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JoelJacobsen.com

Monday
Dec052005

9. Poor Old Camden

Morgan Quitno recently announced their annual rankings of the "safest" and "most dangerous" American cities.  Poor old Camden, New Jersey, won the title of most dangerous, while Newton, Massachusetts (namesake of the Fig Newton) was deemed the safest.    As Reuters pointed out, the average income in Newton is three times that of Camden, while the average house value in Newton is ten times greater.

Poverty doesn't cause people to become violent criminals.  But it does cause them to become victims. 

Fear of violent crime is the organizing principle of many people's lives.  It's a form of social control in America.  The best recent book about the American criminal justice system seems at first glance to be concerned with an entirely unrelated subject.  I mean Eric Klinenberg's Heat Wave: A Social Autopsy of Disaster in Chicago.  Over 700 Chicagoans died in the 1995 heat wave.  Klinenberg shows that the deaths were heavily concentrated in certain neighborhoods, specifically poor neighborhoods with dangerous streets.  Isolated elderly people stayed locked up in their apartments because they perceived a greater danger in venturing outside.  No other book has shown so vividly, even heartbreakingly, the isolating effect of violence. 

Four years after the heat wave, Chicago's own Justice John Paul Stevens wrote an opinion striking down Chicago's anti-gang-loitering law as an infringement of gang members' constitutional right to congregate on public property.   By ruling that the city, responding to the wishes of its citizens, could not exercise control over the sidewalks, Stevens effectively ruled that the gangs could. 

Rulings such as the Chicago gang ordinance case prohibit people living in places like Camden, or the rough neighborhoods of Chicago, from joining together in a democratic polity to rescue themselves from the arbitrary government of violence.  By ordering the withdrawal of the democratic state, the Court invites into society the competing micro-governments of bandit chieftains. 

Monday
Dec052005

8. When Is a Court Not a Court?

During his confirmation hearings, according to Linda Greenhouse, Chief Justice Roberts "suggested that he saw room for the court to hear and decide more cases."  If he actually oversees an expansion of the Court's caseload, the new Chief would be putting the brakes on a long-term -- very long-term -- trend.  In the late 1870s, when the nation was much less populous, an average of 391 cases were docketed in the Supreme Court every year, according to one of its members.  During the 2004-2005 term, Concurring Opinions' Jason Mazzone has reported, the Court issued just 74 opinions.   What explains the incredible shrinking docket?  It's not as if Americans have grown less litigious.

During the 20th century, according to the conventional feel-good narrative -- the Whig interpretation of legal history -- the Supreme Court recognized all sorts of new legal rights.  But during that same time Americans lost their most important legal right of all: the right to seek justice in the Supreme Court. 

The Supreme Court used to decide many more cases because Americans used to have the right to take their cases to the Supreme Court.  But, as Edward A. Hartnett has shown, Chief Justice William Howard Taft saw to the drafting of legislation that divided cases into two categories, a small residual category of appeals the Court was still required to hear, and everything else, which the justices had discretion to hear or not. 

Taft and some of his fellow justices, personally lobbying Congress for passage of the bill, promised they would use their new discretion merely to filter out frivolous cases.  They said they would "grant certiorari" in every appeal that raised a significant legal issue.   ("Granting certiorari" simply means agreeing to hear a case.) 

By 1941 the Court was granting only 17.5% of petitions for certiorari presented to it.  Fifteen years later the figure had slipped to 12.4%.  By 1971, it had dropped further to 9.6%.   (These figures are from the "Report of the Study Group of the Caseload of the Supreme Court," 57 FRD 573, 581 (1972)).  In 1988, after another round of lobbying by Chief Justice Rehnquist, Congress surrendered completely, abolishing the small category of appeals the Court was required to decide.  From that day the Court has had absolute discretion to decide, or not decide, any of the cases presented to it, or none of them. 

Imagine what any other group of federal workers would do upon being informed they no longer had to do anything they didn't want to do.  That's exactly what the Supreme Court did.  Nowadays the Court grants only about 1% of certiorari petitions.  Yet – and this is the seeming paradox the wily politician Taft understood so well – by reducing its caseload, the Supreme Court vastly increased its political authority. 

The Court has gotten out of the business of correcting legal error.  (See post 7 .)   While correcting errors made by lower courts might seem, in the abstract, a useful thing to do, the Court itself gains no benefit from it.  Today the Supreme Court agrees to hear cases on the basis of their "importance" – which is to say, the power they permit the Court to exercise.  The Court has transformed itself from an appellate court into a "continuing constitutional convention", in the words of Warren G. Harding's Solicitor General James M. Beck, as quoted in Hartnett's article. 

If Roberts actually increases the Court's caseload, it will be a baby step in the process of turning the Court back into a court.

Friday
Nov252005

7. Pigs in the Poke

During his confirmation hearings, Chief Justice John Roberts said: "I think I should stay away from discussions of particular issues that are likely to come before the court again."  He also said: "I don't want to express conclusions on hypothetical questions …  Those cases come up all the time and I do need to avoid expressing an opinion on those issues."  He said the same thing many other times, too, in many different ways.  No doubt we'll soon hear Judge Samuel Alito similarly being careful not to comment on cases he might be called upon to decide. 

 But is it true that the Surpeme Court decides cases?  In a literal sense, sure.  The Constitution limits the Court's jurisdictions to "cases and controversies".  But the justices themselves frequently assert that they are involved in a more ambitious project.  Justice Breyer (joined by Justices O'Connor, Souter and Stevens), once said: " I realize that we cannot act as a court of simple error correction".  The phrase "error-correction" refers to the ordinary appellate process of reviewing the decision rendered by a lower court in a particular case, to determine if the lower court erred.  Justice Stevens (joined by the late Justice Marshall) spelled it out: "In my judgment this Court's scarce resources would be far better spent addressing cases that are of some general importance 'beyond the facts and parties involved'".  What they mean is that the Supreme Court doesn't, or at least shouldn't, simply decide cases.

This distaste for error-correction is no crotchet of the so-called liberal justices.  Just this year, Justice Thomas (joined by Justice Scalia) opined that the Court should decline to decide a case when the issue presented was not an "important question, but merely a matter of case-specific error correction." 

For the justices, then, there are two categories of cases: those that present important questions, and those that merely require "case-specific error correction."  The latter are the individual cases about which Chief Justice Roberts was so careful not to express an opinion.  The former are denominated important because they are vehicles for announcing rules of broad application.  In one famous child-murder case Justice Stevens wrote: "The emotional aspects of the case make it difficult to decide dispassionately, but do not qualify our obligation to apply the law with an eye to the future as well as with concern for the result in the particular case before us."  By "the emotional aspects of the case" he meant its particular facts.  By "an eye to the future" he meant that the Court should take care to announce a rule crafted to produce optimal results in other cases.  His point was precisely that the justices should put to one side the facts of the particular case in order to announce a rule designed to produce desirable results in (hypothetical) future cases. 

Again, the so-called conservatives on the Court have no quarrel with this approach.  A few years ago Justice Thomas wrote:

We have emphasized repeatedly that the State's use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution.  Rather, a Fourth Amendment violation is "'fully accomplished'"  by the illegal search or seizure, and no exclusion of evidence from a judicial or administrative proceeding can "'cure the invasion of the defendant's rights which he has already suffered.'"  The exclusionary rule is instead a judicially created means of deterring illegal searches and seizures.

Of course, only future wrongful searches and seizures can be successfully deterred.   Thus on the one hand we have nominees saying it would be inappropriate for them to express an opinion about cases they might be called upon to decide, while on the other hand we have justices already in office saying it would be a mean and paltry thing for them to decide cases only.  Their job, the already-confirmed justices keep telling us, is not merely, or even primarily, to decide individual cases, but also to decide how lower-court judges should handle hypothetical future cases.

Granted that nominees shouldn't prejudge individual cases, out of fairness to the litigants, why shouldn't they tell us how they would have lower court judges handle as-yet-nonexistent cases?  The conventional position of Supreme Court nominees, boiled down, is that they should be entrusted with the power to formulate prospective rules of universal application to govern American society, and even to alter it fundamentally  – but that American citizens have no right to know what those rules will be until they are imposed on them.

Thursday
Nov242005

6. Deterrence rationale

Modern constitutional criminal procedure includes three major "exclusionary rules."  Only one of them is found in the actual text of the Constitution: the fifth amendment prohibition on compelling a person "to be a witness against himself", which excludes compelled confessions.  The exclusionary rules appended to the fourth and sixth amendments are judicial creations.  In the day-to-day operation of the criminal justice system, the fourth amendment exclusionary rule is the biggie.  It dates only from 1961.  As formulated by the Supreme Court, it requires all judges, state as well as federal, to "suppress" evidence that was illegally seized by police.  (Suppression simply means  that the evidence is concealed from the jury.  The judges and lawyers pretend it never existed, and witnesses are instructed not to mention it.)

The Supreme Court has repeatedly told us that the suppression of evidence deters wrongdoing by police.  Lower court judges accept this as fact for a very good reason: the Supreme Court says so.  But the rest of us can be little more skeptical.  Using the sabermetric principle that if a phenomenon exists, it must inevitably show up in the statistics, I looked for evidence that the judiciary's fourth amendment jurisprudence has had a deterrent effect.  

My working hypothesis was that if the exclusionary rule has any overall tendency to deter police from making unconstitutional searches and seizures, the number of cases in which the legality of a search/seizure was challenged should have peaked relatively soon after 1961 and then gone into a steady decline.  As more and more officers were deterred, it seems reasonable to suppose, ever-fewer would still need deterring.

Using Westlaw , I counted the number of cases in which the phrase "fourth amendment" appeared in the decisions of four major federal appeals courts at 10-year intervals beginning in 1952.  The four courts were the Second Circuit (based in New York), Third Circuit (Philadelphia), Seventh Circuit (Chicago) and Ninth Circuit (California).  I picked them because they're big courts and their borders haven't changed.  Obviously, the search criterion was crude, and the completeness of the database influences the results; Westlaw includes some but probably not all unpublished opinions.  Nonetheless, I think it's reasonable to assume that comparing the number of cases retrieved by the search reveals broad trends.  The results:

Second Circuit 
1952 = 0 cases 
1962 = 4
1972 = 32
1982 = 25
1992 = 27
2002 = 36

Third Circuit 
1952 = 0 cases 
1962 = 3
1972 = 23
1982 = 13
1992 = 10
2002 = 57

Seventh Circuit
1952 = 1 case
1962 = 2
1972 = 24
1982 = 34
1992 = 61
2002 = 64

Ninth Circuit
1952 = 0 cases
1962 = 8
1972 = 36
1982 = 44
1992 = 207
2002 = 143

I think it can be confidently said that these numbers don't suggest a pronounced downward trend.  If the fourth amendment exclusionary rule has a deterrent effect, it's not clear from the number of fourth amendment cases heard by the federal appeals courts.

Sunday
Nov202005

5. The Constitution's Rosetta Stone

In The Federalist 48-51, Madison brilliantly filled in the gaps in Montesquieu's doctrine of the distribution of powers.  Those numbers of The Federalist are a Rosetta Stone for anyone wishing to interpret the political significance of any judge's ruling in any case, civil or criminal.  

The United States Constitution has only one subject: power.  It distributes power between the states and the central government, and then divides the central government's share of power between its three branches, and then it limits the government's use of power against its citizens. 

Necessarily, then, every constitutional ruling by a court is a ruling on the distribution of powers.  It's an application of -- or an adjustment to -- Madison's ideas. 

The Declaration of Independence held it to be a self-evident truth that the only legitimate basis for government is the consent of the governed.  The underlying democratic theory of the Constitution is -- can only be -- that the people of the United States agreed to put certain subjects beyond the reach of alteration by democracy.   That is, they democratically chose to limit their democracy.

This means that the very concept of a new constitutional doctrine is a paradox.  If it's new,  then by definition the governed did not consent to it when they accepted the Constitution and its amendments as a limitation on their power to govern themselves.     

America's criminal justice system once said: "If we catch you doing something terrible to another human being, we will  punish you."  Now it says: "If we catch you doing something terrible to another human being, we may -- or may not -- punish you."  The contingency was introduced by judges who discovered that the Constitution gave them previously-unrecognized power to conceal information from juries (to "suppress evidence"), and to refuse to enforce democractically-enacted laws (to "find them unconstitutional").   

The switch from an unconditional to a conditional criminal law was announced by judges as a series of new constitutional doctrines, a process that began in earnest in the 1950s and continues to this day.  Because our criminal justice system was transformed by constitutional rulings, it cannot be changed back by democratic means.   American citizens no longer have the political power to decide for themselves how to use the powers of government to protect themselves from physical harm. 

The "constitutionalization" of criminal procedure was not simply a revolution in the practice of criminal law, but a fundamental reordering of society.  It was -- and is -- a process of de-democratization. 

Thursday
Nov172005

4. The Price of Power

There's an obvious reason why Supreme Court confirmation hearings have become increasingly contentious, why so much money flows into state judicial races, and why the confirmation of lower federal court judges has become a perennial campaign issue.  Judges are  more powerful than they used to be.  Their decisions matter more. 

Judges, elevated in their priestly robes behind an altar-like bench, occupy a position of nearly religious awe in the United States.  Reverance is the key to the public's acceptance of the judiciary's enormous power in American society.  But in a democratic society no government official ought to be revered. Reverence of the Supreme Court, in particular, is unhealthy. In the twentieth century the justices' ranks included the anti-Semite James McReynolds, the KKK member Hugo Black, the compulsive self-mythologizer William O. Douglas, the cash-pocketing Abe Fortas, and benchfuls of second-raters. Treating Supreme Court justices as immortals has never made any of them god-like.

In the 1950s Jimmy Byrnes was the segregationist governor of South Carolina. No one, then or later, would have accepted his statements to the press as full and complete explanations for the odious politics he pursued. There is as little reason to accept the opinions he wrote as a Supreme Court justice during the 1940s as full and complete explanations for his exercise of judicial power. The opinions of all the justices, including those with whom we agree, should be read with the same skepticism a veteran journalist brings to the press conferences of South Carolina's current governor, and with the same attention to the words between the lines.

The way to reduce the influence of money in judicial races, and to eliminate the unseemly spectacle of feeding-frenzy confirmation hearings, is simple: return the judiciary to its original role as a forum for deciding which of two litigants wins. 

Tuesday
Nov082005

3. The Lawful West

Despite the popular image of the Wild West as a lawless place, frontier New Mexico was crawling with lawyers.  Writs, warrants and indictments tumbled across the landscape.  The Anglo-American legal system, like the tumblewood, was a non-native species that proliferated wildly.  My book Such Men as Billy the Kid, like Judging Crimes, is concerned with crime, violence and the law -- with society's response when its most vulnerable members are victimized.

The violence of the Wild West wasn't some isolated phenomenon that just happened to coincide with the social Darwinism of the Gilded Age.  It was social Darwinism, the survival of the "fittest" -- the most ruthless and the least scrupulous.  

Today's violence is not fundamentally different.  Americans of the 21st century tolerate vastly more violence against their fellow citizens than do the inhabitants of any other developed nation.  What makes this politically acceptable is that victims of criminal violence are disproportionately the poor, members of minority groups, the physically disabled, the mentally ill, children and the elderly.  After all, who is less "fit" than a still-warm corpse? 

Protection from violence is something the well-off can buy, with their burglar alarms, private transportation, gated communities, security guards, concealed hangun permits, nanny-cams, and all the rest. Those who don't take these self-protective measures have only themselves to blame.

America's poor suffer violence for the same reason they suffer inadequate health care, and why so many mentally ill live in the streets: because Americans, as a society, haven't yet fully accepted the idea that the resources of government should be expended to benefit those most in need of them.

Saturday
Nov052005

2. Miers and the outsider nominee

The worst aspect of the Harriet Miers fiasco is that it discredits the whole idea of selecting a Supreme Court nominee from any pool of potential candidates other than federal appeals judges.    We need justices from other spheres of life.

In an 1820 letter, Jefferson wrote: "Our judges are as honest as other men, and not more so.  They have, with others, the same passions for party, for power, and the privilege of their corps."  Any conscientious person who has spent years or decades of his or her life serving an institution will come to identify with that institution.  It's natural for people to want to advance the interests of colleagues they respect.  A federal appeals court judge elevated to the Supreme Court will tend to use his or her new power to aggrandize federal appeals courts.  They will have, as Jefferson said, a passion for the privileges of their corps.

I don't think this is a bad thing, in and of itself.  I would rather have a Supreme Court justice capable of experiencing normal emotions than one who is not.  The problem occurs when the entire Supreme Court bench is composed of former federal appeals court judges.  Stevens, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer, Roberts...  The sole remaining Supreme Court justice who did not serve on a federal appeals court is the soon-to-be-departed Sandra Day O'Connor.  This uniformity guarantees a real poverty of practical experience. 

Only Souter and O'Connor among the current justices ever served as trial judges.  Scalia and Thomas, respectively an academic and bureaucrat before becoming appeals court judges,  each spent only a few years at the beginning of their careers in the actual practice of law.   (No wonder they're so certain about everything.)  Only Souter ever practiced in the area of criminal law.  The justices select as their clerks  fledgling lawyers just out of law school.  In an entirely literal sense, the justices don't know what they're doing when they make decisions about trial practice and the criminal law.  How could they?

Bush's idea of nominating someone who has never served as a judge was a good one.  The problem was that Miers was so obviously, even pathetically, not ready for prime time.  (And then she was served so poorly by the President's political apparatus and her wink-winking friends from Texas.)   So Bush, like Clinton before him, like Reagan following the Bork and Douglas Ginsburg disasters, took the path of least resistance and nominated an appellate judge who had already been confirmed by the Senate.  Future presidents will be that much less likely to risk humiliation with an unconventional pick.  More's the pity.

Friday
Nov042005

1. Roberts as an "Advocate for the Right"

When John Roberts was first nominated to the Supreme Court, the New York Times ran a story describing him as "An Advocate for the Right", explaining how during his service in the Reagan Administration he was often more conservative than his elders.  A review of his legal memos, the Times reported, showed that, among many other tell-tale signs of dyed-in-the-woolness, he consistently "took the side of prosecutors over criminal defendants."  

Look at the Times' choice of words.  The two sides confronting one another across the left-right divide aren't victimizers and victims, the dangerous and the vulnerable.  Indeed, the victim doesn't count at all.  The two sides are defined in terms of the roles they play inside the courtroom, where the prosecutor represents the Establishment and the defendant is the non-conformist.  That storyline is overly-familiar to anyone who grew up in the 1960s and 1970s.  John Roberts, the Times reporter meant to convey (and his readers no doubt understood), lived through the era as a signed-up, buttoned-down member of Nixon's silent majority.

Outside the courtroom, however, the violent criminal is not the oppressed but the oppressor.  Violent crime in America is mostly a problem for the poor, the disadvantaged, and members of minority groups -- which is why it's always news when well-to-do white people are victimized.  In October, 2002, two snipers randomly shot 13 people in the mostly-prosperous suburbs of Washington, D.C.  The shootings were front-page news across the country.  But in the midst of the panic the Washington Post ran a story headlined: "In Areas of Crime, Weary Sympathy."    The article pointed out that street shootings weren't unusual in many areas of the District.  For the headline writer, the District's poorest neighborhoods were defined by the frequency with which their inhabitants were victimized: they were areas of crime.

Similarly, in 2005, when five children were shot at random on New York streets within a period of 16 days, it was no more than local news, because the kids all lived in tough neighborhoods.  Poor people getting struck down by random bullets flying around the inner city is accepted as a fact of life in modern America.  At least, it's accepted by middle-class whites living elsewhere.  The single most sobering crime statistic is this: in America, blacks are six times more likely to be murdered than whites.   As the novelist Jervey Tervalon has written: "The worst scourge of inner-city life isn't drugs, gangs or poverty. It's the fact that if you're a young man, the odds are good that you will get shot."  

After-the-fact punishment is a terribly inefficient way to discourage violence, but no one has yet come up with a better way.  So the Times could as easily written that Roberts "favored using the power of the government to improve the quality of life in the inner city."

One of the most striking developments in American life since 1950 is the ever-greater responsibility Americans assume for their own safety.  They don't venture out at night – or at all  -- they prohibit their children from wandering the streets looking for playmates, install alarms and security cameras everywhere, string concertina wire around their businesses, drill peepholes through their front doors, carry concealed handguns, equip their teenagers with cell phones to use as panic buttons, routinely record fingerprints in banks, post sex offender lists on the web so neighbors can investigate one another, install wrought-iron bars across their windows, surround whole neighborhoods with medieval-style battlements, and on and on. 

Everyone knows that, but not everyone understands that the transformation was the result of official governmental policy.  Just as welfare reformers sought to abolish what they called a culture of dependence, the judiciary, by putting some acts of savage violence beyond the reach of punishment, taught the vulnerable not to depend on government to protect them.  So the Times could have written that Roberts "wanted to reverse the privatization of essential governmental services."

Another way to look at the politics of crime and criminal law is to think in institutional terms.  Laws against violent crime are enacted through a democratic process and reflect the will of the people, expressed (more or less imperfectly) through their elected representatives.  When a judge rules that the Constitution forbids the punishment of a person who violated a criminal law, the judge means that, in this one particular, the people are forbidden to have the sort of society they want.  Judges are members of the governing class, right at the top of the heap.   So the Times could have said that Roberts "championed the position that ordinary people should be permitted to organize their own communities with minimal interference from society's elite." 

I have no reason to think the young John Roberts actually thought in these terms.  Probably he didn't; his commitment to conventionality seems to have been absolute.  But one reason for publishing Judging Crimes is to encourage others to do so. 

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