JUDGING CRIMES

In 2003, the Supreme Court sternly set its face against overtly racist policies in the Dallas DA's office.   It would no longer tolerate blatant racism in jury selection practices in 1963.   (See post 312.)   Yesterday the justices just as firmly went on record opposing the jury selection process in a single Louisiana trial in 1996. 

It was a death penalty trial, and the historical southern record on death penalty trials involving Black defendants isn't entirely savory, and I don't know anything about the murder except that the New York Times reporter was most likely exhibiting his cluenessless when he reported this at face value:

[Convicted murderer Allen] Snyder was hoping to reconcile with his wife, Mary, and became enraged when she went out with another man on the night of Aug. 15, 1995, the trial showed. Early on Aug. 16, Mr. Snyder stabbed to death his wife’s date, Howard Wilson, and wounded his estranged wife as the two sat in a car.

I suppose it's possible that the reporter didn't realize that's the story told by everybody who kills his ex-lover or her new boyfriend, when explaining why he spent two weeks lurking around her apartment with a knife or gun.  But they say that only after serious discussions with their defense attorneys. 

Before that moment of enlightenment, they're much more likely to explain their motivation along the lines recounted in a recent story from the third-most-violent state in the nation (without Mr. Snyder's Louisiana, we'd be # 2, but their score was wind-assisted, which is hardly fair):

Investigators believe House went to see his ex-girlfriend Monday night who was at her current boyfriend Daniel Morris' house.

Police say the girlfriend claims while House was talking to Morris he pulled out a gun and shot Morris in the face killing him then allegedly pointed the gun at the woman, but told her he couldn't kill her adding that that if he couldn't have her no one could.

Still, I suppose that in the Louisiana case, it's possible the gentle Mr. Snyder really was bringing chocolates and flowers when he stabbed the fickle woman to whom he was so steadfastly devoted, as well as the evil seducer who had stolen her away while twirling his mustache.

The Supreme Court said its job was to evaluate "the prosecution’s two proffered grounds for striking" a certain juror - the seemingly-violent verb referring to striking a name off a list, in this case a list of  the people unable to come up with good enough excuses to be relieved of the burden imposed by a juror summons.   In both criminal and civil cases, all sides are permitted to have some influence over the selection of a jury by rejecting x number of panel members (the number varies from state to state and even from case to case).

Neither side has to have a reason for striking a prospective juror's name off the list, except in the negative sense that neither side is permitted to strike a juror for racist reasons.  The intention for that negative limitation,  wholly laudable, is to eliminate racism in jury selection.  But what actually happened in Mr. Snyder's case was this: the Supreme Court, reading the trial transcript 12 years after the fact, asked itself whether the prosecutor's "reason proffered for the strike of" a certain juror was sincere or not.

Mr. Snyder's attorney, Stephen B. Bright, provided the Times with the obligatory bit of self-righteous gloating, saying "the ruling meant that 'the court has resoundingly told judges and prosecutors throughout the country that the practice of striking people from jury service based on their race must cease.'"

That's what I would've said, too, if I were in Mr. Bright's shoes.  But it's not even remotely true.  The Court didn't condemn the racism of the jury selection, but rather "[t]he implausibility of [the prosecutor's] explanation".  And, you know, they're not the same.

The Court resoundingly told prosecutors (and defense attorneys, at least in theory) throughout the country that if they're going to strike members of definable minority groups from a jury panel, they need to work out more plausible explanations.

In other words, they need to plan it out beforehand.

It's always seemed perfectly obvious to me that any halfway-intelligent racist would always have a solid, plausible excuse for excusing a minority juror.   Five minutes' research on the computer will give you a stockpile of a dozen excuses that have been found plausible by appellate courts: he wouldn't meet my eye, judge; or, he looked like he was falling asleep; or, he silently mouthed obscenities at me when no one else was looking: "If looks could kill, judge, I wouldn't be sitting here now."  Or (and this would have worked in Mr. Snyder's case), "I've always found that college teachers tend to be know-it-alls who try to dominate the jury."  

It's easy to provide a phony-but-plausible explanation for striking a Black juror.  Which means: attorney explanations will seem implausible to the Supreme Court only when the attorney in question wasn't trying to BS the judge.  

The Supreme Court's approach (generically known by the name of the founding case, Batson) depends on the racist attorney being dishonest with the Court but only carelessly so.  It's aimed squarely only at ineffectual racists -- but it also catches non-racist attorneys who haven't felt any need to stockpile phony excuses to meet such exigencies.

Effective racists, ones who've given the matter thought and planned ahead, are free to go about their business.

The Supreme Court's approach can be justified on the grounds that (a) it gives white, conservative justices such as Kennedy and Alito the chance to preen; and (b) it's the best the Supreme Court can do.  It's well-intended.  Which, you know, is nice.  But what if the intention isn't the same as the result.  I mean, that's possible, isn't it?  Even for the Supreme Court?

The whole theory of Batson is that an attorney's explanation for an action isn't the same as the attorney's reasons for taking that action, but that the explanation provides all the information you need to evaluate the reason.  That's probably not strictly self-contradictory, but it's edging pretty close.

Treating the intention as if it were the reality, treating different things as if they were the same -- I must admit the approach has tradition on its side.  (See post 346.)  And this a profession that's big on tradition.

You want to know how backward New Mexico Territory was in 1901?  Would you believe - as backward as Slate is today?  The territorial supreme court was filled with patronage hacks appointed from Washington (so, okay, it was thoroughly up-to-date and modern in some respects).  Here's how one of its opinions began:

On a conviction of rape, where there is no corroborating evidence, nor a single corroborating circumstance, and where none of the incidents testified to as attending the commission of the offense are within the domain of reasonable probability, the affirmance of the conviction would be to establish a dangerous precedent. We are of the opinion that there is not sufficient evidence on the part of the prosecution to justify this conviction. There should be some corroborating evidence or circumstance, however slight, or a reasonable probability of the truth of the assault, to justify a verdict of guilty. There is not, in the whole case, any corroborating evidence, nor a single corroborating circumstance, and the probability of the commission of the alleged offense is so far outside of the domain of reason that there was absolutely nothing for the consideration of the jury except the bare improbable statement of the prosecutrix.

("Prosecutrix" was the name used in rape cases to make clear who was the real victim.  Its usage died out only in the 1970s.   See post 139.)   The justices of the brand-new twentieth century didn't spare us their Olympian wisdom:

An outcry in such circumstances, if the prosecutrix were an unwilling participant, would have been intuitive and natural. It would have been the involuntary scream for assistance in impending danger. The outcry is not the result of consideration or deliberative thought. It is always impetuous, and in the feminine nature it is natural and immediate where there is a desire for assistance or protection. ... Surprise never paralyzes the feminine tendency to scream when danger seems imminent.

And, just in case you're still prepared to believe the justices had the slightest interest in providing justice to the woman, here's where they really strain to set you straight:

To constitute the crime of rape under our statute, there must be “resistance,” and it must be “forcibly overcome”; and this must appear by the evidence, to justify a conviction. It is not sufficient that the carnal act be violently accomplished, or that it be without her consent. The lack of consent may be mere reluctance, and a violent accomplishment of the carnal act without consent merely is hardly more than to say that the act was violently done.

Well, it could have been worse for the victim in the case: she could have been married to Justice McMillan, the author of the opinion.  (The case is Territory v. Mares, 65 P. 165.)

But it's not as if McMillan was uniquely contemptuous of the scream-prone gender: he cited cases from New York, Michigan, Nebraska, California, Iowa and Minnesota in support of his conclusion that a conviction for rape can never rest upon the mere testimony of the slut. 

"Slut" is used advisedly, because that's what McMillan meant.  He, of course, wouldn't have been so vulgar as to actually say what he meant, but he made it pretty clear: "there is some of the testimony of the prosecutrix too vulgar to be repeated. It indicates such a degree of familiarity with the depraved parlance of the street and the brothel that the conclusion is imperative that she had an experience of the world not limited to the single alleged incident." 

(So the same man able to contemplate with equanimity - well, perhaps with a sudden racing of his heart, a sweatiness of his palms, a constriction in his throat - the "violent accomplishment of the carnal act without consent" was offended by a woman's use of slang to describe what happened to her.  Is it necessary to add that she was of the lower class, being employed as a servant?  And are you surprised to learn she was also handicapped, being hearing-impaired?  See post 186.)

He quoted a New York judge who overturned a conviction for a shipboard rape: "In such cases, although the woman never said 'Yes'-nay, more, although she constantly said 'No,' and kept up a decent show of resistance to the last,-it may still be that she more than half consented to the ravishment."  (That's People v. Hulse, 3 Hill 309.)

But all that was well over a century ago.  That shipboard case dates all the way back to 1842.  It was the dark ages then.  There's no comparison to our enlightened selves, right?

Well, it's true that in the 1970s, during the first wave of feminism, American states dropped the rule that a rape conviction couldn't rest on the mere testimony of the victim.  The new rule was that if the jury believed the victim, that was good enough.  Specified varieties of corroboration were no longer required.  (The history can be traced in the nearly-lifelike prose of the annotation found at 31 A.L.R.4th 120.  If you don't know what that citation means, it means you've escaped an assault on your literary sensibilities.)

But now Slate - good old Slate, the online magazine founded by Michael Kinsley and home to Dahlia Lithwick - is standing athwart history, yelling Stop. 

In one of those pieces so wonderfully revealing that you can't help feeling a little embarrased for the author (David Feige), Slate has come out foursquare in favor of a return to 1901, if not to 1842.  Ostensibly writing about the Duke case, which I called 14 months ago (see post 102), Feige explains why all prosecutors are, by virtue of their profession, Rosemary's babies:

Mike Nifong [the disgraced DA] did what prosecutors almost always do when a complainant comes to them alleging a sexual assault: He took his complainant at her word and went full speed ahead with a prosecution. The fact is that few if any prosecutors wait for corroborating evidence or insist on more than one person's say so before initiating a sexual assault prosecution.

I honestly wouldn't have thought it possible that anyone, anywhere, would be so recklessly reactionary, so stridently anti-feminist, to actually come right out and call for a return for the good old days when men were legally authorized to rape women so long as they left behind no corroborating evidence.  But here's Feige, living down his name, bold enough to come right out and say that we need to get back to the nineteenth-century patriarch's view of male-female relations.

The article is well worth reading for its humor.  The funniest bit:

As Angela Davis explains in her book Arbitrary Justice: The Power of the American Prosecutor, young prosecutors too often see their goal as winning rather than doing justice. The culture of their offices and the adversarial nature of the criminal justice system push them in this direction. Over time, they move further toward, and eventually across, the line separating fair play from systemic manipulation.

No, not that Angela Davis.  This is Angela J. Davis, who acquired her intimate knowledge of the secret lives of prosecutors as a public defender.   Feige, a fellow public defender, appreciates her insight into the minds of that tribe of sub-humans - if "mind" isn't too strong a word to use to describe the mental apparatus of pod people utterly devoid of moral sense.

No, wait, there's an even better bit:

There are, of course, a few particularly egregious cases [of "prosecutorial misconduct"] that leave visible traces in appellate records. A 2003 study by the Center for Public Integrity found nearly 11,500 such cases. Of them, four out of five were shrugged off as harmless errors.

It's wonderful, really, attaching the label "particularly egregious" and then reasoning from that lighter-than-air premise that the roughly 9,200 judges who found the cases non-egregious must be moral defectives. 

But what I want to know is: why are lawyers helpless to prevent themselves from using that particular word?  "Egregious" is like a verbal tattoo, identifying the bearer as a member of the gang.  My guess is that it's actually a kind of scar produced by the trauma of law school.

The Warren Court was such a flashpoint during the 1960s that it's easy to fall into the mental habit of thinking of its members as '60s sort of guys.  But when you consider they were actually pretty old by then, you might need to revise your mental image a little bit.  How about Dave Brubeck horn rims and black-and-white suits?

Well, push it back a little more.  Back to, say, Queen Victoria.   1961's Warren Court was composed of people who were born during the presidencies of Chester Arthur, Grover Cleveland and Benjamin Harrison.  The youngest member was whiz-kid Potter Stewart, and he was born before Wilson ran for reelection (against a former Supreme Court justice).  When little Potter toddled, Wilhelm was still Kaiser.

Some historians like to talk about the "long nineteenth century", stretching from the beginning of the Napoleonic Wars to the end of World War I.   By that measure, all the Warren Court justices of 1961 were born in the nineteenth century.  The  Stutz Bearcat was the dream car of their youth ... or early middle age.

The age of the Warren Court justices of 1961 directly affected their jurisprudence in two pretty obvious ways.  The first, already mentioned a few times, is that they belonged to the last generations before the advent of pop psychology.  Freud and Jung were new characters on the scene as they were growing up, and B.F. Skinner was a phenomenon of their declining years.

You can learn a foreign language in middle age but it will never become a part of you.  It will always remain an exercise that you perform.  The justices of the Warren Court understood psychology in that clumsy way.  It was something they tried to teach themselves as adults.   And that explains a good deal of what they did to American society.

The other way in which the justices' age determined the course of their jurisprudence was in their conception of the police.   It's easy to forget that police forces were a 19th century innovation.   Most American towns acquired their first municipal police forces only during the era when our Warren Court justices were being born.  But those first professional forces were were professional only in the sense that the cops got paid.  The idea that law enforcement was more than a patronage job was slow to develop, and the consequences were dreadful.

In 1932, Dearborn police killed four striking Ford workers.  In the same year, the Wickersham Commission published its findings on official lawlessness, publicizing the "third degree" that would become so familiar in countless Warner Bros. films.   Five years later, Chicago police massacred strikers at Republic Steel.  In California during the years that Earl Warren served as Alameda County District Attorney, cops served as management's hired thugs in the Imperial Valley and on the Monterey Peninsula.  As for the LAPD of the era, well, now you know the source of James Ellroy's novels.

It wasn't at all irrational for the Warren Court justices of the 1960s to think of cops in terms from the 1930s.   It might even have been accurate.  But one of the effects of their jurisprudence is to make that way of looking at police officers - the appalled, slightly frightened and covertly sneering attitude of a raccoon-coated university man - a seemingly-permanent part of American judicial culture, impervious to any real-world change in the way cops are hired, trained and supervised.

What's the difference between a sociologist and a judge?  One has data but no power.  The other ...  But a lack of data has never stopped judges from practicing sociology and psychology.  And in many ways it's actually easier to be a social scientist if you don't know what you're doing, because then you're not inhibited by that pesky university-bred disapproval of fabricated data.

 Thus, for example, if a 14-year-old niece were actually raped by her 49-year-old uncle, she would have described it to her aunt at the first opportunity.  That's simply a fact.  That's what all 14-year-olds raped by their uncles do.  "What more natural than if she had suffered this terrible outrage that that she should have informed her own aunt, her mother's [and the rapist's] own sister?"   Since she didn't, it unavoidably followed that she wasn't raped.  (Goodale, 109 S.W. 9 (Mo. 1908)) 

See how easy it is if you don't let an absence of data discourage you from making generalizations?

In the Goodale case, the defendant told his sister that the 14-year-old had been screwing around with some man, which the court took as evidence of his avuncular concern for her welfare, and as further evidence of her sluttishness.  That seems like wilful blindness - anyone today would find the uncle's interest in his underaged niece's sex life creepy, at best, and would wonder if his remark wasn't his way of preparing the ground for the accusation he had every reason to anticipate. 

But the case was decided in 1908, the year before Freud and Jung visited Clark University.  (Here's the famous photo of the event.)   In the era before the basic concepts of psychology permeated American society, it was perhaps understandable that well-meaning male judges might honestly believe that a child raped by her uncle would inevitably react in a certain stereotyped way, following a script written by other male judges of the past.

But once educated Americans began to understand the type of distorted thinking produced by cross-currents of humiliation, shame and physical pain -  not to mention the amazing human capacity for blaming oneself for one's misfortunes - surely, by the time those concepts came to be topics for Reader's Digest judges were no longer quite so confident that every victim of sexual assault must necessarily live up to the judges' expectations.  Right?

Well, no.  The Illinois Supreme Court of 1950 informed us that "[w]here the injured female testifies to the commission of the rape, evidence of complaint by her soon after the occurrence, or at first opportunity, is competent, not to prove the commission of the act but to corroborate her testimony."  But where the prosecution fails to call the first people she came into contact with, including a taxi driver, their non-testimony is evidence that she was not actually raped.  (Scott, 95 N.E.2d 315 (Ill. 1950)) 

(Note the pseudo-distinction: such testimony is not required to prove the commission of the rape, but to corroborate testimony that the rape was committed, corroboration that, of course, would prove the commission of the rape - a fine example of "the first distemper of learning, when men study words and not matter".  See post 129.)

The Illinois court added that it is "a fundamental rule in such cases ... that voluntary submission by the female, while she has power to resist, no matter how reluctantly yielded, amounts to consent and removes from the act an essential element of the crime of rape."  There are only two possibilities: that she consented, or that she did not consent. 

That distinction was based on the words of the statute, but it was only the foundation for the peculiar edifice the justices constructed.  For how can you tell whether a woman consented?  Her word against his isn't nearly enough.  That was established long before: "Lord Hale once aptly observed that an accusation of rape is easily made, hard to be proved and still harder to be defended by one ever so innocent. "  (That quote found its way into the Missouri case of 42 years earlier, too.) 

It didn't matter that Lord Hale's quotation made no sense at all.  How was it ever easier to allege rape than, say, robbery?  How was it ever harder to disprove?  On the contrary, the humiliation inflicted by the legal system always made rape the hardest of accusations to make - but only in real life.  Inside the courtroom, Hale's weird dictum was the higher reality.

The Illinois Supreme Court explained that there were two categories of criminal cases - rape cases, and all others.  In the former cases, the victim was a "prosecutrix" ( a term still occasionally encountered today).  No other victim of violent crime was given a special label, one that implied she was the instigator rather than the victimized. 

In all other criminal cases, the jury decided which witnesses to believe.  Appellate judges asked only if the jurors had taken leave of their senses.   But "reviewing courts are especially charged with the duty to carefully examine the evidence in rape cases.   It is the further duty of a reviewing court, ... to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt".  Not only the jurors but the appellate judges had to be subjectively convinced beyond a reasonable doubt.

Since the jury couldn't be permitted to decide for itself which of the witnesses was believable and which was lying, that duty unavoidably fell to the appellate judges, a group of men who never saw the witnesses or heard their voices, and had only an error-riddled transcript to go by.  (All transcripts are error-riddled.  A 99% accuracy rate means a minimum of two mistakes per page.) 

Given that they had no actual basis on which to determine credibility, the Illinois justices relied instead on logic, or rather sophistry.  Aristotle's famous example of the fallacy of "affirming the consequent" goes like this: The ground is wet when it rains; right now the ground is wet; therefore it's raining.   The way it worked for the Illinois Supreme Court was: Women who are really raped never stop fighting while strength remains in their body; this woman quit fighting after she was beaten up, even though strength remained in her body; therefore she wasn't really raped.

What the justices were saying, whether or not they were sufficiently conscious of the meaning of their work to realize it, was that the world's female population was divided into four categories:  (1) women who are raped, and (2) women who are not raped; and, (A) women who fight to the last, and (B) women who don't fight to the last.   And - this is the real holding of the case - those four categories were really only two: women in category (A) are also in category (1), and so - therefore - women in category (B) also belong to category (2). 

But where did the court come up with the sociological / psychological data that categories (A) and (1) are perfectly coextensive?  What evidence did it have that victims of rape universally fight to the last?  The court was writing just two years after the first Kinsey Report.  Were adequate datasets really available to them?  How reliable were the researchers' methods?  What statistical analyses were made?

The justices had none of that social-science stuff, but they had something far better: prior opinions by male lawyers even older than themselves.  Rape, after all, was a legal category.  A woman was raped only if a court affirmed the conviction of her attacker; and courts would do so only if she fought to the last; so, therefore, only women who fought to the last were raped.

Okay, but that was way back in 1950.  Closer in time to Queen Victoria's funeral than to our world of 2006.  It was the Dark Ages back then.  Surely by the time the enlightened '60s rolled around, things had changed.

Well, no.  In 1961 the same court reversed a rape conviction because "the testimony of the prosecuting witness lacks verisimilitude.  In such instance the evidence of a prosecutrix should be corroborated by some other testimony, fact or circumstance."  (Qualls, 171 N.E.2d 612 (Ill. 1961))  And why did it lack verisimilitude?  Among other reasons, because the victim, once again, didn't tell the cab driver who drove her home.

Really.

The script written by male judges since Matthew Hale's day decreed that women who properly belong in the category of rape victims display certain stereotyped behavior.  For instance, the mere sight of a cab driver makes them start blathering on about every time they've been subjected to sex with some loathsome slug.  Therefore, the judges of 1961 ruled, it followed, as the rain precedes the wet ground, that any woman who doesn't follow the script belonged to the other category, that far larger category of women who use sex to make fools of men.

Still, 1961, that's ages ago.  Lawrence Welk had the Billboard # 3 single for 1961.  "The Twist" and "Duke of Earl" were still a year away.  Surely by, say, 2003, judges were no longer thinking in categories so entirely unrelated to observed experience? 

Why, yes.   That was the very year the Delaware Supreme Court ruled that a "Lord Hale instruction" should no longer be given in rape trials. 

In 2003.

My local paper ran a story today about a task force designed to eradicate racial profiling by the Albuquerque Police Department.  The first step, the task force declared, is to require police officers to record the race of every citizen with whom they come into contact.

The task force's co-chair, a former judge, explained: "What's not understood is that without data collection, we can't have a plan.  It's the heart of any city's biased-based policing plan."  (Yeah, but can he say "biased-based policing plan" five times fast?)

The logic is impeccable, but you have to wonder if making cops think about a person's race or ethnic identity is really the ideal first step in teaching them not to take a person's race or ethnic identity into consideration. 

In 1986, the U.S. Supreme Court took a firm stand against the systematic racial discrimination that characterized the American legal system of the 1950s and 1960s.  (See post 57.)  In a series of decisions that began that year with Batson v. Kentucky, the Supreme Court has ruled that, in order to prevent lawyers from engaging in racial discrimination during jury selection, lawyers must consider the race or ethnic identity of prospective jurors. 

The essence of the long string of cases interpreting and expanding Batson - Batson is what lawyers, with pre-Freudian innocence, like to call a "seminal" case, with lots of "progeny" - is that if there is any indication that a prosecutor is basing decisions on race during jury selection, the defense attorney has an obligation to call him or her a racist.    "Obligation" is not an exaggeration:  it's professional incompetence for a defense attorney to miss a chance to accuse the prosecutor of racism.  It doesn't matter whether defense counsel actually believes it.

(In theory, what goes around is sauce for the gander, but a prosecutor's successful Batson motion will only lead to a claim on appeal that the defendant was denied his right to challenge jurors.  So tables on this one-way street are only sparingly turned.) 

To eradicate the tendency to think of prospective jurors in terms of race and ethnicity, the courts insist that lawyers think of them in those terms.  Like the biased-based policing plan, the logic of Batson is impeccable and the purpose is noble, and yet one might wonder just a little bit about the real-world effect.

In his insightful book Racism: A Short History, George Frederickson writes: "the essence of racism is not biological determinism per se but the positing, on whatever basis, of unbridgeable differences between ethnic or descent groups".   That is also the essence of Batson.  All prospective jurors must belong to one or another group, and there are objectively-determinable divisions between them.  

Leonard Thompson was writing about the old South Africa when he wrote that "[t]he core assumption is that races are the fundamental divisions of humanity".  But that's the core assumption of Batson, too.  In the name of stamping out the thinking that conceptualized unbridgeable differences between ethnic and descent groups, the Court institutionalized it.

The idea that there is no reality outside the courtroom, or that if it exists it doesn't count, is central to the American judicial project.  Of course no one expresses the idea that baldly, but it's the underpinning of much conventional wisdom.  To take just the most obvious example, lawyers and judges tend to believe Roe v. Wade was a case about abortion rights, when in fact it was the founding document of the religious right, today the most influential political bloc in America. 

Another example of the phenomenon is illustrated by these figures from the Bureau of Justice Statistics, giving the number of executions in America during selected years:

1960   56   
1961  42  
1962  47  
1963  21  
1964  15  
1965    7  
1966    1  
1967    2  
1968    0  
1969    0  
1970    0  
1971    0  
1972    0  

It's hard to see these figures without suspecting that some sort of social consensus against the death penalty was coalescing in the late 1960s.  One website refers to an "unofficial moratorium."   The turning point came in 1972, when the Supreme Court - a trailing indicator of social changes, as always - declared the death penalty unconstitutional.   This gave supporters of the death penalty something concrete to oppose - something with which to stir up indignation, the most powerful emotion in politics, and the most easily manipulated.  

After  the Court backed down in 1976, the capital punishment trend line started going the other way, as shown graphically here.  By 1995 we were right back at the 1960 number, and in 1999 we executed no fewer than 98 prisoners, the highest number since 1951.  Only since the turn of the century has the 1960s trend reasserted itself.

Inside the courtroom, the Court's 1972 Furman decision put an end to executions.  Outside the courtroom, it was a gift to politicians cynically (or, for that matter, sincerely) using "law and order" as a wedge issue to persuade members of the white working class, the once-famous Reagan Democrats, to base their votes on social values rather than economic self-interest.  Roe v. Wade and Furman  didn't create the Republican Party's nation-changing Southern strategy, but they turbo-charged it.  To think of them solely in terms of the courtroom issues is to miss their greatest significance.

Inside the courtroom, it was a bravely liberal thing in the 1970s to champion the civil liberties of the severely mentally ill.  Outside the courtroom, the results resemble nothing quite so much as the British response to the Irish famine, especially after the autumn of 1847: a failure to utilize readily-available resources justified on the basis of abstract political theory, coupled with heavy reliance on sadly-inadequate charity. 

These are examples of legal solipsism on the grand scale.  But micro-examples are everywhere.  The court system is concerned only with whether the wife-beater's conviction was obtained with the use of hearsay in violation of his sixth amendment rights, not with what happens to his wife, or to the child who witnesses his mother's victimization.  Those things occur outside the courtroom, and that means they aren't real, or at least aren't real enough to influence the formulation of our government's response to violence. 

(For follow-up, see post 91.)

The great legal reporter Tony Mauro had a recent article in Legal Times about Alabama Supreme Court Justice Tom Parker.  The headline read: "Alabama Judge Declares War on U.S. Supreme Court: State justice says colleagues should 'actively resist' juvenile death penalty ruling".  Shades of massive resistance and standing in the schoolhouse door.

It's hard to imagine a less sympathetic cause than seeking to execute people who committed their crimes while children.  Alabama's Justice Parker seems particularly exercised that Roper v. Simmons is based on foreign law. In the echo-chamber of American media it has become accepted wisdom that Justice Kennedy ruled that foreigners can give new meanings to our Constitution, even though his actual opinion is a tad bit more nuanced than that: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."

Nonetheless, decisions such as Roper present us with a fundamental problem that only rarely gets addressed.  Most discussions of controversial cases turn on whether one approves or disapproves of the result.  First you decide how you feel about it, then you come up with reasons why you're right to feel that way.  That's typical of legal argument - lawyers construct their syllogisms backwards, beginning with the conclusions their clients want - but the process shouldn't be confused with thinking.

There are really only three possible explanations for Roper.  Either it's correct and the American courts grievously failed in their duty to enforce the eighth amendment for the first 214 years following its ratification; or else it's wrong and the Supreme Court itself violated the Constitution when it decided the case.  Or - the third possibility - the eighth amendment means something different now than it meant in 1791, or even in 1989.

Roper itself adopts the third possibility, referring to "our society's evolving standards of decency" as reflected by the actions of various state legislatures.  But note the oddity: by definition, standards of decency had not evolved in Missouri's society, or there would have been no case for the Supreme Court to decide.  And: if the actions of state legislatures reflect evolving standards of decency, why does the Supreme Court need to get involved at all?

 The underlying logic of Roper, and other eighth amendment cases before it, seems to be that the Supreme Court's role is to hurry along the process of evolution.  If a majority of states has enacted legislation restricting the death penalty, then it's the Supreme Court's role to sweep in the outliers by declaring the majority rule to be constitutionally required.  Git along little dogies.

But article V spells out how the Constitution can be amended, and it doesn't say anything about the Supreme Court keeping a tally of state legislation and then, at some point, declaring the Constitution amended by process of evolution.  The idea of the Constitution changing without amendment is contrary to its very concept as "paramount law, unchangeable by ordinary means".  If our elected representatives cannot change the Constitution's meaning by legislation, as the great anti-Jeffersonian Chief Justice John Marshall so famously declared, can five unelected justices change it by decision?  Marshall didn't think so: he thought that "the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature."

More fundamentally still, if one accepts the idea that the Constitution established a democratic government, the uncomfortable question is unavoidable: In what sense have the American people chosen to live under the constitutional rule announced in Roper?  The people of many states chose by democratic means to enact laws prohibiting the execution of people who committed their crimes as children.  (The Supreme Court, as always, is a trailing indicator of social change.)  But the people of Missouri didn't make that choice.  Can it really be said that, when they joined the Union, they agreed to surrender their power of choosing?  Did they really delegate their power of self-government to the Supreme Court with respect to the issue of the death penalty?

The answer to all these questions, I'm afraid, is: Justice Parker has a point, repulsive though his particular hobbyhorse  may be. 

The modern era of criminal law was born on June 19, 1961, when the Supreme Court issued Mapp v. Ohio, holding that held the non-textual fourth amendment exclusionary rule not only exists but applies in every state court criminal prosecution. 

Of the nine sitting justices of 1961, six were born in the 19th century: Frankfurter (b. 1882), Black (b. 1886), Warren (b. 1891), Douglas (b. 1898), Harlan (b. 1899) and Clark, the author of Mapp (b. 1899).  Justice Whittaker was born in 1901, while Justice Brennan first saw the light of day in 1906.  Potter Stewart, the baby of the Brethren, was born in 1915.

That means that eight of the nine justices were already born when Freud and Jung made their historic visit to the United States in 1909.  The justices were members of the last generation before popular psychology.  They lived through the 1930s craze for psychoanalysis that encouraged people like Judge Jerome Frank to make fools of themselves.  They also lived through the American reaction to all that Viennese obscurantism, the post-War can-do spirit of B.F. Skinner's behaviorism, which had its vogue in the 1950s.

For the eight old men on the Court, and for Potter Stewart as well, all of the various dogmatic schools of psychology were new.  Those of us born in later years can never return to the kind of intellectual innocence with which they, and all of their generation, first confronted Freud's and Skinner's ideas.

Today we accept, almost without thinking about their origin, the ideas represented by terms such as ego, libido, defense mechanisms, unconscious wishes.  But we discard, almost without intellectual effort, the crackpot grandiosity of so much of Freud's project.  Nine-tenths of what he wrote is simply ignored today.  Similarly, we can be comfortable with the idea of, say, intermittent reinforcement (it explains casinos, for instance) without experiencing any desire to live in Walden Two.

A skeptical-but-receptive attitude toward psychology is very nearly universal among educated Americans.  But the eight old men of 1961's Supreme Court didn't have the benefit of the experience, and insight, of the generation or two that separates them from most of us today.   They learned psychology as adults, and, like a person who learns a new language as an adult, they never fully mastered it.

That, I think, goes a long way toward explaining the justices' naive faith in the verities of behaviorism.  Mapp provides a view into what educated laymen in 1961 understood about B.F. Skinner's work. 

The age of the Warren Court justices is significant to our understanding of their jurisprudence in another way, too.  Three of them were already born when Henry Clay Frick unleashed the Pinkertons on the striking steel workers in Homestead.  They all lived through the 1930s, when union organizers were prosecuted for "criminal syndicalism" and police and National Guard troops were deployed against strikers, often with fatal results.  The phrase "Memorial Day Massacre" resonated with them in the way that "Kent State" did for a later generation.  This 1934 piece from The Nation gives a feel for the era.  Kevin Starr's wonderful Endangered Dreams provides both the detail and the panorama.

When we consider the times through which the eight old men (and Potter Stewart) lived, and the shock that the Wickersham Commission's report must have given them, we can better understand their belief in the need for rules of engagement to control police contact with citizens.  With considerable reason, they viewed the police as something like an occupying army, not a force that responded to the will of a democratic polity but very nearly the opposite.

I think these two views were fairly widely-held among older lawyers in the late 1950s: behaviorism explains all;  cops are lower-class thugs.   When you put them together, the solution almost jumps out at you.  The way to control the police is to employ the modern science of psychology, ca. 1960.  Provide negative reinforcement in the form of a withheld conviction and, voila! - watch the problems melt away. 

From a Supreme Court opinion:

A Dallas County district judge testified that, when he had served in the District Attorney's Office from the late-1950's to early-1960's, his superior warned him that he would be fired if he permitted any African-Americans to serve on a jury. Similarly, another Dallas County district judge and former assistant district attorney from 1976 to 1978 testified that he believed the office had a systematic policy of excluding African-Americans from juries.

 Of more importance, the defense presented evidence that the District Attorney's Office had adopted a formal policy to exclude minorities from jury service. A 1963 circular by the District Attorney's Office instructed its prosecutors to exercise peremptory strikes against minorities: " 'Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.' "  A manual entitled "Jury Selection in a Criminal Case" was distributed to prosecutors. It contained an article authored by a former prosecutor (and later a judge) under the direction of his superiors in the District Attorney's Office, outlining the reasoning for excluding minorities from jury service. Although the manual was written in 1968, it remained in circulation until 1976, if not later, and was available at least to one of the prosecutors in Miller-El's trial.   (Record citations omitted.)

That Southern bigots resisted the participation of minorities in the legal system is hardly news.  Nonetheless there's something noteworthy about the quoted case: the Supreme Court issued it in 2003.

My teacher Marvin Mudrick liked to describe the Dadaists, during World War I, issuing a proclamation in protest of the Lisbon earthquake of 1755.  The difference between that and our Supreme Court condemning the discriminatory practices of the Dallas County prosecutor of 40 years ago is the difference between irony and undeserved self-congratulation.

Undeserved, because the question irresistably raised by the 2003 case is: Where was the Supreme Court when the people of Dallas needed it?  The Dallas DA and his staff deserve our contempt for getting away with what they did.  But it was the judiciary that let them get away with it.

(Incidentally, the Dallas DA's office is projecting the image that things have greatly changed during the intervening years, as I'm sure they have.)