JUDGING CRIMES

The ABA Committee's daft proposal to institute a regime of secret trials in America - even if only some prosecutions would be made secret, and then only after the fact (see post 300) - shows how far we've evolved from medieval concepts of justice:

"The common view of the medieval justice system as cruel and based around torture and execution is often unfair and inaccurate," said University of Cambridge historian Helen Mary Carrel. Most criminals received gentle sentences merely meant to shame them, Carrel said, with the punishments often carried out in the open so townspeople could bring them charity.

That's from LiveScience.  The whole point of the ABA Committee's suggestion was to reduce the shame factor.

Over at German Joys (German Joys?) law professor (I mean, Herr Doktor Professor) Andrew Hammel reproduces a chart from a subscription-only scholarly journal giving German murder rates from the 1300s to the present. 

The medieval era, in addition to being smelly, was extremely violent and dangerous; in most places, the murder rate was between 20 and 100 per 100,000. Now, in all European societies, it's declined to around 1. Hooray for modernity!

I came across this table while looking for a similar table for England that I saw recently in a review of Gregory Clark's controversial A Farwell to Alms, a kind of Freakonomics-goes-to-history-class.  I couldn't locate the chart on the Web (and I can't remember where I saw it originally) but it gave comparable figures, which is what started me on this post.

From a 1994 International Herald Tribune account of an academic conference, we read:

Eric H. Monkkonen, a professor of American urban history at the University of California at Los Angeles, said: "What we are finding is that violence is not an immutable human problem. There really has been a civilizing process" in which, scholars say, an increase in state power and courtly manners beginning in the 16th and 17th centuries helped curb impulsive, violent behavior.

New data presented at the conference by a Dutch scholar, Pieter Spierenburg, showed that the homicide rate in Amsterdam, for example, dropped from 47 per 100,000 people in the mid-15th century to 1 to 1.5 per 100,000 in the early 19th century.

The late Eric Monkkonen was a true giant, a tireless researcher and skillful writer, full of insights.  (And for those who doubt the data are there  - wouldn't it be more surprising if our ancestors didn't keep records of things like murders and executions?)

Of course, definitions of "murder" vary tremendously from age to age, and country to country (even state to state, in the U.S.), and some places have efficient and honest law enforcement and tidy record-keeping bureaucracies.  Others don't.  And some murders just go undetected, depending on such things as the ease of concealing a body.  (Deserts, such as New Mexico's, are quite useful.  I imagine jungles, like Colombia's, are even better.)  

So comparing statistics, even for such a relatively unambiguous offense as murder, is at best inexact.  Still, looking at  current international rates provides a certain perspective. 

According to this collection of statistics, the latest available figures have Colombia as the most homicidal nation in the world, though you have to assume the "War on Drugs" death toll is included in those numbers (in contrast to the German figures reproduced at German Joys, which filtered out such statistical blips as the Thirty Years War).   However the number was derived, Colombia's homicide rate was calculated at just under 62 per 100,000. 

Then there's South Africa at around 50, Jamaica and Venezuela at 32, Russia at 20.  It drops pretty precipitously after that, with the US sliding into 24th place at about 4.3 per 100,000.  (The Bureau of Justice Statistics pegs it at a little more than one funeral per 100,000 higher than that.)

Now here's a Los Angeles Times story from last Sunday:

Homicide is not fair, hitting hardest among Latinos and especially among blacks. Latinos are killed at more than three times the rate of whites, while blacks succumb to homicide at three times the rate of Latinos, the Times analysis shows.

Adult males are the eye of the storm. The national homicide rate is about six deaths per 100,000 people each year. But for Latino men in their 20s in Los Angeles County, the rate is 52 deaths, and for black men, 176 deaths.

That's right.  176.  And that's a great deal more than 76% worse than medieval Germany, because in medieval Germany they didn't have medicine, much less modern medicine.  If you were stabbed, it was time to work out whether to address angels with "Sie" or "du."  Today, in the City of Angels itself, our Second City, we tolerate a rate of violent death that would have shamed Henry the Lion.

Imagine if, say, federal judges were murdered at that rate.  According to the Administrative Office of the U.S. Courts, there are "about 2,000 judicial officers, including active and senior appellate and district court judges, bankruptcy judges, and magistrate judges" currently reveling in the lavish perks.   If federal judicial officers were murdered at the same rate as young Black men in LA County, we'd have 3.5 additional vacancies on the federal bench every year.

That, needless to say, would be a crisis.

Last week the New York Times ran several stories on New Jersey crime, including one headlined "Newark Battles Murder and its Accomplice, Silence."  It's already hidden from prying eyes in the archives, but it didn't say anything much, anyway.  (You can, however, still check out the cop-show atmospherics on the slide show and video.)  Could anyone really regard the following as news?

 With 40 shootings so far this year, investigators in the Fifth [Precinct, a 4-mile square area] have a practiced if unsatisfying routine.  A battalion of officers question potential witnesses, often turning up little more than blank expressions.  In recent years, there have been several chilling instances of witnesses being killed before they could testify, and the Essex County prosecutor has become increasingly wary of cases that lack physical evidence.

"No one wants to be accused of snitching," Sergeant Laterza said after even the victims at Seth Boyden [Terrace, a housing project] insisted they had seen nothing.  "These people have become so desensitized to the violence, it's almost become a way of life."

"Desensitized" seems a somewhat insensitive word to describe "a 14-year-old silently clutching his left thigh as he bled on the sofa of his aunt's disheveled apartment".  (Think what a difference it would make if only the aunt's apartment were heveled!)  As the article notes, most of Newark's murder victims are "young black men".  And where have we heard before about young black men being insensitive to pain?  Oh, yeah.  The South.  Before the Civil War.

 Well, I'm sure the quoted cop - to the extent he wasn't just saying what he expected the reporter wanted to hear - meant the bystanders were desensitized, not the victims.  But the bystanders who treat cops "like a band of pesky door-to-door salesmen, shrugging that they had witnessed nothing", are in fact being extremely sensitive to the reality that there are two governments in Newark: the one that occupies run-down government-owned buildings, and the one that actually makes things happen on the street.  

By coincidence (one supposes), just five days before the Times article appeared, New Jersey's intermediate appellate court issued its opinion in State v. Byrd.  The case involved a prisoner who had shared some advice with a fellow prisoner.  The fellow prisoner (Mr. Bush) had previously described to police how Mr. Byrd had killed someone.  Mr.  Byrd, upon learning this fact, expressed his concern for Mr. Bush's health, should Mr. Bush repeat his statement in court.  Mr. Bush took the advice in the spirit in which it was offered and refused to testify at Mr. Byrd's trial.

The Appellate Division announced that the issue before it was whether Mr. Byrd was entitled to have his manslaughter conviction reversed on the ground that he successfully intimidated Mr. Bush.  (That's not quite the wording the Appellate Division used - "The question presented is whether the trial court properly allowed introduction of an inculpatory out-of-court statement of a witness who refused to testify because defendants had threatened him with bodily harm if he testified against them." - but it amounts to the same thing.)

The New Jersey court ruled: If a thug successfully intimidates a witness against him, the thug is entitled to all the benefits naturally flowing from his initiative.  (Again, that's not quite the words the court used - "because N.J.R.E. 804(b) does not permit the State to introduce an inculpatory statement from a witness who refuses to testify because of threats to his or her safety made by the defendant, the trial court should not have permitted Detective Manzo to testify as to Bush's out-of-court statement" - but, again, it amounts to the same thing.) 

The court's reasoning is lame (lameness seems to be a habit with the Appellate Division - see post 254).  Its reason for deciding that it was wrong for the trial judge to allow the jury to hear evidence of Mr. Byrd's crime was ... that the issue was too important for it to decide.  I'm not kidding: "we are satisfied that given the significant and far-reaching implications of this proposed hearsay exception, such a change in the Rules of Evidence should be accomplished by our Supreme Court in accordance with [quasi-legislative rulemaking procedures] rather than by judicial opinion."

The change would be "far-reaching" in the sense that it would affect all defendants who intimidate or kill witnesses against them, and according to the Times that's a lot of defendants, so maybe the court was onto something, after all.   Why, if witness intimidation ceased to be a get-out-of-jail-free card, the number of shootings in Newark's Fifth Precinct might decrease!  Seth Boyden Terrace might become less dangerous for 14-year-olds!  Far-reaching indeed.

But the court's lameness goes beyond the comical incoherence of deciding an issue on the basis that it lacked authority to decide it - because, as the court actually admitted, it possessed that authority.  The New Jersey Rules of Evidence give it power to modify the rules "to the end that the truth may be ascertained and proceedings justly determined".   The judges just didn't want to. 

And this is the same set of judges that, just last March, invented out of thin air a rule that criminal defendants waive their sixth amendment rights unless they jump through a certain hoop.

So we have a court that uses its power to modify rules of practice only when the modification is insignificant and short-reaching?  That must mean that the sixth amendment right to confront witnesses in court is less significant than the right to benefit from killing the witness outright. 

Halfway across the country, and just three days later, the Indiana Court of Appeals confronted a similar issue and said, simply: "Although the Indiana Rules of Evidence do not contain a [provision specifying that a defendant who kills a witness forfeits his right to object on hearsay grounds to admission of the dead witness's statement to police], we see no reason why the doctrine of forfeiture by wrongdoing may not be applied as a matter of common law." 

The difference between the New Jersey and Indiana courts is that one accepts threatening and killing witnesses as normal, and accordingly regards any attempt to discourage the practice as a "significant and far-reaching" alteration in the state's legal culture.   The other doesn't.

A 3rd Infantry Division after-action report explains part of the ongoing catastrophe: "The president announced that our national goal was 'regime change.'  Yet there was no timely plan prepared for the obvious consequences of a regime change."  The result was "a power/authority vacuum created by our failure to immediately replace key government institutions."

Even the 3rd ID's lawyers staked out a relatively definite position, which is somewhat unusual for members of a profession reputedly addicted to the use of so-called weasel words.  The judge advocate's section of the report said: "The failure to  act after we displaced the regime created a power vacuum, which others immediately tried to fill."

In retrospect, of course, this is obvious stuff.   We all knew that, right?

When I first read about that report in Thomas E. Ricks' extremely good, extremely sad book Fiasco: The American Military Adventure in Iraq, I was reminded of something Justice Jackson said in 1949:

I suppose no one would doubt that our Constitution and Bill of Rights, grounded in revolt against the arbitrary measures of George III and in the philosophy of the French Revolution, represent the maximum restrictions upon the power of organized society over the individual that are compatible with the maintenance of organized society itself.

He was talking about the Constitution and Bill of Rights we had in 1949, which were considerably different from the current documents going by those names.  (Like Toyota, the Supreme Court recycles the old names when it rolls out the new models.)  

Starting in 1961, the Supreme Court committed the United States to a prolonged experiment to see if Jackson was right.  For the next 46 years it has imposed ever-greater restrictions upon the power of American society over the antisocial individual.

The Court's experiment coincided with LBJ's Great Society housing program.   This, like the daycare center moving next door to the dingo farm in the Far Side cartoon, was not an ideal confluence of circumstances. 

What happened when the Court diminished the community's power to police the projects?  More or less exactly what has been happening in Iraq since 2003:  a power vacuum was created,  and it was filled by organizations even less responsive to democratic politics than the Chicago City Council.  Justice Jackson was proved correct: further restrictions on the power of society to police itself were, as it turned out, incompatible with continued earthly existence for many thousands of the most vulnerable Americans. 

In short, it turned out the Supreme Court didn't have a Phase IV plan, either.  Like the Bush administration, it produced a power vacuum and considered its mission accomplished.  One difference is, the Bush administration is belatedly paying a political price, but the Court has so far managed to make others pay its political bills.

Last month I was interviewed by BBC film crew doing a show on Billy the Kid that will combine dramatic recreations with commentary by historians. (In the States check the Discovery Channel listings in the spring for showtimes - it's your opportunity to find out if the publicity photo I've been using is out of date.)

The interviewer asked about the first killing attributed to the Kid, the death of Frank Cahill at Camp Grant, Arizona. Cahill was a blacksmith and presumably a muscular guy, as a couple thousand reps on the anvil every day is a recommended upper body workout.  Cahill, according to the version that's come down to us, bullied the Kid, whose nickname was as flatly descriptive as "Shorty" or "Lefty."  The Kid was 18 or so, and slightly-built, and after a particularly humiliating encounter he used modern technology to even the odds. Cahill died a couple days later of a lack of antibiotics.

 The BBC interviewer wanted to elicit some comments about the "Code of the West", which, it is generally assumed, would have excused the Cahill killing as self-defense.  In his question the interviewer said something about "this killing, which to modern viewers will seem quite clearly to be cold-blooded murder." 

Well, perhaps to modern British viewers.  I had to break the news that in modern New Mexico Billy would almost certainly be entitled to a self-defense instruction - the technical way of saying that New Mexico's courts of 2006 would be just as willing as their predecessors of 1876 to accept the killing as perfectly lawful, or at most manslaughter (see post 110), an offense with a maximum sentence of six years, none of which must be served in prison.

In New Mexico, as in most of the West, there is no duty to retreat. You don't have to make any effort to avoid deadly violence.  If you get involved in a fight, and realize too late you're going to lose, you're permitted to kill. Or, in other words, New Mexico is the nation's fifth most violent state because our judges like it that way.

(Legislators bear some responsibility, too, in that they don't make the effort to control the judges.  Our self-defense statute says homicide is lawfully committed in self-defense only when "necessary", but our courts interpret that to mean something like "the most convenient solution to one's immediate problem.")

The phrase "Code of the West" is misleading to the extent that it suggests things were organized by social compact, as if settlers had to sign an indenture when they left Independence, Missouri.  The Code was really just a set of pragmatic social conventions based on the absence of effective law enforcement.

Lincoln County, which in Billy's time was the size of Ireland or Panama (or, in U.S.-centric terms, Connecticut, Massachusetts, Vermont and New Hampshire combined), had one full-time peace officer, Sheriff William Brady. He hired deputies, and could summon a posse into existence, and the local justices of the peace worked with constables, but for them law enforcement was something they did in the spirit of today's volunteer firemen.

If robbers showed up at your homestead, you couldn't call the police. Someone had to slip away unnoticed and travel by horseback or on foot for help, and even then (unless you were lucky) help wouldn't come from the sheriff, who doubled as county tax collector and was often on the road. Maybe your messenger might locate a deputy, or maybe just some friends or acquaintances willing to take the risk.   And then it could be hours or days before the rescue crew returned to the scene of the outrage.

In short, law enforcement was, at the moment of crisis,  a private affair. The Code of the West was a way of dealing with that reality. Should you just give them what they want? Often, that made the most sense. But at some point a man who wanted respect had to draw a line.

I suspect that's what happened to Frank Cahill: the Kid decided he didn't want to be treated as a child any more.  And, so far as the record discloses, he never was. On the contrary, he quite quickly developed a reputation as a scary fellow, in many respects a useful reputation to have, although when that reputation grew outsized it contributed to his violent death at a young age. 

Does any of this sound familiar? Elijah Anderson wrote a book called Code of the Street: Decency, Violence, and the Moral Life of the Inner City that described the way young men in the worst neighborhoods are forced to decide if they want to become someone with "respect", defined in part as the ability to inspire caution in dangerous people. Al Sharpton recently got a headline or two calling the same process "gangsterism."

We have, in our cities, replicated one of the core realities of the Wild West, the nearly-complete privatization of law enforcement, the replacement of a government of laws by an alternative government based not on enacted laws but on a Code - on violence and its threat.

Legal reasoning and thought are two different things.  That's not always a bad thing.  The distinction between the two is the justification for stare decisis, the principle that future cases should be resolved in line with prior precedent.  If another train conductor boosts another passenger onto a moving train in New York, causing the passenger to lose his grip on a package that drops beneath the wheels of the train, causing the fireworks inside the package to explode with such force that scales fall onto the head of another passenger bound for Rockaway Beach, then the poor victim should be denied relief, just as Mrs. Palsgraf was denied the right to recover against the Long Island Railroad Company.  The whole point is to spare the second judge the trouble of thinking the matter through.

Legal reasoning is supposed to be a mechanical process.  The common law imposes a grid system on reality.  Classic legal reasoning consists of sorting cases into their proper categories, in much the same way that letterpress printers sorted their type.  The common law's obsessive focus on the technicalities of pleading wasn't (merely) empty formalism, but an expression of the law's categorizing essence.  Once upon a time, when judges said they had no choice in how they ruled, they actually believed it.  The mechanical process of common law adjudication took precedence over the judges' own thoughts and moral intuitions.

The problem is that some lawyers don't always recognize the difference between legal reasoning and thought.  Some of them, I suspect, actually believe they're the same thing - how else to explain the frequency with which perfectly intelligent lawyers, upon donning a black robe, begin publishing "vacuously, smugly, and unconsciously foolish" opinions?

The Fatuity Watch will be a recurring feature of this blog.  Its inaugural entry is an opinion attributed to the Ninth Circuit's Senior Judge Robert Beezer.  (Whether it was actually written by Judge Beezer is, of course, a different question.  Probably it was written by a clerk or staff attorney, but he agreed to sign it.)  The case involved a convicted murderer in federal prison who, for reasons that will soon become obvious, was in 23-hour lockdown.  He was permitted out of his cell one hour each day to exercise inside what Judge Beezer terms a cage.  Other prisoners were put into the cage at the same time, and on April 26, 2001, our prisoner managed to attack a fellow prisoner with an 8-inch knife.  (The  victim survived.)

Our prisoner, Donzell Wayne Biggs a/k/a Maynard Wayne Hurley (he went to all the trouble of creating an alias, and then he picked "Maynard" - a potential mental health defense?), was prosecuted for the attempted murder.  He wanted to claim self-defense on the theory that he supposedly had heard through the prison grapevine that the victim had been planning to stab him, so he stabbed him back first.  The trial judge ruled that he wasn't entitled to a self-defense instruction "because he could not show that there were no reasonable alternatives to the use of force."

The Ninth Circuit, by Judge Beezer, reversed, holding:

In order to make a prima-facie case of self-defense, a defendant must make an offer of proof as to two elements: (1) a reasonable belief that the use of force was necessary to defend himself or another against the immediate use of unlawful force and (2) the use of no more force than was reasonably necessary in the circumstances.   [Citation omitted.]  The district court erred by requiring Biggs to present evidence of a third element, that there were "no reasonable alternatives to the use of force," in order to make out a prima facie case of self-defense. 

I've italicized the words "necessary."  The primary dictionary definition of the word is "absolutely essential."   So Judge Beezer was saying that the defendant was merely required to show that he reasonably believed stabbing the other prisoner was "absolutely essential."  He wasn't required to make the additional showing that no reasonable alternatives were available to him.

The legal reasoning is straightforward: established law requires that the evidence conform to the first two verbal formulas.  The trial judge required Maynard to produce evidence conforming to a third verbal formula.  Therefore, the trial court improperly added an extra box to the letterpress case.  QED.

But for anyone who engages in thought as opposed to legal reasoning, a certain course of action becomes  "absolutely essential" only when all alternatives are foreclosed.  And to say that a person has no reasonable alternative to a certain course of action means that the course of action has become necessary.   In concrete terms, if Maynard had an alternative to stabbing the other prisoner, then it wasn't necessary for Maynard to stab him.  The stabbing was necessary only if he had no alternative. 

And so the syllogism of Judge Beezer's opinion is this: Maynard was only required to  show that the stabbing was necessary.  The trial court required him to show, in addition, that the stabbing was necessary.  Therefore, the trial court erred.

You see how easy it is, once you get the hang of it? 

What makes the opinion particularly deserving of this inaugural issue of Fatuity Watch is its meta-holding: that whether a prisoner is justified in fabricating an 8-inch knife and driving it into the flesh of a fellow-prisoner is an issue to be litigated on a case-by-case basis.  The trial court's mistake was to think that the community principle applied, and that the community could declare stabbing fellow prisoners wrong in all circumstances.   (See post 88.) 

On the contrary, says Judge Beezer, the right of an individual to kill another is not limited by the fortuitous circumstances that both are in federal custody and the victim is forbidden to possess weapons adequate to defend himself.  As in Odysseus's time, these are matters for men to settle among themselves.  Lock 'em in a cage and let the gods determine who's right. 

In The World of Odysseus, the great classicist M.I. Finley - whose unusual life story is summarized on Amazon - wrote about the ancient Greek method for settling disputes, as illustrated in the twenty-third book of the Iliad: 

Although there are a few fragmentary phrases in the poems about royal judgements, they are contemporary notes, and therefore anachronistic, when slipped in by the poet.  He was composing at a time when the community principle had advanced to a point of some limited public administration of justice.  But he was singing about a time when that was not the case ...   The principle remained... of strictly private rights privately protected.

The tension between the community principle and strictly private rights privately protected is never entirely resolved.  USA Today ran an article this week about NRA-sponsored "Stand Your Ground" acts, which have been passed in Florida, Indiana and South Dakota, authorizing citizens to kill even when their own lives are not in danger.  Such statutes abandon the ancient idea that death should not be inflicted except in a either-him-or-me situation.  Rather, individual citizens may decide for themselves (within limits) whether another person deserves to die for his actions.  Here's Florida's version, and here's the Indiana statute in marked-up form.

"'For someone attacked by criminals to be victimized a second time by a second-guessing legal system is wrong,' the NRA's Wayne LaPierre says."  That's the same LaPierre who called federal law enforcement officers "jackbooted thugs."  LaPierre's rejection of "the community principle" is consistent, at least.  The legal system, in his view, is just as illegitimate as the police.

From one perspective, of course, the Florida and Indiana statutes are expressions of the community principle, because they were enacted democratically.  But from a different perspective they reject that principle, because they deny the power of society to make a moral judgment, binding on all its members, regarding the relative value of human life and personal property.  That judgment can only be made on the scene, by the one with the gun in his hand.

The same tension between private rights and the community principle is expressed in constitutional rulings by courts.   All constitutional rulings, by their nature, deny the right of society to bind its members by democratic means with regard to the particular topic.  (See post 54 and post 70.)  In severely practical terms, a ruling that the police are forbidden from taking certain actions to protect members of society is the same as saying it's up to individual members to protect themselves - which is where the ACLU and NRA find themselves making common cause.  

In 1929, a long-serving San Francisco police officer named Pete Fanning self-published Great Crimes of the West, telling the story of some of the more notorious crimes of the San Francisco Bay Area during the last decades of the nineteenth century.  While describing the highbinders who coalesced into Chinatown tongs, he mentions a secret tribunal established to settle disputes between gang members, saying it "was a sort of government which considered the government of the state secondary to itself."

Violence is always a type of government.  There are many reasons to object to Hobbes' definition of law (when "the command is a sufficient reason to move us to the action, then is that command called a LAW"), but when you look down a gun barrel, questions of political legitimacy aren't the most useful weapons of self-protection. 

The stunning memoir A Woman in Berlin: Eight Weeks in the Conquered City (the author chose to remain anonymous, for reasons that become obvious when you come to understand what she had to endure) reveals how quickly one law can be substituted for another.  For Berliners, there wasn't much point in telling the conquering Russians, "You can't do that.  It's not allowed."  The Russians could rape, and steal, and kill.  That was the new government, and it was up to the Berliners to adapt.

In peacetime, too, violence is a system of laws, displacing whatever laws might have existed previously.  A sociological companion piece to A Woman in Berlin is offered by Sudhir Alladi Venkatesh's American Project: The Rise and Fall of a Modern Ghetto.  The book shows with unsettling clarity that there was a government in charge of the Robert Taylor Homes.  But the government wasn't the City of Chicago, or the State of Illinois, or even the United States of America.  It was the gangs.

 A leading researcher estimates that about 1% of the population is psychopathic.  If the 99% are prevented from organizing themselves politically to obtain the police protection they want, the 1% fill the power vacuum.  Democracy - the "majoritarianism" so despised by judges (see post 54) - is replaced by the political system neatly summarized by The Clash in one of their best songs: "I have got the sharpest knife / So I cut the biggest slice." 

Presenting reality as a succession of stark choices can be an effective method of cross-examination.  ("Which do you prefer, governmental oppression or personal liberty?").   But it's no more than a bully's trick.  When judges allow themselves to believe that such phoney dichotomies are real (see post 70), they are mistaking forensic technique for thought.

Judicial decisions restricting the police haven't saved residents of the projects from governmental oppression.   But those decisions have helped to change the identity of the government doing the oppressing.