This is not your typical “legislating morality” post. At least not typical of those I’ve seen before. Those posts are about things like prostitution, drug use, and similar allegedly — and in actuality frequently — “victimless crimes.”
That’s not what this post is about.
As usual lately, reading this post on Scott Greenfield’s blog provokes me to a post of my own. Sure, I could just leave a really long comment over on his blog, but lately I hardly get enough time to write, so aside from not wanting to leave an over-long comment, I wouldn’t get a post up on my blog if I didn’t “respond” here. This post is already going to pre-empt another I was working on regarding the (really high) number of police misconduct stories in the newspaper the other day.
Also, this is kind of a follow-up to my last post. Besides, some of what I’m responding to isn’t the post, as much as comments that followed it, including many which I read on Twitter.
Scott Greenfield’s blog, Simple Justice, is probably the only legal blog where I try never to miss a post. If I fall behind, it bugs me, and when I get the chance, I’ll catch up by spending an hour or more reading every post I’ve missed. One of these days, I’m going to continue digging back into the older posts, from before I knew about his blog, and read all those, too. This is not to say that I agree with everything he says, but everything he says definitely makes me think. And I agree with enough of it that I wish there was someone like him in my jurisdiction to mentor me. (Scott’s been practicing a lot longer than I have.)
One of his posts from today — A Blog That Shouldn’t — gives me the chance to talk more about something that matters very much to me. It concerns the question of defending guilty people.
In Judaism, there is a tradition known as “building a fence around the law.” As the page linked in that last sentence indicates, it derives from a verse in the Tanakh — the Hebrew scriptures known to Christians as “the Old Testament” — specifically from Leviticus 18:30.
Leviticus, as you may know, is a favored book of the Republican Party because it tells them not to tolerate homosexuals and to avoid eating shrimp or lobster at fundraisers. According to them one of those rules is absolutely applicable to the modern world.
But I’m not really going to get into politics here: this post is about the negative aspects of building fences and how this can as easily choke the law and divorce it from the intent behind it as it can protect it. (more…)
In 1956, with freakishly-ironic prescience, Philip K. Dick wrote:
As they walked along the busy, yellow-lit tiers of offices, Anderton said: “You’re acquainted with the theory of precrime, of course. I presume we can take that for granted.”
“I have the information publicly available,” Witwer replied. “With the aid of your precog mutants, you’ve boldly and successfully abolished the postcrime punitive system of jails and fines. As we all realize, punishment was never much of a deterrent, and could scarcely have afforded comfort to a victim already dead.” (Philip K. Dick, The Minority Report (1956).)
The story continues:
A large number — no doubt many people — arrested by the police are guilty. Often enough, they’re even actually guilty of the crime for which they have been arrested. No matter how much of a true believer one might be as a criminal defense attorney, this much has to be admitted.
Nearly fifty years ago, the United States Supreme Court held that all people — even poor people — are entitled to be defended by competent counsel. Anyone who watches television knows that “if you cannot afford an attorney, one will be appointed to represent you.”
What they don’t tell you on television is that, increasingly, the attorney appointed to represent you will also be representing possibly as many as 200 other people at the same time.
Meanwhile, Fresno County continues to decrease the number of Public Defenders and necessarily therefore increases the caseload of those poor souls remaining.
On The Truman Show, Jim Carrey played a character whose every move was available to the television-viewing public 24 hours a day, 7 days a week, all his life. Carrey’s character, Truman Burbank, had been adopted by a corporation as a baby and raised on an island within a domed “stage” constructed specifically to turn his whole life into one big reality show. Near the end of the movie, Truman discovers the truth and manages to escape his faux world, presumably finding a real life of privacy.
In “reality,” this can only happen in the movies.
When I was a kid, we sometimes got into fights. Occasionally, we got into rock fights. Now rock fights can be pretty dangerous things. After all, even a one- or two-pound solid projectile, properly aimed and delivered, can kill.
But in my neighborhood, no one ever died in a rock fight; no one went to jail; no one even called the cops.
And our parents, when they found out, often spanked us.
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