the photo negative (will that useful metaphor survive the disappearance of film?) of the ideal.

What's really interesting is that no one - well, no one who doesn't own stock in private prison companies - believes these are healthy trends.  Given that the criminal law itself is the preeminent example of behaviorist principles in action, how did we arrive at a system that contradicts basic behaviorist principles?  Ironically enough, it's because five justices of the Supreme Court thought it would be a spiffy idea to apply the principles of behaviorism to the criminal justice system.

Wrong judicial decisions make you ask one set of questions: Is the judge who wrote this stupid? biased? lazy? taking money? trying too hard to impress someone?  All of the above?  Is this really the best he or she can do?

Correct judicial decisions post a different and potentially far more difficult set of questions.  Consider the case of Angela Lewis, who was "indicted for assault with a deadly weapon inflicting serious injury on [81-year-old] Nellie Joyner Carlson (Carlson) and felony breaking and entering into Carlson's residence at 1312 Glenwood Towers, a public housing development for senior citizens located in Raleigh, North Carolina. On 7 October 2002, a subsequent grand jury indicted defendant for robbery of currency valued at approximately $3.00 from Carlson perpetrated through use of a dangerous weapon at the time of the assault."

A neighbor found the elderly Ms. Carlson sitting slumped over in a badly "tore up" apartment.  Ms. Carlson's eye was "bloody and swollen."  She told the neighbor "that girl come in and just about beat me to death."   The neighbor called 911, and the officer who responded observed that Ms. Carlson's face and arms were "badly bruised and swollen."  In her conversation with the officer, this is how Ms. Carlson described what Angela Lewis did to her:

"I opened the door and she pushed me inside. She grabbed my hair and pulled my hair. She hit me with her fist. She also hit me with a flashlight, phone and my walking stick. She hit me in the ribs with my walking stick. She took a small brown metal tin that I had some change in. I also had some change on the table that she took."

According to the defense brief on appeal, "It was subsequently determined that Carlson had suffered a bruise over her left eye, a contusion to the right frontal lobe of the brain, a contusion to the right lower lobe of the lung, and three cracked ribs." 

Unfortunately for Ms. Lewis, Ms. Carlson had recognized her: Ms. Lewis frequently visited one of Ms. Carlson's neighbors in the Glenwood Towers project.  (Here's a more flattering view.)   When the cops spoke to the neighbor, he unhesitatingly "told them that the person they were looking for was Angela Lewis. " 

Bizarrely enough, Ms. Lewis herself next called the police, reporting that she was the victim of a strong-arm robbery.  She was bleeding from the head - bleeding heavily enough to leave a trail from a car to a pay phone.  (I sincerely regret that I can't tie together the strands of this story.)

Anyway, a detective assembled a photo array, took it to Ms. Carlson at WakeMed (it sounds like a pharmaceutical competitor of Starbucks, but that's what they call their hospitals down there in Raleigh), and she picked out Ms. Lewis as her attacker.  Ms. Lewis, who was in the same hospital at the same time, finally "said it didn’t matter anymore, just take her to jail."

Some weeks after the attack, Ms. Carlson, who was already suffering from lung cancer, contracted pneumonia.  She died 48 days after the robbery, well before Ms. Lewis could be brought to trial.

That meant there were no surviving witnesses to the robbery.  The trial judge allowed the police officers to tell the jury about their conversations with Ms. Carlson.  When coupled with all the peculiar circumstantial evidence, that was plenty to support a conviction.  The North Carolina Court of Appeals reversed, finding that Ms. Lewis had been deprived of her constitutional right to cross-examine her deceased victim, but the state Supreme Court reinstated the convictions.

So Ms. Lewis took her case all the way to the United States Supreme Court, and that court reversed her convictions again, sending the case back to the North Carolina Supreme Court for a second go-round.  (The Court calls that "G.V.R.ing" a case.  No, really, "G.V.R." is a verb.)   On August 24, the N.C. court gave up trying to salvage the conviction.

I think, from a purely legal point of view, that the state supreme court was right to vacate Ms. Lewis's convictions.  It's just wrong - or, I should say, "wrong" - to convict a person of assaulting an elderly person, if that elderly person dies before trial without ever having been cross-examined by her attacker's attorney.  

That's what the Framers wanted, you see.  Madison laid it all out in the Federalist Papers, or maybe during the ratification debates, or was it Jefferson?  -  Anyway, it was that famous bit about punching old ladies, bruising their frontal lobes and cracking their ribs.  How the Constitution, once ratified, would prevent people from getting convicted for that kind of thing.  Maybe it was Adams.

The U.S. Supreme Court has never said that it's lawful to beat up and rob old people.  All it's said is that in some circumstances - specifically, when the old person dies before being cross-examined and there aren't any other eyewitnesses - the perpetrator can't be punished for beating up and robbing an old person.

The distinction between declaring an action lawful, on the one hand, and declaring it beyond the reach of criminal punishment, on the other hand, is very important to judges.   It's what relieves them of moral responsibility for the consequences of their own actions.  It's what allows them to suppress the disorienting sensation of cognitive dissonance when they condemn an antisocial act as unlawful and simultaneously declare it immune from the law.   

It's another illustration of the modern judicial world's Shelleyan contempt for reality and indifference to consequences.  (See post 305.)   The distinction between the lawful and the non-punishable is highly significant when you're examining the motives of the judges who insist upon it.  ("Motive pure?"  "Check!")  But it's completely beside the point when you're talking about the safety of elderly cancer patients living in housing projects. 

What if they don't want to live in a society that accepts the beating of old people as something beyond the reach of criminal punishment?  What if none of us do?  Why shouldn't our wishes matter?  Just because our Supreme Court has such great plans for us?

The cultural illiteracy of lawyers, a highly-educated and hyper-articulate lot, is a mystery to me.  How can  intelligent people know so much and so little at the same time?   Take, for example, Chief Justice Rehnquist quoting Iago, literature's greatest lying defamer, to demonstrate the preciousness of reputation. 

Shakespeare thought he was being ironic, making the groundlings shout, "Don't listen to him!", and demonstrating how overblown rhetoric can contribute to a sensible man losing his senses.  (Who honestly believes his or her purse is "trash"?)  But our Chief Justice proved as gullible as Othello himself.

The latest example comes from an ABA Committee: "A criminal conviction is, in a very real sense, a 'mark of Cain,' which sets its bearer permanently and indelibly apart from the rest of society."   The committee's sole cited  source for that allusion was a newspaper article by blogger Webb "I shoulda stayed a judge" Hubbell (whose notoriety, it might be argued, makes his experience a wee bit atypical among convicted felons, and whose credibility, one might have thought, would be relatively low among lawyers, in particular). 

The committee didn't cite to the other, better-known source for the phrase: 

 And the LORD said unto him, Therefore whosoever slayeth Cain, vengeance shall be taken on him sevenfold. And the LORD set a mark upon Cain, lest any finding him should kill him.

Or, if Tyndale is too 16th-century for your taste, here's the New International Version:

Then the Lord put a mark on Cain so that no one who found him would kill him.

The Contemporary English Version (a/k/a Today's English Version) may win the award as the clearest of all:

So the LORD put a mark on Cain to warn everyone not to kill him.

The "mark of Cain" was placed upon its bearer to protect him, not to cast him out from society.  The protection was necessary because he was already set apart from the rest of society ("a fugitive and a vagabond shalt thou be in the earth"). 

So when the ABA committee said that a criminal record is "in a very real sense, a 'mark of Cain,'" it was saying the opposite of what it meant.   Furthermore, since the original mark was, you know, a mark (here's a variety of translations of 'owth from the Hebrew), the committee was using "in a very real sense" to mean "figuratively speaking" - a wordier version of the illiterate use of "literally" as an intensifier. 

The committee's proposal was to seal all criminal court records, in defiance of the sixth amendment's guarantee of a public trial:

The commission wanted the ABA to favor legislation at all levels, "to the extent permitted by the First Amendment," to restrict access to records of dismissed or acquitted indictments, and records of past convictions after a period of time, to law enforcement agencies only.

Now, even someone as commercially-inept as myself can see that if the government records were sealed after initially being made public, a private market would instantly develop.  The committee's proposal would  make criminal records as unreliable, as difficult to correct, and as routinely relied upon as credit reports are today.  (Hey, but you could hire a lawyer to clear up the misunderstandings!)

But its absurdity is the least-interesting thing about the proposal.  Like Whitman, it contained multitudes.   It was  an anthology of the modern American judiciary's greatest hits.  First, there's the preference for constructed reality over truth.  The whole point of the proposal, after all, was to prevent people from discovering truthful information, and instead to trick them into believing in an alternative reality - exactly what criminal court judges do to juries when they suppress or otherwise exclude relevant evidence.  Truth is not a legal value.

Second:  But above all else, truth about the legal system is to be tightly-controlled.  The people shouldn't be told more than is good for them.  It's more important for the judiciary to have a good reputation than to deserve one.  (See post 272 and post 287.)   So information about what actually goes on in one-third of the government needs to be parceled out on a need-to-know basis.  And, tcha, you know what? - you don't need to know.

Third: There is no reality outside of the courtroom.  If a person is found not guilty of embezzlement, that means the person didn't embezzle.  Therefore, if a prospective employer declines to hire the acquitted embezzler to keep the company's books, it's "unfair discrimination", and drastic steps must be taken to ensure that future decisions are based on less information. 

Fourth:  The job of the legal profession, whether acting through its judges or its trade associations, is to control the behavior of non-lawyers.  Specifically, its job is to prevent people from acting in ways that the people consider rational.  That's why, for example, relevant evidence is concealed from juries - to prevent them from drawing rational conclusions from it.  (See post 40.)  So if a person hiring a bookkeeper would think it rational to consider whether the applicant had a history of arrests for embezzlement, then the legal profession's job is to prevent the person from becoming aware of that fact.

Fifth:  So long as you profess your noble intentions, unintended consequences are of no concern.  Since the committee wanted to stop one type of discrimination, and stopping discrimination is good, therefore it simply didn't matter what other effects its proposal would have had.   In the same way, allowing a person to get away with raping and murdering a child, for example, is trivial in comparison to the glory of advancing an important principle - even if the principle in question had to be invented on the spot.

Sixth:  All decisions of significance to the legal system are made by legal professionals.  If a decision is made by anyone else - say, a prospective employer or landlord - then, by definition, it's not something the legal system needs to respect.  That's what the committee was saying when it proposed that the records be sealed "to the extent permitted by the First Amendment."  They meant: to the extent permitted by judges interpreting the first amendment, which is the same as saying: to the extent permitted by judges, period. 

Yesterday's Washington Post featured two apparently-unrelated stories.  One headline read: "Md. Judge Dismisses Sex-Abuse Charges: Clerk Is Unable To Find Suitable Translator In Time."  The article explained how the defendant, a Liberian speaker of Vai, was accused of raping a 7-year-old girl, and the accusations were supported by DNA evidence. 

The clerk of the court found several Vai interpreters, but for various reasons they quit, so the judge dismissed the charges, finding that the defendant's speedy trial rights were violated. 

The right to speedy trial is, of course, protected by the sixth amendment, and also by the Maryland Constitution (art. 21).  I don't doubt that the judge's order of dismissal is "correct" - that is, easily defensible - under Maryland appellate decisions, since charges had been pending against the defendant for nearly three years, although he had been out on bail that whole time.  (Out on $10,000 bail - more than many shoplifters have to put up, I would imagine.)

But there's some little voice inside of me that wonders if, once the two sets of DNA results came back (the defense got their own, too), the defendant really and truly wanted a speedy trial.  Is it possible - just possible - that maybe what he wanted was charges to be dismissed instead?  And isn't that, I dunno, sort of like, you know, the opposite of wanting a speedy trial?   I'm just askin'.

The judge, who surely realized that the defendant was only pretending not to understand English (he had attended high school and college in Maryland), said that she was "mindful of 'the gravity of this case and the community's concern about offenses of this type.'" 

I don't doubt this particular judge's sincerity, but what does that phrase "the community's concern" mean?  The judge's conscious meaning might have been something like: "I really, truly don't want my name to become a catchphrase among talk-radio listeners, so I'm going to make a non-apology apology for what I'm doing to make sure everyone knows it's not my idea, okay?" 

But what she was really talking about, whether she realized it or not, is democracy.  The people of Maryland have said that people who repeatedly rape 7-year-olds should be punished.  The judge ruled - as I said, no doubt "correctly" - that a higher law prohibits the people of Maryland from having the type of government they want.   Under Maryland law, something that exists apart from the consent of the governed and (as the judge recognized) often enough in opposition to it, some things are more deserving of condemnation than raping children. 

One of them is making a man live for three years under the horrible cloud of possibly receiving a fair trial.  

Anyway, the other Post story was: "6 Shootings in 2 Hours Stir Worries About Violence: 11 People Are Injured In What D.C. Police Call An 'Unusual' Outbreak."   Wow.  "Worries."  Pretty strong stuff, huh?  Wouldn't expect the Post to go for such sensationalism, especially considering the shootings all occurred east of the Anacostia River, in an area bordered on two sides by Maryland, a long way from Georgetown.

Is there any connection between the stories?  Not directly - I don't have any reason to think the Liberian child-rapist (alleged child-rapist!  alleged! - doubtless Barry Scheck would back me up on this one, DNA evidence is far too ambiguous to allow anyone to reach any definite conclusions about guilt or innocence based solely on the result - see post 246) was shooting up anyone's house. 

But is it possible that actions taken with the best of intentions might have unintended consequences?  (The better question is: is it possible that they might not? - but that deflating realism would detract from the heightened rhetoric of this peroration.  See post 276.)  Is it possible that a government devoted, with a kind of unquestioning certitude difficult to distinguish from religious faith, to the idea that disregarding "the community's concern" is its "highest duty" - is it possible that such a government might produce conditions conducive to behavior that is  not merely contrary to the community's wishes, but detrimental to its well-being, and even to the continued life of some of its members?

Such as, say, "6 Shootings in 2 Hours"?