Guilty: The Collapse of Criminal Justice

Harold J. Rothwax (New York State Supreme Court, ret. (?)), Guilty: The Collapse of Criminal Justice (1996).

Amazon link.

The (now former?) Judge Rothwax wrote this book in response to his feelings that, as the title indicates, the American criminal justice system was collapsing. He was hardly alone in his crusade - hell, Bill Clinton signed the AEDPA, didn't he? (And only eight dissenting votes in the Senate, though the House had more sense.) That "voice in the crowd" aspect of the book is probably its major problem. Nothing Rothwax says is new or surprising (although maybe that's the ten-years-later perspective - googling his name brings up a lot of pages that show that there was apparently quite a bit of controversy over the book at the time it was published). He thinks juries are bad and so are unbending rules. He doesn't like excluding evidence. He thinks defendants should be forced to testify. And so on.

As to unbending rules, I would have at first said the same thing. After chapter 2 of Harsh Justice, though, I'm not so sure - Whitman presents rigidity as exemplifying and implementing American ideals of equality in the criminal justice system. There's no chance for certain people, particulary high-status people, to get better treatment (or, of course, for low-status people to get worse treatment) if the rules are strict and unbending.

Back to the book, it seems like a problem is that he's wedded to one or two values of the criminal justice system, like finding the truth, or retribution / victim satisfaction. But there are other values at work. E.g., he doesn't seem all that concerned for the rights of the accused, dismissing most efforts to put the defendant on equal ground with the prosecutor as turning criminal justice into a "sporting contest".

Now, maybe that's a bit unfair, because he's certainly not advocating going back to the lynch mobs of not-so-long-ago, but he is willing to make sacrifices, largely because of the "probability screens" set up so that by the time someone reaches trial, they've already been found "probably guilty" a number of times (investigation, indictment, etc.).

He makes a number of semi-naive comparative points, e.g. "in France, they use lay judges." It's not clear whether he's even read as much of the comparative literature as I have (which is not very much) - for instance, the things that point out that the lay judges don't really participate very much, that they pretty much vote with the lead judge, and so forth. He kind of uses comparative law in the classic way that gets comparativists dismissed: he says "look how much better is over there" and moves on.

Oh, and he loves the OJ Simpson trial, in the sense that it gives him examples for almost all of his points. (Also, Peter Neufeld, Barry Scheck's right-hand-man at the Innocence Project, makes a couple of very unflattering appearances, both in Rothwax's court and in the OJ trial.)

Public Legal Reason

Lawrence B. Solum (Illinois), Public Legal Reason, 92 Va. L. Rev. 1449 (2006)

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Couldn't get through it. I'm starting to get the idea that legal philosophy isn't really my thing. On the other hand, maybe I just need a lot more background before I try to start diving into a debate such as the one Solum is engaged in here.

Criminal Law Comes Home

Jeannie Suk (Harvard), Criminal Law Comes Home, 116 Yale L.J. 2 (2006); Cheryl Hanna (Vermont), Because Breaking Up Is Hard to Do, 116 Yale L.J. Pocket Part 92 (2006), http://www.thepocketpart.org/2006/10/12/hanna.html

Download here.

Describes the way modern prosecutors' offices deal with domestic violence, especially focusing on orders of protection. These orders can not only help prevent violence in themselves (when they are obeyed), but can also serve as proxies for conviction of domestic violence: prosecuting domestic violence is often difficult because the victim isn't always terribly cooperative; prosecuting for violation of an order of protection is as simple as proving that the defendant was in the home from which he's been banned (or made a phone call, or sent an email, or took whatever conduct is prohibited by his particular order).

The interaction between these orders and burglary has been interesting, as violation of the order of protection has been used not only to satisfy the first element of burglary, unlawful entry, but also the second, intent to commit a crime once inside. The former seems rather uncontroversial. The latter doesn't seem to be widespread, but does raise certain issues.

The point of the piece is more to sketch the process and raise some of the questions we should be asking without attempting to answer them. (That said, the tone of the article does seem to express skepticism about the uses of these orders, something Hanna picks up on in her response, which essentially seemed to say, "It's worth it.") Some of those questions include issues of governmental invasion of the home and the very definition of the home itself (particularly in the burglary context: obviously you can't burglarize your own home, but if you've been banned therefrom, is it still your home? Suk states, at 33, "A protection order may prohibit a person from going to a particular place, but it is not a declaration that the property in question is not his home; he could be formally prohibited from a place that remains his home." But what meaning does a home have if one cannot enter it? How can a home serve as the "spatial metaphor of private refuge from crime" (at 24) if one cannot enter it?).

There are also issues of autonomy that are (apparently) now-classic problems in domestic violence prosecution: are we infringing the autonomy of the victims with automatic prosecution, etc.?

There's also the issue of de facto divorce: when a protection order is created, it means that, while the victim and defendant might still be legally married, but if they cannot live or act in any way as a married couple, then they have be de facto divorced by the State. Class issues also come into play here since most prosecutions in this area happen in poor communities and often involve people of color.

It seems that a comparative perspective could be enormously useful in following up, particularly given the issues of privacy, autonomy, state control over the family and home, and gender equality raised by these procedures.

Aside: There's a reference to Blackstone (at 23) quoting Roman law as to the inviolability of the home - that's interesting because of the idea that this is more of an American conception of privacy / autonomy / liberty - what happened that this idea didn't get carried over with the many others to European law?

The Legal Meaning of "Commerce" in the Commerce Clause

Robert G. Natelson (Montana), The Legal Meaning of "Commerce" in the Commerce Clause, 80 St. John's L. Rev. 789 (2006)

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I didn't feel the need to read the entire paper because the final forty or so pages seem to be a summary of the evidence that the legal meaning (as contrasted with the common/lay meaning) of "commerce" at the time of the Founding was precisely the same as the lay meaning: exchange, transport, etc. That is, the things that we've expanded "commerce" to include (manufacturing, e.g.) were not included in the meaning of "commerce" in the minds of the lawyers of the time any more than they were in the minds of the non-lawyers.

This is of course important because there were quite a large number of lawyers involved in the drafting of the Constitution.

The above isn't meant to slight the work done by Natelson, since it's clear he did a ton of work - he states, though, that every single source he read said the same thing: "commerce" has the meaning described above, and thus I felt that simply reading the conclusion was plenty for my purposes.

Interesting references

Randy E. Barnett (Georgetown), The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183 (2003).