The Words Fail

          I have not watched the televised hearings about the nomination of Ketanji Jackson Brown to the Supreme Court and have not deeply immersed myself in the news reports of them, but I gather that there has been a barrage of questions about sentencing for child pornography offenses. The queries have often shown an ignorance or a willful disregard for some basic criminal law principles that the lawyers who have attended elite law schools and clerked for federal judges should know.

          The law draws distinctions among related criminal behaviors to grade the culpability of the crimes and the possible sentences. For instance, I intend to kill Ted and I do kill him. While the wording of statutes is not precisely the same in all jurisdictions, in New York I have committed murder. The legislature has mandated a life sentence for that crime and gives the sentencing judge discretion of a minimum sentence between fifteen and twenty-five years.

          Assume that I intend to kill Josh, but I only wound him. Now I am guilty of attempted murder, which has a lesser sentence than for murder. But what if I do not intend to kill Tom but seriously injure him, and he dies? Although states use different labels for this crime, most places would say I have committed manslaughter, which has a lighter punishment than does murder. If I intended to injure Ted, Josh, and Tom but none dies, I have committed an assault, a crime that also has gradations.

          This all follows a common sense that the public shares. We think intentional killing is more heinous than unintentional killing. This is true for other crimes. We hear “armed robbery” and we think that is worse than other kinds of robberies. The criminal statutes reflect that common sense opinion.

          Child pornography statutes, however, often are different with little attempt to make distinctions among offenses or to grade culpability. This approach does not punish the worst offenders more severely than others.

          When I was a public defender, I did not have any child pornography cases. In those pre-internet days, few arrests were made for the offense. I, however, represented many people charged with drug offenses, and crimes, which we shall see, bear resemblances to child pornography.

          The illegal drug cases were broken down into categories that reflected judgments on the culpability of the offenders. The basic distinction was between sellers and possessors of controlled substances, which reflected the basic common-sense conclusion that drug pushers had committed worse crimes than those who only used the drugs. Sellers deserved, and got, more punishment than mere users.

Furthermore, both the possessor and seller categories had gradations by amounts. The greater the quantity sold, the more serious the offense. If I told a colleague that I had just been assigned a “sale case,” the immediate response invariably was, “How much?” That meant how much was the weight of the drugs allegedly sold. A sale of a kilo of heroin was a much different offense from pushing a few grams.

  The seriousness of possession cases, too, was measured by amounts, but for a different reason. Possessing more drugs was not necessarily worse than possessing a lesser amount if the drugs were to be used by the possessor, but the assumption was that a person possessing a large quantity of drugs was not possessing them solely for personal use. Instead, the possession of a large amount indicated that the person was really a seller. Thus, because he possessed with intent to sell, he should be punished more like a seller than a user. Once again, both the law and popular culture tried to distinguish among the drug offenses.

In state court, I never dealt with another category of drug offenders—the importer, the smuggler, or the manufacturer of a drug. We would simply call the smuggler or the meth cooker a “drug seller,” for they will sell their product, but that label does not suffice to categorize their criminality.  If you believe in our drug laws, the importer’s or manufacturer’s culpability is worse than the “clocker” selling drugs on a street corner. (If you are not familiar with that term, or even if you are, I highly recommend Clockers by Richard Price.) And of course, the culpability becomes worse the greater the amount of drugs made, imported, or sold.

My point is that we almost instinctively make what seem like natural distinctions among drug offenses and do not put the same label on all offenders. We require more information than the mere statement that a person is a drug offender.

This does not mean the gradations perfectly mirror culpabilities. For example, I represented a woman who was a user of drugs and, sadly, a prostitute in what was then a scruffy part of Brooklyn. An undercover police officer “befriended” her and offered her $50 if she would lead him to people who could sell him a kilo of heroin. After much beseeching by him, and after she made some inquiries, she led the cop to some major drug dealers who sold a kilo to the cop. She was charged with acting in concert with the big sellers although all agreed she stood to get only $50 from the transaction. For that she got a life sentence.

The drug gradations may not have been perfect, but it is right, and seemingly natural, that we make such distinctions. We recognize that all the behaviors concerning the drug trade are not equally culpable and should not be lumped together. Our response has been different for child pornography.

(Concluded March 28)

No Public Defenders Need Apply for the Supreme Court

          Joe Biden has nominated Ketanji Brown Jackson to be a Supreme Court Justice. And this is where we now are on judicial nominees: Republicans know they will oppose her nomination, so they are now looking for reasons to justify that opposition. Lucky for them she was a public defender because now they can vilify her as being lax on crime.

          Other Biden judicial nominees who were public defenders have been asked by Senators Tom Cotton, Josh Hawley, and Ted Cruz questions that boil down to, “How could you represent such scum?” Public defenders are not surprised by this question at social gatherings from people who do not fully grasp our legal system. On the other hand, Cotton, Hawley, and Cruz have degrees from some of the country’s finest law schools. The all clerked for federal judges, two of them for Supreme Court justices. You might expect them to understand American justice and recognize the importance of defense lawyers in that system, but their comments only reveal either their ignorance or their disingenuousness.

          The Senators, however, are selective in their disdain for lawyers who represent criminals or those accused of crimes. When I taught, some students would tell me that they could never represent organized crime. My response was, “I guess you are not going into corporate law then.” I was only being semi-flip. Although corporate crime has seldom been a high prosecutorial priority, many corporations have defended themselves in our criminal justice system. For example, to avoid criminal prosecution in 2015, General Motors paid a $900 million fine for hiding a fatal ignition switch defect responsible for 174 deaths. (How often has a public defender had a client linked to 174 deaths?) As a result of charges filed in 1996, Archer Daniels Midland pleaded guilty to criminal antitrust violations for fixing prices and paid a fine of $100 million. In 2013, Halliburton pleaded guilty to charges stemming from an oil spill in the Gulf of Mexico that killed eleven people. In 2021, United Airlines paid over $49 million to resolve criminal charges and civil claims on postal service contracts.

          You can play a little parlor game: Put into a search engine the name of a corporation and “criminal” or “felony” conviction and see how many hits you get. You can go further and put in the name of a major financial institution together with “fraud” and see what comes up. You might learn that investment firms paid over $20 billion to settle fraud claims from the sale of mortgage-backed securities in 2005 to 2007, behavior that might have been criminally prosecuted.

          In other words, if you know a corporate attorney, there is a good chance that you know somebody who works for, and presumably gets well paid by, a criminal. But there is little chance that you would hear those lawyers derided by Republican senators because of their clients.

          True conservatives who are concerned about checking governmental power and overreach should, of course, be thanking, not denigrating, public defenders. The government has the power to criminally investigate and punish people. Right wingers screech about this power only when other right wingers are caught up in our criminal justice system, but true conservatives should be concerned with the appropriateness of this authority all the time. Since defenders provide a check on governmental power and overreach, they should be celebrated by those who claim conservative credentials.

          I am not surprised when “conservatives” pandering for partisan gain do not uphold conservative principles, but I still found some recent comments by the Republican National Committee noteworthy. A news story reported that the RNC “in a background paper on her nomination for the high court referred to Judge Jackson’s ‘advocacy for these terrorists’ [imprisoned at the U.S. military prison at Guantanamo Bay] as ‘going beyond just giving them a competent defense.’” If an attorney for the government at Guantanamo were a judicial nominee, I doubt the RNC would label the lawyer an advocate for torture even though it has been established that detainees were tortured. More startling, however, is that conservatives are trying to vilify Jackson for going beyond competence in her job. They apparently don’t want people who do their jobs too well on the Supreme Court. Mediocrity is good enough.

          And while I assume the Senators Cruz, Cotton, and Hawley have proclaimed that they want Supreme Court justices who are “originalists,” these conservatives would appear to be ignorant of the importance placed on defense advocacy by the founders of the country. Our Constitution expressly rejected English law and guaranteed a right to counsel because of the important role defense attorneys had for preserving American freedom.

(continued March 23)

Partisan Hacks, Comprised of

Before the ink was dry on her nomination to the Supreme Court, right-wing news articles and fundraising emails attacked Ketanji Brown Jackson. One said that she had “taken radical, liberal positions throughout her career” without giving even a hint as to what those positions were. A different writer labeled her “a politician in robes.”

The writings did not contain a glimpse of irony or even the slightest acknowledgement that only recently conservative Supreme Court Justices have themselves been criticized as partisans. This criticism came as a result of issuing opinions with scanty or no reasoning that followed their own political predilections and that of their patrons; allowing unconstitutional laws to be enforced; and bending judicial norms to hear cases that have political overtones.

The conservative justices had to know that their actions would look political and produce vehement criticisms, but you might expect them to simply ignore the critics. When I was a baseball umpire, I expected disagreement with some of my calls. I knew that I should not umpire if I could not handle criticism. If you take a judgeship, you should not be surprised by criticism. And if anyone should feel secure from critics, it would be an insular band of people who have both power and life tenure.

However, the comments about the Court made some justices feel like paper flowers in the rain.* Ignoring the fact that defensiveness often gives greater credence to the critics, several justices made replies. The most quotable “defense” came from Amy Coney Barrett who announced that the Supreme Court “is not comprised of partisan hacks.” Of course, it would have been even more newsworthy if Barrett had said that the Court was filled with partisan hacks, but, nevertheless, the whine indicated how touchy some members of the Supreme Court are.

Now, if you are looking for self-conscious irony, don’t go to the conservatives on the Supreme Court. Whether or not she is a partisan, she is sitting on the Court because of naked partisan power, and she made her statement in a place that honors a person no one would ever sanely label as nonpartisan, Mitch McConnell. And yes, if she has an ounce of gratitude, she should be indebted to him for his partisanship.

If Barrett, for unfathomable reasons, thought her ex cathedra-like statement would end discussion of the topic, she was undercut by her colleague Justice Samuel Alito. A month or so after Barrett announced the absence of judicial partisanship, Alito made a speech to the Federalist Society, a group not widely known for its even-handed policies. Many sources concluded that this speech was so highly partisan that it should have raised ethical concerns for a judge. However, Supreme Court justices are not bound by the ethical standards set for other judges—disturbing yet true.  So, on the one hand, we have Barrett’s assertion, not supported by any evidence or reasoning, about the lack of partisanship on the Court, and then we have the stark evidence of a partisan speech by a Justice. Chicolini’s classic comeback in Duck Soup comes to mind: “Well, who ya gonna believe, me or your own eyes?”

But maybe, I thought, I was being unfair to Barrett. Perhaps her statement was more limited than I had first believed. Reports say that she is smart and a meticulous judge. She, no doubt, tries to use words precisely. She asserted that the Court “is not comprised of partisan hacks.” I went to H.W. Fowler’s classic A Dictionary of Modern English Usage. In it he discusses the difference between include and comprise: “[T]he distinction seems to be that comprise is appropriate when what is in question is the content of the whole, and include when it is the admission or presence of an item. With include, there is no presumption that all or even most of the components are mentioned; with comprise, the whole of them are understood to be in the list.” With her use of comprise, then, Barrett was only telling me that not all the Supreme Court Justices were partisan hacks. However, she might be signaling–with lawyerly precision–that it includes some. Or perhaps she is conveying that some justices are partisan but not hacks or hacks but not partisan? Alito comes to mind again. Many commentators, citing several examples, say that Alito is a partisan. They almost never label him a hack; instead, they almost always refer to how smart he is.

Of course, I may be giving Barrett too much credit for using words precisely. After all, she did use the phrase comprised of, a definite grammatical no-no. The prickly Fowler believes that the English language might be better off with the banishment of comprise: “This lamentably common use of comprise as a synonym of compose or constitute is a wanton and indefensible weakening of our vocabulary.” Perhaps when it comes to words, Barrett is not a conservative standard bearer. Even if that might be laudable, comprised of is not to be praised, at least according to Benjamin Dreyer who writes about comprise in the immodestly titled Dreyer’s English: “I confess: I can barely remember which is the right way to use this word.” He says that he looks it up each time he is tempted to use it. Dreyer tells us that it is correct to say, “The English alphabet comprises twenty-six letters.” And this, too, is right: “Twenty-six letters compose the English alphabet.” But it is wrong to write, “The English alphabet is comprised of twenty-six letters.” Dreyer writes, “As soon as you’re about to attach ‘of’ to the word ‘comprise,’ raise your hands to the sky and edit yourself.”

Of course, you might tell me to lighten up. Don’t parse her words so closely. C’mon; you get the gist of her meaning. Don’t take her so literally. It’s not a big deal if she was imprecise. But, my friends, she is a Supreme Court justice, and when she writes an opinion, no matter how loose its reasoning, no matter how imprecise it may be, it will have important consequences. Barrett may be making decisions that control us for the next thirty or forty years. And precision should matter for a Justice. As Fred R. Shapiro writes in The Oxford Dictionary of American Legal Quotations, “Law is the intersection of language and power.”

I wonder if Barrett will continue to suggest how nonpartisan the Court is if Ketanji Brown Jackson ascends the Court. Conservatives of all stripes are accusing her (Jackson) of being partisan. What kind of hypocrisy is this? Well, we can rest in the assurance from Barrett that she, at least in her own opinion, is not a political hack. Or can we?

*“Only paper flowers are afraid of the rain.” Konstantin Dankevich.