JUDGING CRIMES

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.

The very preposterousness of representing something as fantastically complex as human society in two dimensions is the great appeal of the right-left metaphor: any reasonable representation would be too complicated to serve the purpose of reliably identifying one's friends and enemies.  So we use the unreasonable but practical Byzantine system of Greens and Blues instead.

Our minds are so accustomed to thinking in terms of the left-right metaphor that most of our political discussion is conducted at the intellectual level of laundry sorting.  But the sorting itself is fascinating, because of course ideas don't come in colors.  How do we decide which viewpoint belongs in which basket? 

Genteel anti-Semitism - its genteelness consisted of a kind of plausible deniability (here's a modern example) - was a hallmark of the house intellectuals of the upper classes during the first half of the twentieth century.  Now the intellectuals who go in for that  kind of thing generally regard themselves as left-leaning.  So which is it, right or left?

The Progressives, such as Brandeis, were, at best, indifferent to civil rights (see post 197), while concern for racial equality has been a defining liberal position since the 1950s.  Does that mean Brandeis and the Progressives were conservative?  Or that the Civil Rights movement wasn't progressive?

Or take a look at the Socialist Party's 1912 platform.  Your average Republican today would find little to quarrel with the Socialists' demand for "a rest period of not less than a day and a half in each week" for factory hands, or "forbidding the employment of children under sixteen years of age."  Nor would "enactment of further measures for general education and particularly for vocational education in useful pursuits" raise many conservative hackles.  So should we conclude the GOP has gone Socialist?  Or was Eugene Debs a Republican?

George Will's column today, which sees the story of the Edsel as a metaphor for liberalism (the similarity is that he doesn't like either one), referred to "the liberal project of expanding government in the name of protecting incompetent Americans from victimization".  If that's what liberalism is all about, then certainly the enthusiastic enforcement of the criminal law is about as liberal as you can get.  What purer example exists of  protecting Americans from victimization?

And, indeed, if you ask the editorial page writers of the Wall Street Journal what they think of throwing People Like Us in jail for the type of crimes whose commission depends upon an ability to speak with apparent knowingness about arcane financials, you can expect a thundering denunciation of overreaching prosecutors.   Rudy Giuliani, in his U.S. Attorney days, was a frequent target.

But, of course, that's not how most people see it.  Representing the interests of the injured victim is, by and large, liberal only in civil suits.  In criminal prosecutions, the liberal position is on the side of the victimizer.  That was the whole initial premise, for instance, of Talk Left: The Politics of Crime.  (It's since developed into a more general political blog.) 

The same laundry-sorting can be seen in a Tony Mauro article from earlier this summer:

The case of Bowles v. Russell did not generate headlines at any point in its journey to the Supreme Court. And when it was decided by the high court Thursday, no justice spoke in angry dissent.

But the low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term.

Convicted Ohio murderer Keith Bowles lost the case on Thursday by a 5-4 vote, because he was two days late in filing a federal habeas appeal back in 2004.

After habeas relief had been denied and 30 days passed, federal rules of appellate procedure allowed for a 14-day extension to file an appeal. But inexplicably, the judge in the case, Donald Nugent of the Northern District of Ohio, gave Bowles 17 days to file instead of 14. Bowles appealed on the 16th day, and his appeal was rejected as untimely.

Now, I admit to feeling a passing twinge of sympathy for Mr. Bowles (a person who, according to the appellate opinion I can't find for free on the web, was too scared to fight the people he was angry at, since they were armed, so he stomped a stranger to death instead).  If a lawyer, through ignorance of the law, injures one who relies on him, why should the consequences be visited on the injured party rather than on the one committing professional malpractice?  (Because the lawyer in question is a federal judge, silly.)  

But the really interesting question is: what's so liberal about declaring a deadline non-jurisdictonal?  Think of the most liberal politician you can imagine, say, Ohio's own Dennis Kucinich.  Did he monopolize the YouTube debate with a rant about jurisdictional deadlines?  

I can see only two ways in which the opinion for the four dissenting justices was "liberal": (1) it would have permitted exceptions to a general rule, or in other words would give judges a power to nullify the law on an ad hoc basis, in the interests of justice;  and (2) it would have been a victory for a convicted murderer.  But it's difficult to see any ideological content in # 1 except insofar as it would produce # 2. 

But what, once you get down to it, is so liberal about handing a victory to a convicted murderer?  A clue is offered by Elvis Costello's put-down of a television newscaster: "She takes all the red, yellow, orange and green / And she turns them into black and white."  The very preposterousness of the equation (assisting a murderer = liberal) is the attraction (but not, for you Elvis fans, the Attraction).

Metaphors and similes are a step removed from reality.  That's their point, and why it's a mistake to think in them.  It's one thing for a politician to describe geopolitical strategy in football terms by saying it's a question of whether the nation plays offense or defense.  But it's another thing for the leader of a country to believe that the purpose of all that global strategizing it to move the ball toward the goal.

Lawyers and judges are trained in a mechanical style of cogitation that isn't quite the same as thinking.  The use of metaphor simplifies that process, because it makes it easier to fight off the intrusive realization that reality isn't cooperating.   In Kevin Flynn's Relentless Pursuit (see post 245), there's a hilarious, awful moment when the judge starts talking about Snow White and the poisoned apple:

"The illegal activity by the police commenced when the PG County police took the man out of the truck, had him out on the ground and in handcuffs.  That's when he was arrested.  And that's when the poisonous tree got planted. ...  The issue is the evidence, the physical evidence.  I found the poisonous tree, and I found how far its roots went.  Now, I want to go through the evidence and determine which evidence either is on the tree or off the tree."

This sounds like gibberish because it is.  What was once a metaphor had, by the time the judge uttered this string of vocables, long since been transformed into more or less random sounds used to signify nothing but the impending exercise of power.

Is that too harsh?  Then explain, please: In how many ways is the nighttime police stop of a person suspected of killing two people, and taking one of their hearts with him, like a tree?  In what respects is looking into the interior of a truck like fruit?  Quick now: list three ways in which a felony stop resembles the roots of a quince bush.

I once heard Charles Addams say in a TV interview that psychiatrists used his famous skier cartoon to test a patient's reality testing.  If the patient could explain it, the doc knew there was a problem.  The questions in the preceding paragraph might serve the same purpose.  But Addams was being funny.  Flynn's judge was deadly serious.

Lawyers and judges don't even notice when their metaphors become meaningless, because the metaphors are used, not to convey thought, but to provide an outward sign of a mechanical mental activity.  The dead metaphor signifies that the speaker is following the ruts in his or her mind, ruts as deep and impervious to passing seasons as the ruts of the Santa Fe Trail.  (Resist the temptation to think about those ruts gradually wearing away, and the landscape of your mind being restored to pristine rationality, as the soothing waters of this blog wash over them.) 

The most pervasive metaphor distorting judges' thinking is the scale.  There's a scale on every courthouse in the country.  (In front of Albuquerque's Metropolitan Court, we have a huge, remarkably ugly scale sculpture that moves, with the all-too-metaphorical result that it often dips out of balance.) 

American judges like to say - they've said it thousands of times, often with exactly the same string of words - that whether the arrest of a suspect or the seizure of evidence is constitutional "depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers."

Picture the clerks huddled around a triple-beam balance scale inside the Supreme Court building.  There's a tense silence until the needle's quivers cease, when one of them speaks up in a voice hoarse with tension: "Scalia's people say the individual's right checks out at 4.581 grams, but all we're getting is 4.215.  I say the public interest definitely tops that.  Who's with me on this?"

When the justices say "balance," they mean: "a choice."  They mean: We decide which is worse, letting the cops get away with what they did, or letting the criminal get away with what he did.

It's not hard to see why judges are uncomfortable with coming right out and saying it.  If you were to ask bluntly: Which is worse, what John Couey did to Jessica Lunsford when he buried her alive, or what the Citrus County deputies did to John Couey when they listened to him confess?  - then you'd have to be some kind of monster to answer the way our courts routinely do.  (You can listen to Couey's suppressed confession here.)  So, obviously, the question can't be asked that bluntly.

Justices Jackson and Frankfurter once hinted that the exclusionary rule should be applied along a sliding scale, by which constitutional rights are viewed not as absolute but as relative, a person accused of a violent crime having fewer rights than one accused of running a numbers game.   Justice Stevens revived the idea in 2001.

But few judges are willing even to start down this road.  If constitutional rights are relative, then judges applying the non-textual exclusionary rules have a choice about how to rule.  They're morally responsible actors.

How much pleasanter to hide one's agency from oneself behind those draping strands of familiar, meaningless syllables.

The Kansas City Star has a story about the president of the national Chamber of Commerce (memorialized in Dylan's "Tombstone Blues") going on about "tort reform."  The reach of tort law has expanded enormously since the days of McPherson v. Buick Motors, of course.   But it's grown in two different dimensions: horizontally (as new causes of action are invented and judicial inhibitions against things like premises liability are swept away) and vertically (big dollar awards).

From the point of view of an insurance company, the horizontal expansion of tort liability is an excellent thing.  The more theories of liability, the more market for insurance products.   Indeed, judges say that the very reason they expand tort liability is to encourage the sale of insurance.  As the Connecticut Supreme Court put it recently, in holding that a snowtubing park's disclaimer of liability was against public policy,  "the defendants are in a better position to insure against the risk of their negligence and to spread the costs of insurance to their patrons". 

On the other hand, the vertical expansion of tort liability - the occasional all-the-gold-in-Ft.-Knox verdict - is problematic for insurance companies.  Bureau of Justice Statistics show that tort awards are, on average, very modest indeed.  But - it might seem ironically - it's the very rarity of enormous jury awards  that makes them problematic for insurance companies.  As an actuarial matter, it's awfully difficult to plan for lightning strikes.

So insurance companies are in favor of the robust expansion of tort liability horizontally, but opposed to vertical expansion.   It would seem self-evident that a business person worried about insurance costs would have a much different perspective.  For the business person, the real problem area is horizontal expansion, because the recognition of new theories of liability - the judiciary's imposition of incentives for buying more insurance - will definitely affect the bottom line.  By contrast, the risk of being on the receiving end of a big-bucks payout is statistically slight, and a business can minimize even that small risk by refraining from behavior calculated to incense a jury.

Yet here is the president of the Chamber of Commerce running around the country making speeches in favor of damage caps - a "reform" intended to stop the vertical expansion while allowing the horizontal expansion to continue unchecked.  One can understand why the C of C's members would be unhappy about the amount of money they pay in insurance premiums, but what could possibly persuade them that the solution to that problem is the one advocated by the people taking their money?  It's like catching someone siphoning your gas tank, only to accept his explanation that the reason for your poor mileage is a dirty fuel filter.

During the first years of the Clinton administration, doctors fell into the trap of believing that the insurance companies were looking out for the doctors', as opposed to the insurance companies', best interests.  Ten years later, Chamber of Commerce types are repeating the doctors' mistake.  It seems almost incredible.

The explanation, I think, is our  ingrained habit of thinking by metaphor.  (See post 10.)  We're so used to thinking of the political world as a straight line, with a left and a right.  Trial lawyers are on the left, insurance companies are at the right - their pattern of political contributions proves it.  So if you're a small business person used to voting Republican, it can only mean that insurance companies are on your side.  But what if the real shape of the political universe is triangular?  Or, say, something more like this?

The problem with metaphors and anlogies is that if they're good, they become a substitute for thought.  Judges are very fond of the scale metaphor.  In this example, Justice Scalia manages to get "outweighed" and "[o]n balance" into consecutive sentences.  But, of course, the items on his imaginary scales ("The prophylaxis achieved by insisting upon a rigid, no-waiver application of the ordinance requirements" versus a "senseless prohibition of speech") are abstractions without weight.  

The scale metaphor's great virtue is that it disguises the judge's agency.  The pretense isn't that the abstractions can be weighed, but that a judge choosing between alternatives is engaged in a task as impersonal and objective as reading a scale. 

The Supreme Court's use of metaphor can become grotesque, as when the justices describe a 10-year-old girl's abused, frozen corpse as "fruit of the poisonous tree."  That phrase, one of the most familiar to criminal practitioners, is almost perfectly meaningless, because almost always there is no fruit, no tree, and no poison.  The phrase was coined, or rather imported into the criminal law, by Justice Frankfurter in the low point of his career, just two years after Disney's Snow White set an all-time box office record with its own poisonous fruit.  (This is, I believe, the only documented instance of a major criminal law doctrine being named after a plot device in a Disney film.)  It is only by thinking in terms of the fruit metaphor that, for example, judges can convince themselves that a person's consent to a police search can be simultaneously voluntary and coerced. 

The most powerful metaphor of all is the left-right spectrum.  It's difficult for anybody in the West to think about politics without mentally placing ideas or positions somewhere along the bipolar scale.  During the Cold War this meant that the Federal Republic of Germany (West Germany) was pinned to the right end of the scale, while the Democratic Republic was far to the left, although no one could seriously doubt that individual workers in West Germany had almost infinitely greater influence over their political and economic system than the comrades on the other side of the Wall.    Burke's opposition to the French Revolution makes him for all time a conservative, although no friend to liberal causes would claim the Terror, Empire and pan-European war for her side.

American political parties are coalitions rather than bands of the like-minded.  Both New Mexico's former Governor Gary Johnson and William Bennett find a political home in the Republican party.  But to say they belong together on the right end of the spectrum misses the whole point of their politics. 

Trying to squeeze a world of politics onto a linear scale becomes even trickier when you add the law to the mix.  People talk casually about liberal and conservative judges, but what do those terms mean?  New York Law School Professor James F. Simon says that "[t]he term 'liberal' is used to describe a justice who gives the political branches a wide latitude to effect social and economic reform".  But Joan Biskupic, the great Supreme Court reporter, sees it differently.  She says: "In the judicial context, a 'conservative' believes the courts should not involve themselves in social problems that are traditionally the province of legislators. "

They're both half-right, of course.  A judge "who gives the political branches wide latitude" to enact legislation favored by liberals is a liberal judge, while a judge who does the same with regard to conservative legislation is a conservative judge.  A homeowner cleaning out the attic will toss things into two piles, to keep or to throw away.  Professors and journalists do much the same with judicial rulings, sorting them into "liberal" and "conservative" heaps.  But it's a hopeless project.  The judiciary's ideological attic will always remain crammed to the rafters.

"Left" and "right" aren't places.  They aren't qualities inhering to objects.  They're abstract signifiers, like Oklahoma's red and Texas's burnt orange.  They could as easily be reversed.  To think seriously about politics, including the politics of judging, we first have to rid ourselves of the habit of thinking by metaphor.  In concrete terms, the critical distinction between political systems is in the concentration of power they permit.  Is political power concentrated in a single individual?  Or in a clique, or a party, or a single branch of government?  Is economic power exercised by the state, or by highly concentrated corporations?  Or is both political and economic power widely dispersed?

If we think in those terms, Simon's definition acquires another shade of meaning.  If it is in the power of Supreme Court justices to "give the political branches a wide latitude to effect social and economic reform", doesn't that mean the elected branches acquire their political legitimacy from the courts, not from the voters?