JUDGING CRIMES

There aren't many truly universal rules of human nature, but I think this is one of them: If you give a group of people power, a certain percentage of them will abuse it.  It's true of professors, petty bureaucrats, judges, and nannies.  Shocking new evidence suggests that it's also true of young men with guns.

The Bureau of Justice Statistics today issued a study of traffic stops called Contacts between Police and the Public, 2005.  According to the press release, the study found, contrary to the experience of many who think they've been pulled over for Driving While Black,

that whites, blacks and Hispanics were stopped at similar rates.  Male drivers were pulled over at higher rates than female drivers, and younger drivers were more likely than older drivers to be stopped.

It's what happened next that separated the races and ethnic groups: 

In both 2002 and 2005 police searched about 5 percent of stopped drivers.  Male drivers were more likely than female drivers to be searched by police.  In 2005 police searched 9.5 percent of stopped blacks and 8.8 percent of stopped Hispanics, compared to 3.6 percent of white motorists.  Drivers younger than 30 (8.4 percent) had a greater likelihood of being searched than drivers 30 or older (2.7 percent).

That's from the press release, which adds that the study "did not take into account other factors that might explain these disparities."  In the case of Hispanic drivers, other factors might include, say, being one of two young Colombian males in a rental car.  But it's difficult to see any similarly obvious reason for the disparity involving Black drivers.  Except, of course.  You know.

(Here's Orrin Kerr commenting on the study at the Volkh Conspiracy, and here's a CNN report.  I'm sure there will be many other reports tomorrow.) 

About 11% of searches uncovered evidence of criminal wrongdoing, but the study doesn't say whether the figure is constant across groups.   If it is, wouldn't that suggest that police were acting in a racially-neutral manner?   But it's a good deal likelier, of course, that Black motorists are discriminated against.

Now, here's my Plan™ for ending this discrimination.  So long as the cops are simply harassing the motorist, and the search is just an exercise in roadside humiliation that produces no evidence, it shouldn't concern us.  But if the search actually uncovers evidence of criminal wrongdoing, proving objectively that it was justified at least in one narrow sense, then we need to subject it to closer scrutiny.

Under my Plan™, American courts would adopt a decision-making matrix in the form of an ever-expanding flow-chart with approximately 4,000 boxes.  (That's one for every page of Professor La Fave's masterpiece of scholasticism, his 6-volume commentary on the fourth amendment.)   Then we can exchange congratulations for acting so decisively to achieve something so accomplished.  A certain degree of institutionalized smugness will, I think, be permissible at that point.

Law enforcement agencies and judicial systems must refrain from adopting the Plan™ prior to the execution of a mutually-satisfactory royalty agreement.  Remember, piracy is theft!

John Yoo isn't the sort of guy I would have pegged as an acolyte of William S. Burroughs, the gay junkie avant-grade novelist.  But then Burroughs was an enthusiastic - dare one say over-enthusiastic? - gun owner, and he did come from money, and he certainly favored a gray flannel look.  Reason's blog is probably right that his politics, to the extent they possessed any coherence, were libertarian-conservative.  Take a look at these quotes: many would sound incongruous coming from Wayne LaPierre, but by no means all of them.

So maybe it's appropriate, after all, that Yoo seems to have appropriated Burroughs' cut-up technique.   His book, War by Other Means: An Insider's Account of the War on Terror, reads as if a short memoir of his two-year visit to real life, random pages from his law review articles and a year's worth of Karl Rove blast-faxed talking points were cut up, sprinkled on a roll of butcher paper and then printed in the order in which they fell.  They were adorned with a not-exactly-complimentary lede from a New York Review of Books review ("[f]ew lawyers have had more influence on President Bush's legal policies in the 'War on Terror' than John Yoo") and dumped on an unprepared public.   The New York Times' review captures the weird shifts of tone in the book.

(Many of our best known and most influential lawyers, such as Antonin Scalia and Ruth Bader Ginsburg, hardly practiced law, but Yoo does them one better: he's never practiced the profession.  No wonder he's so confident in his legal opinions.)

But the thing about Yoo's views, and the "unitary executive", and all the rest of the Bush Administration's half-revealed legal doctrines, isn't how weird and far-out they are.  It's how familiar they should seem to lawyers.

I ran a Westlaw search for law review articles by Yoo that used the phrase "inherent power" and came up with 10 hits, and that's not even counting two articles by Professor Christopher Yoo that use the same phrase.  (Has anyone ever actually seen the two Yoos in the same room?)  John Yoo's whole theory (and for all I know, Christopher Yoo's theories, too) are wholly built on the foundation of inherent power.

Back in 1924, Felix Frankfurter and James M. Landis co-wrote an article in which they warned that "[t]he accumulated weight of repetition behind such a phrase as 'inherent powers' ... is a constant invitation to think words rather than things."  (37 Harvard Law Review at 1022-23) 

When you think things rather than words, you realize that "inherent power" simply means extra-constitutional power.  (See post 32.)  Power that's granted by the Constitution isn't inherent in the office, but - by definition - is power bestowed on the office by the Constitution,  a source external to it.  Only power that isn't conferred by the Constitution can be said to be inherent.

Most of the powers exercised by the United States Supreme Court are inherent in this sense.  Even the basic concept of judicial supremacy - euphemistically known as "judicial review", as if it occurred in the back pages of a highbrow magazine - isn't granted by the Constitution, but was assumed by the judiciary.  The power to make prospective rules of universal application, a core legislative function, was first assumed by courts only in the post-WW I era (sometimes with legislative acquiescence).  And it's really only since the 1960s that courts have discovered in themselves a power to refuse to enforce criminal laws.  

If these powers aren't inherent in the judiciary, then the judiciary's exercise of them is politically illegitimate.   Therefore - by the usual lawyer's technique of constructing syllogisms backwards, beginning with the conclusion - they must be inherent.

The Bushies' concept of executive power, I think, boils down to this: The executive branch has the same authority as the judiciary to begin exercising power and then claim it possessed it all along.  True, the Constitution doesn't grant the power, but that's because the power was latent, like secondary sexual characteristics in an infant, to be revealed in the fullness of time.

If you force yourself to think words rather than things, you can (apparently) believe this.  And that's the other way in which the Bush Administration's constitutional vision should be familiar to lawyers: its faith in the efficacy of editing reality. 

Our judiciary has committed us to Trials Without Truth, in Professor William Pizzi's phrase, just as our administration has committed us to a foreign policy based on the careful construction of an alternative reality.  Judges routinely conceal crucial information from juries, while the Bush Administration conceals crucial information from the public and Congress.

And not just from them.  One of the striking revelations of Rajiv Chandrasekaran's beautifully-written, scrupulously-reported Imperial Life in the Emerald City: Inside Iraq's Green Zone is the extent to which the neoconservatives' alternative foreign ministry inside the Pentagon deliberately concealed important information from the Americans charged with reconstruction. 

For example, Jay Garner was sent over to Iraq to organize the occupation government without having seen "any of the reams of postwar plans and memoranda produced by the State Department, or any of the analyses generated by the CIA, or even the unclassified report written by the military's own National Defense University based on a two-day workshop involving more than seventy scholars and experts."  In fact, Undersecretary of Defense Douglas Feith told Garner that no such studies existed.

Why?  Feith figured that, "without a clear blueprint for the political transformation, Garner would turn to [Ahmed] Chalabi and his band of exiles.  Feith would get the outcome he wanted [that is, Chalabi in power] without provoking a fight ahead of time with State and the CIA, both of which regarded Chalabi as a fraud."

(As it turned out, "fraud" may be the least of it: you may recall that Chalabi was accused of passing key American military intelligence to Iran, charges that the Bush Administration seems disinclined to investigate.)

Feith is another lawyer who's spent little time actually practicing law.  But his belief that you can produce optimal results by withholding relevant information from the decisionmaker puts him right in the mainstream of American legal thought. 

If not for the bicoastal bias of the national media, which showers so much attention on the Ninth Circuit, the Sixth might long ere this have achieved the title of most-ridiculed circuit court.  As it is, the Sixth, which covers an odd arc of the country from Soulsville to Hitsville (and beyond), has had to put the fun back in dysfunctional in the obscurity of flyover country.  (See post 234 and post 210.)

The Cincinnati Enquirer recently did a study on the death penalty decisions of the Sixth Circuit, and you ought to look at it before it disappears behind the paid-archive walls.  They have this cool graphic: click on the face of the President, and you see a presentation of his appointees' votes in death penalty cases.

The bottom line?  Well, you guessed it:

Judges appointed by Republican presidents voted to deny inmate appeals 85 percent of the time.

Judges appointed by Democrats voted to grant at least some portion of those appeals 75 percent of the time.

Republican appointees dissented from majority opinions 25 times, always arguing against the inmate. Democratic appointees dissented 29 times, all but once arguing for the inmate.

What to make of it?  The Enquirer quotes Richard Dieter of the  Death Penalty Information Center saying: "It makes blind justice look like part of the political system."  Well, you might be asking yourself, could that be because the federal government is part of the political system, by definition?  But that wouldn't be quite fair. Dieter was just using lawyer talk to convey the idea: "I can't tell you what I really think without pissing off the judges, but I'm sure glad to get my organization a mention in  your Sunday edition, so here's a quote."  His website presents the data in more conventional tabular form.

(Did Dieter miss the career fate had planned for him when he didn't join the Weight Watchers management team?)

I didn't see a total number of cases considered, but my guess is that the trends are so pronounced that conclusions can validly be drawn from even a relatively small sample.  But what conclusions should we draw?  That the Sixth Circuit judges are all partisan hacks? 

Well, maybe.  No one gets to be a federal judge without demonstrating some of the traits of hackdom.    After all, why would any President or Senator guarantee you a fat salary for life no matter how badly, or how little, you do your job, unless you first made yourself exceptionally useful to them?  But while there is an obvious touch of defensiveness in the way judges bristle at the very thought of doing something as vulgar as "politics" from the bench, in general they make a point of not taking direction from merely elected officials.

Besides, some prominent Republicans have opposed the death penalty, and a certain well-known Democratic governor of Arkansas used an execution as a campaign prop.  (It worked, didn't it?)  When Republican felon-to-be George Ryan commuted all the death sentences in Illinois, Democratic Governor-elect Rod Blagojevich criticized him.  (Like a true process liberal, he criticized Ryan for the way he did it rather than for what he did: "'I think a blanket anything is usually wrong,' Blagojevich said.") 

Pennsylvania's former Republican Senator, reading the polls, started trying to soften his position on the death penalty a year before the election, seeking cover behind Catholic doctrine, which in general cannot be described as liberal.  (But it didn't work for Santorum, did it?  In matters of death, it's easier to prove you're for it than against it.)

So if elected officials feel comfortable bucking their party line on the death penalty, why would judges be uncomfortable doing the same?  A better explanation for the Sixth Circuit's statistics might be psychological, as hinted by the Enquirer, which characterizes the Sixth Circuit as "deeply divided", meaning that it's staffed by people who loathe one another, and indeed make a convincing case for each other's loathsomeness.  (See post 234.)  

The Enquirer even found a former member of the court to bad-mouth it in public, something I can't recall ever seeing before.   Those people really don't like each other.  But still - ordering another person's death just to spite a disagreeable coworker?  I mean, maybe once or twice, sure.   Who wouldn't?  But we're talking about a lot of decisions over a long period of time.  

Ockham's Razor says that one should avoid multiplying hypotheses unnecessarily: the simplest answer is usually the best.  And, slashing away crudely, I'd say the real explanation for the Enquirer's numbers is simply that the votes of the Sixth Circuit judges have less to do with political affiliation than with the judges' personal beliefs. 

That is, judges who support the death penalty in general vote to uphold it in individual cases, while those who oppose it look for any way to overturn it.  That sounds far too banal to count as an insight, but it actually suggests something far more disturbing than the Enquirer dared to suggest.

It's this: What's going on in the Sixth Circuit may be legal - though from time to time I have my doubts - but it's not the law.  There is no death penalty law in the Sixth Circuit.  What we're seeing instead is the ugada principle - the Clan Elder deciding who's entitled to a haunch of mammoth or a kidnapped girl by gesturing with his caribou thighbone and saying, "Ugh.  Uh.  Duh."  Which settled the matter.   (See post 106.) 

It's the General Stroessner principle - the tinpot dictator whose word was the only law his people had.  (See post 159.)  It's the very thing John Adams was decrying in his familiar phrase "a government of laws not men."  The death-row inmates of the Sixth Circuit are living under a government of men (and women), not laws.

What would be really interesting would be to chart the votes of the judges on issues one degree more subtle than the death penalty, like search and seizure cases, certifications of class actions against private businesses, mega-million-dollar jury awards, and the like.  I'm pretty confident similar patterns would emerge, even if the lineup of the judges shifted somewhat.  If so, it would show that death-row inmates aren't so very different from the rest of us, after all.

(Thanks to David Badertscher's New York Supreme Court Criminal Term Library blog for the initial link to the Enquirer story.)

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

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

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

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

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

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

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

"[T]he height of absurdity ... even more senseless ... reckless, outrageous, and desperate ... desperate and ridiculous ... unfathomable logic ... a most bizarre challenge ... shocking, obscene, and insidious ... absurd and alarming ... an incoherent, rambling jumble of averments ..."

This is somewhat out-of-the-ordinary rhetoric for a state Judicial Conduct Board counsel to use in responding to a motion filed by a sitting judge under investigation.  But then, Pennsylvania's Ann H. Lokuta appears to be an out-of-the-ordinary judge. 

Judge Lokuta sits on the Court of Common Pleas in Luzerne County (=Scranton/Wilkes-Barre), meaning she works (when she shows up for work) in this building, which looks rather as if an overenthusiastic hostess had cajoled a retired judge into putting on a party hat.  (Folks in Scranton/Wilkes-Barre seem to think it's some kind of architectural masterpiece, though, so maybe my architectual taste has been ruined by living too long in a landscape of low mud houses slowly crumbling in the relentless sun.)

(Lokuta's case raises some interesting secondary questions, which will be considered in a later post.  This post, however, is devoted to celebrating the many ingenious ways in which Judge Lokuta - allegedly - proved her utter unfitness for the bench.)

One of her ways of keeping her office a lively place is to give "contradictory instructions concerning procedures she wants followed and then when such procedures are followed, berating court personnel or personal staff for doing as she instructed."  Examples from the disciplinary complaint against her include but (we are informed) "are not limited to":

[T]he Respondent instructed tipstaff/law clerk Judith Flaherty that she wanted her to enter her courtroom using the door connecting her office area directly to the courtroom.  When court was next in session, Flaherty followed the respondent's instructions.  The Respondent then reprimanded and screamed at Flaherty, advising that Flaherty was to enter the courtroom through the door located in the hallway between respondent's office area and the courtroom, not from the door connecting her office area directly to the courtroom.  Respondent further commented that she did not know what was wrong with Flaherty and why Flaherty could not do what she instructed.  When court was next in session, Flaherty entered the courtroom through the door located in the hallway between respondent's office in the courtroom.  The Respondent again reprimanded Flaherty, instructing that Flaherty was to enter her courtroom using the door connecting her office area directly to the courtroom.

In the same vein, Lokuta supposedly told her court reporters that, "'Every time I speak, it's on the record,' and required them to take down everything she said, including her speech as she walked to the bench." But when a court reporter followed that instruction, Lokuta made a show of her displeasure in front of the whole courtroom, "increduously querying, 'What are you doing?  This is not on the record.  Do you see a case here?"

(Lokuta's speech is  italicized throughout the complaint, although I'm not sure if that's to indicate shouting or just to emphasize that she's being directly quoted.)   

Lokuta did the same sort of thing to attorneys in her courtroom, or so it's alleged:

During a court proceeding, attorney Virginia Murtha-Cowley, Esq. Assistant Public Defender, after questioning a witness or presenting an argument, sat down in her chair at counsel's table.  The Respondent demanded to know why Attorney Murtha-Cowley sat down.  The Respondent chastised Murtha-Cowley and directed that she was not to sit down until the Respondent told her to sit down.  Attorney  Murtha-Cowley then stood up and remained standing until the case was finished and continued standing until the next case was called.  The respondent then demanded to know why Attorney Murtha-Cowley was still standing.

On another occasion, Lokuta allegedly gave attorneys 3 1/2 minutes to complete oral argument, then interrupted them while the clock was running to say that they needed to slow down because she could not possibly write that fast. 

While an attorney, Ingrid Cronin, was making an opening statement in a trial, Lokuta - it is alleged - called the court reporter to the bench to comment on a juror's hair.  When Cronin paused, the judge "snapped, 'Counsel continue.'"  When Cronin waited and the stenographer "scurried to the stenographic machine", Lokuta said again, "Counsel continue!"  All that, needless to say, in front of the jury.

On another occasion the judge asked to speak to the Deputy Court Administrator.  He tried to say that he couldn't speak with her at the moment because he had to take his wife, who had recently undergone a radical mastectomy, to an oncology appointment.  Lokuta - so it is said - responded by shouting to a deputy, "He's harassing me!  Get him away from me!" She went so far as to send a letter to the presiding judge accusing the Deputy Administrator of being "physically menacing" and "threatening".  An investigation was conducted, which concluded that the Deputy Administrator did nothing wrong but the judge was "agitated, combative and unreasonable".

An editorial in the Wilkes-Barre Citizens Voice informed its readers that the judge was accused of using her law clerks "to do work at her house, including washing her car, shoveling snow from her sidewalks and doing yard work for days and weeks at a time."  But what was most interesting about the editorial was its headline: "Time had come for Lokuta probe."

A news story that ran the same day explained why the time had come: "Misconduct charges aimed at Lokuta not surprising to area legal professionals".  It quoted one Wilkes-Barre attorney, Sherry Dalessandro, as saying she was "not surprised at all" by the disciplinary complaint.

Another attorney who said she wasn't surprised was Beth Sindaco, "Lokuta’s former law clerk/tipstaff. In 1999, she filed a formal complaint against the judge with the state Judicial Conduct Board, alleging Lokuta repeatedly demanded sex as a term of her employment."  Nothing came of Sindaco's complaint , presumably either because the Judicial Conduct Board found Lokuta's denials more credible than Sindaco's accusations, or (more probably) because accusations of judicial misconduct, like treason, require the evidence of two witnesses to the same overt act.

These attorneys weren't surprised by the charges because Lokuta is a judge who - if the allegations are to be believed - has long been universally known as sadistic, untruthful and irrational.  The complaint says she's been acting this way "[s]ince taking the bench in 1992".  It describes incidents that supposedly occurred in 1999, 2003, "between 1999 and 2001", "[s]ince approximately 1996", "[s]ince approximately 2001", "[i]n September 2001", and so on.  Moreover, it says, in recent years she often hasn't bothered showing up for work, or has shown up late, even working out a routine with her staff by which she could sneak into her office by a back way without being observed by the attorneys and parties waiting for court to convene.  

How long is a judge permitted to act this way before being asked to account for herself?  In Pennsylvania, apparently, the answer is: years and years.

One possible explanation is offered by yet a third female attorney quoted in the Citizens Voice story.  Ingrid Cronin, the lawyer who was told to continue with her opening statement while the court reporter scurried back to his machine, told the paper: "I have no memory of the incident".  

That might be because the incident never happened, of course.  Or perhaps Cronin is such a tough cookie that judicial abuse doesn't faze her.  Or perhaps, just perhaps, her memory is Alberto Gonzales-like.  Certainly I believe her when she told the reporter she "didn't want to comment on the allegations."  

Sindaco made her charges back in 1999, so it's safe to say she wasn't asking her former boss for reference letters after that.  Dalessandro was held in contempt by Lokuta, and had the contempt order reversed on appeal (I can't find the appellate opinion on the Web).  Neither had anything (more) to lose by commenting publicly.  But if I were in Cronin's shoes, I would hesitate to complain publicly about being abused by a judge, even a nutty judge.  How would it help me to become known to other judges as someone who ratted out one of their colleagues?  

Say Mafia boss Corleone hates, despises and fears Mafia boss Sollozzo.  Don Corleone learns that you informed on Sollozzo.  That may not be a reason for Don Corleone to kill you, but it's also not a reason for him to trust you. 

A lawyer who files a complaint against a sitting judge has every reason to fear he's putting himself into a similar situation.   Other judges might hate Lokuta, say, but why would they like a lawyer who testified against her?  Once omertà is broken, it can't be reclaimed.  That's why, to switch genres, it's usually much more prudent for a lawyer interested in a successful career to do a Sergeant Schultz.

And that, of course, is why Judge Lokuta was allowed to abuse so many people over so many years before the "time had come" for an investigation. 

One of the themes of this blog is that we should evaluate our legal system by looking at what it does rather than examining the words its judges use or their protestations of good intentions.  That approach can be applied more broadly, too. 

Take Richard Nixon's War on Drugs.  If one were to reason from effects backwards to intent, one would have to conclude that Nixon was not motivated to reduce the consumption of illegal drugs.  We're wrapping up the fourth decade of "war" and while there's some evidence that fewer people are passing around joints today than when the Grateful Dead was doing 10-minute versions of "Peggy-O," more are using methamphetamine, prescription painkillers, crack cocaine and ecstasy.

Here's Brian Bennett's huge selection of government data presented graphically - lots of flat lines.  And here's a chart suggesting marijuana is as readily available to teenagers today as in 1975.  If the intent of the "War on Drugs" is measured by effects, and its effects don't include decreasing drug use, or even limiting drug availability, we can only conclude its intent was/is something else. 

Reasoning back from effect to intent, the intent of the "War on Drugs" must have been to:

1. Destroy the economies and destabilize the polities of Colombia, Bolivia, Ecuador and Peru. 
2. Vastly increase the size of the federal police force.
3. Simultaneously encourage police corruption.
4. Vastly increase the number of children growing up without their fathers, and teach them that it's normal to have family members in jail.
5. Vastly increase the number of people under "correctional control" - in jail or prison, on probation or parole.  In 1980, which was already nine years into the "War," 1,842,100 Americans were under correctional  control.  In 2005 the number was 7,056,000.  That's an increase of about 383%.  Over the same period, the national population increased by 23%.  (Here's the 1980 population figure, here's 2005.)

I'm quite capable of thinking ill of Nixon, but even I can't really believe he intended effects 1, 3 and 4.  (He might not have cared, but he probably didn't intend them.)  I can, however, easily believe he intended # 5, not for its own sake but - again reasoning backwards from effect to intent - because it represented the disenfranchisement of so many people who were highly unlikely to vote Republican.  The high percentage of Black prisoners can be seen as just one aspect of the Republican Party's extremely successful Southern Strategy.

A few months ago Christina Hoff Summers wrote an op-ed for my local newspaper  in which she criticized the "political fervor of the faculty" of the UNM law school.  ("Fervor" sounds a bit energetic to me, but maybe Summers has a fervor-inducing quality I lack.)  She reported that a "2004 study by the New Mexico Federation of College Republicans found that 100 percent of the full-time professors at the law school were registered Democrats."

The law school's dean responded with an op-ed piece of her own that said exactly the right things – that is, the things that a dean is obligated to say on such occasions.   (The dean didn't dispute that the faculty was 100% Democratic, though she didn't admit it, either.)

The interesting thing about the exchange of op-eds wasn't its entirely predictable content but the terms on which it was conducted.  Summers charged that the law school had a "strict 'liberals only' hiring policy."  She said the dean "and her faculty seem not to question the ethics of running a public, taxpayer-supported law school as if it were a re-education camp for the political left." 

The dean, in her riposte, insisted instead that "we hire professors who will challenge students to broaden their views and perspectives, to move beyond narrow thinking."

Both these statements seem to me false - for the same reason.  And before explaining why I should add that I don't think there's anything unique about the UNM Law School.  (Though I will say that from most angles its building is not nearly as hideous-looking as that picture.) 

There are few substantive differences between American law schools, U.S. News standings notwithstanding.   (The idea that reading a torts casebook within the moneyed walls of Yale imparts greater wisdom than reading the same casebook in the hallowed barns of the University of Northern South Dakota at Hoople is a fantasy cherished by those engaged in hocking their future to pay Ivy League student loans, for obvious reasons – the weird thing is that it's cherished by those at UNSDH, too.)

The actual teachers move around from law school to law school, and the curriculum is standardized.   Literally the same class will be taught at Syracue (# 100) one year and at USD (# 50) next year, if the heliophilic assistant professor plays his cards right.  The star professors make their contribution merely by gracing the campus, like rhododendrons.   So the generalizations I'm about to make are, I think, equally applicable to all American law schools.

The thing about American law schools is that they're conservative places.  Extremely conservative places.  All of 'em.

In the early 1980s, Duncan Kennedy made his scholarly name by criticizing "hierarchy" in the law.  Everyone listened to him because he was a professor at Harvard Law.  The irony was too thick for anyone to move their position even a fraction of an inch.  It was like swimming in a pool of Jell-O.

Law schools are in the business of teaching people to submit to hierarchy.  That's what they do.  It begins as the prospective lawyer chooses where to apply.  You literally can't begin your legal education until you figure out where you fit on the scale.   You're just wasting your money if you try to get above yourself.

Law professors teach obedience to arbitrary power - that's the meta-lesson of the narcissistically-misnamed "Socratic method."  (See post 188.)  All American law schools employ the "case method" – a 19th-century pedagogical tool that should not be confused with the case method of business schools.  Business students study reality.  Law students, by contrast, study words. 

Specifically, law students study the words of appellate judges as found in their published opinions.  The underlying assumption is that the proper study of law students is the exercise of power by the powerful.   The typical chronological arrangement of cases teaches that every day, in every way, the law is getting better - that the legal tradition cannot be improved upon, yet will improve itself.

As taught in law schools, the published opinions of judges are assumed to be accurate reflections of the judge's process of ratiocination, so that by studying what is written one can learn the way in which the problem was approached and resolved.  That, in turn, rests on the assumption that understanding the judge's reasoning will explain the result reached in the case. 

But those assumptions would make sense only if (a) all judges are honest and unswayed by emotion, antipathy toward disrespectful lawyers, ties of friendship, and so on; (b) all judges are always prepared to be completely open about what they are thinking and feeling; and (c) all judges have the literary skill necessary to translate that openness into prose.

Of course, no one actually believes any of those assumptions, much less all of them.  Which means that the case method is flattery directed toward judges.  It's a method for teaching students the insincere arts of the courtier - kissing up.

In all these mutually-reinforcing ways, law school is an institutionalized "disposition ...  to preserve what is established", an academic "philosophy based on tradition and social stability, stressing established institutions, and preferring gradual development to abrupt change".  And that, of course, is the dictionary definition of conservatism. 

Moreover, law school is vocational training.  Most law professors, I think, prefer to think in grander terms, but as a part-time teacher of paralegal students at something that until last year was called a Technical-Vocational Institute, I'm the last person to imply something negative by that term.  If a law school doesn't train its students to be functioning lawyers, it doesn't have much excuse for existing. 

But the vocation they're teaching is to serve the government - the existing power structure.  Many lawyers, like federal judges, like to pretend there's a difference between judges and "the government."  Judges do it to disguise from themselves their role in preventing democracy.  (See post 13 and post 39.)  Lawyers do it because they don't like to think of themselves as courtiers, fawning on the satrap of the moment.  But fawn is what lawyers do best.  If it please the court - I mean, Court.

Judges are the government.  They are the power structure.  Law schools  in America fulfill something of the role of France's École Polytechnique, training the next generation of technocrats.  They teach law students how to make themselves useful to the powerful, so that they can one day accede to power themselves.

There's more.  For four centuries now, law has been the only area of intellectual effort in which arguments from authority are treated seriously.  And not only are they treated seriously in American law, but they are the best arguments of all.  Law isn't a social science; it's pre-scientific.  You can't get much more conservative than outright retrogression.

Still more: you don't get to be a professor at a law school unless you yourself enrolled in a law school at the top of the school hierarchy, and then clawed your way to the top of the hierarchy of students.  "It is vastly easier for the graduate of a fourth-tier law school to become a partner at an elite law firm than it is to be hired as a tenure-track assistant professor at even a non-elite American law school."  (The peculiar thing is that the professor who wrote those words was deploring the inability of law professors to free themselves from received notions of hierarchy.)

You don't get to be a law professor, in short, unless you buy unquestioningly into the status quo, to the point where you're prepared to sacrifice your youth to rising within the existing power structures.  Instead of having sex, drinking, enjoying time with friends, reading for fun, going to concerts or ball games, you devoted the prime of your life to reading law books in a library carrel when you weren't cultivating established professors for purposes of future references.   Law professors are, by a process of self-selection enforced by hiring committees, people incapable of rebellion.  They are, in temperament, the most conservative people on the planet.

So Christina Hoff Summers is wrong.  Law faculties might be 100% Democratic, and they might be enthusiastic - nay, fervid! - about identity politics.  But that's only because those are safe, predictable, highly conventional things to do.  And the law school dean who says that her faculty challenges students to open their minds is wrong, too.  The faculty is training students to be conventional, to adapt to the status quo, to pay power the respect it demands - without first pausing to wonder whether it deserves it. 

If Judge James Earl Major had known when to quit, he wouldn't be remembered in this blog.  The time was 1943 and Major, who had struggled through an intermittently-successful career as a member of Congress (twice getting defeated for reelection, but each time coming back to win the rematch two years later), was enjoying the serenity of his new position on the Seventh Circuit Court of Appeals in Chicago.

He was one of a panel of three judges selected to decide the appeal of a group of German-Americans who had provided shelter and material assistance to family members from the Old Country.  That doesn't sound like a crime, does it?  - except that those particular family members had made the Atlantic crossing in a U-Boat and had landed by night on American beaches.  They brought along crates of explosives.

The other two judges on the panel have claims to our attention beyond Major's minor fame.  One was Sherman Minton, later a Supreme Court justice.   The other was Otto Kerner, Sr., a Cook County pol and father of the Illinois Governor and chairman of the Kerner Commission (appointed to investigate the 1967 riots), who resigned his governorship to follow Dad onto the Seventh Circuit, eventually ending his distinguished career in federal prison.  Given his Dad's prominence in Cook County judicial circles, it seems reasonable to suppose he should have wound up there, too.

The saboteurs themselves were tried by military tribunal, an incident that's attracted renewed attention lately.   But the aiders and abettors got civilian trials, and it fell to Judge Major to write the opinion overturning their convictions.   He cranked up the rhet-o-matic, employing the stemwinding style that was already anachronistic then but is still favored by judges today:

At this point it seems appropriate to emphasize that no principle is more firmly embodied in our system of jurisprudence than that a person shall not be deprived of life or liberty except upon a fair and impartial ascertainment of his guilt. Of the many rights guaranteed to the people of this Republic, there is none more sacred than that of trial by jury. Such right comprehends a fair determination free from passion or prejudice, of the issues involved. The right is all-inclusive; it embraces every class and type of person. Those for whom we have contempt or even hatred are equally entitled to its benefit. It will be a sad day for our system of government if the time should come when any person, whoever he may be, is deprived of this fundamental safeguard. No more important responsibility rests upon courts than its preservation unimpaired.  [136 F.2d 661.]

So far so conventional.  You can buy this kind of stuff by the case down at the Judges Shop.  The final exam at the National Judicial College (located in Reno, in tribute to that city's founding role in modern American jurisprudence), requires students to extemporize on these themes for fifteen minutes while submerged upside down. 

Major's basic point - that the purpose of a trial isn't to arrive at the right result, or even necessarily a justified one, but only to reach whatever result by the approved route - is the guiding principle of all criminal law in America today.  So long as the pipe meets specs, it doesn't matter what sludge moves through it.

But then Judge Major got carried away - or, rather, carried himself away to the Judicial Valhalla reserved for the "vacuously, smugly, and unconsciously foolish."  He just couldn't stop himself from adding:

How wasted is American blood now being spilled in all parts of the world if we at home are unwilling or unable to accord every person charged with crime a trial in conformity with this constitutional requirement.

Fighting Nazi Germany, fighting Imperial Japan, fighting Fascist Italy -  "how wasted", if federal appellate judges don't exercise their power to veto the verdicts of juries!

As Judges Major, Kerner and Minton went into print with those words on June 29, 1943, Auschwitz's fourth gas chamber was just four days old.   Americans were wading ashore in New Guinea and the Solomon Islands.  Patton and Montgomery were putting final touches on the plan to invade Sicily.  D-Day was still a year away.

But at least the GIs knew the lives they bled out onto the beaches hadn't been lost in vain.  Each dead soldier was doing his small bit to ensure that judges of the Seventh Circuit could vacate factually-accurate verdicts.  How that thought must have comforted many a boy in his final moments!

"Padre ... I just want to ... tell my girl ... I think she's swell ... and my folks ... I never stopped thinking about them ... and ...  it's getting dark ... Padre, hold my hand ...  I'm cold ... Tell me one thing, Padre.  I need to know.  The Seventh Circuit.  Are they still sitting in Chicago?  Are they still overturning convictions of people caught trying to sabotage the war effort?  They are?  Oh, bless you, Padre ... now I can die in peace, knowing my death isn't a waste ...."

Orwell long ago observed that unclear prose is usually evidence of unclear thinking.  So what are we to conclude about the following words written by a New Jersey judge?  The judge, Jack M. Sabatino, is describing the effect of Crawford v. Washington, the opinion in which Justice Scalia confessed that for over two centuries the U.S. Supreme Court  wickedly required all lower courts in the country to violate the Constitution's sixth amendment.  (See post 127 and post 238.)

Here's Judge Sabatino:

Crawford has dramatically affected the day-to-day prosecution of criminal trials and appeals across the nation. ... This sea change in criminal practice cannot be underestimated.

In response to Judge Sabatino, I would say: Crawford is no big deal.  There, see?  I've just proven that the sea change can be underestimated.

(Of course, it's possible Judge Sabatino's point was that a "sea change" cannot be estimated, much less under- or overestimated, because the cliche is  completely devoid of meaning.  Non-meaning, by its nature [or non-nature], resists estimation.  But, viewing his words in context,  I don't think that's what he was getting at.)

Sabatino isn't alone in his confusion about the meaning of a relatively simple English word.  A few years ago, England's Guardian ran this correction:

In an item headed, No to a DNA database ... we said, "The seriousness of the threat to individual liberty cannot be underestimated." Yes it can. The writer meant that the threat is so great that it cannot be overestimated or overstated. It is a frequently recurring error.

I picked up the link to the Guardian correction from the U.-Mass. Amherst's Department of Linguistics newsletter (researching a blog isn't for the faint-hearted), which reports the appalling datum that as of January 27, 2005,

A Google search for the two phrases shows approximately 54,200 examples of "cannot be overestimated" vs.132,000 for "cannot be underestimated." ...  Presumably those speakers of English who use "cannot be underestimated" in the sense intended by The Guardian understand "cannot" to mean "should not" or "must not."

So there you have it: statistical proof that a majority of people writing in English today don't speak the language.  The U.-Mass. linguists, who appear to be (like most modern linguists) a descriptive rather than proscriptive bunch, wonder: "Is this another case like 'I could(n't) care less' (but without the stress difference)?"  The "stress difference", as explained by Steven Pinker, the Boston-based linguist who buys his wigs from the same place as Howard Stern, is that "I could care less" is sarcastic.   

But I'm pretty sure Judge Sabatino wasn't being sarcastic, either. 

Evidence that, instead, he just wasn't thinking about what he was saying can be found in the case that inspired him to display his inattention.  The case involved a man accused of injuring his girlfriend's 3-year-old son.  A doctor who examined the boy 

found extensive injuries to the child's head, scalp, eyes, ears and neck, with lesser injuries to his left flank and scrotum. His eyes were dark and swollen, as were his ears. There were also large areas of blood collecting under his scalp. The manifestation of the injuries had worsened significantly from the night they were discovered, on October 18, and the child had lost a lot of blood internally. The doctor testified that the injuries to the child were purposely inflicted upon him and were not the result of a fall, as evidenced by their type and pattern.

The child spent two weeks in a pediatric intensive care unit recovering from his injuries.

Now, as you predict how the case will come out, remember the analytical tools set out in post 250.  The defendant was prosecuted by the executive branch and convicted by a jury.   The Appellate Division could go along with their decisions, or it could exert its own power by reversing the perpetrator's conviction.  Which would be better for the Appellate Division? 

That, however, is only a weak positive result, so we need to proceed to the next step.  The victim was a very young person.  The perpetrator, by contrast, was an adult male.   Who has greater social status? - which is another way of asking: Who would adult male judges find it more psychologically comfortable to identify with, the helpless, terrified and bleeding toddler, or the cleaned-up young man in the business suit sitting beside his lawyer in the courtroom?

The legal question was whether the perpetrator was denied his right to cross-examine the 3-year-old regarding statements the boy made to a social worker.  What the boy said was: "I fell down in my room. I want to go home to grandma" and "Dad says nobody beat me. I fell when I was sleeping in my room".  (The perpetrator wasn't the real father, but as part of his campaign of domination required his victim to call him "Dad.")

Judge Sabatino and his two colleagues ruled that the perpetrator was denied his constitutional right to confront the child about those statements.   In their view, the defense lawyer should have been able to put the boy on the witness stand and, leaning in close for the kill (but with the occasional sly sideways glance at the jury), demand in a voice heavy with menace:

"Now, when you told the social worker that you fell in your room, you meant that you fell in your room.  Isn't that right?"

"Directing your attention to your statement that Dad says nobody beat you.  What you meant was that nobody beat you.  Is that not correct?  Remember, you're on oath now."

"Isn't it true that when you said, I fell when I was sleeping in my room, what you meant to say was that you fell when you were sleeping in your room.  Isn't it?  Isn't it?"

I think it's pretty obvious that the Appellate Division judges weren't thinking in these concrete terms.  It's just silly to think that the defendant had any wish at all to attack the truth of the boy's statements (with one exception, discussed below).  Which explains Judge Sabatino's inability to express himself coherently: "As soon as certain topics are raised, the concrete melts into the abstract and no one seems able to think of turns of speech that are not hackneyed: prose consists less and less of words chosen for the sake of their meaning, and more and more of phrases tacked together like the sections of a prefabricated henhouse."

So let's look at at the abstract level on which the New Jersey judges pretended to operate.  The technical legal question before them was whether the prosecution offered the boy's statements "for the truth of the matter asserted."  Crawford itself says: "The Clause ... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."

But although two of the three judges who joined in the decision published opinions, neither opinion gives the least sign that the judge recognized the obvious point that the boy's statements were damaging only because they were so obviously - so piteously - untrue.

The only little bit that might arguably have been offered for the truth was the phrase that began: "Dad says ..."  But if those words were true (as of course they were), then the boy was authorized by Dad to say what followed ("nobody beat me").   It was fake-Dad's own statement, and therefore Crawford didn't apply.  After all, he could always cross-examine himself.  ("Why did you tell the boy to lie?"  "Because I didn't want to go to jail."  "Oh.  Okay.")

It's not as if these are difficult legal doctrines.  It's just that the New Jersey judges were so eager to pontificate about sea changes and Copernican revolutions (yes, that cliche is in Sabatino's opinion, too) that they didn't pause to think about the case in front of them.   The absence of thought explains Sabatino's use of "underestimate" for "overestimate" - although it must be said that the latter word would have been just as absurd as the former, because while Crawford makes it harder to convict the people who drive drunk and beat children and women, it doesn't exactly qualify as "a central and defining epiphany in all the history of science."  By dragging poor Copernicus into it, Sabatino shows that it's every bit as easy to overestimate Crawford's importance as it is to underestimate it. 

Sabatino's opinion came out last December.  Since then, surely, the judges on his court have had time to become deeply embarrassed, right?  He himself, doubtless, spent hours on the telephone with the publishers, trying desperately to withdraw his misbegotten draft?

Of course not.  Just two weeks ago Sabatino's meaningless words were quoted with a pompous show of approval by the Chief Judge of his court.  Time alone is insufficient to introduce judges to English, when thinking about what they're saying would only interfere with what they're doing.

Every once in a while, the news makes a point of making my points for me.  The privatization of law enforcement has, from the beginning, been a theme of this blog. 

We're so used to the bars in front of windows, the military-grade storm doors, the concertina wire on the roof, the gated communities, the security guards, the anti-theft devices in cars, the parked cars spontaneously honking, and the idea that the person in the next car is very likely armed, that we hardly notice to what an extent we've outsourced the most basic function of society: protecting its members from danger.

Not so coincidentally, the society that privatizes its law enforcement has an enormous class bias in its incidence of violent crime.  The poorer you are, the more likely you'll be victimized.  This is true of robberies and burglaries, too, counterintuitive though that might at first seem. 

Then along comes an article such as that in the Albuquerque Journal this morning:

Some neighborhoods are getting the best police protection money can buy.

But other not-so-wealthy neighborhoods are calling foul on a city program that allows homeowners associations to contract with the Albuquerque Police Department to pay officers overtime to conduct extra patrols there.

The story explains that the Albuquerque Police Department charges neighborhoods $34/hour for the services of off-duty officers (if they're off-duty, why does the city get a cut? - an agent's 10%, I guess).  The program brings in a million bucks a year to the city.  The off-duty cops patrol in uniform and squad cars and give out tickets, just like on-duty cops, except their patrol is limited by the boundaries of the neighborhood associations that pay them.

The neighborhoods in question are in the "foothills" - the last neighborhoods before you hit the Sandia Mountains wilderness area.  In Albuquerque as in almost all cities built on uneven terrain, a rise in elevation generally means a rise in real estate price.  

Police Chief Ray Schultz said the program has been in place for years. He also pointed out that much more of his department's resources are dedicated to some poor neighborhoods that have much higher crime than the wealthier areas that don't have as much of a crime problem.

"A lot of this is perceptions," Schultz said. "Some neighborhoods feel more comfortable with the extra patrols. They do it more for the quality of life than there being a lot of criminal activity."

That's a pretty diplomatic way of saying that the neighborhoods getting the extra attention aren't the ones that need it. 

There's a lesson here.  If you don't want to be a victim of violent crime - if you don't want your children to get used to the sound of gunshots - if you don't want to attend their funerals before they have the chance to attend yours - there's a simple solution: move uphill.  It's the American way.