JUDGING CRIMES

A view of the bench from the trenches • by Joel Jacobsen

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Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system. It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist. It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say. I know what they do because I deal with the consequences every day.

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power. But it is the exercise of power itself that should command our attention, not the justifications. Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it.

American law professors have long liked to say they teach their students "to think like a lawyer." Learning to think that way is a matter of internalizing certain assumptions. The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question. Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so. Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions rest.

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links. Many other blogs already do that, far better than I could hope to do. (Check out these.) Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine. I hope to post new pieces several times a week.

About Joel Jacobsen

I've been practicing law for 20 years. My law degree is from Northwestern University in Chicago. I also studied law at two other universities, my hometown University of New Mexico and, on a Fulbright Scholarship, the Rheinische Friedrich-Wilhelms-Universität in Bonn. I've practiced in a large corporate firm, a small firm and for the government, and now I teach part-time in the Paralegal Studies program at Central New Mexico Community College (the former TVI). I started my career in the field of commercial litigation, with an emphasis in media law, but for 15 years now I've specialized in criminal appeals. I'm an Assistant Attorney General representing the prosecution in New Mexico's appellate courts and wardens in federal habeas corpus actions. (Please note the disclaimer at the bottom of every page of this blog. The blog is a personal project, with no government affiliation or sponsorship.)

Because most violent crimes are prosecuted in state rather than federal courts, and because New Mexico traditionally has the highest violent crime rate among non-Southern states, my cases – many hundreds by now – have included all of the obvious violent acts one human being can commit against another and many of the more obscure ones. I've handled roughly 50 murders and several times that many cases dealing with lesser degrees of homicide or nondeadly violence. I've dealt with beheadings, an evisceration, toddlers locked in a remote cabin to starve to death, a fatal anal rape perpetrated by mop handle, a hoe murder, and a murder solved only because a Navajo man was curious enough to step out of his hogan to investigate strange noises in one of the most isolated areas of the continent. Not many people in America have as much experience handling appeals from convictions for violent crimes.

Judging Crimes isn't a right-wing rant against judicial activism. I'm a Democrat, in the mainstream of the party on most issues. On the hot-button issue conventionally used to separate the sheep from the goats, I don't support capital punishment, for reasons I'll eventually get around to detailing in the blog. I don't handle death penalty cases, but New Mexico's death penalty is mainly theoretical anyway.

I think my views on democracy and the criminal law are consistent with the values of modern liberalism. The United States is several times more violent than any other developed nation. One reason, I believe, is that victims of violent crime are overwhelmingly the poor, members of minority groups, the disabled and the mentally ill. As Richard Hofstadter demonstrated half a century ago, social Darwinism remains the template for American attitudes about the proper role of government. Judging Crimes explores the strange paradox that the social Darwinist -- or, to phrase it more politely, the libertarian -- view has come to be considered "liberal" in one isolated area of American public life: the administration of the criminal law. (A Slate contributor actually treats "liberal" and "libertarian" as synonyms in this comparison of Scalia's and Alito's records in criminal cases.)

I'm also the author of Such Men As Billy the Kid: The Lincoln County War Reconsidered, published by the University of Nebraska Press/Bison Books, the national's premier publisher of serious works on the American West. Viewed abstractly, the book is concerned with violence and the establishment of the rule of law on the frontier. From page to page, though, it tells a wild tale that has fascinated readers for 125 years. The book is described here.

My undergraduate degree in literature was from the College of Creative Studies of the University of California, Santa Barbara, where I was lucky enough to study with Robyn Bell and the late Marvin Mudrick. I also spent a year studying Anglo-Irish literature and Guinness at Trinity College, Dublin. I've published scholarly articles in New Mexico Historical Review, Oregon Law Review, Akron Law Review and the sadly-defunct New Mexico Bar Journal and New Mexico Lawyer. Other pieces of varying types have appeared in various journals. Years ago I reviewed movies for the New Mexico Independent, which was a blast but convinced me I'd never write a bestseller: my enthusiasms were sadly out of synch with the popular mood. But I still love the smell of popcorn when you enter the lobby, and I'm still one of those people who stick around until the last credits have rolled.

This work is licensed under a Creative Commons License. This blog is strictly a personal project of the author. Nothing I write in the blog is written in my official capacity, nothing is approved or endorsed by my employer or clients, and I have no reason to believe my employer or clients agree with anything I say.