JUDGING CRIMES

In an interview, B.F. Skinner, the great apostle of American behaviorism, once summed up the basic concept of the criminal law.  Statutes, he said, are "statements of contingencies backed up by the political systems of the country."  He meant that laws control people's behavior by providing aversive stimuli:

An aversive stimulus is the opposite of a reinforcing stimulus, something we might find unpleasant or painful.

A behavior followed by an aversive stimulus results in a decreased probability of the behavior occurring in the future.

This both defines an aversive stimulus and describes the form of conditioning known as punishment.  If you shock a rat for doing x, it’ll do a lot less of x.  If you spank Johnny for throwing his toys he will throw his toys less and less (maybe).

(That's from a very useful online summary provided by Professor C. George Bouree.)

An ideal system of criminal justice -  I think this is intuitively obvious, but it's also in line with behaviorist theory - would combine a 100% chance of discovery/punishment with a graduated system of punishments:  conditional discharge (i.e., warning); probation; weekend jail sentence; jail; prison.  In such a world, the certainty that committing a crime would produce  an unpleasant or painful stimulus would ensure that only the incorrigible - the psychopaths - would ever need to be sent to prison.

Described like that, my ideal system of criminal justice sounds like a cage with levers in a psych dept laboratory, but I think normal human society ran pretty much along those lines for long stretches of our history.  In his early masterpiece The Pursuit of the Millennium, the late Norman Cohn wrote:

To an extent which can hardly be exaggerated, peasant life [in the Middle Ages] was shaped and sustained by customs and communal routine. ...  Social relationships within the village were regulated by norms which, though they varied from village to village, had always the sanction of tradition and were always regarded as inviolable. 

Familial relationships, of course, added another enmeshing network.  In such a society, it must have been very difficult to commit a violent crime secretly.   The near-certainty of discovery must have been a  powerful disincentive. 

A possible illustration of this point, from a different historical era, is provided by Jill Mocho's terrific Murder & Justice in Frontier New Mexico 1821-1846 . (1821-1846 was the interval between Mexico's independence and the American invasion.)  Mocho's researches uncovered just 11 homicide cases for that entire 25-year span.  Doubtless many other homicides escaped  the archives because the alcalde never found anyone to prosecute - but, if anything, that only proves the point.  Social isolation made villagers vulnerable to mobile strangers, but their social self-sufficiency protected them from themselves.

Also, such tightly-knit communities, with extended kinship structures, were not good laboratories for raising psychopaths.  Too much stability.  Too many other people involved in the child's life.  Too many positive role models.

But watch what happens in behaviorist theory if the risk of discovery/punishment slips much below 100%.  The association between committing a crime and the aversive stimulus is weakened, or even ceases to exist, so that being caught and punished seems less like an effect produced by the commission of the crime and more like a random stroke of bad luck.  A different kind of association is created:

B. F. Skinner’s entire system is based on operant conditioning.  The organism is in the process of “operating” on the environment, which in ordinary terms means it is bouncing around its world, doing what it does.  During this “operating,” the organism encounters a special kind of stimulus, called a reinforcing stimulus, or simply a reinforcer.  This special stimulus has the effect of increasing the operant -- that is, the behavior occurring just before the reinforcer.  This is operant conditioning:  “the behavior is followed by a consequence, and the nature of the consequence modifies the organisms tendency to repeat the behavior in the future.”

When the risk of being caught/punished is reduced, committing crime becomes associated with pleasure: the pleasure of power and dominance over others, the pleasure of sadism, or the various pleasures available to a person who has suddenly come into money. 

It's not hard to see that the two most significant trends in American criminal law for the past half-century have been directed toward (a) decreasing the probability of a guilty criminal being punished (that's the purpose of the numerous  non-textual exclusionary rules invented since the 1960s); and (b) increasing the severity of punishment.  We've been moving aggressively toward a society that is the photo negative (will that useful metaphor survive the disappearance of film?) of the ideal.

What's really interesting is that no one - well, no one who doesn't own stock in private prison companies - believes these are healthy trends.  Given that the criminal law itself is the preeminent example of behaviorist principles in action, how did we arrive at a system that contradicts basic behaviorist principles?  Ironically enough, it's because five justices of the Supreme Court thought it would be a spiffy idea to apply the principles of behaviorism to the criminal justice system.

In an 1875 speech that is still quoted around the Web (here, and here), Michigan's Civil War Lieutenant Governor (well, someone had to keep the seat warm) Charles S. May praised the institution of the jury.  He contrasted (quite rightly I believe) "the aggregate wisdom of twelve men" to the findings of a judge, which "is but the wisdom of one man[.]  Do the scriptures say untruly, then, and is there no safety in a multitude of counsel?"

He then turned his eye from civil to criminal cases:

But it is in another and greater field that the trial by jury becomes a matter of supreme concern to the citizen, and rises to the dignity of one of the chief props and bulwarks of civil liberty.  Here its use cannot well be questioned.  Here, certainly, it needs no defense.  The leaning of the law, in criminal causes, should be to the side of protection and humanity.  And so it is declared to be.  The State is great and powerful, and overshadows the individual; and though it be necessary for its good that crime be prevented and punished, yet the State is not greatly harmed by the escape of a guilty man.  But the conviction and punishment by death or lingering imprisonment of an innocent man is a thing unspeakably shocking.  No care can be too great to prevent such a tragedy.  "Better," then, says the humane maxim, "that ninety-nine guilty men should escape rather than one innocent man should suffer."  And all our human hearts and sympathies respond amen to this.

This is, I think, a very modern attitude, widely adopted by judges from the Parthenon on down: the essential difference between civil and criminal litigation lies in its effect on the litigant.  A criminal prosecution involves, in this corner, the champeen, Leviathan.  And in the opposite corner, the challenger, Underdog.   And no one else is involved.

Myself, I think everyone else is involved.  Enforcement of the criminal law isn't necessary for the "good of the State", as May said, but for the good of people who are victimized by its violation.  Seven years ago, Justice Stevens, of all judges, quoted Holmes' pithy summary of the core rationale:

In his 1881 lecture on the criminal law, Oliver Wendell Holmes, Jr., observed: "The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed."

Lt. Gov. May is right that if a guilty person escapes punishment, it doesn't hurt the State.  It hurts the State's citizens instead.  We'll leave to one side the alienation experienced by so many victims of violent crime.  Quite apart from that, the escape of the guilty makes it that much harder for dangerous people to believe the State's warnings against antisocial behavior.  Each escape chips away at the psychopath's sole reason for not inflicting pain on others.

The effect of that on people who never step inside a courtroom can be profound in ways that might seem surprising.  For example, last month a team of researchers published an article examining "the relationship between child abuse and adult obesity, relative to other risk factors such as demographics, food insecurity, inadequate fruit and vegetable consumption, and physical inactivity, in a representative sample of California women."

What they found was that "[e]xposure to child abuse is associated with adult obesity among California women, even accounting for other relevant variables."  The authors describe this as a public health issue, and so it is, but that's not all it is.  "Exposure to child abuse" is a scientifically-precise euphemism for child abusers who aren't successfully prosecuted.

When child abusers aren't stopped by the state, one result is adult obesity in the victims.  The June study wasn't unique:  other studies, looking at different data, have come to similar conclusions.  Still others tie childhood abuse not only to adult obesity but to many other behaviors that are, in themselves if not in their causes, considered serious public health issues.

Dorothy Rowe, an Australian psychologist quite well-known in Britain, recently published a piece in New Scientist pointing out the similarities between the symptoms of hyperactivity and those of fear:

You are at home awaiting the arrival of the person on whom you feel your life depends. The person is very late. You try to watch TV but can't concentrate. You move from chair to window, from window to door. You make phone calls, check diaries, traffic news. A friend phones to chat, and you rudely tell them to hang up. The line must be kept clear.

You are exhibiting hyperactivity, impulsiveness, distractability and emotional lability (instability and changeability). A psychiatrist with no context for your behaviour might say you have been stricken with attention deficit hyperactivity disorder, because the symptoms of ADHD look the same as the symptoms of fear.

Rowe adds (in words not available on the Web): "There is another reason why doctors fail to see that these are the symptoms of great fear.  Like adults, children fear many things, but one thing all children fear is adults."  Children who live in fear - especially those who live in fear of the adults whose role in the child's life is to protect him or her - can hardly be expected to concentrate, to sit still, to be normal, happy children.

For the past few years, American media has been full of stories about the rising rates of obesity - here's a particularly vivid chart - and the fantastic leap in the number of children diagnosed with ADHD and treated with methamphetamine-like drugs such as Ritalin.  What doesn't get mentioned is that these rates are connected, and both began skyrocketing (why does that sound more vivid than plain "rocketing"?) a generation after American courts switched our society from an unconditional to a conditional criminal law.  (See post 5.)   

"[T]he State is not greatly harmed by the escape of a guilty man."  But the state's children are.

Yesterday's Washington Post featured two apparently-unrelated stories.  One headline read: "Md. Judge Dismisses Sex-Abuse Charges: Clerk Is Unable To Find Suitable Translator In Time."  The article explained how the defendant, a Liberian speaker of Vai, was accused of raping a 7-year-old girl, and the accusations were supported by DNA evidence. 

The clerk of the court found several Vai interpreters, but for various reasons they quit, so the judge dismissed the charges, finding that the defendant's speedy trial rights were violated. 

The right to speedy trial is, of course, protected by the sixth amendment, and also by the Maryland Constitution (art. 21).  I don't doubt that the judge's order of dismissal is "correct" - that is, easily defensible - under Maryland appellate decisions, since charges had been pending against the defendant for nearly three years, although he had been out on bail that whole time.  (Out on $10,000 bail - more than many shoplifters have to put up, I would imagine.)

But there's some little voice inside of me that wonders if, once the two sets of DNA results came back (the defense got their own, too), the defendant really and truly wanted a speedy trial.  Is it possible - just possible - that maybe what he wanted was charges to be dismissed instead?  And isn't that, I dunno, sort of like, you know, the opposite of wanting a speedy trial?   I'm just askin'.

The judge, who surely realized that the defendant was only pretending not to understand English (he had attended high school and college in Maryland), said that she was "mindful of 'the gravity of this case and the community's concern about offenses of this type.'" 

I don't doubt this particular judge's sincerity, but what does that phrase "the community's concern" mean?  The judge's conscious meaning might have been something like: "I really, truly don't want my name to become a catchphrase among talk-radio listeners, so I'm going to make a non-apology apology for what I'm doing to make sure everyone knows it's not my idea, okay?" 

But what she was really talking about, whether she realized it or not, is democracy.  The people of Maryland have said that people who repeatedly rape 7-year-olds should be punished.  The judge ruled - as I said, no doubt "correctly" - that a higher law prohibits the people of Maryland from having the type of government they want.   Under Maryland law, something that exists apart from the consent of the governed and (as the judge recognized) often enough in opposition to it, some things are more deserving of condemnation than raping children. 

One of them is making a man live for three years under the horrible cloud of possibly receiving a fair trial.  

Anyway, the other Post story was: "6 Shootings in 2 Hours Stir Worries About Violence: 11 People Are Injured In What D.C. Police Call An 'Unusual' Outbreak."   Wow.  "Worries."  Pretty strong stuff, huh?  Wouldn't expect the Post to go for such sensationalism, especially considering the shootings all occurred east of the Anacostia River, in an area bordered on two sides by Maryland, a long way from Georgetown.

Is there any connection between the stories?  Not directly - I don't have any reason to think the Liberian child-rapist (alleged child-rapist!  alleged! - doubtless Barry Scheck would back me up on this one, DNA evidence is far too ambiguous to allow anyone to reach any definite conclusions about guilt or innocence based solely on the result - see post 246) was shooting up anyone's house. 

But is it possible that actions taken with the best of intentions might have unintended consequences?  (The better question is: is it possible that they might not? - but that deflating realism would detract from the heightened rhetoric of this peroration.  See post 276.)  Is it possible that a government devoted, with a kind of unquestioning certitude difficult to distinguish from religious faith, to the idea that disregarding "the community's concern" is its "highest duty" - is it possible that such a government might produce conditions conducive to behavior that is  not merely contrary to the community's wishes, but detrimental to its well-being, and even to the continued life of some of its members?

Such as, say, "6 Shootings in 2 Hours"?

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.

A year-end AP story provided a list of causes for a recent rise in criminal violence - and it didn't mention the government.  (See post 212.)  But if the Missouri cops had caught Michael Devlin after the first boy was kidnapped, the second boy would have been spared the ordeal.

It's a banal point in itself, but it leads to a point that is not banal - that is, in fact, actively resisted by most lawyers and judges.

Here in Albuquerque a couple was murdered on New Year's Day, shot in their SUV.  The chief suspect - who left tracks in the record snow that dumped on us, leading police directly to his motel room - turned out to be wanted for questioning for a very similar shooting that happened last fall in Lubbock.  If Lubbock police had caught him, he wouldn't have killed the two women in Albuquerque.

This isn't to suggest that either the Missouri or Lubbock police failed to do their jobs.  There may not have been any more that they could realistically do.  But the cause-and-effect relationship between a failure to arrest and subsequent violence is obvious enough that courts are increasingly prepared to say that police can be sued when they don't arrest the bad guys fast enough.

Just a couple years ago, in a decision that was eventually reversed by the Supreme Court, a panel of Tenth Circuit judges ruled that Colorado police could be sued for violating a woman's constitutional rights

when [they] failed to enforce a restraining order against her estranged husband, Simon Gonzales, after he abducted the children. While Ms. Gonzales was seeking enforcement of the order, Mr. Gonzales murdered the children.

On those dreadful facts, the Tenth ruled, Ms. Gonzales was entitled to go to trial on the theory that the cops violated her constitutional "entitlement to have Simon Gonzales arrested."   (Here's the en banc opinion taking up more space to reach the same conclusion.) 

(The phrase "en banc" is meaningless in itself - "on bench" - but for some reason this scrap of gibberish is universally used in the American legal biz to signify all the judges, as opposed to the usual 3-judge panel.)

In 1997, New York's highest court concluded that sometimes survivors could sue the cops for failing to arrest a suspect.  That case once again involved a predictably murderous husband, proving the justice of the Alaska Supreme Court's observation that courts are most inclined to find against the police when confronted with "egregious facts".  That is, the police can't be sued for failing to arrest somebody - unless things turn out really badly.

(Of course, if the cops had arrested the suspect, thus preventing things from turning out badly, the arrestee could have sued for false arrest.  That's the beauty of the legal system - there's money for lawyers either way.)

The idea that a screw-up by the cops can lead to additional suffering is obvious enough.  But isn't it equally obvious that a screw-up by the criminal courts can do the same?  And (this is where it starts to get tricky) isn't it also true that sometimes adherence to the rules - that is, the failure to screw up - can also lead to unnecessary pain, degradation and death?

Tune in tomorrow.  Same bat-time, same bat-channel.

In his speech against a proposal to suspend the New York Assembly in retaliation for the colonists' refusal to knuckle under to prior Parliamentary acts, Edmund Burke helped us visualize the fundamental absurdity:

And then after you have made this Law to enforce your last: you must make another to enforce that - and so on in the endless rotation of Vain and impotent Efforts - Every great act you make must be attended with a little act like a Squire to carry his Armour.  And the power and wisdom of Parliament will wander about, the ridicule of the world.

(I admit that I haven't read quite all of Burke's Parliamentary addresses ...  I have this from Conor Cruise O'Brien's masterful The Great Melody: A Thematic Biography of Edmund Burke.)

I was reminded of the little acts trotting after great acts this morning when I received e-mail notification of today's Supreme Court deci -  Well, opinions.   In one, the court informed the anxiously-waiting world that although it had granted certiorari to tidy up some business left over from 2006, it chose not to decide the case, after all. 

In another, it had granted certiorari to decide whether a technical violation of formalistic rules for drafting an indictment (formalities that have long since been discarded by most if not all state courts) could be "harmless error" - the weird doctrine that says that a judicial act can simultaneously be a violation of the fundamental law of the land and no big deal.  But, in another damp squib, the Court decided not to decide that question, either. 

What the two cases have in common is that both reflect further attempts by the Court to define, once and for all, what is an "element" of an offense - what is sometimes called, in a culinary metaphor that doesn't bear thinking about, an "ingredient" of a crime.  (Seconds, anyone?)  And, once again - no, twice again - the Court has found it can't do it.

Back in 1970, the Court declared that the "proof beyond a reasonable doubt" standard was constitutionally required.   No big deal in itself - everybody had been using that standard for centuries.  But then the question arose: what must be proved beyond a reasonable doubt?  Well, the elements of the crime, which the 1970 case (Winship) defined as "every fact necessary to constitute the crime with which [the defendant] is charged."  Okay.  But what are the facts necessary to constitute the crime?

The succeeding 37 years have seen a ridiculous number of opinions trying to answer that question.  One line of hair-splitting tried to figure out if there was any difference between "elements" and the rebuttal of defenses - after all, if the prosecution is required to prove that the defendant didn't kill his wife in self-defense, doesn't that mean that absence of self-defense is a "fact necessary to constitute the crime"?  (Answer: yes and no.)

How about sentencing?   What's the difference between being locked up because of facts establishing an element and being locked up because of facts establishing a sentencing factor?   If a judge tacks on an extra five years because the defendant mooned the bench during the sentencing hearing, doesn't that mean, in effect, that mooning has become an element of the offense?  (Answer: yes and no.)

There must be at least 15 little cases trotting along behind 1970's big case.  Like Parliament trying to discipline the Bostonians, the Supreme Court is obliged to spend time and energy trying to get its earlier act obeyed.  And that obliges it to spend even more time and energy getting the squire cases obeyed.  Anyone who pays attention to the Court must be struck by how often it returns to the same subjects - a habit that might call to mind an even more disagreeable gustatory metaphor.

Today's two little fiascos weren't the result of the Court trying to do justice, or decide important issues, but of the Court trying (and failing) to defend its own prestige, which it so foolishly put on the line in 1970.  The words Justice Brennan wrote back then might look good on paper, provided you're not allergic to his lilac-scented prose.  But the experience of the last 37 years might nudge a non-judge to the tentative conclusion that, all things considered, it's better to figure out what your grand declaration means before you make it.

When people talk about the Supreme Court, they rarely discuss the real-world impact of the Court's decisions.  Partly, I suppose, that's because the impact is hard to measure - but that never stopped anyone from attributing every crisis, catastrophe or economic upturn to whatever president happened to be in office when it happened.  And it never stopped historians from patronizing the past, explaining how if only Napoleon had the military acumen of an associate professor, Russians would be bicycling their baguettes home today.  (Well, okay, skiing.)

But with acknowledgment that history isn't subject to double-blind trials, and moreover that, pace Scalia, it can't be fixed like a butterfly (or vampire), I think most people would agree that the Supreme Court's decisions have had an enormous impact on American society.  Lawyers are trained to think in terms of the decisions rather than their effects.  This is my first attempt to catalogue the effects, independent of the decisions themselves and without regard to their doctrinal justification or lack of justification. 

Like any greatest hits collection, it's subject to revision.  But on this particular afternoon I would rank these as the Court's most consequential contributions to American society:

• Racial segregation.  Histories of American apartheid, such as Woodward's classic The Strange Career of Jim Crow, make the point that the most grotesque formalized segregation was, to an extent that most Americans today find surprising, a 20th century phenomenon.  That's because it was only in 1896 that the Supreme Court said that "equal protection of the laws" didn't mean, as the legally unsophisticated might have assumed, the equal protection of the laws.
• The 9/11 terrorist attacks.  As discussed in post 163, the Court's fatuous decision to allow a purely political lawsuit to proceed against the President compromised the President's ability to respond to bin Ladin's first terrorist attacks against American targets.  Clinton was severely criticized, among others by the current governor-elect of Nevada, for attempting to assassinate bin Ladin and destroy the al-Queda infrastructure - the theory being that he was only trying to divert attention from a pseudo-scandal remembered today only as a punchline.  As the 9/11 Commission reported, "the 'wag the dog' slur[ and] the intense partisanship of the period ... likely had a cumulative effect on future decisions about the use of force against Bin Ladin."  Which is to say, the Supreme Court likely had an effect on those decisions.  Does anyone today doubt that those decisions contributed to 9/11 - that Clinton's mistake wasn't being too aggressive, as the Republicans said in 1998, but the reverse?
• The Iraq war.  In the recent midterm elections, I think nobody other than Rupert Murdoch (that is, Fox News) was defending the Iraq war.  At least, no one defends the conduct and present reality of the war, even if they believe the original goals (whatever they were, exactly) remain valid.  No one knows how to avoid the catastrophe barreling down on us like a wrong-way train on our track.  Would we be in this national lose-lose situation without the Court's two Bush v. Gore decisions?
• The Civil War.  The one, perhaps, was truly inevitable, but Chief Justice Taney's invention of the original-intent school of constitutional "interpretation" - a premodern precursor of postmodern literary criticism (see post 194) - may have accelerated its advent, and it certainly used the moral authority of the Court to muddle the constitutional case for living up to the ideals expressed in the Declaration of Independence - you know, that bit about "all men are created equal".  The post-Civil War Supreme Court stuck very closely to Taney's constitutional conception, culminating in its 1896 nullification of the equal protection clause.
• The lynching of Leo Frank.  This one, unlike the others mentioned so far, actually had a legal justification (although it's a justification the Court discarded just eight years later).  In 1915 the Court declined to involve itself in a state prosecution when the allegation was that an innocent man was condemned to death in a trial dominated by a racist mob.  The Court's decision  led directly to the innocent man's painful, degrading death.  There are many excellent books on the case, including this one, and numerous superb websites, including this.  The decade following the Court's 1915 decision was - not by coincidence, I think - dominated by anti-black pogroms (usually euphemistically called "race riots") and institutionalized anti-Semitism.
• Political races decided on the basis of fundraising and TV ads.  In the wake of Watergate, Congress passed comprehensive campaign finance reform, which the Court gutted in one of its most fatuous-ever decisions.  The Court explained that, because money made TV ads possible, therefore money was speech protected by the first amendment.  By the same logic, because the cord to your living room lamp makes illumination possible, therefore the cord is electricity.  (See post 133.)   The Court gave television stations a huge financial incentive to limit election coverage - why give away what you can sell?  The diminution of television journalism, in turn, has helped to reduce our nation's political life to the present sad spectacle of multi-millionaires running for office on platforms no longer than 30 seconds, consisting entirely of appeals to emotion and mostly compounded of personal attacks and lies.  (See post 180.) 
• Anti-Asian discrimination.  The extraordinary violence visited upon Asian immigrants to America in 1880s is something most Americans prefer not to know about.  See this website, and this one, and this one.  In 1889 the Supreme Court found nothing at all wrong with anti-Chinese legislation.  But, it must be said, at least it didn't go quite so far as the California Supreme Court, which ruled that the Chinese couldn't testify in court, even - or especially - when they were the victims of violence or economic exploitation.  But then, the U.S. Supreme Court had no need to rule after the California court did.

It might well be said that the Supreme Court wasn't solely responsible for any of the above.  But then, the same could be said with respect to any economic upturn/downturn, and yet we don't hesitate to credit/blame our favorite/most despised elected official.  I think the Supreme Court had more influence on each of the above than any president has ever had on the unemployment rate.  But tell that to the ghost of Herbert Hoover.

A Reuters piece says Democrats are up in arms about a TV movie about the years before the 9/11 attacks.  The movie supposedly "suggests the Clinton administration was too distracted by the Monica Lewinsky sex scandal to deal properly with the gathering threat posed by Islamic militants."

That's a change from what folks were saying in 1998, when President Clinton ordered a military attack on the Afghanistan training camps run by Osama bin Laden.  Back then, the accusation was that Clinton was "wagging the dog" - indulging in a showy attempt to distract the nation from the far more serious issue of whether fellatio counts as having sex.  (The phrase came from the name of a movie based on the tired Hollywood conceit that Hollywood's hollowness, venality and deceit is nothing out of the ordinary in American life.)

Jim Gibbons, currently running for governor of Nevada, voiced his opposition to military strikes against bin Laden, saying: "I think this has all the elements of that movie.  Our reaction to the embassy bombings should be based on sound credible evidence, not a knee-jerk reaction to try to direct public attention away from his personal problems."  Here's a lot more in that vein.

The foreign press was, if anything, even more brutal.  The Sydney Morning Herald (which bills itself as "Australia’s most prestigious daily newspaper, reaching discerning and involved readers who trust its independence, authority and integrity" - Crikey!  Subtlety isn't the Aussies' strong suit, is it?) ran a long piece on August 29, 1998, reporting that the Americans' source for believing bin Laden was involved in terrorism may have been a Mossad plant, and adding: "Business people, diplomats and aid workers of other countries, including Australia, have become unwilling front-line soldiers in a war declared by a US president who, according to his critics, took up the cudgels merely to distract a domestic audience from his much-publicized sexual indiscretions." 

(Note the reporter's description of one of bin Laden's murderers: "'We knew we were under attack and we wanted to hit back, but we could do nothing,' said Maaz Ali, 19, of Bahawalpur, in Pakistani Punjab, tears of frozen rage brimming in his eyes, as he recalled the night the sky lit up over Khost."  Must have been pretty cold that August.  And it was pretty observant of the reporter to notice, wasn't it?  I mean, I can't begin to count the number of times I've talked to people without even registering whether their rage was frozen or not.)

So back in 1998, Clinton's attempts to take out bin Laden were denigrated as attempts to distract the nation from the scandal of his sex (or, perhaps, non-sex) life.  Now, in 2006, Clinton's failure to take out bin Laden is viewed as evidence that he himself was distracted by that scandal, or perhaps by the philosophical question it raised.

My own long-held suspicion is that the "wag the dog" meme made it politically very difficult for Clinton to take more forceful action against bin Laden.  Which is another way of saying that it contributed to 9/11. 

Justice Stevens was guilty of perhaps the most fatuous statement ever made by any judge in American history when he said that Paula Jones' suit against Clinton "appears to us highly unlikely to occupy any substantial amount of [the President]'s time."  The lawsuit authorized by the Supremes set in motion the investigation into Clinton's relationship with Lewinsky, the White House intern.

When the Court decided that anything a federal court does is, by definition, a higher priority than anything a President does - and that, I'm afraid, is the essence of Stevens' opinion - it created a whole host of cascading problems for Clinton.  At the very least, the Court's decision complicated Clinton's response to bin Laden's murderous attacks against the American embassies.

And doesn't that lead to the conclusion that the Court bears some responsibility for bin Laden's follow-up to those attacks?

Insight into our legal system can be found in some of the most unexpected places.  Such as Michael Burleigh's Earthly Powers: The Clash of Religion and Politics in Europe, from the French Revolution to the Great War, the introduction to which includes several pages devoted to Eric Voegelin, the Baton Rouge-based Nazi refugee who described himself as a "pre-Nicean Christian," according to a recent study. 

In his best-known work, Voegelin wrote that "[i]n the Gnostic dream world ... nonrecognition of reality is the first principle.  As a consequence, types of action that in the real world would be considered as morally insane because of the real effects that they have will be considered moral in the dream world because they intended an entirely different effect."

Burleigh quotes that passage, and then about 50 pages later he quotes Tocqueville on the French Revolution:

Above the real society ... there was slowly built an imaginary society in which everything seemed simple and coordinated, uniform, equitable, and in accord with reason.  Gradually the imagination of the crowd deserted the former to concentrate on the latter.  One lost interest in what was, in order to think about what could be, and finally one lived mentally in that ideal city the writers had built.

And then, in V.S. Naipaul's great novel Magic Seeds, the main character writes a letter to his sister reflecting on his experience fighting a guerilla war in India:

That war was not yours or mine, and it had nothing to do with the village people we said we were fighting for.  We talked about their oppression, but we were exploiting them all the time.  Our ideas and words were more important than their lives and their ambitions for themselves. 

All of them might have been talking about America's criminal justice system since the 1960s.   William O. Douglas declared that the Constitution forbade the punishment of an indisputably-guilty sadistic rapist (see post 151 and post 47).  That was morally insane, but Douglas and a couple generations of law professors considered it moral because it was intended to serve a noble, if rather vague, ideal.  Douglas and the professors considered their ideas and words more important than the life of  Essie Mae Hodson.  Beating her to death in the very act of raping her was less to be condemned than the state court's adherence to a state statute.

(It is telling that Douglas's Supreme Court opinion doesn't even give the victim's last name.  For that matter, his opinion doesn't mention her first name, either, except in the passage from the prosecutor's closing argument it quotes only to declare it unlawful.  She was a nonentity in Douglas's dream world.)   

The essence of the non-textual exclusionary rules, and of the Rules of Evidence, is that juries should not be permitted to hear evidence relevant to their civic duty to enforce democratically-enacted laws - that, in fact, it is the judiciary's duty to prevent that from happening.  This leads to the release of dangerous sociopaths into the general population - sociopaths emboldened by the realization that being caught red-handed by the police does not necessarily mean legal punishment. 

The consciences of judges aren't disturbed by the suffering guaranteed to ensue from the sociopaths' release because the judges' refusals to enforce laws against criminal violence are intended to have an entirely different, and entirely beneficent, effect.  Our criminal justice system is concerned with the intended effect only, not the actual effect.   The Supreme Court has commanded the nation's criminal court judges to live in an ideal city floating above the real world, like Gulliver's floating island.

The title doesn't refer to the Justice's sense of humor, which tends toward heavy-handed sarcasm.  Nor am I commenting on the fact that a person who dishes it out so enthusiastically should prove so thin-skinned himself (look at paragraphs 17-24 of this Charles Lane story).

I'm writing about Crawford v. Washington, the 2004 case in which Justice Scalia rolled out only the third version of the confrontation clause in our nation's history.  Version I lasted 189 years, but version II (Sixth Amendment 1980) was scrapped after just 24 rocky years, although it lingers in many courtrooms as a legacy system. 

Version III (Sixth Amendment 2004) was rolled out with great fanfare by Justice Scalia in an opinion that neatly captures both the justice's great strength (no one demolishes like Scalia) and his great weakness (he has no talent for creating new systems to replace those he trashes).  So far as I know, it's the only case that has a blog devoted to it, maintained by a true Founder of the new and improved sixth amendment, Professor Richard D. Friedman.

In the course of his Crawford opinion, Justice Scalia made a telling point about the unpredictable results achieved with multi-factor analyses of the type heavily in vogue among the justices of the 1970s and 1980s, roughly the same period during which this look was cutting-edge:

[T]he nine-factor balancing test applied by the Court of Appeals below is representative. [The result reached] depends heavily on which factors the judge considers and how much weight he accords each of them. Some courts wind up attaching the same significance to opposite facts.

Justice Scalia's Crawford opinion went on to declare that the truly decisive question is whether a given item of hearsay evidence is, or is not, "testimonial" - while "leav[ing] to another day" any explanation of what that word might mean.  Since 2004, naturally, courts have busied themselves trying to define the word, or rather trying to anticipate how five justices of the Supreme Court might choose to define it in the next few years. 

One of the California Courts of Appeal (why is it only one Appeal in California, but Appeals in every other intermediate appellate court?) recently tried to articulate what Justice Scalia was getting at:

The determination of whether a statement is the product of police interrogation and thus testimonial, in our view, does not rest upon one feature, such as whether the statement occurred in a “formal” setting, was the product of “structured questioning,” or constituted a spontaneous statement.  Instead, the resolution of whether a statement was the product of police interrogation requires a fact-specific inquiry into a variety of circumstances. 

The court then helpfully explained what circumstances (or are they factors?) must be considered (or is it weighed?):

These factors include [1] the time at which the statement was given in relationship to the crime; [2] the status of the police investigation at the time the statement was given, including the extent of police knowledge concerning the occurrence of a crime, potential suspects, and potential victims; [3] whether the crime scene has been secured; [4] the identity of the person hearing the statement (i.e., whether that person was a governmental authority); [5] whether the declarant volunteered the statement or whether the person hearing the statement solicited it; [6] the declarant’s purpose for speaking and his or her mental state at the time; [7] the location where the statement was given; [8] whether the statement was recorded, and if so, by what means; [9] the level of detail provided by the declarant; and [10] whether all or part of the statement was in response to questioning.  [Citation omitted.]

Yes, it's true.  The 9-factor test condemned by Justice Scalia has been replaced with a 10-factor test instead.