JUDGING CRIMES

It's - what's the word? validating, I guess - when academics put down the bluebooks they ought to be grading in order to rush out law review articles dedicated to elaborating on some of this blog's posts.   Professor Benjamin Barton of the University of Tennessee Law School - I assume everyone calls him Doogie - is the latest to accept guidance from Judging Crimes.

I refer, of course, to his article "Do Judges Systematically Favor the Interests of the Legal Profession?", an elaboration of post 250.  Considering that just two weeks elapsed between the post and the article, his industry is to be commended, too.

Barton's article will be forthcoming from the Alabama Law Review.  Its abstract on the Social Science Research Network reads:

Many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

Barton picks examples from around the whole field of law to prove his thesis:

The questions considered include: why are lawyers the only American profession to be truly and completely self-regulated? Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice?

Answer: because lawyers are more important than other people.  And it's objectively true that we're more important, you know: our importance lies in the fact that we're objects of such judicial solicitude, just as it was objectively true that Buckingham was more important than anyone else in England during James I's reign.

Barton takes four pages (26-30) to make his point about Miranda, and then doesn't quite seem to grasp the point he's making.  The actual right guaranteed by the Constitution - the right to remain silent - exists for the protection of the individual.  That right can be waived simply by speaking.

But in the 1970s, a decade in which nothing went right, the Supreme Court amended the Constitution, adding a new Amendment V I/II (in decimals, V.V), requiring the police to stop investigating the murder or rape or whatever trivial thing is occupying their tiny little ferret brains as soon as the suspect asks for a lawyer.  The Court's reason for creating that right is pretty obvious, really:

Any lawyer who has ever been called into a case after his client has 'told all' and turned any evidence he has over to the Government, knows how helpless he is to protect his client against the facts thus disclosed.

A client who has once uttered the magic words ("I want a lawyer") can't retract them merely by talking to a police officer.  He has to know the secret code to free himself from his self-cast spell. 

There's a simple reason why it's so much harder to rid yourself of the right to counsel than of the privilege against self-incrimination.  The second protects the person accused of a crime from brutality.  The first protects his lawyer from being saddled with an unwinnable case.  And which is more important, really?  (If you're not a lawyer, don't try to answer that question - it's far too technical and involved for you.)

 Sridhar Pappu of the Washington Post began a profile of axed U.S. Attorney David Iglesias with a description of the "the dusty, desolate collection of adobe homes and Vietnamese restaurants that seem to form this city".  This, I think, counts as the single weirdest thing anybody has ever said about Albuquerque.

"Dusty" isn't weird - that's  just accurate.  And "adobe" is an understandable mistake, since the dominant building style uses stucco to gesture architecturally in the direction of traditional adobe.  (Hand-made bricks are, for reasons that will be obvious if you think about it for half a second, a very expensive building material.)  The use of the word "desolate" - "devoid of inhabitants and visitors" - to describe a metropolitan area of 791,000 is a bit loose, perhaps, but the writer's meaning (hideous hick town) is clear enough.

No, it's the bit about Vietnamese restaurants that has everyone here scratching their pellagra and thoughtfully rubbing their goiters. 

I've long thought that there are two unmistakable signs that a small city has become a big city: exit ramp traffic backs up all the way onto the freeway; and the opening of good Asian restaurants.  By these standards, Albuquerque rates.  But barely.  There are, in fact, some good Thai and Vietnamese restaurants (though, for whatever reason, not much good Chinese), but you have to hunt for them.  My yellow pages lists 7 Vietnamese restaurants, or roughly 1 per 18.8 square miles.

I've avoided writing about the U.S. Attorneys scandal, even though it has unexpectedly put New Mexico in the national news as nothing except our Governor's election to the Presidency has recently done.  In part that's because I know some of the people  involved (Iglesias tried real hard to become my boss nine years ago) but mainly because it didn't seem to have much to do with the subjects of this blog.

But certain familiar themes are beginning to emerge from the disorganized mass of information provided by reporters whose vocational major allowed them to get advanced degrees without loading them down with historical perspective or an understanding of American political institutions.

First:  The Washington HQ of the DOJ was/is deeply corrupt, and as with many judges, the corrupting influence is power rather than money.  After the revelation of Gonzales's shameful bullying of the hospitalized prior AG, it's hard to avoid the conclusion that he was named the replacement AG precisely because he was prepared to violate the law in a way that John Ashcroft wasn't.  As if to confirm this view of his character, Gonzales has committed perjury, a criminal offense, on multiple occasions since taking office.  When Monica Goodling, counsel to the Attorney General, said she would invoke her privilege against self-incrimination, she meant that if she testified truthfully she would reveal information that could be used to convict her of crimes.  And - a scandal that seems curiously camouflaged behind the firing scandal - the FBI, an agency of the DOJ,  repeatedly violated the law by J. Edgar Hoovering. 

Second: A concrete manifestation of the DOJ's corruption is the effort to use criminal prosecutions to influence elections.  That's what was going on with Iglesias (look at the second section of the Pappu article, which is more solidly sourced than the lede).   That's pretty obviously what went on in Wisconsin, where  sleazebag U.S. Attorney Biskupic saved his position by his election-timed prosecution of poor Georgia Thompson, a prosecution the Seventh Circuit recently termed "preposterous."   Biskupic is the anti-Iglesias, the U.S. Attorney prepared to sell himself for the glamour of the make-up and short skirts - er, I mean, the dignity of the job.

Third: This specific form of corruption might already have touched the judiciary: From a distance, it sure looks as though Democratic Justice Oliver Diaz was prosecuted (twice) for raising money to fund his race for the Mississippi Supreme Court.  It's at least possible that the real corruption in the case against Diaz involved the prosecutor, not the defendant.  Maybe I'm wrong about that; in some respects I hope I am.

Fourth: As with Guantanamo Bay, extraordinary renditions, secret prisons, and approved torture, the DOJ scandals show again that our courts are all-but-helpless to do anything about genuine abuses by the executive branch.  (See post 262.)  Judges seem to find a great deal of satisfaction in the elaborate role-playing courtroom games in which they get to pretend to discipline police officers and prosecutors, but they're sea anemones, carnivores who must wait for their prey to come to them.   When a contemptuous executive maintains a prudent distance, judges can do nothing but adhere to their (dignified) rocks, waving their tentacles helplessly.

The title doesn't promise the under-the-bedclothes magazine for teenaged boys of all ages that ate Penthouse's lunch in much the same way Wal-Mart and Target divided K-Mart's among themselves.  ("It's a deal.  You get the high-margin items, we get the high-volume, and K-Mart gets to keep everything else.")

No, I'm earnestly trying to distill the maxims that govern judicial work.  I find they tend to come in pairs, like:

• Judges have the authority to make basic decisions about the acceptability of violence in society.
• Judges have no responsibility for the consequences of their decisions about the acceptability of violence in society.

Judges are pretty open about this pair, although you often have to search for them beneath puffy clouds of words.  Justice Scalia was being unusually direct (and terse) when he acknowledged that the Court's recent revision of the sixth amendment has the effect of frustrating society's efforts to curtail domestic violence, adding this mea non culpa:

This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free.

In that passage, there's only a thin veneer of rhetoric covering the two maxims.

More typically diffuse is a famous passage by the late Judge Richard Arnold of the Eighth Circuit (the federal appeals court that hears cases from a Big Dipper-shaped slice of mid-America stretching from North Dakota to Arkansas).  (Arnold was profiled in post 235.)

You only need to know two things about this passage.  First, Arnold announced a new constitutional doctrine, one invented by himself and his two colleagues, which was promptly overruled by the U.S. Supreme Court.  Second, the effect of his new doctrine was that jurors in a murder case could not be informed that the victim, a 10-year-old girl, was dead.  Her death ceased to have any reality inside the courtroom.  (O death, where is thy sting?  Right here, outside the courtroom door.)  Here it is:

It will inevitably be remarked that our opinion focusses more on the conduct of the police than of the alleged murderer. If Williams is indeed guilty, and if he goes free as a result of our holding, then complete justice may not have been done, even though Williams has served 14 years in prison. A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.

(The link is to a recent Second Circuit case that quoted this passage.)

This is a remarkable passage in any number of ways, not least of them being that the New York Times singled it out for quotation in Judge Arnold's obituary (scroll down).  Another is that Justice Brennan termed it an "insightful and stirring defense of the constitutional limitations placed on law enforcement authorities" (78 Minnesota Law Review at 2) - even though, if you'll notice, by its own terms it applies to judges and Supreme Court justices, too, a point so foreign to Brennan's thinking that he apparently didn't even perceive it, the way those who speak one language fluently can have no phonemic awareness of certain sounds in another language.

(The linked Wikipedia article provides as an example Japanese people and the "R" and "L" sounds.  It might also have mentioned the difference between "pin" and "pen" - which I've been told exists, but can't hear in normal speech.)

But for purposes of our maxims it's enough to note that:

• Judge Arnold accepted that his opinion didn't produce "perfect justice".  Imperfect justice - that is, justice that isn't just, a/k/a "injustice"  - is a pretty remarkable thing for any justice system to accept as a norm, much less (as Brennan's encomium suggests) an ideal.
• Arnold disclaimed any personal responsibility for the injustice he produced, saying it was merely "one of the costs" of the Bill of Rights.
• The particular constitutional doctrine was invented by him in the very same opinion that said our "country is built on the assumption" that the doctrine was a good idea - yet another example in our case law of an anomaly in the space-time continuum.  (Curiously, when the doctrine was rejected by the Supreme Court just one year later, causing the country's foundation to crumble in part, the effect was felt in California, not Arnold's Arkansas or the dead girl's Iowa.)

So Arnold was saying he had the power - indeed, the responsibility - to invent new constitutional doctrines even when they produce injustice.  But he wasn't responsible for the injustice his invented doctrines produced, because our "country is built on the assumption" (assumption, mind you, not a principle or declaration) that justice in such cases would actually be undesirable.  (Or, rather, that "the cost is worth paying" - when judges resort to vague metaphors, it usually means they want to disguise their meaning, probably most of all from themselves.)  Hey, don't blame me - I'm just channeling the Framers!

Now, it might seem at first glance that the two maxims are, as lawyers like to say, "in tension with" each other, even if they aren't quite contradictory.  Doesn't it produce intellectual disquiet in judges - cognitive dissonance - to hold them both in your head at one time?  No, obviously.  Eric Hoffer explained why not (see post 273): both maxims are required by "the Constitution" and devotion to "the Constitution" is a higher duty than intellectual coherence.  The maxims offer power without guilt.  Their incompatibility isn't a flaw: it's the secret of their appeal.

A used-bookstore browse recently found reminders of our legal system on every shelf - except the one devoted to law books, most of which seemed to be describing life on distant planets. 

In the travel section I came across the pseudonymous Emma Larkin's wonderful Finding George Orwell in Burma, which demonstrates the truth in the Burmese joke that Orwell wrote a Burmese trilogy, including not just Burmese Days, which is actually set there, but Animal Farm and Nineteen Eighty-Four - the latter being the most naturalistic of the three. 

Along the way we meet a government spokesman talking about the regime's slaughter of protesters on 8-8-88: "'Truth is true only within a certain period of time,' he announced.  'What was truth once may no longer be truth after many months or years.'"

It's pretty creepy, but also pretty familiar to lawyers, since it's a way of looking at the world that all of us spent three years internalizing.  That's how we can adapt instantly to the news that the meaning of the Constitution has suddenly changed.   In 1992 the late Chief Justice told us,  "Over the past 21 years, ... the Court has overruled in whole or in part 34 of its previous constitutional decisions".  He meant that about every eight months another bedrock truth of American society ceases to be true.  The period of its truthfulness expires.  (See post 264.)  

Larkin's book also reminds us in an epigraph of the important point that "who controls the past controls the future: who controls the present controls the past."  Justices Stevens and Scalia, in particular, are assiduous about controlling the past.  (See post 201 and post 192 and post 81.)

And then, on the next shelf of the bookstore, here's a paperback (original price 60¢) of Eric Hoffer's The True Believer.  True believers are so commonly encountered in the law biz that I knew the phrase as a description of people I had to deal with before I knew it as a book title. 

The Internet is full of depressing statistics about lawyer depression and alcoholism (see post 188), and then here comes Hoffer telling us: "A rising mass movement attracts and holds a following not by its doctrine and promises but by the refuge it offers from the anxieties, barrenness and meaninglessness of an individual existence." 

Being a true believer is an antidote to the pointlessness of so much of a lawyer's work - the pettiness of squabbles over mounds of boring documents, the hopelessness of a weak case in front of a biased judge, and the cognitive dissonance caused by the inadequately-repressed awareness of the unbridgeable gap between the lawyer's (and judge's) self-image and the real-world political effect of judicial power.  (See post 265.)

Jamie Spencer at Austin Criminal Defense Lawyer is conducting a survey of criminal-law-related blogs.  What Jamie really wants are links to lesser-known blogs, in order to bring them into the fold, or in from the cold, or whatever the appropriate cyberspace analogy might be.  Here's a post explaining the project. 

Jamie made the news recently: "Jamie Spencer, fresh from his Group One victory on Red Evie in the Lockinge, posted another impressive success as Ripples Maid sprinted home in the paddypower.com Handicap at Newbury."  But, I'm sorry to report, not all is well for the ocean-hopping blogger, as this BBC story reveals.  Nice pic, though.

Is it more important to have a good reputation or to deserve one?  Florida's Judicial Qualification Commission doesn't find that a difficult question to answer.   Obviously, the important thing is to preserve the reputation.  Asking whether it's deserved is unethical.

Here's a news story describing the Commission's recent decision to go after First District Court of Appeals Judge Michael E. Allen.  Howard Bashman of HowAppealing devotes a typically thoughtful Law.com column to showing some of the way in which the complaint against Judge Allen is "outrageous ... laughable ... absurd". 

Those adjectives are so strong that one's first inclination may be to assume they're the kind of overstatement endemic to baby lawyer briefs.  Lawyers just out of law school, like middle school girls learning about makeup, tend to overdo it, and not by a little bit.

But Bashman is, unlike certain other bloggers I could name, consistently polite and respectful to the judges he writes about.  "Laughable" is, in this context, a factual description: the Commission alleged that Judge Allen breached his ethical duty to perform his judicial duties "without bias or prejudice" by exhibiting prejudice against a fellow judge. 

No, really.  They really said that - a judge's ethical duty to avoid bias and prejudice doesn't refer to the judge's attitude toward parties, or even lawyers, but to his or her colleagues on the bench.  And "prejudice" in this context means drawing reasonable inferences from known facts, when those inferences suggest unethical conduct by another lawyer - if, that is, the other lawyer also wears a robe.  A judge's overriding ethical duty is to pull the plug on that portion of his or her brain that recognizes ethical lapses.  Anything else is prejudice.

It gets even funnier.  The Commission alleged that Judge Allen acted unethically by citing to a newspaper articles in a judicial opinion.

I swear I'm not making this up.

What makes this even more hilarious is that the Commission alleges that by citing to newspaper articles as evidence of "what the 'public' would believe and not believe" - those quotation marks are in the original, no kidding - the judge "undermined public confidence in the integrity and impartiality of the judiciary".  

Given that referring to public sources of information is an invalid way to gauge what the quote public unquote might think, what contrasting source of information did the Commission itself use to support its allegation that the no-quotes-needed public's confidence had been undermined?  The Commission did its sociological research the old fashioned way.  It just made it up.  (See post 139.)  That's what judicial ethics is all about.

The Commission alleges that Judge Allen's act of questioning a colleague's integrity "was contrary to your duty to observe high standards so that the integrity and independence of the judiciary may be preserved."   The way to ensure that the integrity and independence of the judiciary is preserved is ... to not question the integrity (or independence?) of the judiciary. 

"Integrity", in the Commission's conception, is a synonym for "a reputation for integrity."  Whether reality corresponds to the reputation is, as any reader of Carl Hiaasen's Florida novels ought to have known to expect, irrelevant.

So Florida judges have been put on notice that to question the ethics of a fellow judge is itself unethical.  The real heart of the Commission's complaint against Judge Allen is this sentence: "If the matter was as serious as your concurring opinion indicates you believed it to be, you should have reported the matter to the Judicial Qualifications Commission rather than publishing your attack on Judge Kahn, which undermined public confidence in the integrity and impartiality of the judiciary." 

Obviously, that's a very large part of what the complaint is about.  The Commission wants to be the sole clearinghouse for bad news about the judiciary.  More than that, it wants a monopoly on the power to decide what news is bad.  Florida judges aren't supposed to think independently about matters such as judicial integrity.  To do so only undermines the independence and integrity of Florida judges.  Rather, judges should fall into line behind the Commission, accepting it as the ethical oracle. 

That also explains the Commission's proceedings against Judge Cliff Barnes for "writing an article as a guest columnist for a local newspaper".  He, too, was accused of not limiting himself to reporting his concerns to the Commission.

But I suspect that the Commission's turf-protecting hypocrisy isn't the whole story.   Judge Allen was questioning his fellow judge's enmeshment in Florida's good-ol'-boy's network.  It's hardly subversive to suggest that judicial disciplinary boards, being answerable to the very judiciary they're supposed to investigate, tend to define "ethical" in terms of enforcing the status quo.   After all, to do otherwise would be to suggest ethical shortcomings in the source of their own power.  What did the robot used to say while flapping its arms? 

In short, I suspect - in a way that would be utterly unethical for me to voice out loud, were I a Florida judge - that a significant part of the Commission's mission is to facilitate unethical conduct by members of the state bar's in-group. 

But - and this is the crucial thing - we know about it only because the Florida Commission is the most transparent  judicial conduct board in the nation.  That strongly suggests it has the least to hide.

You usually know when Justice Scalia is being funny.  He's one of those writers with the ability to laugh at his own jokes in print.  And his jokes are sometimes actually funny, although perhaps not quite as funny as he thinks them.  At the Supreme Court seminar I attended last December (see post 204) we were solemnly instructed always to laugh at the justices' jokes and never, ever to top them. 

(Can you imagine how excruciating it must be if Justice Ginsburg attempts a joke during your oral argument?  As if you didn't have enough to be anxious about, now you have to worry she might accurately evaluate the sincerity of your laughter.)

So I'm inclined to think Scalia wasn't trying to be funny a couple weeks back when he wrote this in a dissent:

The problem with the Court’s approach to determining which crimes fit within the residual provision is that it is almost entirely ad hoc. This crime, the Court says, does “involv[e] conduct that presents a serious potential risk of physical injury to another.” That gets this case off our docket, sure enough. But it utterly fails to do what this Court is supposed to do: provide guidance concrete enough to ensure that the [statute in question] will be applied with an acceptable degree of consistency by the hundreds of district judges that impose sentences every day.

This, mind you, from the same justice who wrote Crawford, announcing that whether hearsay violated the confrontation clause depended almost entirely on whether it was "testimonial", but "[left] for another day any effort to spell out a comprehensive definition of 'testimonial.'"  He did, it's true, add that statements made in response to police interrogations are always testimonial - but two years later he retracted that.  (See post 155.)  So Scalia started us off with an inadequate definition, and then took back part of it. 

So has Crawford "provide[d] guidance concrete enough to ensure that the [confrontation clause] will be applied with an acceptable degree of consistency" around the country?  As part of a research project I'm doing for the National Center for the Prosecution of Child Abuse, I've taken on the task of reading every new opinion construing Crawford - it averages about four every workday.  

There are, as of this evening, 3,911 cases in Westlaw trying to make sense of Crawford - a three-year-old precedent.  The number will be higher tomorrow at this time.  The decisions keep pouring out because no one really knows what Justice Scalia was trying to say.   They contradict each other on almost literally every point it's possible to disagree on, including several that I would have thought were beyond the capacity even of lawyers to find opposite sides to take.

(UPDATE: If you think that's too harsh, read this post on the Confrontation Blog, maintained by one of the Founding Fathers of the sixth amendment SP 2.  Tell me if you detect any concrete guidance there.  A belief that juries exist to be manipulated rather than informed, sure.  Paradoxical faith in judges even as they continue to disappoint the writer, no doubt.  Nostalgia for the day when Papa could whip his child without busybodies interfering, probably not consciously.  But concrete guidance??)

Then there's Scalia's opinion in Blakely, which inspired The Atlantic's Benjamin Wittes to write:

In the incoherence of its principle, the awesome scope of its impact, and its sheer contempt for so many different institutions in American life, Blakely stands out as the single most irresponsible decision in the modern history of the Supreme Court.

In Blakely, Justice Scalia went overboard with the italics (really, subtlety isn't his strong suit) to tell us that a convicted criminal's sentence may not exceed "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."  Reading this, it's easy to fall into the trap of thinking that "solely" means something along the lines of "solely." 

Just a few paragraphs later, though, Justice Scalia tried to warn us against jumping to that conclusion: "Of course indeterminate [sentencing] schemes involve judicial factfinding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion."  And that's hunky-dory.  The principle is clear, isn't it?  Factfinding by a judge is absolute verboten except when - "of course" - it's not. 

Justice Alito recently pointed out the way in which Blakely is like a personal ad: its self-description bears little resemblance to its reality.  (Although Alito didn't make that comparison explicitly, he got the point across.  Look at part III of his dissent here, beginning in the 7th paragraph.)

Westlaw counts 14,001 cases citing to Blakely.  You don't get those kind of numbers if you provide concrete guidance.  When people can figure out what you mean, 14,000 judges and 28,000 lawyers don't have any darkness to make stabs in.

Finally, look who joined that joker Scalia's dissent complaining that the Court's decision "is almost entirely ad hoc".  Why, bless my soul if it isn't Justice Ginsburg! - the author of the Cunningham opinion that struck down California's sentencing scheme based on - well, it's kind of difficult to say what her opinion is based on.  (See post 230.)   "Ad hoc" might be a little too formal to describe Justice Ginsburg's approach in Cunningham.  Ipse dixit, maybe?

There's an explanation for Scalia's and Ginsburg's hypocrisy - indeed, for why they wouldn't consider it hypocrisy at all, if someone had the inconceivable temerity to suggest as much to them.  The inspired new comic strip Retail - well, the name's not inspired - provided the explanation in a recent strip.  Company-man manager Stuart wonders how to persuade customers to buy more service plans.  Marla, our straining-to-remain-uncynical heroine, suggests that the store could start honoring the plans.  "Don't be naive, Marla," Stuart replies impatiently.  "We have to convince people with words, not actions." 

(The syndicate doesn't permit a link to the strip, since, after all, it's more important to control royalties than to develop readership.)

I'm not suggesting either Scalia or Ginsburg is capable of that much insight, much less that much candor, but their conception of words as the cheaper alternative to action is right in line with Stuart's.  Words are tools for getting what you want.  They have no other purpose, and therefore no other meaning.

All too often we talk about the Supreme Court as if the words it uses described the things it does.  I say it's time to give credit where credit is due.  The earlier collection of the Supremes' greatest hits emphasized the recent past and ages gone by (see post 196)  but it scanted on what might be called the Court's middle period.  Like the Rolling Stones, the Supreme Court went through a long stretch of mediocrity in the 1970s, but there were some bright spots amid all the Goats Head Soups: 

The religious right.  Where would Falwell, Robertson and Dobson be without 1973's Roe v. Wade?  More to the point, where would our nation be today without them?  The religious right took credit for President Bush's reelection, and I think they were fully justified in doing so.  But the Supreme Court deserves full credit for the religious right's clout.  

The revival of the death penalty.  Here's the number of executions in the United States during the years leading up to 1972:

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

Notice a pattern developing?  Then in 1972, the Supreme Court ruled that the death penalty was unconstitutional, regardless of the pesky little detail that it is twice specifically authorized by the very same Constitution.  Four years later, when members of the Court clarified that they only meant it was unconstitutional as then administered, they couldn't avoid revealing by negative inference what sort of statute would meet their approval, igniting a political movement to enact just such statutes and put them to vigorous use.

The natural trend toward the death penalty's eradication, which was world-wide in the 1970s (France, for instance, abolished use of the guillotine only in 1981, under the rotund collaborationist Mitterand), was abruptly reversed in the U.S., as this graph shows so ... graphically.  Only recently, after 35 years, has the death penalty's slide into history been recommenced, as the Court's massively counter-productive intervention fades into political memory.

Longer sentences for druggies.  Judges reluctant to lock some pathetic crackhead away for a decade (take a look at table 5.3 for average federal drug sentences) will always be tempted to find an excuse for suppressing the evidence of the crackhead's offense.  And the more creativity judges demonstrate in devising ways to avoid enforcing the law as written, the more pressure on legislators to respond in the only ways open to them: by broadening definitions of offenses and, especially, by lengthening sentences.   The Court started this dynamic  spinning back in 1961 and it's only gained momentum since then.

Hundreds of thousands of dead, injured and severely traumatized people.  In 2005, America's violent crime rate was three times what it was in 1961, despite the extraordinary security precautions we now routinely take.  (See post 253.)  (My own state of New Mexico has seen its violent crime rate more than quintuple during that same period, an achievement even Louisiana, our usual rival in dubious social statistics, can't match.) 

In 1961, 8,740  people were murdered in America.   The declining lethality rate for gunshot and knife wounds (explained in post 34) means that roughly two-thirds of those victims, or about 5,768 of the total, would survive their injuries today.  Compare the difference (2,972) to our 2005 murder total of 16,692.

I don't think the judicial system is solely responsible for the increase in violence since 1961.  Far from it.  These things are always over-determined, as Freudians used to like to say (are there any Freudians left? if so I'm sure they're still saying it).  But I also think it would be silly to pretend that our judicial system isn't one of those determinants.  After all, if the criminal justice system has no effect on crime, what's its excuse for existing?

UPDATE: One doesn't wish to speak ill of those who have only hours to live, as the Rev. Falwell did when I wrote the above.  But while I didn't mean my words as a compliment, exactly, I'm pretty sure he would have agreed with the sentiment, for all that he would have drawn on a different set of oratorical conventions to articulate it.

Duke University Press's Fall and Winter 2007 catalogue - yes, publishers are even worse than clothing companies about anticipating the change of seasons - includes On Violence: A Reader.  (Not to be confused with 2002's Violence: A Reader, or the same year's Violence and Society: A Reader.)

Duke's late entry in this competition, we're told, "proceeds from the editors' contention that violence is always historically contingent; it must be contextualized to be understood.  They argue that violence is a process rather than a discrete product." 

Now, it's never fair to criticize authors for the words of their publisher's publicity department.  As far as I know, Duke University Press uses a computer program to string together phrases with a track record of appealing to university librarians, the real customers for such books.  But, on the chance that those sentences were written by a person, it's interesting to wonder what is meant by "understanding" historically-contingent violence. 

Everyone can see that the puncture wound in your chest is historically contingent: if you hadn't been located in the physical space into which your killer thrust the knife, he wouldn't have been able to kill you.  But once you've contextualized the process producing your exsanguination, what next?

The book is part of a new series, The Cultures and Practice of Violence, intended (according to the  catalogue copy) to address "a need to better comprehend the role of those who actually do the work of violence - torturers, assassins, and terrorists - no less than their victims and witnesses." 

To show how unsophisticated I am, when I hear a word like "torturer" I actually think I understand the role of the person who meets that description - he's the guy who tortures.  (What is it about blogging that tempts people into making such unguarded confessions of intellectual inadequacy??)  (It must be the contextualized historical contingency - blogging, after all, is a process rather than a product.)  (Hence the gerund.)

Anyway, is there anybody missing from that short list of violence workers?  Here's a clue.  Duke University Press is located in a smallish city that had 35 murders in 2005, for a rate nearly double the national average.  In the Durham metro area, 127 rapes came to the attention of authorities in 2005, as did over 2,000 aggravated assaults and robberies.  The latter figures, it's safe to say, undercount the incidence of violence in the Press's hometown.

Yet the roll call of "those who actually do the work of violence" doesn't include violent criminals.  The editorial description of On Violence: A Reader doesn't include any reference to criminal violence, either.  The closest it comes is a reference to "institutional faces of violence: familial, legal, and religious".  It's apparently easier to contextualize the abstract family as a violent institution than real-life criminals as violent actors. 

Perhaps that's because "torturers, assassins, and terrorists" are political actors, while ordinary criminals aren't.  But the jargon spread like marmalade over every page of the catalogue makes it pretty clear that no one at the Press thinks that the personal is other than the political, anyway.   If the family is a violent institution, who staffs it?  More to the point, America is such an extremely violent place because our government follows the policy of tolerating it, which isn't so very different from actually encouraging it. 

I should add that by "government" I don't mean "the government."  On the contrary: I mean the part of government that isn't "the government."  (See post 267.) 

The Press's new series suggests an intriguing new line of inquiry.  Why do humanities professors find it so much easier to deplore South American torturers than the people who make them reluctant to go unescorted into their own campus library's basement stacks?  On Academics Who Understand Violence as an Academic Problem: A Reader - now that would be a contribution to the discourse.

Henry Fielding was a lawyer and judge as well as among the first and greatest English novelists.  Many a literary man has read the law to please his parents, including two of the authors I read with purest pleasure, LeFanu and Stevenson.  But Fielding, unlike them and most law-trained authors, made his living from the profession. 

While he was not a rousing success as a barrister (but then, most barristers aren't – bell-shaped curve and all that – Boswell never made it to the top of the greasy pole, either), he became magistrate for Westminster, and he and his brother John, also a magistrate, helped organize London's first effective police force, the Bow Street Runners.  (Fielding's courtroom was in Bow Street, across from Covent Garden.)

(On that map you'll find the geographic inspiration not only for The Jam's "A-Bomb in Wardour Street" – Wardour is the street on which the Marquee was located – but also, if you look closely, for the Kinks' "Denmark Street," which captures once and for all the soul of a pop music producer: "You go to a publisher and play him your song. / He says, 'I hate your music and your hair is too long / But I'll sign you up because I'd hate to be wrong.'")

Toward the end of his very short life, Fielding wrote a book, or rather a pamphlet, called Examples of the Interposition of Providence in the Detection and Punishment of Murder, Containing, above thirty Cases, in which this dreadful Crime has been brought to Light, in the most extraordinary and miraculous Manner; collected from various authors, ancient and modern.  Here's "Example XXX":

The following fact was told me by a gentleman whose great-grand-father was an Irish judge, before whom the thing happen'd.  The particulars have been preserved in the family by tradition ever since, but the name of the person that was executed is purposely omitted, as being of no inconsiderable family in that nation.

A gentleman was tried in Ireland for killing his friend in a duel, and the circumstances appearing very favourable on his side, a verdict was brought in manslaughter.  This crime being within benefit of clergy, the prisoner had the book offered him to read; of which he started and hesitated in such a manner, that those who stood near him asked him why he did not proceed.  He answered, he could not see the words, they were so stained with blood.  He added, that he wonder'd they should use him in such a manner, and desired there would give him a fair book.  Several people standing by look'd on the book, and all declared, that not the least drop of blood appear'd on it, but the words were perfectly legible.  The prisoner, on that, fetch'd a deep sigh, and said, "I plainly perceive the vengeance of God is pursuing me; for although I declare myself innocent of the death of my friend, any otherwise than by being forced into it for self-defence, yet I confess herself worthy of public punishment; for some years ago I barbarously murdered my own father."

He then related all the particulars of the Murder, and his confession was so full, that he must of been condemn'd on that account, had he taken his tryal; but his incapacity for reading in any book they offered him, by the appearance of blood before his eyes, still continuing, no other tryal was necessary, and he was executed by virtue of his first conviction.

He died very penitent, persisting in his confession of the Murder of his father, allowing the justices punishment, and acknowledging the hand of God, and forcing him to confession of his horrid crime.

Example XIX told of a man whom got away with murder for 20 years.  After that passage of time he felt confident enough to return to his old haunts, so to speak.  But

the very evening that he landed in a wherry at Queenhithe-stairs, walking up to Cheapside, in order to get into a coach, just in the dusk, and by the very door of his murdered friend, he heard a voice cry out, "Stop him, stop him, there he is."  On this he ran as fast as he was able, and soon found himself followed by a large mob.  He was soon overtaken and seized, on which he cried out, "I confess the fact, I am the man that did it."  The mob on that said, as he had confessed the crime, they would proceed to execution; and, after making him refund the stolen goods, would give him the discipline of pumping, kenneling and the like [that is, holding him under a pump or in a 'kennel' or open sewer]: on which he said he had stolen nothing, for though he had murdered Mr. L----, yet he had no intention of robbing his house.  By this answer, the mob found themselves mistaken, for their pursuing a pickpocket, and seeing this man run hard, believed him to be the pickpocket; but now were for letting go as a person distracted, that knew not what he said.  One man however who lived in the neighbourhood, and had heard of the murder of Mr. L----, desired that this gentleman might be examined before a magistrate, and he was accordingly carried before the Lord-Mayor, who took confession of the fact, for which he was soon hanged: and he declared at the gallows, that the day of his execution, was the happiest day he had known since he had committed that horrid, treacherous, inhuman act, the murder of a friend, who loved him, and to whom he lay under the highest obligations.

It might seem strange at first that the ribald satirist Fielding should have morphed into the earnest moralist championing God's wrath against "this sin of murder."  Here's one Victorian assuring us, presumably metaphorically, that "Fielding the magistrate and Fielding the playwright were two different persons".  But it seems to me obvious that the satire and the moralizing were the same tune played in different keys. 

For an artistic genius and pioneering judge in London in 1752, the detection of murder, and the murderer's penitence as expressed in his gallows confession, were presumed to be the handiwork of God: "the Almighty hath been pleased to distinguish the atrociousness of the Murderer's guilt, by levelling his thunder directly at his head, in this world."

Many things have changed in the succeeding 255 years, not least of all the attitudes of judges.   Today's Supreme Court presumes that a murderer's confession is the result of a civil rights violation.  From the hand of God to a tort: now there's a fall from grace.

In 1968 Justice Byron White deplored "the Court's fuzzy ideology about confessions, an ideology which is difficult to relate to any provision of the Constitution and which excludes from the trial evidence of the highest relevance and probity."

But that was a lawyer-centric way of putting it.  Describing an ideology in terms of categories established by the law of evidence is like describing liberalism as an ideology that favors Volvos - not wrong, but kinda missing the point.  The Court's ideology, which is by compulsion the ideology of all American criminal courts, is an ideology about punishing murderers who have confessed to their crimes.

And even that isn't quite right, because people really do confess falsely, and no one (or no one we need to respect) is in favor of locking up the innocent.  So we can put the innocent confessors to one side.  The Court's ideology is against punishing guilty murderers who have confessed to their crimes.

This ideology is imposed upon us by a group of people who want us to believe they respect the intentions of the framers of our Constitution.  (See post 79.)   Do you suppose they really know more about what people were thinking in the 18th century than Henry Fielding did?