Scalia Redux

We are not Scalia haters here at Lawyers on Strike.  Far from it.  We’re actually pretty agreeable to much of what you might call his world-view.

But we part company in some serious ways.  Very serious.  And, him being wrong in that regard and all, we’ve been forced to conclude that he’s done a lot of damage to the law, and to the country.

By way of illustration, let us run a little further with that Scalia quote from yesterday, about how we can’t bother with “actual innocence” because wow much limited resources.  This thought suffers from appalling empirical deficiencies, in addition to the fatal axiomatic flaw we pointed out yesterday.

In other words, it’s a stunningly ignorant thought, in addition to being logically and morally disordered.  Nino literally has no clue as to what he is talking about, even as he upends centuries of axiomatic western tradition in taking the position that actual innocence is not a big enough deal to command any attention or effort.

Now, in the past (such as here) we have alluded to some statistics, more or less unarguable because they come from the Department of Justice and properly interpreted are not flattering to the Department of Justice.  Or us, as a society if you will.  Statements against interest, in other words.  Much reliable.

We know many of you are not keen on clicking on our links, because wordpress tells us very few of you ever do and we are sometimes annoyed since way much trouble to insert them.  Nevertheless, we’ll indulge you just this once and reproduce here what we wrote almost four years ago:

In 2006, there were about 1.1 million felony convictions nationwide in state courts alone.  There were 14.4 million arrests.  DOJ BJS Statistical Tables 2006, NCJ 226846

In that same year there were – at most – 18,000 constitutional civil rights complaints filed in federal courts stemming from state and federal enforcement of criminal laws, excluding prisoner petitions.  NCJ 222989 I exclude prisoner petitions not because they significantly alter the statistical ratios, but because the comparison is more apt when only those civil rights claims from people who have something to do other than sit in a prison cell are considered, and also because non-prisoner petitions are more likely to involve a Plaintiff who has been genuinely wronged, even by the government’s own estimation.

Let’s put these statistics in context.  In 2006 the number of civil rights complaints was less than 2% of the state felony convictions in the same year.  But the fairer comparison would be to the number of arrests, which are more closely analogous to the filing of a complaint in the civil setting.  That ratio would be 18,000 over 14.4 million – more like 1/10th of 1%.

But it gets worse.  If historical ratios hold, something less than one-third of the civil rights complaints that are filed will meet any significant degree of success.  Two-thirds will be dismissed at the complaint stage or upon “summary judgment” – a remedy, by the way, that is widely available and granted to defendants in civil cases but not defendants in criminal cases, 7th amendment considerations be damned.

Thus, of the 18,000 civil rights complaints filed in 2006 stemming from state and federal enforcement of criminal laws, something less than 6,000 will attain any degree of success.  NCJ 222989 Thus, based on these statistics, the incidence of valid claims of constitutional civil rights violations in the constitutionally laden area of criminal law enforcement is 6,000 over 14.4 million.

This is considerably less than one-tenth of one percent; in other words, a statistically almost insignificant amount.  It would be fair to just call it zero violations of civil rights in the United States stemming from criminal law enforcement.

These ratios are substantially confirmed by an entirely distinct set of statistics comparing the 2006 nationwide government “direct expenditures” on all law enforcement functions at the federal, state and local level – $214 billion (NCJ 224394) – and the collective median awards for the successful civil rights actions stemming from law enforcement activities for the same year, which could not have exceeded 6,000 at $100,000 a piece for a total of not more than $600 million.

In other words, the awards for civil rights violation stemming from criminal law enforcement could not have exceeded one-quarter of 1% of the expenditures on law enforcement, and were likely considerably less.

In that post our focus was civil rights actions brought in federal courts.  For reasons that aren’t important to delve into in any detail here, federal habeas corpus litigation – where the “actual innocence” controversy* takes place – has a lot of similarity to federal civil rights litigation, both conceptually and, unfortunately, statistically.

Let us quote from one of the few studies on federal habeas corpus for non-capital cases since the enactment of the AEDPA in 1996**, based on sample cases from 2007:

By December of 2011, only 12 of the 2384 study cases were still pending in the district courts, and petitioners had received some sort of favorable decision from the district courts in a total of 14 cases.

14 out of 2384 equates to about 6/10ths of 1 percent.  This again is a statistically insignificant number.  It’s fair to say, in other words, that the remedy of federal habeas corpus for state prisoners in non-capital cases has ceased to exist as a practical matter.

Now let’s go back to 1998’s Bousley dissent by Nino.  Given the statistical certainties in the time since of which we are now aware, does he appear to be in the grip of some kind of arm-waving, near psychotic hysteria?  Oh, yes:

Second, the Court has given as one of its justifications for the super-generous miscarriage-of-justice exception to inexcusable default, “the fact that habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare.”…That may be true enough of petitions challenging jury convictions; it assuredly will not be true of petitions challenging the “voluntariness” of guilty pleas….

To the undeniable fact that the claim of “actual innocence” is much more likely to be available in guilty-plea cases than in jury-trial cases, there must be added the further undeniable fact that guilty-plea cases are very much more numerous than jury-trial cases. Last year, 51,647 of the 55,648 defendants convicted and sentenced in federal court (or nearly 93 percent) pleaded guilty. Administrative Office of the United States Courts, L. Mecham, Judicial Business of the United States Courts: 1997 Report of the Director 214.

When all these factors are taken into account, it could not be clearer that the premise for our adoption … of the super-generous “miscarriage of justice” exception to normal finality rules—viz., that the cases in which defendants seek to invoke the exception would be “extremely rare”—is simply not true when the exception is extended to guilty pleas. To the contrary, the cases will be extremely frequent, placing upon the criminal-justice system a burden it will be unable to bear—especially in light of the fact, discussed earlier, that on remand the habeas trial court will not have any trial record on the basis of which to make the “actual innocence” determination.

Not only does the disposition agreed upon today overload the criminal-justice system; it makes relief available where equity demands that relief be denied. When a defendant pleads guilty, he waives his right to have a jury make the requisite findings of guilt—typically in exchange for a lighter sentence or reduced charges.

Yes, our “super-generous miscarriage of justice exception” results in a 6/10ths of 1% success rate for non-capital state habeas petitioners, and the remedy itself has essentially disappeared.

Good call, Nino.

Our cup runneth over.   Nino lives on a different planet from the one he’s administering and he hasn’t even been watching through a telescope since the 1980’s.***

And, under what conception of “equity” does equity deny relief to a person who is actually innocent, simply because they pleaded guilty in exchange for lesser punishment?  Jesus Christ, Nino.  We’re not supposed to be punishing the actually innocent at all.

And finally, Nino, why all the selective hand wringing over supposedly finite resources?  When expenditures on law enforcement and prisons nearly tripled in the 20 year period between 1982 and 2002 you weren’t worried about finite resources then.  Beyond that, do you have any idea of the sheer magnitude of resources that are spent by the Department of Defense just to put a bomb on a target, in terms of construction of delivery systems (ships, aircraft, etc.), weapons procurement from Lockheed Martin or some such, recruitment and training of personnel, and I can’t even begin to count what else?

And forget government expenditures.  Just look at all the resources thrown at the NFL to play a game, for Chrissakes.

Even Kim Kardashian’s butt appears to be a huge resource attracting phenomenon:



Doesn’t it seem more than a ridiculous position for you to take, then, that we just can’t devote “unlimited resources”***** to making sure we don’t wrongfully convict and punish people, especially when even according to Justice Rehnquist – no bleeding heart he – “…the central purpose of any system of criminal justice is to convict the guilty and free the innocent.”  Talk about inexcusable.  Defaulting on the one and only thing you absolutely have an obligation not to default on, and then rationalizing it.  Because “resources”.  This is a quasi-criminal outlook.

And now, having advanced for decades a hugely distorted, apparently maliciously false and borderline malevolent view of the matter of actual innocence, Nino is busy rationalizing how federal courts have nothing to say about the federal government engaging in torture.

Ugh.  Time to retire, Nino.  Your moment has passed.


*  Obviously, there should be nothing “controversial” about giving relief to those who are actually innocent.

**  The Bureau of Justice Statistics hasn’t published any statistics on non-capital state habeas cases in federal courts since 1995 – prior to the passage of the AEDPA.  In view of the negligible statistical utility of the remedy it is hard to argue that any significant resources should be spent on finding out how it’s working; but then maybe this is another illustration of the same problem.

*** Received Washington DC wisdom in 1984 was that there had been “explosion” of federal habeas corpus cases from state prisoners over the previous 20 year period (see here, for example).  Note well, however, that however many petitions there may have been, the success rate was still dismal – about 1.8%.  Of course that is 3 times higher than today’s rate.  Perhaps this accounts for Nino’s impression that we are “super-generous” with federal habeas corpus relief in the US, because 1.8% crosses the threshold of being statistically meaningful.

In any case, the concern about too many federal habeas filings may well have been legitimate in 1984.  Up to a point.  The problem we are looking at here, however, is that in the intervening 30 years Justice Scalia continues to hold an antipathy to federal habeas corpus long after the earth has shifted.

****  It’s a slightly censored version, of course, because we’re a bit prudish at Lawyers on Strike.  Sometimes.  The point is, that somehow when Nino says we don’t have the resources to free innocent people we’ve wrongfully convicted, imprisoned and ruined, my mind wanders to Kim Kardashian’s butt.  It’s some kind of 21st century reflex.  Maybe she really did break the internet.

*****  And what the hell is this “unlimited” resources idea anyway?  We incarcerate a lot of people, way too many, but it’s still less than 1% of the general population.  To make sure that 1% doesn’t contain people who shouldn’t be incarcerated at all can’t possibly command “unlimited” resources, even if every single one of them are contested.  The resources required, in other words, are absolutely “limited” by the number of people we incarcerate in the first place.  The whole “resources” argument is founded a fatuous postulate.


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2 responses to “Scalia Redux

  1. One of the greatest evils in our purported system of justice, is the manifest violation of civil rights, under “Color of Law” (§242).

    Whereas, it is no longer axiomatic that the integrity of the judicial process is sacrosanct.

    As long as the violators thereof are those of the systems and the violated upon are the indigent n down trodden.


  2. Kim Kardashian is functionally a sort of glorified town whore, magnified to international proportions. So are Paris Hilton and Lindsay Lohan. These women are lodestones for the weird sexual fixations of the public: sometimes it’s Kardashian’s oleaginous buttocks, other times it’s Hilton’s sex tape or “wardrobe malfunctions,” or rumors that Lohan is turning tricks for Hollywood bigshots. These fixations are the adult equivalent of high schoolers spreading gossip about how the quarterback’s girlfriend is a slut. There’s a malicious edge to it, and it’s really immature and dysfunctional behavior.

    Try to imagine a small city where these three women are staffing a brothel and the entire municipal government is so obsessed with their sex lives that they can’t carry on the day-to-day business of road and sewer maintenance. The city’s infrastructure is falling apart, and those responsible for fixing it are obsessed with the antics of a few hookers. In a way, this is what the United States and the United Kingdom have become, and maybe some other Western countries, too. (The Jian Ghomeshi scandal has a different feel to it, since Ghomeshi’s contributions to the arts and entertainment scene weren’t utterly ridiculous. There was at least some substance to his work. There also seems to be a relative reticence in Canadian culture about intruding into other people’s sex lives.) The cumulative amount of mental energy devoted to following the asinine behavior of “celebrities” is incalculably huge. One should hope that it could be put to some better use. But maybe it can’t.

    Maggie McNeill is right to offer occasional reminders that the lines between acting and prostitution were blurred until sometime around the turn of the twentieth century. I think it was Doug Casey who said that these are honorable professions but ones that shouldn’t be taken too seriously. Far too many resources, financial, mental, and otherwise, are devoted to these entertainers. American cities have been known to drop a hundred million dollars’ worth of public funds on a single new sports stadium while understaffing their police forces to the point that response times slow down to half an hour or even an hour. Detroit has multiple major-league sports teams and a forensic lab system that is in a state of nearly total collapse.

    The root problem, however, is probably that people give a damn about people like Kim Kardashian and Ben Roethlisberger. They’re too busy thinking about superstars, some of whom have been accused of violent crimes, to think about the possibility that other, less rich and famous Americans, are rotting in prison on account of wrongful convictions.


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