JUDGING CRIMES

Courtesy of the always-worthwhile New York Supreme Court Criminal Term Library - I keep thinking there must be a clever pun in there somewhere; I mean, it's the name of a blog, isn't it? - here's an NPR story about privatizing the police:

In the past, remote communities like this one [i.e., Wintergreen Resort, Virginia, along the Appalachian Trail] were ripe for thieves. But since residents started paying for their own private officers, crime has dropped 70 percent.

Many of the residents also did something else: They installed burglar alarms. Nationwide, one in four homes now has one. The alarms and an explosion of other devices, like steel bars, stronger doors and security glass, make it more of a hassle to break into homes, criminologists say.

Even locks, the most basic anti-burglary device, have undergone major changes since the 1970s.

"Good locks make all the difference," locksmith Rahm Bunnag says.

Locks are far more secure than they were 30 years ago, he says. They're far more intricate, he says, holding up two keys.

One, made by Ossa, has a second set of cuts on the side. Another, made by Medico, "looks like a normal key, but when you look down at the cuts, notice that it's cut at an angle. There's a 98 percent chance that says you can't pick it," Bunnag says.

The 1970s also saw the widespread introduction of the deadbolt. But the biggest change when it comes to locks, criminologists say, is that people started using them.

I have never understood why so many liberals, who are ideologically opposed to deregulation and privatization in other areas of life, are so comfortable with the idea that law enforcement should be an individual activity.  Security is a tax on the honest, as Bruce Schneier says (see post 52), and the folks in Wintergreen Resort are paying it, with their locks and private police force. 

The NPR story also mentions the "1 million private police and security guards at work in residential communities" - a mind-boggling number.  That's a million people who have jobs because the government can't be counted on to perform its most basic function, which is to protect its citizens from harm.

Meanwhile, Justice Stevens recently wrote about how a state can "grant its citizens broader protection than the Federal Constitution requires".  By "protection" he meant concealing reliable, relevant evidence from its juries, on the theory that when a state prevents itself from convicting a lawbreaker of breaking the law, the state is protecting its citizens from unconstitutional actions by police committed many months earlier - your basic space-time anomaly.

The fact that a state's citizens might feel the need to hire private police forces and make their homes into little castles in fact as well as in rhetoric is neither here nor there.  The little dears might think they need protection from criminals, but the Supreme Court knows better: they need protection from the state's own courts, which might otherwise convict them.

Then again, the basic concept of "more protection under the state Constitution" is hardly new: Ludwig Mies van der Rohe expressed it in a three-word slogan many decades ago.

During the past week I've been preoccupied with preparing a PowerPoint talk about Crawford to a training conference for victims' advocates and allied professionals.  It's not easy trying to make Crawford make sense to non-lawyers (or to lawyers, either, but then you don't need to: lawyers have been trained to accept without questioning arbitrary pronouncements from the Supreme Court).

The problem isn't so much the theory behind Crawford, which is elegant in its reductionist and intellectually dishonest (see post 238) way.  It's how the Supreme Court has implemented its revolution.

Anyway, trying to think of ways to explain what our courts have recently been doing to domestic violence and child abuse cases - because that's what Crawford is all about, practically speaking (see post 148) (well, and DWI, too) - has been a useful exercise.  I've finally realized something I should have seen many years ago, which is the extent to which our current criminal law system relies on treating different things as if they were the same. 

It's a type of pretend-algebra: if suppressing evidence equals X, and protecting a defendant's constitutional rights equals Y, then X = Y.

Which means, if you were paying attention in 8th grade (and most future lawyers could still get decent grades in math right up to the second semester of that year), 2X = 2Y. 

I think that, and nothing intellectually more sophisticated, is in the back of many decisions in the criminal law.  It can be expressed in a good old-fashioned syllogism:

Protecting the constitutional rights of the accused is a noble and praiseworthy thing for a judge to do, especially if the crime is particularly atrocious. 

A judge protects the accused's constitutional rights by hiding evidence from the jury. 

And so, therefore, a judge acts most nobly and is most worthy of praise when ...

The problem, of course, is that in the real world X equals Y only in the same sense that shopping at Whole Foods equals living a radically-simple, eco-friendly lifestyle.  Or, say, invading Iraq equals smashing al-Qaeda.   

The constitutional algebra of X = Y not only confuses the means and the end, but assumes a connection between the two based solely on the judiciary's good intentions.   Or wishful thinking.  Or willful self-deception.  Or contempt for the weaklings who allow themselves to become victims.  Or whatever you want to call it.

In short, it involves treating two different things as if they weren't different, refusing even to consider the possibility that they're not the same, and proceeding from there.

I was started down this line of thought by, of all things, the back pages of my local alternative free weekly, the Albuquerque Alibi.  Back among the phone-sex ads and personals that seemed designed to make the bored Flying Star patron wonder whether it's more likely to be a scam or just a joke, the paper runs Cecil Adams' Straight Dope.

Far be it from me to question the font of all knowledge.  But still.  Recently the Alibi ran his column recycling the studies that purport to show that sugar doesn't have any effect on the behavior of children, contrary to the observations of millions upon millions of parents - as well as of anyone who has gone without lunch and then, mid-afternoon, washed down a doughnut with a Dr. Pepper. 

Ah, but that's real life.  The studies Cecil cited put mothers and children together in artificial laboratory conditions, and then gave the children either sugar or artificial sweeteners, and then tried to see if the mothers could tell which group their kids belonged to.

Now, it seems obvious to me that: (a) there's no reason to assume without evidence that artificial sweeteners have no effect on children's behavior; and (b) no one cares whether sugar has a different effect than artificial sweeteners - the question is whether it has a different effect than real food; and (c) the kids' behavior will change when in unusual situations, such as those of the experiments; and (d) the parents' behavior will change when told to watch for signs that their child is beginning to get out of control, especially if they feel their parenting skills are being judged by the psych students or fellow-parents; and so on. 

The studies answer question A: Whether parents can tell  if their kid has been given a sugary drink or an artificially-sweetened drink in highly artificial conditions.  The premise of Cecil's column (and, of course, the studies he was writing about) is that the answer to question A equals the answer to question B: Whether a kid can sit around the house all day and eat tons of sugary things without getting all weird.

Personally, I think an argument could be made that the two questions are not actually the same.

 A similar example, also from the fringes of science, was the recent meta-study, given huge publicity, that purported to show the inefficacy of SSRI antidepressants in treating depression, contrary to the experience of millions of patients and mental health providers.

But if you read down to the 9th paragraph of this article, you'll find that what the meta-study really examined was changes in patients' scores on "the Hamilton scale."  The study concluded - and I have no reason to doubt the validity of the conclusion, for all that I wonder if the authors had an agenda - that treatment with antidepressants generally doesn't result in significant changes in the Hamilton scale. 

(Possible agendas involve the secrecy-bordering-on-wholesale-deception of the drug companies - more here - and the allocation of public health monies in the U.K. as between talk therapy and drug therapy.)

Now, the Hamilton scale is a screening device used by mental health professionals to determine if a person is seriously depressed.  It assigns the patient a score, varying from 0-2 to 0-4, on 21 subjects such as suicidal ideation, and then adds up the scores.  

The Hamilton scale is doubtless useful for a triage nurse trying to figure out whether a person is an immediate danger to him- or herself.  But it's an extremely crude method for measuring the emotional and mental state of a human being.   It's a little like asking your colleague if she prefers Italian or Chinese food - good information to have when choosing a restaurant for lunch, but not all that revealing about the person's inner life.

So what the meta-study was measuring was changes in patients' responses to simple questions repeated over time.  The premise of the meta-study is: when M equals changes in the patient's answers to repeated questions, and N equals the patient's mental health, then M = N.

My only objection to the study is: No, it doesn't. 

At this point in our legal history, I'm afraid that too many judges and staff attorneys have too much emotionally invested in the idea that X =Y to begin questioning the equation now.  Because if it turns out that concealing evidence from the jury isn't the same thing as protecting a defendant's constitutional rights, then they have a lot of 'splaining to do.

We live in the Romantic Age of judging.  I'm not referring to the mash notes judges sometimes send each other, e.g., "the sagacity of the numerous Ninth Circuit judges who have written before us."  That's from Ninth Circuit Judge Ferdinand F. Fernandez, and the only whiff of the sage he gives off comes from dinner.  (See post 143.)   That level of infatuation, or self-infatuation, qualifies as romantic in some sense, or even several senses, but only one of them is the sense I have in mind.

I'm talking about the lit-crit kind of Romanticism.   The New Yorker recently reviewed Ann Wroe's paean to Percy Bysshe Shelley.  Ms. Wroe was apparently concerned that Shelley, one of the original better-to-burn-out-than-to-fade-away types, hadn't written a sufficient number of such paeans to himself.   In his review, Adam Kirsch described Shelley's politics, which were ahead of his time in rather distressing ways, such as his  enthusiasm for liquidating the intolerant in order to usher in an era of universal tolerance.

Another hallmark of Shelley's politics, according to Kirsch, was his "indifference to reality."  And that's what first reminded me of the characteristic American style of judging.  The idea that courts should occupy themselves with courtroom representations of reality, and hold reality itself at bay, is at the very heart of the judicial project. 

Jurors in every American jurisdiction are told, in no uncertain terms, to base their verdicts strictly on what they hear in court.   What they hear is filtered by the rules of evidence - in their codified form, a 1970s phenomenon - which after defining "relevant evidence" are mostly devoted to cataloguing types of relevant evidence that must be concealed from the jury.  

The phrase "constitutional criminal procedure"  refers to a body of case law developed since the 1960s that consists of almost nothing but the systematic widening of the gap between the reality outside the courtroom and its representation inside.   And a juror who possesses relevant information before the trial begins will be "struck" from the panel, the violent term indicating something of the horror with which such independent knowledge is viewed. 

There are elaborate reasons for all of this, and some of the reasons make sense.  My point isn't to argue with them, but to point out their common denominator: the Shelleyan indifference to reality.

Kirsch's review includes another passage striking, so to speak, even closer to the Romantic heart of judging:

But his political beliefs demonstrated the same contempt of consequence, the same elevation of pure motive over practical effects, the same lack of self-awareness.  These qualities helped to make Shelley a genuinely illiberal thinker, whose politics verged at times on the totalitarian.

Who else do we know that trumpets pure motives while demonstrating a contempt of consequence?  Our violent crime rate today is three times what it was in 1960, before the decisive judicial intervention in law enforcement.  Have you ever heard a judge acknowledge the possibility that the two phenomena might be related?  

Our prison population has grown incredibly since 1980.  Have you ever heard a judge acknowledge the possibility that the difficulty of convicting guilty people might have some connection to the length of sentences eventually imposed?  Increasing sentences is almost the only lever the legislative branch has for controlling the judiciary's disposition of criminal cases, which makes increasing sentences for drug crimes a rational - if, as I believe, socially-destructive - response to judicial decisions suppressing physical evidence virtually at random in the name of an ever-morphing fourth amendment.  (See post 126 and post 53.)

Judges' rhetoric distances them from the consequences of their acts.  Justice Scalia, for instance, acknowledged that one of his decisions would "have the effect of allowing the guilty to go free" - implying that the only consequence would be a reduction in the judicial system's efficiency and not, for instance, the repeated infliction of physical pain on vulnerable people.  (See post 274.) 

The Court could only forestall that unfortunate outcome, Scalia wrote, if it were impermissibly to "vitiate constitutional guarantees" - although the constitutional guarantee in question was invented just two years earlier in another opinion written by the very same Justice Shelley.  So he recognizes in himself the power to invent new constitutional guarantees, but when faced with their unfortunate consequences says he's powerless to alter them.

Again, perhaps this two-facedness - which is deeply ingrained in American judges at all levels, and accepted without demur by virtually all American legal academics - can be justified doctrinally.  But it's far easier to explain on psychological grounds: power is gratifying, responsibility isn't.

(I actually would reverse Kirsch's terms in one particular, though: I think it's more accurate to say judges express contempt for reality and indifference to consequences rather than vice versa.)

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. 

In the late 1970s, while I was checking into the only type of motel I could afford (who keeps fleas in a bag, anyway?) in a town that the freeway forgot, I walked into the middle of a political discussion.  The night manager, an obese middle-aged woman, was saying: "If that SALT II treaty is ratified, I guarantee you that the Russians will be here within two years." 

When people say such superlatively preposterous things, the impulse is to wonder what could possibly be going through their heads.  Had the motel manager stayed up too many nights listening to Art Bell, or read a John Birch Society pamphlet while hypnotized?  Or were her foreign policy views a result of the same chemical imbalance responsible for her obesity?

When judges say equally preposterous things, it's usually all-too-obvious what was going on in their heads: a mental process that bears only the most superficial resemblance to thought.  Take Washington's Supreme Court Justice Richard B. Sanders, whom we've met before.  (See post 198.) 

In a recent concurring opinion, Sanders agreed with his colleagues on the Washington Supreme Court that the trial court erred by permitting a jury to hear certain evidence.  That evidence, while indisputably relevant to the jury's task of determining the defendant's guilt, should have been concealed from it.  But Sanders thought his colleagues were a little hasty in deciding the trial court's error was "harmless" – that is, that it probably had no effect on the jury's verdict.  He wrote:

[W]e "have no right to trench upon the province of the jury upon questions of fact."  Jensen v. Shaw Show Case Co., 76 Wash. 419, 421, 136 P. 698 (1913).  See Wash. Const. art. I, § 21 ("right of trial by jury shall remain inviolate"); U.S. CONST. amend. VI (guaranteeing trial by jury).

Modern constitutional criminal law consists of very little - so little as to approach nothing - except trenching upon the province the jury upon questions of fact.  The meaning of phrases such as "fourth amendment violation" and "Miranda violation" is that the jury was permitted to decide the facts of a case based on too much information.  It was permitted to get too close to the unvarnished truth.

The Fifth Amendment privilege against compelled confessions excludes evidence that everyone knows is quite likely to be false.  (See post 241.)  It also embodies a belief about the moral relation between the state and the individual that was, until quite recently in our history, almost universally-held in our society.  But the judge-made exclusionary rules invented since 1961 serve neither purpose.  Their goal is quite different: to prevent the conviction of people who committed acts that democratically-elected bodies have declared illegal.

Now, judges have given a variety of reasons why concealing relevant evidence from jurors is more important than permitting the people to decide how to regulate their own social relations.  For example, they say that preventing the conviction of guilty people teaches police officers good habits, the way an electric shock teaches lab rats not to press a certain bars in their cages.

For present purposes I'm perfectly willing to say that the judges are, in every instance, correct to prevent the people from using the courts as an instrument of self-government.  The point is that almost the only device available to judges to implement their alternative, superior vision of government is to trench upon the jury's role as factfinder.

They "suppress" evidence obtained by police, meaning they prevent jurors from learning of its existence in order to forestall the danger that they might find it helpful in their deliberations.  Or they rule that the evidence is inadmissible under the rules of evidence, for example because it's too powerful for defense counsel to explain away ("its probative value is substantially outweighed by the danger of unfair prejudice"). 

They order separate trials so jurors deciding one conspirator's guilt won't draw reasonable, logical inferences from information pertaining to his co-conspirator.  (If the inferences weren't reasonable and logical, jurors wouldn't draw them – unless we believe that jurors are unreasonable and illogical, which would make our jury system absurd.)

Indeed, when Justice Brennan wrote the opinion belatedly acknowledging the long-neglected provision in Constitution that requires separate trials (the Framers had accidentally left it on top of the car at a gas station, and it took nearly two centuries of searching to discover it in the weeds next to the road), he did do so on the basis that jurors, being non-lawyers , were too stupidly emotional to handle that much information. 

(Though he, like most judges and Don Corleone, preferred euphemism and circumlocution: "there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.")

Criminal court judges limit the jury's power to decide the facts.  That's what they do.  Justice Sanders wasn't criticizing that.  On the contrary, in the case before him, he thought the trial court had made a mistake by permitting the jurors to learn as much as they did.

But even as he reaffirmed that the essence of the trial judge's role in criminal cases is to withhold evidence from juries, he wrote his "vacuously, smugly, and unconsciously foolish" concurring opinion saying that judges have no right to trench upon the jury's fact-finding role.

If Justice Sanders had thought for even a second about what he was saying, he would have recognized his self-contradiction.  But he didn't have to think.  He wrote legal prose instead.

All too often we talk about the Supreme Court as if the words it uses described the things it does.  I say it's time to give credit where credit is due.  The earlier collection of the Supremes' greatest hits emphasized the recent past and ages gone by (see post 196)  but it scanted on what might be called the Court's middle period.  Like the Rolling Stones, the Supreme Court went through a long stretch of mediocrity in the 1970s, but there were some bright spots amid all the Goats Head Soups: 

The religious right.  Where would Falwell, Robertson and Dobson be without 1973's Roe v. Wade?  More to the point, where would our nation be today without them?  The religious right took credit for President Bush's reelection, and I think they were fully justified in doing so.  But the Supreme Court deserves full credit for the religious right's clout.  

The revival of the death penalty.  Here's the number of executions in the United States during the years leading up to 1972:

1961   42   
1962  47  
1963  21  
1964  15  
1965  7  
1966  1  
1967  2  
1968  0  
1969  0  
1970  0  
1971  0  

Notice a pattern developing?  Then in 1972, the Supreme Court ruled that the death penalty was unconstitutional, regardless of the pesky little detail that it is twice specifically authorized by the very same Constitution.  Four years later, when members of the Court clarified that they only meant it was unconstitutional as then administered, they couldn't avoid revealing by negative inference what sort of statute would meet their approval, igniting a political movement to enact just such statutes and put them to vigorous use.

The natural trend toward the death penalty's eradication, which was world-wide in the 1970s (France, for instance, abolished use of the guillotine only in 1981, under the rotund collaborationist Mitterand), was abruptly reversed in the U.S., as this graph shows so ... graphically.  Only recently, after 35 years, has the death penalty's slide into history been recommenced, as the Court's massively counter-productive intervention fades into political memory.

Longer sentences for druggies.  Judges reluctant to lock some pathetic crackhead away for a decade (take a look at table 5.3 for average federal drug sentences) will always be tempted to find an excuse for suppressing the evidence of the crackhead's offense.  And the more creativity judges demonstrate in devising ways to avoid enforcing the law as written, the more pressure on legislators to respond in the only ways open to them: by broadening definitions of offenses and, especially, by lengthening sentences.   The Court started this dynamic  spinning back in 1961 and it's only gained momentum since then.

Hundreds of thousands of dead, injured and severely traumatized people.  In 2005, America's violent crime rate was three times what it was in 1961, despite the extraordinary security precautions we now routinely take.  (See post 253.)  (My own state of New Mexico has seen its violent crime rate more than quintuple during that same period, an achievement even Louisiana, our usual rival in dubious social statistics, can't match.) 

In 1961, 8,740  people were murdered in America.   The declining lethality rate for gunshot and knife wounds (explained in post 34) means that roughly two-thirds of those victims, or about 5,768 of the total, would survive their injuries today.  Compare the difference (2,972) to our 2005 murder total of 16,692.

I don't think the judicial system is solely responsible for the increase in violence since 1961.  Far from it.  These things are always over-determined, as Freudians used to like to say (are there any Freudians left? if so I'm sure they're still saying it).  But I also think it would be silly to pretend that our judicial system isn't one of those determinants.  After all, if the criminal justice system has no effect on crime, what's its excuse for existing?

UPDATE: One doesn't wish to speak ill of those who have only hours to live, as the Rev. Falwell did when I wrote the above.  But while I didn't mean my words as a compliment, exactly, I'm pretty sure he would have agreed with the sentiment, for all that he would have drawn on a different set of oratorical conventions to articulate it.

There aren't many truly universal rules of human nature, but I think this is one of them: If you give a group of people power, a certain percentage of them will abuse it.  It's true of professors, petty bureaucrats, judges, and nannies.  Shocking new evidence suggests that it's also true of young men with guns.

The Bureau of Justice Statistics today issued a study of traffic stops called Contacts between Police and the Public, 2005.  According to the press release, the study found, contrary to the experience of many who think they've been pulled over for Driving While Black,

that whites, blacks and Hispanics were stopped at similar rates.  Male drivers were pulled over at higher rates than female drivers, and younger drivers were more likely than older drivers to be stopped.

It's what happened next that separated the races and ethnic groups: 

In both 2002 and 2005 police searched about 5 percent of stopped drivers.  Male drivers were more likely than female drivers to be searched by police.  In 2005 police searched 9.5 percent of stopped blacks and 8.8 percent of stopped Hispanics, compared to 3.6 percent of white motorists.  Drivers younger than 30 (8.4 percent) had a greater likelihood of being searched than drivers 30 or older (2.7 percent).

That's from the press release, which adds that the study "did not take into account other factors that might explain these disparities."  In the case of Hispanic drivers, other factors might include, say, being one of two young Colombian males in a rental car.  But it's difficult to see any similarly obvious reason for the disparity involving Black drivers.  Except, of course.  You know.

(Here's Orrin Kerr commenting on the study at the Volkh Conspiracy, and here's a CNN report.  I'm sure there will be many other reports tomorrow.) 

About 11% of searches uncovered evidence of criminal wrongdoing, but the study doesn't say whether the figure is constant across groups.   If it is, wouldn't that suggest that police were acting in a racially-neutral manner?   But it's a good deal likelier, of course, that Black motorists are discriminated against.

Now, here's my Plan™ for ending this discrimination.  So long as the cops are simply harassing the motorist, and the search is just an exercise in roadside humiliation that produces no evidence, it shouldn't concern us.  But if the search actually uncovers evidence of criminal wrongdoing, proving objectively that it was justified at least in one narrow sense, then we need to subject it to closer scrutiny.

Under my Plan™, American courts would adopt a decision-making matrix in the form of an ever-expanding flow-chart with approximately 4,000 boxes.  (That's one for every page of Professor La Fave's masterpiece of scholasticism, his 6-volume commentary on the fourth amendment.)   Then we can exchange congratulations for acting so decisively to achieve something so accomplished.  A certain degree of institutionalized smugness will, I think, be permissible at that point.

Law enforcement agencies and judicial systems must refrain from adopting the Plan™ prior to the execution of a mutually-satisfactory royalty agreement.  Remember, piracy is theft!

John Yoo isn't the sort of guy I would have pegged as an acolyte of William S. Burroughs, the gay junkie avant-grade novelist.  But then Burroughs was an enthusiastic - dare one say over-enthusiastic? - gun owner, and he did come from money, and he certainly favored a gray flannel look.  Reason's blog is probably right that his politics, to the extent they possessed any coherence, were libertarian-conservative.  Take a look at these quotes: many would sound incongruous coming from Wayne LaPierre, but by no means all of them.

So maybe it's appropriate, after all, that Yoo seems to have appropriated Burroughs' cut-up technique.   His book, War by Other Means: An Insider's Account of the War on Terror, reads as if a short memoir of his two-year visit to real life, random pages from his law review articles and a year's worth of Karl Rove blast-faxed talking points were cut up, sprinkled on a roll of butcher paper and then printed in the order in which they fell.  They were adorned with a not-exactly-complimentary lede from a New York Review of Books review ("[f]ew lawyers have had more influence on President Bush's legal policies in the 'War on Terror' than John Yoo") and dumped on an unprepared public.   The New York Times' review captures the weird shifts of tone in the book.

(Many of our best known and most influential lawyers, such as Antonin Scalia and Ruth Bader Ginsburg, hardly practiced law, but Yoo does them one better: he's never practiced the profession.  No wonder he's so confident in his legal opinions.)

But the thing about Yoo's views, and the "unitary executive", and all the rest of the Bush Administration's half-revealed legal doctrines, isn't how weird and far-out they are.  It's how familiar they should seem to lawyers.

I ran a Westlaw search for law review articles by Yoo that used the phrase "inherent power" and came up with 10 hits, and that's not even counting two articles by Professor Christopher Yoo that use the same phrase.  (Has anyone ever actually seen the two Yoos in the same room?)  John Yoo's whole theory (and for all I know, Christopher Yoo's theories, too) are wholly built on the foundation of inherent power.

Back in 1924, Felix Frankfurter and James M. Landis co-wrote an article in which they warned that "[t]he accumulated weight of repetition behind such a phrase as 'inherent powers' ... is a constant invitation to think words rather than things."  (37 Harvard Law Review at 1022-23) 

When you think things rather than words, you realize that "inherent power" simply means extra-constitutional power.  (See post 32.)  Power that's granted by the Constitution isn't inherent in the office, but - by definition - is power bestowed on the office by the Constitution,  a source external to it.  Only power that isn't conferred by the Constitution can be said to be inherent.

Most of the powers exercised by the United States Supreme Court are inherent in this sense.  Even the basic concept of judicial supremacy - euphemistically known as "judicial review", as if it occurred in the back pages of a highbrow magazine - isn't granted by the Constitution, but was assumed by the judiciary.  The power to make prospective rules of universal application, a core legislative function, was first assumed by courts only in the post-WW I era (sometimes with legislative acquiescence).  And it's really only since the 1960s that courts have discovered in themselves a power to refuse to enforce criminal laws.  

If these powers aren't inherent in the judiciary, then the judiciary's exercise of them is politically illegitimate.   Therefore - by the usual lawyer's technique of constructing syllogisms backwards, beginning with the conclusion - they must be inherent.

The Bushies' concept of executive power, I think, boils down to this: The executive branch has the same authority as the judiciary to begin exercising power and then claim it possessed it all along.  True, the Constitution doesn't grant the power, but that's because the power was latent, like secondary sexual characteristics in an infant, to be revealed in the fullness of time.

If you force yourself to think words rather than things, you can (apparently) believe this.  And that's the other way in which the Bush Administration's constitutional vision should be familiar to lawyers: its faith in the efficacy of editing reality. 

Our judiciary has committed us to Trials Without Truth, in Professor William Pizzi's phrase, just as our administration has committed us to a foreign policy based on the careful construction of an alternative reality.  Judges routinely conceal crucial information from juries, while the Bush Administration conceals crucial information from the public and Congress.

And not just from them.  One of the striking revelations of Rajiv Chandrasekaran's beautifully-written, scrupulously-reported Imperial Life in the Emerald City: Inside Iraq's Green Zone is the extent to which the neoconservatives' alternative foreign ministry inside the Pentagon deliberately concealed important information from the Americans charged with reconstruction. 

For example, Jay Garner was sent over to Iraq to organize the occupation government without having seen "any of the reams of postwar plans and memoranda produced by the State Department, or any of the analyses generated by the CIA, or even the unclassified report written by the military's own National Defense University based on a two-day workshop involving more than seventy scholars and experts."  In fact, Undersecretary of Defense Douglas Feith told Garner that no such studies existed.

Why?  Feith figured that, "without a clear blueprint for the political transformation, Garner would turn to [Ahmed] Chalabi and his band of exiles.  Feith would get the outcome he wanted [that is, Chalabi in power] without provoking a fight ahead of time with State and the CIA, both of which regarded Chalabi as a fraud."

(As it turned out, "fraud" may be the least of it: you may recall that Chalabi was accused of passing key American military intelligence to Iran, charges that the Bush Administration seems disinclined to investigate.)

Feith is another lawyer who's spent little time actually practicing law.  But his belief that you can produce optimal results by withholding relevant information from the decisionmaker puts him right in the mainstream of American legal thought. 

This is what Rockwell Gardens used to look like - one of those Stalinist Chicago housing projects consisting of multiple high-rises isolated on a kind of dystopian campus, this one three miles west of the Loop.  Apparently, the six buildings have all been demolished in the last couple of years - and the news of their imminent razing was enough to revitalize the entire neighborhood, as the Chicago Reader reported in 2005.

Back in the bad old days, Christine Parker was a pregnant 33-year-old grandmother living in the project with her two daughters, aged 15 and 13, and the 15-year-old's son, Jontae, who was three.  (The mind resists doing the math, doesn't it?)  They were all strangled to death, and Jontae was raped.

The bodies were discovered August 16, 1982, at 12:55 p.m.  Shortly afterward, the police began a canvass of nearby units, knocking on doors and asking if people had heard anything or could provide any useful information.  They went to the apartment James Ealy shared with his mother.  The cops spoke to the mother, but Ealy wasn't home.

That afternoon, police returned to the apartment.  This time Ealy was home and said that he had known the victims, but that was all.  The next day autopsies were performed, and around 5:00 p.m. detectives learned that the victims had been strangled with distinctive cloth ligatures.  Detectives returned to Rockwell Gardens and talked to five people who, they had discovered, were in the habit of spending a lot of time in Ms. Parker's apartment.  One of them was Ealy.

Sometime after 9:00 p.m., Ealy agreed to come to the police station.  They arrived around 9:40 and he was left alone in an interview room for about 20 minutes, then questioned for about half an hour.  He wasn't given Miranda warnings; he wasn't a suspect yet.  When the detective took a break to consult with his colleagues, he noticed Mrs. Ealy waiting for her son.  He let her in to be with him.

Around 11:00 p.m., the detective learned for the first time that Ealy had recently been arrested for an unrelated rape committed in the same Rockwell Gardens building.  This, of course, nudged him up the ladder of suspicion.  The detective returned to the interview room, Mirandized Ealy, and spoke with him for another 30 minutes.  Discrepancies were beginning to appear in his story.  Sometime in there Mrs. Ealy returned home.

Ealy signed a consent-to-search form.  Detectives took it back to the the housing project, showed it to Mrs. Ealy, and for good measure asked if she would consent to let them into the apartment, too.  She also signed a form allowing the police to search without a warrant.  At around 1:45 a.m., they found distinctive cloth items, prepared for garroting with knots on both ends, made from cloth matching the ligatures used on the Parker family.

At this point, I think everyone would agree, there was probable cause to arrest Ealy.

The cops took the incriminating items back to the station and confronted Ealy with them.  It was now the middle of the night.

Thereafter, defendant told the officers that on August 15, at about 11:30 p.m., he was near the Parkers' apartment and saw a large black man running from the apartment carrying a large bundle which he dropped. After picking up the bundle, defendant went into the Parkers' apartment and found the victims' bodies. He said he then left the apartment, taking the bundle with him to his mother's apartment, placed the bundle under his mother's bed and went to sleep.

This, I think everyone would agree, was virtually a confession.  He put himself in the apartment, in the possession of the materials used to kill the family, admitted he didn't alert authorities - and all in a package that a child (and especially not a child raised in Rockwell Gardens) wouldn't believe.

Ealy signed a second consent-to-search form, and detectives went back to Rockwell Gardens to pick up other items from his bedroom.  They discovered that Mrs. Ealy - who had evidently reached the same conclusions - had hidden some things, but when asked to retrieve them she did.  Detectives then returned with the new bundle of items, gave Ealy his Miranda warnings again, and he told them that

on August 15 he had been drinking with friends. He later went to the Parkers' apartment at approximately 11:30 p.m. and several members of the Parker family "made fun of his red eyes." Defendant then described to the detectives how he strangled the four victims.

The Illinois Appellate Court reviewed his four murder convictions, but its decision is opaque.  It reads rather like the mutterings of an eccentric relative talking to himself in the next room, when you overhear sentences and phrases that make sense in isolation but don't really add up to anything.  

My guess is that the judges were trying to say that (1) at some point Ealy was arrested, and (2) at some point police acquired probable cause to arrest him, but (3) those events occurred in that sequence, when they should have occurred in the opposite order.  However, the opinion is very vague as to when the key events occurred.

(You can read a close paraphrase of the opinion here.  The paraphrase faithfully mirrors the original's lack of precision, echoes its idiosyncratic use of the word "continuously" to mean "intermittently", and even repeats its use of "18 hours" to mean "three and a half hours" - Illinois slang, I presume.) 

(It was about three and a half hours from his first stationhouse interview to the discovery of the ligatures under his bed.  However, it was almost 18 hours from the time he left his apartment with police until he finished repeating the confession for a stenographer and signing his name to the transcript.  The latter time obviously has nothing to do with pinpointing the time of his arrest or the time at which his arrest became lawful.  The Appellate Court's use of the phrase "18 hours" was a type of dishonesty.)

The Appellate Court set Ealy free.  Flash forward to 2006, when Ealy is accused of murdering - by strangulation, who would have guessed it? - another person - and, surprise, another female.  During the intervening years, he served time for two rapes (including, it would seem, the one he committed before killing the Parkers), according to Chicago's suburban Daily Herald.  And does anyone believe he was caught every time he committed a crime?

In the last post, I talked about what happens when the police fail to arrest a suspect.  That failure can lead directly to further suffering - so directly that courts are prepared to let cops be sued for the failure.    (See post 223.)  If the logic of those tort cases were applied to the James Ealy case, we would have to conclude that the three judges of the Illinois Appellate Court caused the rape of at least one person, and that there's probable cause to think they caused the death of another, and the orphaning of three children.

In 2005, the Utah Supreme Court - that hotbed of liberal activism - decided a case in which police officers, responding at 3:00 a.m. to a report of an extremely loud party, saw a fistfight in progress through the window.  As Justice Matthew Durrant, who looks like he's about to turn 30, framed it, the issue raised by the case was

whether police officers who personally witness an ongoing physical altercation in a residence may enter that residence in order to prevent bodily harm, or whether those officers must remain rooted onlookers, waiting passively for violence to escalate to a point at which severe harm is likely to occur.

From the way he phrased it, you can guess how he would have voted, but he was voted down.  The U.S. Supreme Court reversed, but Justice Stevens wrote separately to characterize the case as "an odd flyspeck" - as if the Supreme Court didn't "play it safe," in Lisa Kloppenberg's formulation, by ducking most of the significant cases presented to it.  Stevens' remark also reveals the justices' attitude toward the ordinary practice of judging cases.  (In case you need reminding, here's a definition of "flyspeck.")

But what's particularly interesting about Stevens' crotchety little concurrence is his remark that "the Utah Constitution provides greater protection to the privacy of the home than does the Fourth Amendment." 

(Stevens went on to predict that the Utah Supreme Court would duplicate its prior result on the basis of the Utah Constitution - even though the Utah court devoted five paragraphs of its prior opinion [paragraphs 10-14] to lamenting the fact that the issue was not presented to it under the state Constitution.  When you're a member of the United States Supreme Court, you have no obligation to be honest with your readers.)

Judges are extremely susceptible to fads, and one such fad making the rounds is the interpretation of state constitutions to provide "more protection" or "greater protection" than the federal Constitution.  Assigning new meanings to the state constitution might be compared to Yu-Gi-Oh, a mature but still strong franchise, while school funding formulas, a prior fad that has just about run its course, is more like Pokemon.  (This is not to denigrate Yu-Gi-Oh and Pokemon, which demand a great deal of intellectual effort - ask your kid to explain them.)

To take examples from the past few months, here are cases from states with notoriously liberal political climates talking about the  "greater protection" afforded by their state constitutions:  Texas, Wyoming, Montana, Utah, Ohio and Indiana.

But what does "protection" mean?  The dictionary definition of the noun form begs the question by utilizing the verb form, which in turn is defined as "To keep from being damaged, attacked, stolen, or injured; guard. See synonyms at defend."  So the cases must be talking about keeping something from being damaged, attacked, stolen, or injured.  By whom?  Who is the would-be damager, attacker, thief or injurer?

Two of the linked cases address nude dancing and unguarded remarks to police officers (another kind of nakedness, I suppose).  But usually when state courts talk about "more protection" they're talking about searches and seizures, that is, about cops barging into a judge's five-bedroom home in a nice quiet neighborhood.  (I know none of the cases actually involve a judge's home, and very few involve five-bedroom houses, but that's what the judges are thinking and writing about.)  So, it would seem, the state constitutions offer more protection against the cops, those damagers, attackers, thieves and injurers of the constitutional right to privacy. 

Except, of course, that the cases themselves offer no protection at all against the cops.

After all, the cops' intrusion is ancient history by the time the case gets in front of an appellate court.  Your complacent assumption that you could have a fistfight in front of your lighted window without interruption has long since been shattered.  Back in the 1880s in southwestern New Mexico, the Silver City Enterprise once jeered that the cavalry arrived at the scene of an Apache outrage, as usual, in time to bury the bodies.   State appellate courts protect their citizens from the cops in the same way.

There have been a surprising number of rationales for the exclusionary rule, from the U.S. Supremes' deterrence rationale to the euphemistically-phrased position of some state courts that getting away with crime is a remedy intended to compensate the victim of a constitutional tort, just as money does in civil rights cases.  (Example:  "the purpose of the exclusionary rule is not to deter or ensure judicial integrity, but to 'effectuate in the pending case the constitutional right of the accused to be free from unreasonable search and seizure.'")

But whether the purpose is to deter cops from doing something bad in the future, or to make judges feel good about themselves ("judicial integrity"), or to take the place of money damages, or because the fourth amendment is a sub-section of the fifth (that's what the U.S. Supremes originally ruled), or just because the Court is composed of a bunch of social Darwinists who despise the thought of government regulation of business (as here and here) - whatever the rationale, it doesn't actually stop bad officers from doing bad things to you. 

In a classic Chas. Addams cartoon, a patent attorney is aiming a strange-looking device out of his window.  With a mildly irritated expression he glances over his shoulder at the bearded inventor: "Death-ray, fiddlesticks!  Why, it doesn't even slow them up."  I say: More protection, fiddlesticks!  Why, reinterpreting the state constitution has never stopped any testosterone-addled insecure bully with a badge from beating, raping, sexually tormenting, harassing or racially profiling anyone!  (It does, however, give bad cops another incentive to lie in court.)

No, if these appellate decisions offer us any protection at all from bad cops, it's in the long run.  After 45 years, I'd say the very long run.   But those decisions do offer a more immediate type of protection, as well.  In the immediate, concrete sense, they protect the accused from having their cases decided by fully-informed jurors.  So there's one type of "more protection": from reality.  The law school subject called "Evidence" consists almost exclusively of the study of types of relevant information kept from juries, and the non-textual exclusionary rules are simply ways of widening the gap between the real world and the courtroom version.

That, in turn, means that the jurors' decision is less likely to be accurate - which is just another way of saying that more guilty people will be found not guilty, or have charges dropped before trial.  I don't think anyone would dispute that that's the practical effect of "more protection."  So when you get right down to it, what all these state courts are promising is more protection from the law.