Whatever Happened
to Justice?
The Disappearance of Truth from Our Criminal Courts
Whatever Happened to Justice? The Disappearance of Truth from Our Criminal Courts, will be published in 2009 by Kunati Books. Kunati was recently named the Independent Publisher of the Year by ForeWord Magazine.
This is a rough outline of the first draft, a kind of progress report of a work in progress, and not necessarily what you'll find in the published book. I go into detail with the introduction because its job at the beginning of the book is to explain why you ought to read it.Introduction: Which Is Better?
In 2008, Texas's highest criminal court, the Court of Criminal Appeals, had to decide which misconduct was worse: (a) an adult sexually molesting a child, or (b) a detective introducing himself to a prisoner in the Corpus Christi jail? Two members of the court went with (b). They thought the detective's action was so bad it had to be addressed first, before any court could even consider the suspect's guilt or innocence.
Of course they didn't phrase their dissent like that, and their reasoning made a great deal of sense in legal terms. That's the problem.
In our criminal courts, truth is treated like a rambunctious dog, to be kept on a short leash when not banished to its kennel altogether. I think the problem lies with the trainer, not the dog. This book explains why – and how we can return to a truth-based criminal law.
American liberals pay Richard Nixon, Spiro Agnew and George Wallace the supremely undeserved compliment of accepting their way of thinking about the criminal law: the right is for tougher enforcement while liberals, like the Berkeley professor in Dirty Harry, want only to protect the criminals' constitutional rights.
But that's an entirely artificial way of looking at the problem of criminal violence. There's no good reason why we, as a society, should have to choose between safety and the protection of constitutional rights. Chapter 9 will explain how we can have both.
I believe the single most important function of government is to protect its citizens from harm, whether from invading Huns or from the little Attila living down the street. I also believe in democracy: people should be allowed to choose for themselves how they want their government to function.
The politics of the book boils down to those two core beliefs. They don't sound like radical notions, but they are – when applied to our criminal justice system.
As an aside, this isn't a book about either the death penalty or the "war on drugs," or for that matter about philosophical subtleties or the absurd hypotheticals of law school. It has to do with the morally-easy cases - rapes and murders in which the defendant's guilt is as certain as anything in this world can ever be.
I can't think of any cause more liberal than using the powers of government to extend a gated community's level of protection (and its sense of safety) to those left behind in the inner cities and decaying suburbs. And if that's also a conservative, law-'n'-order position, it means we're all agreed. So what is holding us back? Or, rather, who?
Chapter 1: Truth Is the Thing that Happens to Victims of Criminal Violence.
This chapter begins with a brief autobiographical narrative. I fell for the whole "prestigious" trap in law school and the early years of my practice at a civil firm, and found myself weighed down by a sense that my work was meaningless.
So I went into public health.
That's not how most people think of the criminal law, for all that the sections of of the CDC website dealing with "Injury, Violence & Safety" sound like a list of divisions in a big-city prosecutor's office.
The chapter describes three of my cases involving atrocious crimes, in each of which the "issue" was whether jury had been allowed to learn too much about the case it was called upon to decide. The truth was what happened to the victims. I found myself repeatedly arguing that it was actually a good thing for a jury to know as much of the truth as possible. Judges disagreed.
Chapter 2: The Cultivation of Unreality.
You can enter Law World only through a portal built from ecumenical religious symbols (pews, black robe, Latin, etc.). The symbolism is oddly appropriate, as legal knowledge is fundamentally religious: it's based on authority rather than observation and measurement.
Inside the judicial pyramid, if the Supreme Court says it, it's so - even if the same court said exactly the opposite just three years earlier. Lawyers and judges are trained to find nothing incongruous, much less comical, in that.
Chapter 3: The Conditional Criminal Law.
From the point of view of the guilty criminal, prior to 1961 the criminal law posed two great variables: Will I get caught?, and: If I'm caught, how bad will it be for me? The Supreme Court's decision to widen the gap between evidence and reality added a third variable: the likelihood, once caught, of being punished.
The decision externalized the guilty criminal's risk. Whether he would be punished no longer depended solely on what he did and whether he was found out. It also depended on what his enemies did, a matter wholly out of his control. Criminal punishment ceased to be society's response to an evil act and became instead a matter of bad luck.
Since 1961, the violent crime rate in America has increased dramatically - far more dramatically than the numbers alone would suggest. The lethality rate of gunshot and knife wounds dropped by two-thirds between 1960 and 2000 - which means raw homicide numbers must be multiplied by at least three for an accurate comparison.
Who benefits from our justice system's increased tolerance for extreme violence? The obvious answer would seem to be: the criminals. But that's not true. Our current incarceration rate is five times higher than it was for the entire course of the 20th century before about 1970. The likelihood of going to prison has never been remotely so high in the entire history of the U.S.
As courts made it increasingly difficult to convict criminals, Congress and state legislatures compensated by increasing the punishment meted out - an entirely predictable response. An ideal criminal justice system would combine certainty of conviction with graduated penalties. Instead, we have a system that combines uncertainty of conviction with savage penalties.
Chapter 4: The Long Civil War
There are powerful historical reasons for this state of affairs. The nation was founded on a contradiction - a Declaration of Independence that declared all men are created equal, followed by a Constitution that enshrined race-based slavery. We've been trying to resolve the contradiction ever since.
The reactionary Supreme Court of the post-Civil War era refused to allow the federal courts to enforce the 14th and 15th amendments. The great triumph of Brown v. Board of Education is that in 1954 the Supreme Court finally permitted the enforcement of a constitutional amendment enacted in 1868.
Chapter 5: Post-Civil Rights Era Syndrome
One symptom of Post-Civil Rights Era Syndrome is the persistent delusion that any police officer in America can, at any time, pull off the rubber mask like a movie alien to reveal the tobacco-chewing Ku Klux-sympathizing Dixie deputy beneath.
Chapter 6: America's Unfinished Constitution
In Marbury v. Madison, Chief Justice John Marshall vaunted "the greatest improvement on political institutions-a written constitution". But since 1961 the U.S. has no longer had a written constitution. It has a constitution that is forever in the process of being written, and re-written.
Chapter 7: The Moral Hazard of Judging
In the insurance business, a "moral hazard" occurs when the consequences of a bad decision are borne by someone other than the decision-maker. Judges are, by definition, among the most powerful members of society. Victims of violent crime are, by demonstration, the least powerful.
When judges release dangerous people into society, they tend not to move into the judges' affluent neighborhoods. One reason judges reject moral responsibility for the consequences of their decisions is that they don't suffer them.
Chapter 8: Liberal or Conservative?
This returns to a theme first touched on in the Introduction - the bizarre disconnect between the definitions of "liberal" used in connection with the criminal law and in electoral politics. A perfect illustration is Slate magazine using the adjectives "liberal" and "libertarian" interchangeably when discussing Justice Antonin Scalia - which ought to strike us as obviously silly as calling Dennis Kucinich the soulmate of Bob Barr, but somehow doesn't.
After liberals finally rediscovered the Civil Rights movement in the 1950s and 1960s, libertarianism advanced the liberal agenda when Southern judges were maneuvered into choosing between the two contradictory political beliefs that had long defined their culture: faith in small government; and segregation, which was all about intrusive government.
But that doesn't make libertarianism liberal, any more than use in Kucinich's New Hampshire campaign makes a roll of duct tape liberal. A truly liberal approach to criminal law would seek to use the powers of government to protect vulnerable members of society from harm. We live in a nation in which liberal politicians, upon assuming the power of judges, immediately start marching to the right, convinced (with religious conviction) that they're headed in the opposite direction.
Chapter 9: The Way Out: Truth-Based Justice
(Buy the book and find out.)