Extending The Discussion

Elsewhere in the blawgosphere, a couple of interesting posts:  one from Gamso about the death penalty (of course) and one from Greenfield about, well, apparently increasing lawyer suicides, among other things.

The death penalty.  Ugh.  Speaking for myself I trend in Gamso’s abolitionist direction and then away from it, depending on, well, nothing in particular.  Stepping back from it all I think of it as a very interesting question for debate.  As long as it remains completely abstract I think the death penalty winds up being justifiable in this or that imagined case.

Make it more concrete, though, and the whole chain of reasoning, elegant though it may be in theory, falls apart.  Breivik, the Norwegian who killed about 70 teenagers in a shooting spree the like of which is normally seen only in the US?  Both sides of Gamso’s debate seem to think he fits the bill of ‘the worst of the worst’.  But I think he’s completely fucking nuts, not a good death penalty candidate at all.  I realize what he did was unspeakable, but the harm done is not the measure.  People – lots of people, or at least frequently more than 70 at a time - suffer terribly, are terrorized  and die in plane crashes.  Nobody should get the death penalty for that; it’s usually an accident.  Nobody’s criminally liable at all.

Not to mention what the death penalty apparently does to us as a people.  The bloodlust I have observed over the web with respect to numerous cases over the last few years is bewildering.  Stupefying.  It leaves me speechless and as close as I ever come to being depressed.  I’ve pretty much decided that this particular collateral consequence is sufficient reason in and of itself to abolish the death penalty.  Most days I decide that, anyway.

Speaking of depressed, apparently a lot of lawyers are becoming depressed and committing suicide.  Greenfield goes into it and his take is illuminating and predictable at the same time.  He uses the opportunity to mock “therapeutic justice”.  Maybe he should, but on the other hand it seems to me that the blinders type approach to legal representation – that is, where the lawyer is very narrowly focused on “the case” and won’t bother with even the most obvious, if broader, consequences to the client, the client’ s family, etc. – has very deep flaws of its own.

Then again, as he often does despite himself, I’d have to agree almost completely with SHG here:

From my perch, two things seem to permeate the problems suffered by lawyers: First, good, hard-working lawyers are not earning enough to enjoy a sufficiently comfortable lifestyle for themselves and their family to justify surmounting the barriers to entry and the headache of the job. Second, the arbitrariness of the law. Non-lawyers think the law is somewhat reliable, and if a lawyer does good work, they will prevail. We know better, and it makes us nuts.

 

The only caveat:  it’s not the law itself that’s arbitrary; it’s how it is administered in practice.

I also appreciated a quote from the underlying CNN article about lawyer suicides.  Describing the stresses of lawyering, someone pointed out that a surgeon works with a group of people to save a patient; but there isn’t an opposing team trying to kill the patient. 

I used to express sort of the same idea to people but not as well.  I would tell them that sometimes I longed to be a mechanic, because you might or might not figure out how to fix the fuel system, but at least the fuel system isn’t fighting you while you try.

 

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7 responses to “Extending The Discussion

  1. A friend of mine, a criminal defense lawyer, said he was happy to give up family law because in a murder case at least one of the sumbitches is dead.

    As for Breivik, I have no idea whether he’s the worst of the worst. The problem is that nobody else knows, either. My position, which is very close to Andrew Hammel’s, though not exactly the same I don’t think, is that I don’t doubt that there are folks who deserve to be killed. But I don’t think we’re capable of making the fine distinctions necessary to figure out with any kind of certainty who they are (even the easy cases aren’t so easy, it seems to me), nor (and this is probably more important) do I think we deserve to kill them.

    And, finally, and most importantly, I believe in mercy and grace – not as gifts from the god I don’t believe in but as gifts from us, from the best of what we can be.

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    • Yes, well, that’s why the idea that failing or refusing to punish trivializes wrongdoing has problems along with carrying weight. How much punishing is enough? Balancing the scales is important, granted, but what if you can’t do that anyway, no matter what? A big pile of money to a victim’s family might be a better idea, but it probably isn’t.

      I sometimes complain that there has been a lot of moral coarsening in our country over the last few decades. Glad it hasn’t affected the Gamso household, or office as the case may be.

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  2. One of the unfortunate collateral effects of the Breivik case was all the left-wing ideologues insisting that his politics were evidence or even proof of his craziness. For a long time I was wary of deeming him insane because the sort of people who made these claims have said the same thing about whatever European nativist is most prominent at the moment. They even cast these aspersions on the late Pim Fortuyn, whose politics weren’t so far off from Breivik’s but who was ethically and temperamentally about as different from Breivik as one can get. Breivik’s rampage and trial brought out all the censorious ideological losers who would rather use cheap ad hominem attacks than debate nativists on the substance of their arguments. This is unhealthy and pathetic. It’s unbecoming any self-governing people. It’s crucial to separate Breivik’s underlying politics from his actions.

    That said, on reflection, I think Breivik is probably crazy enough to deserve leniency. I’m not convinced that he’s totally nuts, but at the same time I don’t think he was playing with a full deck at the time of the massacre. The thinking behind it suggested a substantial disengagement from reality. I believe his claim that he sincerely intended to instigate reform of Norwegian immigration policy with his massacre, since it takes commitment to write a thousand-odd-page manifesto on the subject. For this reason alone, I don’t think he’s a psychopath; his thinking was twisted but not entirely depraved, since he had this hideous but heartfelt overriding concern for his country’s security and demographic stability. But it takes something verging on insanity not to realize that massacring teenagers at a summer camp won’t backfire badly and swiftly on the responsible parties. He also appeared to have a slightly schizoid affect at arraignment–unlike, say, Dennis Rader, he didn’t quite look like he was all there–and social services reports from his childhood indicate that his mother was severely disturbed. I agree that he’s a bad candidate for execution; there are just too many credible extenuating circumstances about his behavior and background.

    By the way, I suspect that most of Europe’s nativist politicians regard Breivik as a headache and an embarrassment. The only ones I imagine regarding him as a worthwhile ally are the bruisers at Golden Dawn, but they aren’t so much a political party as the political arm of a street gang.

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  3. Looking at the death penalty more broadly, I’m totally with you about the pernicious bloodlust that it cultivates. It’s scary. Just a couple of weeks ago, three former California governors, Pete Wilson, George Deukmejian, and Gray Davis, announced a ballot initiative campaign to limit death penalty appeals and hasten executions in California. The only real effects of this proposition will be to underscore: 1) how easily California’s ballot initiative process is hijacked by crazies, asshats, and charlatans, and 2) what total and eternal shitheads Wilson and Davis are (Deukmejian has always seemed lower-key, but for all I know he could be a real asshat, too; it’s just that I’ve never heard much about him).

    I expect that the initiative will qualify for the ballot, since it’s never hard to get a couple hundred thousand Californians to sign a petition for a crazy and evil scheme once the canvassers are hired, but that it will be defeated by at least 55-45, and probably closer to 60-40, by the electorate at large. California’s voters came within a few points of abolishing the death penalty by referendum in 2012, and this latest round of bullshit will really creep the state’s decent voters out. The murderers in question are already on maximum-security lockdown at San Quentin, after all, so only the densest will think for a second that this proposition has a thing to do with public safety or the rule of law rather than stewing reactionary hatred.

    If it passes and isn’t nullified by California state courts, it’ll be rendered moot by the federal appellate process. The Ninth Circuit will have the de facto final say because SCOTUS is not interested in hearing 700+ appeals from California’s butthurt district attorneys. Regardless of how seething Pete Wilson is about not enough bad guys being killed by the state, SCOTUS doesn’t want all that shit dumped on its docket. That’s not the kind of finality that Wilson and company want, but it’ll have to do.

    Few condemned inmates, if any, will be put to death as a result of this nonsense. It’s effectively just noise, but it’s disturbing noise, because it will show that a disturbingly large minority of my home state’s voters are malicious goobers who have been entrusted with more direct democracy than they can safely handle.

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    • I think you’re right in just about every respect. Colorfully expressed, as well.

      SCOTUS will stop paying attention to California eventually, you’re right there, too. But did you know that a huge portion of the State prison system is under federal court supervision? Talk about scary.

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      • Yup. The California state prison medical system has been under the authority of a court-appointed special master for about a decade, and more recently SCOTUS ordered mass prisoner releases to relieve overcrowding.

        Gov. Jerry Brown and his staff have been trying to delay the releases on grounds of public safety, and I think they’re sincerely worried that CDCR isn’t capable of accurately classifying its inmates by threat level, and hence that mass releases will inadvertently put some very dangerous people out on the streets.

        It’s clear that a lot of people at CDCR don’t know what the fuck they’re doing. This is an agency with a staff of about 58,000 (the kind of headcount one finds at major international air carriers, to give an idea of what a tragic waste of human capital this is), responsible for about 230,000 prisoners at the time of the SCOTUS release order, and yet despite a +/- 1:4 staff:inmate ratio (close to double that of the Federal Bureau of Prisons), it’s been using wall-to-wall triple-bunked gym facilities as long-term backup housing and maintaining such lax command discipline that a few years ago guards at Corcoran staged gladiatorial fights between inmates.

        Brown is probably right to fear that CDCR’s inmate classification system is in total disarray. He’s dealing with a much worse and more intractable prison system than he had on his hands during his first governorship. Between the foolish three-strikes referendum, Gray Davis’ abject catering to the guards’ union (including the total neglect of his gubernatorial pardon and clemency powers: the guy was legitimately an authoritarian creep, far, far to the right of Schwarzenegger), and the sincere but halting reform efforts of his successors, California’s prisons are arguably beyond hope. Brown is also governing a much more economically and culturally polarized state this time around. The cultural milieu in places like San Bernardino, Hemet, and South Sacramento is incredibly degraded. There are a number of real east-of-Eden hellscapes in California, places where the nearest decently paid industrial jobs are dozens of miles away along choked freeways, and so the local boys have nothing to aspire to but UFC or gangland power fantasies. It’s an awful thing to contemplate, but perhaps the only chance for real improvement is to wait for the extant generations of monsters hardened within the system to die of old age.

        I doubt that SCOTUS will start ignoring California. It’s home to over a tenth of the US population and it tends to have trailblazing politics. The death penalty ballot initiative that I bitched about is a special case, a discrete bad law whose goal, in effect, is to dump a stream of garbage cases onto the appellate dockets. In the environmental remediation industry this is called “point-source pollution.” This is exactly the kind of situation in which I imagine court clerks creating a dedicated procedure to immediately shitcan the resulting appeals so that the judges they work for don’t have to look at what amounts to crank mail. And that’s being charitable: real crank mail of the sort sent to Congressmen can be a lot of fun (staffers often put the best gems into a laugh file), but what the clerks would be dealing with here is legal writing.

        Too many important legal matters arise in California for reasonable judges or court clerks to allow a deluge of bullshit amounting to “fuck the liberal Ninth Circuit” to crash the system. I’m speculating here, but I suspect that most clerks are aware of this and none too happy when they get swamped with that kind of insolent spuriousness.

        The federal courts also need to reserve slots for non-death penalty wankery cases arising in California, such as the perennial Mount Soledad Cross religious establishment donnybrook, which is going into litigation once again, a quarter century after its debut court appearance. Like Pete Wilson and Bob Filner, it’s a San Diego classic. And I’d say it’s an idiot wind from any direction.

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        • Hello Andrew, thanks for the comment.

          A couple of factoids in response that might interest you. First, you might not be aware that for about 3 or 4 years it was a running joke (not really a joke but never mind) that the 9th circuit was the most reversed federal appeals court in the nation by the SCOTUS, nearly all of them occurring after the 9th had either signed off on, or reversed and granted, some prisoner’s petition for habeas corpus. This seems to have died down since last term in the SCOTUS. There comes a point of diminishing returns for the reversing court. After a while nobody’s paying any attention to something that’s supposed to be really, really meaningful – getting reversed by the SCOTUS. So they just quietly stop doing it.

          Second, as to the incredible political problem of an out of control prison system. It isn’t just California. I don’t know if you saw this post:

          http://strikelawyer.wordpress.com/2013/07/26/in-a-nutshell-a-parable-from-the-attica-riots-of-1971-to-yesterday/

          or followed this link:

          http://query.nytimes.com/gst/fullpage.html?res=9900E4DA1E31F937A1575AC0A9609C8B63

          Note that the NYT article is from 2006, the Attica riot occurred in 1971 and the matter was still in litigation that appears not to have been satisfactorily transparent after 35 years, and even now the NY state attorney general’s office is making a show of wanting to disclose Grand Jury minutes that are, for reasons that are partially legit, still under seal.

          But to me the problem is not so much the corrections officers unions, or their more prominent cousins the police unions, but rather the exceedingly poor character of the elected officials that pander to them with no apparent shame or compunction.

          Now, I’d like to say that we’re suffering from the anomaly that our leaders are low-lifes compared with the people they rule, but that’s simplistic. On the surface it’s undoubtedly the case, but as Abraham Lincoln is said to have noted, you test a man’s character not by subjecting him to adversity but by giving him power.

          What I especially like about the John Edland parable is the factual simplicity it has, which nevertheless cuts through to the larger and very profound lesson: the pathological and obstinate denial of the known truth is perhaps the most serious mental and moral disorder in human beings and has terrible consequences, individually and collectively. The number one obligation of a “leader” is to resist this tendency, unto death if necessary.

          Not to be melodramatic or anything. I mean, avoid the death part if at all possible of course.

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