JUDGING CRIMES

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.

The scientist and science writer Bob Park recently published a column in the New Scientist containing this passage:

Richard Feynman described science as "what we have learned about how not to fool ourselves". Science depends on openness: we expose our scientific findings, including the details of how they were obtained, to the scrutiny of the scientific community. This sounds like a prescription for chaos, but the result is the opposite because it reinforces the idea that science is conditional - always subject to being replaced by better information. This can be frustrating to non-scientists, who ask why science can't make up its mind, but the alternative is dogma. Openness provides a mechanism for self-correction, setting science apart from other ways of knowing. Science is, in fact, the only way of knowing. Anything else is just religion, which is all about authority.

(The column is in the locked-down part of the website, so if you're not a subscriber you're going to have to trust me in a decidedly unscientific way.)

This is just one of the ways in which law is an anti-science (see post 129 and post 14), but it may be the most important for any attempt to understand the way in which our courts distort our society.  Law - or at least the opinions of judges - is all about self-deception.  That's the point.

That sounds so negative that it's likely to provoke defensiveness, so I'll put it a more abstract way: law is about preventing yourself from thinking about reality except in terms of legal categories.  The insistence on perceiving reality in terms of a priori categories is the defining intellectual technique of American law.  (See post 137.)  It's what law professors teach. 

So Professor Miller, victim of the  cheap shot in the previous post, would say that his point had nothing whatever to do with Michael Jones shooting people in the head.  The fact that Jones shot people in the head is, in fact, entirely immaterial to the question whether his conviction for shooting them should be upheld.  You have to focus on the legal problem, as defined by the a priori categories, and blot out your awareness of any broader reality.

(It really is unfair to single out Miller, since every other law professor and judge and most practicing lawyers  accept with equal intellectual passivity that this is a reasonable way for the rulers of a modern society to process information concerning the physical well-being of society's members, or rather that its reasonableness is not open to question.)  (The law meets Park's definition of a religion.  Law professors teach theology, judges enforce orthodoxy.)

This intellectual method means that the law is not open to new information.  Or, more precisely, new information is acceptable only insofar as it can be slotted into pre-existing categories.  The metaphor of a letterpress printer's drawer is pretty exact: who needs a character that doesn't already have its own little compartment?

A quote I've seen attributed to Catherine McKinnon, but which I can't find on the Web, says that the law doesn't prohibit rape, it regulates it.  I think that's true of all violent crimes.  Yet - and this is the critical thing - the people doing the regulating (judges) would deny that they're engaged in any such activity.  And they'd sincerely believe it, too, or at least profess to, as an article of faith.

Here's a line from the Supreme Court, almost as familiar to criminal law practitioners as a Coca-Cola jingle: "the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."

But look at those familiar words more closely.  The issue, in practical terms, was whether certain relevant evidence should have been concealed from the jury.  (Only relevant evidence is affected by judge-made exclusionary rules.  If the evidence wasn't relevant, it would be inadmissible for that reason alone, and the prosecution would have no reason for even offering it - or the defense for objecting to it, except on the ground that trials are tediously long enough already.)  

Judges who decide to hide relevant evidence from the jury don't describe it to themselves in those words.  They tell themselves they're engaged in "deter[ring] police misconduct by preventing the introduction of evidence obtained through police illegality." 

Look at that sentence structure.  In real life, what's happening is that judges prevent the jury from hearing evidence.  They do so in hopes - specifically, the Supreme Court's hopes - that deceiving the jury will influence the behavior of people who aren't present and may never learn about it.   But in the way judges phrase it to themselves, the wish comes first.   It's the important thing.

The Supreme Court pulled a similar trick of self-deception, only a bit more subtly, in the sentence quoted above.  By "permissibility of a particular law enforcement practice", it meant: "admissibility of evidence obtained by a particular ..."  They weren't deciding what law enforcement practices to permit; they were deciding whether to allow the jury to learn what the cops found out when they engaged in one particular practice.   Judges Photo-Shop the portrait and call it plastic surgery.

That's just the beginning of the self-deception packed into that sentence.  Whenever judges use any form of the word "balancing", what they mean is: choosing.  The Court was telling judges to choose which of the two (and there is rarely more than two - the metaphor controls the variables) "interests" he or she considers more significant. 

What, you may ask, is a "legitimate governmental interest[]"?   When you're talking about a Terry stop frisk for weapons (see post 321 and post 314), the interest in question is the earthly existence of the police officer.   When a judge "balances" governmental interests, what he's really doing is deciding the marginal value of the officer's life. 

That sounds extreme, but only because we're so used to the euphemisms that blanket the facts, as Orwell said, "like soft snow, blurring the outline and covering up all the details."  Self-evidently, in every encounter the cop's life is at greater risk if the person he is confronting has a gun, knife or club.  The cop's safety is increased if he disarms an armed person. 

With me so far?  That's really all there is to it.  The cop's safety would be maximized if he patted down everybody he came into contact with.  So if judges actually control police conduct - which judges tell themselves they're doing - then when they tell cops they're not allowed to pat down people in certain circumstances, they mean that officers mustn't maximize their safety.  They must accept a greater than minimal risk of being injured or killed. 

If the judges are competent in their calibration of risk, they're imposing only a minor marginal increase in risk.  But a small risk spread over a large population - say, 675,734 sworn officers - becomes numerically significant pretty quickly, especially to those attending the funerals.

So when judges decide cases about frisks, they're asking themselves: How many murdered policemen is too few?  And how many is too many?  How many official funerals with long motorcades is just right?

Once you strip away the fuzzy language, you can see why judges use it so obsessively.  They want to distance themselves from what they're doing.  "This isn't just a gut feeling, you know - I've weighed it.  The scales don't lie."

But this is barely scratching the surface of the superstructure of deception and self-deception the Supreme Court has built over our criminal justice system.

That's a pretty provocative headline, isn't it?  But it's a common phrase, frequently found in the English-language media in Indonesia.  It's even used by legislators:

There remains a low rate of reform in the Supreme Court and the mafia still exists within its ranks, experts said Thursday.

Mahfud MD, a legislator from Commission III with the House of Representatives, said the court's reform process had failed because of judicial corruption and the court's mafia.

"If reform is measured by the process of cleaning out the mafia, then we must say the Supreme Court under [Chief Justice] Bagir Manan has failed to reform," he said.

In an effort to fight judicial corruption, the legislature created an oversight body called the Judicial Commission - which the Supreme Court, in a casually contemptuous display of what judicial power really means, declared the Commission unconstitutional.  (See post 161.)  The fatal flaw in the concept of constitutional government - the thing that prevents it from ever truly coming into existence - is that someone has to be the final arbiter. 

A law professor gave the principled explanation for the status quo (a duty law professors can generally be relied upon to perform):

Law professor with Airlangga University in Surabaya Jacob Elfinus Sahetapy said, "In order to see a full reform of the Supreme Court, the Judicial Commission must be reinforced so it can discipline corrupt judges".

"But the commission cannot interfere in judges' rulings ... internal supervision is needed.

It's a classic lawyer's way of processing information (I don't think it can be accurately termed "thinking"): first you establish categories, then you slot items into them.  The grid is constructed first, then imposed on reality.  The burden is on reality to conform to theory.  The underlying assumption of Elfinus's categories - that "disciplining corrupt judges" is somehow different from "interfering in judges' rulings" - isn't examined.  It can't be, or his comment would be nonsense.

But, to be fair, the professor also pointed out the fundamental problem of transparency:

Elfinus also said mafia practices were impossible to trace.

"And it's getting darker and darker inside the court, with no obvious reform."

How many Americans can say their judiciary's practices are transparent to outsiders?  Or even insiders?

Mahfud, the Indonesian legislator, referred to the fish rotting at the head:

"The case of Harini Wiyoso is an example and proved mafia practices still exist."

Harini Wiyoso was a lawyer for Probosutedjo, the step-brother of Indonesia's former President Soeharto. Harini tried to bribe Chief Justice Bagir Manan and several other judges in 2005.

This is a pretty cryptic reference, possibly because the Jakarta Morning Post, where all this comes from, didn't care to court a libel charge from Chief Justice Manan.  But here's some background:

In September 2005, Manan headed a panel of judges presiding over Probosutedjo’s appeal against his corruption conviction.  Controversy erupted when the KPK arrested Probosutedjo’s lawyer and five Supreme Court officials on suspicion of involvement in bribery. The lawyer said she had paid a bribe of Rp6 billion – of which Rp5 billion was intended for Manan – in order to have Probosutedjo’s conviction overturned. Probosutedjo admitted to paying the money, as well as another Rp10 billion to lower courts. Manan denied any involvement and appointed a new panel of judges to handle the appeal. Probosutedjo was subsequently jailed and the lawyer is now on trial. Manan has repeatedly refused to cooperate with officials investigating the case.

(In September, 2005, five billion Indonesian rupiah were worth just under half a million dollars.)

Naturally enough, lawyers in the underlying corruption case wanted to hear from the supposed chief beneficiary of the accused's largess:

[J]udges presiding over the ongoing corruption trial of Probosutedjo’s lawyer recently rejected the prosecution’s demand to summon Manan as a witness, even though the case is centered on allegations that he was to have received the lion’s share of the bribe.

So the Judicial Commission can't investigate judicial corruption because, under the Constitution, only the judiciary can investigate its own.  And the judiciary won't investigate it.  Which means ...?  You got it. 

I like one legislator's endorsement of the chief justice, evaluating him in the context of his judicial peers: "Bagir is the best of the ugliest."  Now there's something to carve on a tombstone.

Legislator Almuzamil Yusuf was less enthusiastic ...  "Judges in the Supreme Court must not be so over-confident as to think their prerogative to issue verdicts means they cannot be monitored. If that happens, it means the judges regard themselves as the absolute gods in the world of justice," he said.

Well, yeah.  But that's the point.  It's fun to be an absolute god.

Indonesia Corruption Watch produced a white paper titled Lifting the Lid "Judicial Mafia", the power of which is only slightly undercut by its use of an unidiomatic English typified by that title.  But the author strikes off a very evocative phrase: "justice market" (p. 5).

According to the paper, the corruption begins with the police and extends through the prosecutor's office, and many lawyers find it prudent to keep judges on a kind of retainer, paying monthly fees - which, I think (using a lawyer's classification system), ought to come under the category of "extortion" rather than "bribe." 

Another paper, the 2005 report of something called the IMF/Netherlands Program for legal and judicial reform in Indonesia, provides some history explaining how things got so bad.  It was different in the 1950s, when the Indonesian judiciary performed with a high degree of professionalism and integrity.   Then came The Year of Living Dangerously (the year, not the whitey-centric movie):

Weakened by regional rebellions, cold war interventions, political party conflict, and an increasingly active army with political ambitions, the Parliamentary government fell apart in 1957. President Soekarno assumed increasing political responsibility; under army pressure, in 1959 by decree he replaced the provisional parliamentary constitution of 1950 with the strong presidential constitution of 1945. In the new regime of Guided Democracy (1959-1966), characterized by high levels of political tension, concentration of authority in Jakarta, and street level political conflict, nearly all governmental institutions were rapidly shorn of their autonomy and mobilized for political use. During these years Indonesia’s prosecution and courts were undermined by political engagement and the rapid spread of corruption as they, like other government institutions, were liberated from effective oversight in a fortress government subject to few limits.

Under the New Order regime (1966-1998), following a coup in October 1965, the structural dimensions of Guided Democracy were maintained, but leadership and control were now vested principally in the army as the base of political authority. As it became clear that General (later President) Suharto had no intention of restoring the independence and authority of Indonesian judicial institutions, the condition of the prosecution, courts, and notariat quickly declined further, as the corruption begun under Guided Democracy accelerated along with economic growth. At the same time, the private legal profession grew exponentially during the economic boom of the late 60s onwards, diversifying as it multiplied into distinct classes of litigating advocates and commercial “consulting” or office lawyers. While it retained a number of honest senior and junior attorneys, the profession too was quickly and deeply corrupted, widening by degrees the “judicial mafia” that had begun to develop during the mid-1960s of judges, prosecutors, and advocates. No less was true of the quiet but unavoidable notariat. Over a period of about forty years, judicial corruption had become so imbedded that many judges, prosecutors, and private lawyers conceived it less as corruption than as normal interchange or perquisite or simply the way things were done.

A number of themes make their Linda Hunt-like supporting roles in that description: the corrupting effect of concentration of power, for instance.  And that talismanic phrase "judicial independence", although the major problem with the current Indonesian judiciary is precisely its independence from external control.  Then there's the 1960s vogue for using judicial power to further policy goals unrelated to the guilt or innocence of the accused.

Those themes are, perhaps, not unique to Indonesia's judiciary.

Judith Herman's Trauma and Recovery: The Aftermath of Violence - from Domestic Abuse to Political Terror is a powerful book about the core concerns of this blog.  I'll have more to say about it in subsequent posts.  (The list of planned follow-ups seems to be expanding faster than the time to follow-up in, but I'm banking on soon discovering an anomaly in the space-time continuum.  They always show up when most needed, after all.)

The basic idea of the book is to synthesize research into the specific forms of trauma, and the specific paths to recovery, experienced by Holocaust survivors, combat veterans and victims of criminal violence.  In one way it's hardly a surprise to discover there are many parallels.  But in another way it's deeply disturbing to realize that we, in our phenomenally-violent country, are every day creating more Holocaust survivors.  It's just that we, with our American individualism as opposed to German industrial efficiency, create them one by one rather than en masse.

In an afterword to her book, discussing some of the critical response it generated, Herman writes: "[M]oral neutrality in the conflict between victim and perpetrator is not an option." 

This fragment of a sentence will be the motto of this blog, because it captures what is most objectionable about our criminal justice system.  It was devised to be society's response to the perpetration of violence, but it's in the hands of a professional elite that prides itself on maintaining a pose of moral neutrality. 

Probably most judges who are articulate enough to put the thought in words would say that they seek procedural fairness, a neutrality within the courtroom only.  But events inside the courtroom have consequences outside the courtroom.  (See post 224.)  The very conception of procedure as something distinct from the proceeding, and the related concept that the result of a proceeding is distinct from the proceeding itself, are two of the purest examples of the mechanical mental process that law students are trained to engage in as a substitute for thinking.  (See post 137.) 

Moreover, "fairness" is a word with many meanings, and one of them is making sure that the contest isn't wholly one-sided.  (See post 115.)  And, of course, it's entirely natural for judges to identify with fellow lawyers, and to be reluctant to see a likeable colleague getting pummelled.  So a great deal of what is packaged as "fairness" really boils down to giving defense counsel an appreciable chance of winning the case - or, in abstract terms, to dividing the question of conviction/acquittal from the prior question of guilt/innocence. 

I don't think anyone in the business would dispute that even a guilty defendant is sometimes entitled to acquittal.  Sometimes the proof of his guilt just isn't there.  The great trend of the past half-century has been to expand the pool of guilty people entitled to acquittal.  Which is to say: every day our criminal justice system comes closer to achieving a stance of moral neutrality as between perpetrators and victims of violence.

On Monday, as had long been expected, the Supreme Court invalidated California's sentencing statutes.  The case - once again - involved someone who has little in common with the average criminal defendant.  Previous decisions in this line have involved a pharmacist and a millionaire.  (See post 102.)  This one involved a former policeman. 

(Here's SCOTUSBlog's instant case brief - either those Akin Gumpsters fool around with the date and time stamp on their posts, or else they're amazingly quick at being thorough.)

I've long attributed the Court's strong preference for atypical defendants to simple class and racial bias, but perhaps there's a political angle, too, as the justices take care to pick defendants who won't be portrayed in the media as exceptionally dangerous.  They leave it up to the lower courts to implement their decisions by releasing the exceptionally dangerous folks.  (See post 224.)  That way the marble-clad announcement of principle can be separated from the street.

The problem with the California sentencing system, Justice Ginsburg declared, was that sentences imposed by California judges weren't arbitrary.  If California had given judges complete discretion to impose any sentence between 6 and 16 years, and didn't require the judge to have any reason at all to pick the highest number, that would have been just fine with the sixth amendment.

Conversely, if California had given judges no discretion whatsoever, requiring them to impose 12 years in every case without exception, that would have been hunky dory, too.

California's problem is that it gave judges fettered discretion.  Its Assembly tried to promote a certain consistency while leaving judges room to make sure the punishment fit the crime by allowing the judge to impose sentences of 6, 12 or 16 years.  Judges were supposed to impose the middle term in run of the mill cases, but could increase it for particularly dangerous and cruel perpetrators, or reduce it for those whose crimes weren't so bad, really, or who were unlikely to repeat.

That compromise, Justice Ginsburg said - and we can be sure she was serious, because she always is - "denied petitioner his right to a jury trial."

As for those jurors who actually decided the ex-cop's case?  I'm sure Ginsburg didn't mean to dismiss their existence.  It's just that she would have felt silly to to come out and say what she really meant, that the California sentencing scheme "denied petitioner his right to an arbitrary sentence."

It's both laughable and sad that a Court that nowadays hears so few cases (69 cases divided by nine justices and 36 clerks equals 1.5 cases per lawyer-year) should waste its time on such trivia.   California's Assembly could reenact its sentencing scheme tomorrow and win the beaming approval of the justices (except Justice Ginsburg, who doesn't beam) just by choosing its words from the approved vocabulary list:

Verboten:  "The judge shall impose a sentence of 12 years, except that if aggravating circumstances exist the judge may increase the sentence to 16 years, and if mitigating circumstances exist the judge may decrease the sentence to 6 years."

A-OK:  "The judge shall impose a sentence between 6 and 16 years at the judge's sole discretion, but if the judge imposes any sentence other than 12 years the judge shall issue a brief written explanation for the departure so as to permit appellate review for abuse of discretion."

The Court's opinion suggests that it's actually possible to convince oneself that there is a difference of constitutional magnitude between those two hypothetical sentencing statutes.  It's a little like those Magic Eye books that were so popular a few years ago - if you stare long enough, and let your eyes go funny, you can see a grand constitutional principle in the space between them.   (I understand large doses of Placidyl help.)  

But to make the visualization exercise work, you have to think in symbolic terms - that is, you have to commit the customary legal crudity of thinking up categories and then demanding that reality adjust to them.  (See post 137.)  (Nothing personal, Professor Berman.) 

The case is entirely characteristic of recent Supreme Court jurisprudence in several ways.  First, it's a squire, to use Burke's term.   The Court put its own authority on the line with a grand pronouncement in 1970, and has had to spend an inordinate amount of time ever since trying to ensure that its authority is not flouted - dispatching an endless series of little squires to carry the Grand Pronouncement's armor.    (See post 217.)  From flowery prose adorning a noble principle to nitpicking the Legislative Counsel's choice of words - it's a pretty pathetic descent, really. 

Second, it's anti-democratic.  It says - no more and no less than this - that the people of California can't have the type of criminal sentencing system they want.  They can only have the type of system six justices want for them.  And there's nothing Californians can do about it.  "It's water over the deck - get over it!"

Third, it's based on the common-law Constitution - the idea that "the Constitution" is the collected works of the Supreme Court.   It would be silly to pretend that the actual text ratified by the American people prohibits California from having a compromise sentencing system, halfway between rigidity and randomness.  It would be equally silly to pretend that the Constitution has prohibited sentencing schemes like California's since its enactment.  Not the Constitution itself but Apprendi (the racist pharmacist) and Blakely (the wife- and child-abusing millionaire) prohibit them, starting as of, oh, last Monday.

The Framers, you see, understood that the secret to a good afterlife is to stay active.

The ABA tells us: "A study in Washington and Arizona found 19 percent of lawyers suffer from alcoholism, and another 3 percent are addicted to cocaine and other drugs—a cumulative 22 percent rate of addiction."  The article continues: "These numbers are staggering."    The Oklahoma Bar pegs the addiction rate at 15%, while the Ohio Bar says it rises to 25% after 20 years in practice (insert rude Cleveland joke here) (or, perhaps, Oklahoma Baptist joke ...).

One theory is that the high rate of substance abuse in the profession is related to lawyers being constantly bombarded with depressing statistics about the profession.  Another theory, which I first encountered in a Steven Brill column in American Lawyer probably about 18 years ago, is that the sort of people who do exceptionally well in biology class get streamed into medical school at a young age.  But the sort of people who do exceptionally well in English and history get streamed into ...

Well, if they're smart and lucky, or find a sympathetic mentor, or have a real gift for brown-nosing, they might get to spend four years teaching undergraduates for almost enough money to pay the interest on their student loans.  At some point in their grad school careers, they look up from grading English 101 papers long enough to realize that the only well-paid profession in which their skills of research, writing and passing oral exams might actually be useful is ...  (Cue the quavering violins and cut to picture of sinister clouds scudding across the full moon.) 

So a whole bunch of bright, high-achieving people, used to being the best in the class at whatever they do, wind up in a field they have essentially no interest in.  No wonder studies show law students start the first year in a relatively normal state of mind, and finish it with rates of depression several times the national average.

Of course, there might be a connection to the fact that the law is the only profession in which entering students are subject to hazing by the teachers.  They can tell us it's the Socratic method all they want, but they still don't remind anyone of Socrates.  It's ritual abuse - hazing by another name.

My first-year contracts teacher at the University of New Mexico, where I began law school,  liked to ask, "Clear as mud?  Good."  He told us "consideration" was such a difficult concept that we would have to wait for an advanced class to approach it.  Now, for those spared the misery of first-year contracts classes, I can tell you that "consideration" means nothing at all except giving something of value in exchange for value received.  It's what distinguishes a sale from a gift.   The concept takes longer to explain than to grasp.  The teacher was just bullying us, enlisting us as unwilling extras in his private fantasy life, the one in which he possessed a formidable intelligence.

Years later the professor went into private practice in Albuquerque.  I knew a lawyer who briefly worked for him.  She said he was constantly upset with her either for (1) doing things without permission, or (2) failing to anticipate what he wanted her to do.  If she turned right, she should have turned left.  If she looked up, she should have looked down.  After a short and no doubt depressing time, she realized she was living in a permanent first-year contracts class, a hell remarkably similar to that imagined by Flann O'Brien in The Third Policeman.

But after hearing a talk by the phenomenal saxophonist James Carter - who can do everything that's ever been done with a saxophone, and quite a bit more besides (he channels Hendrix through his tenor) - I think I may have found another theory about the chronic unhappiness of so many lawyers.

Carter said that he believed there was no divide between music and life.  They are one and the same.  Lawyers, by contrast, are trained to think in categories, to slice up reality into chunks.  Most legal argument isn't reasoning, although judges call it that, but categorization: the issue is not this, but that.  The important fact isn't that, but this.  (See post 137.)  The lawyer's job is to argue on behalf of others, which means trying to be convincing even when saying what we don't believe, or even know is false.  (See post 180.)  None of it has much to do with real life.

The best advice I received as a young associate was to leave my professional skills at the office.  When you catch yourself cross-examining your spouse, you've got problems.  So does your spouse, but his/her problem requires only another lawyer's touch to solve.

Listening to Carter, a genuine musical genius who also comes across as both funny and approachable, it occurred me to that perhaps the deliberate dis-integration of the legal life, the consciously-willed submergence of identity, might go a long way to explain all those pickled lawyer livers. 

The Second Circuit's recent decision that only federal judges have the authority to decide what is appropriate clothing for children to wear in public middle schools, and that holding totalitarian hordes at bay requires moving decisively against democratic control of the trivial details of life in a public school (see post 162), should be celebrated for the triumph of Judge Richard Cardamone's clerk in the game of Opinion Bingo.

Judge Cardamone is given credit on the Second Circuit website for having written the opinion, but it's unlikely he even read it.  The giveaway is the sentence on page 23 that begins: "While the exact contours of what is plainly offensive are not so clear to us as the star Arctarus is on a cloudless night..." 

If the author of that sentence expected readers to recognize the name Arctarus, he or she would not have found it necessary to preface it with the explanatory phrase "the star".  Which tells us that the author didn't expect readers to understand the allusion; the explanatory phrase is a kind of apology for what follows.   Which is reason to wonder why the allusion was included.

The use of such an obscure word in such an awkwardly-phrased sentence to make such a banal point is nearly-conclusive evidence that Cardamone's clerk was playing Opinion Bingo, in which, as Dahlia Lithwick has explained,  "points are earned for working a randomly selected word from Webster's into any published opinion."  A judge who reads the opinion before signing it will, of course, delete such nonsense, as Dahlia loyally insists her judge always did.

Given that the 81-year-old Cardamone has been a judge since 1963, it's hardly surprising that he's too tired to care much any more, or so used to being treated like royalty that he sees no need to perform his job.  His clerk might be just a few weeks out of law school, and if so we really must congratulate him or her on earning so much free pizza and beer right out of the box. 

That greenness also explains how an opinion that pretends to be enforcing the first amendment could reach the conclusion that school officials must first examine the message of a t-shirt before deciding whether to enforce a blanket ban on depictions of drugs and alcohol in 7th grade classrooms. 

The case holds that the first amendment's guarantee that the government will not interfere with the freedom of speech requires the government to regulate t-shirts based on their messages.  All t-shirt messages fit into one of the only two possible categories (see post 137): government-approved (that is, federal judge-approved), and everything else.   Items of clothing in the second category are subject to the school dress code, but items in the first category are not.   Like Mom sorting the laundry into light and dark loads.

Can even a half-senile judge's pimply-faced clerk sincerely believe that governmental discrimination based on the message being conveyed by speech is consistent with the first-amendment?  Federal judges are occupationally prone to megalomania, but can even they believe that the first amendment tolerates - indeed, commands - that the government discriminate between messages based on the ideas being conveyed? 

I think the clerk (and/or Cardamone) was trying to say something like: only the type of speech matters.  The t-shirt conveyed a political message, and lawyers and judges tend to be interested in politics, and so therefore those types of messages are particularly important.  T-shirts depicting bands that judges have never heard of, on the other hand, aren't important, and so schools are free to regulate them.

But only a person trained in the crudities of legal reasoning, who accepts without question that reality is properly understood in terms of categories that exist only as linguistic constructions, could believe that (1) a meaningful distinction can be drawn between "message" and "type of message", and (2) that distinction defines the government's authority to regulate its citizen's speech.

But here's some categorizations of my own: the Vermont school district's blanket ban on all clothing depicting drugs or alcohol in school was a reasonable regulation consistent with the first amendment.  The Second Circuit's opinion requiring the school board to discriminate based on content violates the first amendment.  And federal judges (and their clerks) who don't understand that distinction really ought to be put into positions where they can avoid embarrassing themselves again in the future.  Here's a suggestion of such a position.

As has been pointed out many times, whenever people talk about a golden age of the recent past, they're inevitably talking about the era of their own youth.  There were giants in the earth in those days.  The world was full of possibility.  Bliss it was in that dawn to be alive, but to be young was very heaven!

(One of the advantages of reaching adulthood in the 1970s and early 1980s - quite possibly the only advantage - is that we know there was no golden age when we were young.  There was only ELO.  I saw the best minds of my generation jarred into insensibility by the constant nodding of the head to the inane beat.)

It's possible to interpret our new, 2004-model confrontation clause as reflecting a nostalgia for the world of the justices' youths, when papa was unmistakably in charge, ruling the roost in his gruff, occasionally frightening, but ultimately beneficent way.  You might not have realized it until he was dead and gone, but he always had your best interests in heart.  The nanny state, by undermining patriarchal authority, has contributed to the breakdown of the family, which is the essential structure of society itself.  By creating a new constitutional rule to discourage state intervention in the family, a person of a certain ideological bent might believe, the Court has struck a blow for the traditional family.   (See post 154.)

But a different type of nostalgia can also be detected in the "testimonial" revolution, which has so fundamentally altered society's response to child abuse and domestic violence.  This other type of nostalgia is for the ways of thinking that characterized the legal system's response to sexual crimes against women for most of the 20th century.  (See post 139.)

The post-2oo4 Constitution requires judges to decide whether a statement made outside the courtroom, and offered as evidence inside it, was "testimonial" when made.  No one knows what "testimonial" means,  not even the justices who rectified the Founders' oversight in leaving that word out of the sixth amendment.

Since 2004, judges, lawyers and law professors have spent a great deal of time - by which I mean many millions of attorney hours, and hundreds of millions of client and taxpayer dollars - trying to give some meaning to the mysterious new word that is the key to understanding something that, in theory, has been part of our fundamental law since 1791.

The Washington Court of Appeals, for instance, emphasized "[t]he dichotomy between a plea for help and testimonial statements in 911 calls".  If a battered woman calls 911 to plead for help, her tape-recorded statements are not "testimonial" and can be introduced into evidence against her batterer, even if he convinces her that it would be physically dangerous for her to obey the prosecution's subpoena to testify at his trial. 

However, if she calls 911 to explain what happened to her, then the tape-recording is "testimonial."  Because it's testimonial, the jury must never be allowed to know those words were said.   The batterer has a constitutional right to benefit from his successful act of witness intimidation.  (That is, unless the prosecution can demonstrate "forfeiture", but no one is quite sure what that means, either).

In this June's Davis decision, an 8-1 majority of the Supreme Court declared that the dichotomy recognized by the Washington Court of Appeals is actually written right into the United States Constitution, which now contains a provision distinguishing between 911 calls made to seek help, and those merely intended to impart information about past events.  The same dichotomy applies to any conversation with a police officer.

University of Maine law professor Deborah Tuerkheimer has written an article exposing many of the ways in which the supposed dichotomy between a plea for help and a narrative of past events is false.   It's not just that all motives are mixed, but, more fundamentally, how can a battered women ask for help without narrating the past events that make it so extremely likely that she remains in present danger? 

Tuerkheimer's article is based on a huge body of social science research.  The justices of the Supreme Court, however, relied on something much more certain: their own unexamined assumptions.  That's why they wrote that "the emergency appears to have ended (when [the batterer] drove away from the premises)".

A battered woman, according to the justices - excuse me, according to the United States Constitution - experiences her victimization according to a script written by a group of elderly judges.  And in that script the emergency ends as soon as the abuser starts his car and backs down the driveway to cool his bruised knuckles on the side of a beer glass.  Whether the still-bleeding victim might see the emergency as just beginning is neither here nor there.

In some ways this approach is even cruder than the script-writing of the old rape cases, which held only that the woman's departure from the script was mere evidence - not necessarily proof - that she wasn't really raped.  (See post 139.)   The new dispensation doesn't treat departure from the script as evidence of anything.  It simply denies the very possibility that women could experience reality in any other way. 

Under the new confrontation clause analysis, reality is squeezed into a priori categories devised by judges, relieving judges of the effort to understand why people act as they do.  Categorization is the first of the four crudities of legal reasoning, and the only one that can't be justified by necessity.  (See post 137.) 

When people talk about the Supreme Court turning conservative, they're usually thinking about hot political topics - topics on which the Court is frequently eager to muddy the waters, but which it is institutionally incapable of dealing with in any systematic way.  What really marks this Court as conservative is its uncritical embrace of ways of thinking many of us had hoped were put to rest around the time disco first died.

In Robert Lacey's very enjoyable Great Tales from English History (vol. I), a model of rigorous popular history (that's not an oxymoron, as most professional historians assume), we read this anecdote about King John:

It was not unusual for a medieval king simply to eliminate rivals, as John had done early in his reign when he imprisoned the son of his late brother Geoffrey, who was never to be seen again.  But when John heard that a noblewoman had been gossiping about Arthur's disappearance, he had the culprit jailed with one of her sons and left them both to starve to death.

This John was Robin Hood's (or, rather, Hobbehod's) nemesis, the prince who ruled as regent while his brother Richard the Lionheart was away stoking Islamic hatred for the benefit of posterity.  This same John was forced to sign the contract so sentimentalized in conventional English and American legal history as the Magna Carta.

Modern-day King Johns aren't nearly so arbitrary.  When they learn that a person is saying unkind things about them, they no longer throw the person into prison to starve to death.  Rather, they merely threaten to revoke the person's right to practice his or her profession.

That's what happened to Geoffrey Fieger, the famous newshound, lawyer and would-be politician from Detroit.  He made some rude comments about three judges of the Michigan Court of Appeals.  You can read the comments on pages 3 and 4 of this Michigan Supreme Court opinion.   They're rude in a wannabe-Howard Stern style, involving the use of the word "ass" and fairly predictable suggestions regarding both Fieger's ass and the asses of the judges.  He also suggested that the three judges had changed their names from Adolf Hitler, Goebbels and Eva Braun. 

(He didn't "liken" the judges to Nazis, as the Associated Press reported.   He said - assuming the Michigan Supreme Court reported his words accurately - that they actually were Hitler Goebbels and Braun, now living in Lansing under assumed names.  Thus, when the Michigan Supreme Court emphasized the importance of ensuring the public was not "misled" by Fieger, they were expressing their concern that citizens of their state would conclude that the Nazi honchos not only had mastered the art of delayed self-reincarnation but were engaged in a comeback via the Michigan Court of Appeals.)  (You have to admit, it's a pretty alarming prospect.)

Imagine for a moment that the Michigan Legislature passed a criminal libel statute that provided that calling an individual legislator a bad name is a criminal offense, punishable by a maximum $10 fine.  How many nanoseconds do you think it would take the Michigan Supreme Court to declare the statute unconstitutional?

But it's different when the judges' own asses are on the firing line.  In ruling that Fieger had no constitutional right to speak disrespectfully of judges' backsides, a 4-3 majority of the Michigan Supreme Court wrote:

In establishing rules designed to deter and sanction uncivil and discourteous conduct on the part of lawyers, we believe that this Court is doing far more than protecting the sensitivities of judges; rather, we believe that we are upholding the integrity of that which is being carried out by the judicial branch of government.

The performance of these responsibilities requires a process in which the public can have the highest sense of confidence, one in which the fairness and integrity of the process is not routinely called into question, one in which the ability of judges to mete out evenhanded decisions in not undermined by the fear of vulgar characterizations of their actions, one in which the public is not misled by name-calling and vulgarities from lawyers who are held to have special knowledge of the courts, one in which discourse is grounded in the traditional tools of the law - language, precedents, logic, and rational analysis and debate.  To disregard such interests in the pursuit of a conception of the First Amendment that has never been a part of our actual Constitutional would in a real and practical sense adversely affect our rule of law, a no less indispensable foundation of our constitutional system than the First Amendment.

Now, we must assume that Chief Justice Clifford Taylor, and the three justices who joined his opinion, are literate and intelligent people.  But as they cobble together ready-made phrases they seem hardly aware of what those phrases mean.  Are Michigan judges actually afraid of being called names?  It's hard to believe.  But if the judges aren't afraid of that, how could such a fear "undermine" their ability to perform their jobs competently?

"Undermine" in the sense in which Taylor used the word is a metaphor.  It refers to the ancient military tactic of digging beneath the walls of the besieged city.  It's what Grant was trying to do with the crater before Petersburg.  A person who uses the word to describe an effect on something as vast, diffuse and abstract as the ability of an entire class of people to perform its job competently is obviously not thinking about what he is writing.

I don't believe that Taylor meant what his rhetoric assumes to be a fact, that there are judges in Michigan so overcome by the fear of being called a bad name as to be unable to perform the most basic function of their jobs. 

So why did he say it?  Because he wrote his argument backwards.  (See post 137.)   That is, he reached his result first: that prohibiting the making of vulgar suggestions concerning the rear ends of judges is "no less indispensable [a] foundation of our constitutional system" than the Constitution itself.   Having committed himself to a conclusion whose only recommendation is the emotional satisfaction it affords judges, he had to search around for something - anything - that might at least disguise its indefensibility.

So he switched on the Latinism, turned verbs into nouns, packed 105 words into a single sentence and even went to the trouble of denying in one paragraph what he admitted doing in the following paragraph: he wasn't merely "protecting the sensitivities of judges", he was protecting judges from "the fear of vulgar characterizations of their actions". 

"The performance of these [judicial] responsibilities requires a process in which ..."  But in what sense are the five items on the list that follows this opening actually required?   Imagine for a moment that I were to say in this public forum that Taylor is, on the basis of this opinion, a barely-literate thug in a black robe incapable of thinking his way out of a paper bag.  If I said that, would the Michigan judicial system shudder to a halt?  Since I did say it, can everyone with a Monday morning court date in Detroit just stay home?  No?  Well, then, I guess suppressing such talk isn't really required, is it, Mr. Chief Justice?

Compare Taylor's 105-word sentence to the Lacey quote with which I started this post.  Lacey speaks clearly and directly.  Taylor is hardly coherent.  Yet what Lacey describes is remarkably similar to what Taylor is doing.

The first crudity of legal reasoning is categorization, the insistence that reality mold itself to judges' conceptions rather than the other way around.  (See post 137.)  The process of categorization is greatly aided by made-up data.  (See post 139.)   A Supreme Court justice can "prove" that a case falls within or without any given category simply by making up sociological or psychological data.

Justice Souter provided a perfect example in Georgia v. Randolph.  That's the case in which he declared that because women in our society can't invite guests into their homes over the opposition of their husbands, therefore the Constitution denies women the authority to consent to police searches of their own houses, when hubby is present and objecting.  (See post 91.) 

(In fairness I should note that, as Chief Justice Roberts pointed out, the Constitution draws a key distinction between belligerent hubby standing in the front door, on the one hand, and drooling hubby asleep in the Barcalounger in the living room, on the other hand.)

Anyway, Souter's analysis proceeded from the premise that fourth amendment protections depend on "widely shared social expectations".  Either the police acted in line with widely shared social expectations, or not.  Those categories are the only two possibilities.  The first category is labeled "constitutional."  The second category is called "unconstitutional."

But how to determine which category a given event fits into?   If you wanted to reach any sort of reliable conclusion, you'd first have to determine what social expectations are widely shared.  Are there, in fact, any social expectations shared by all 300,000,000 of us?  By New Yorkers, Alabamans, Alaskans and New Mexicans?  By New Orleans Creoles, native Hawaiians, immigrant Chicago taxi drivers, Wyoming ranchers and Boston Brahmins?

It seems doubtful.  But Souter didn't say universally-held.  He said: widely-held.  So how widely is that?  Would 150,000,001 people be enough to establish the concrete meaning of the Constitution? 

But then you might ask how anyone could go about figuring how widely-shared a given social expectation is.  A massive series of simultaneous surveys?  In-depth sociological studies?  Focus groups?  But then you have the problem of shifting social expectations.  No matter what data-gathering technique was eventually settled on, is there any realistic possibility that one could publish the data before it became obsolete? 

Sure there is.  It's even easy.   Tom Lehrer's Lobachevsy advised: "Plagiarize!"  But there's a still easier way.  It's the Souter way: Fabricate!  You don't have to have any basis in observable reality for your generalizations about reality: you can just make it up.  It's fast!  It's easy!  And best of all it's free!

Here's Souter cranking out the fabricated sociological data in Randolph:

[I]t is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant’s invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, “stay out.” Without some very good reason, no sensible person would go inside under those conditions.

That "it is fair to say" at the beginning is a tip-off.  It's like an ordinary lawyer starting a sentence with  "clearly": it would be unnecessary to say it if it were true.   Souter, the elderly hermit, might have some idea about how bookish New England millionaires of a certain age would act in such a stressful situation.  (Timidly.)  But his datum about sensible people is what in scientific circles they call "fraud."  Historians become pariahs within their profession for engaging in that kind of thing.

 Souter's fabricated data is, however, not the problem, but the symptom.  Randolph's categories - widely-shared social expectations over here, less-widely-shared social expectations over there, and never the twain shall meet - have no objective existence.  They're just conclusions.  

The very concept of "widely shared social expectations" is, taken on its own terms, laughably at odds with the idea of a Constitution, those words carved in granite which form the bedrock of the cornerstone of the foundation of the load-bearing wall of our national edifice.  Taken on its own terms, Souter's opinion means we can't change the meaning of the Constitution by formal demcoratic means, but we can do so by accident, by swelling a national tendency toward or against respecting the feelings of would-be patriarchs.

But, then, those terms are phony.  The phrase is just a way of dressing up the question that was truly decisive in Randolph: WWDSD?