Friday, September 19, 2014

Americans Don't Want to Kill Innocent People

I've been meaning to respond to Mr. Gillette's thoughtful post inspired by Judge Kopf's statement that “many federal judges, and I would suppose many state judges as well, understand that the death penalty has and will continue to result in the innocent being put to death in some small percentage of the cases.”

Perhaps this is a simple statement of admirable humility: the death penalty is administered by error-prone humans, and thus innocent people will be ground up in the machinery of death that it creates.


Indeed, Judge Kopf relies on a democratic principle: Americans surely know the justice system is imperfect, yet they support the death penalty as part of the justice system. Therefore, the American people are comfortable with the occasional execution of an innocent person. His job as judge is just to implement the justice system established by the democratically enacted laws.

I think there's profound error here. Yes, the American people know the justice system is "imperfect," but not in the way Judge Kopf thinks. I would bet a lot of money that the most well-known aphorism about the American criminal justice system is Blackstone's ratio:
It is better that 10 guilty persons escape than that one innocent suffer. 
Based on this, the popular perception of the American criminal justice system is that it is too lenient. There are too many technicalities, too many loopholes, too many appeals. O.J.!

So I reject Judge Kopf's supposition that people who support the death penalty assume, or are even comfortable with the fact, that innocent people will inevitably be put to death. In all my years of arguing with people about the death penalty (and I've been on both sides) I've never heard the pro-death side acknowledge that innocent people will be killed, thems the breaks. No one has ever argued for what I'll uncharitably christen Kopf's Ratio:
It's okay to kill one innocent man so that 10 guilty men can be put to the death the people think they so richly deserve.
This is not a cherished principle of American law, thank God, and let's hope it never is.

Unfortunately, we are coming to learn that Kopf's Ratio might better reflect the reality of American law, and that raises the question of what to do about post-conviction claims of "actual innocence." More on that next week (if you're lucky).

Monday, September 15, 2014

The Greatest Game (2014 edition)

I am trying, and sometimes failing, to pay less attention to football. As a result, I did not do a post about the Most Important College Football Game Of The Year, i.e., the University of Iowa vs. Iowa State. We have previously covered the 2013 and 2012 versions of the MICGCOTY game here and here.

Recognizing the importance of MICGOTY, sports writer (and Marquette University alum) Charles P. Pierce has an article about the game on Grantland. Mr. Pierce devotes a fair amount of his article to the fact that Iowa State initially missed the game winning field goal but Iowa head coach Kirk Ferentz called time-out at the last moment before the snap in order to try to "ice the kicker." The move backfired as Iowa State made the field goal after the time out. Mr. Pierce suggests that this outcome wonderful because icing the kicker is bad coaching.

I don't know what Mr. Torvik thinks of the icing the kicker strategy but I do know that he is delighted when 13 of the 14 Big 10 schools lose.

Wednesday, September 10, 2014

Some heavy reading on the death penalty.

Judge Richard Kopf has an terrific post (first and third definitions) on his blog, Hercules and the Umpire today. It concerns the death penalty and the execution of people who are "factually," i.e., actually, innocent. I'll do a poor job of summarizing the post in a minute but you should really read the post and then click back to this. I'll wait.

Friday, August 22, 2014

"People can't shoot themselves more than once."

At least that is what Pine County, Minnesota Sheriff Robin Cole told the Associated Press in this story about a man who said he accidentally shot himself four times.The man, who was taken to a Duluth, Minnesota hospital, told investigators that his four gunshot wounds were self-inflicted.The story says the investigators did not believe the man and instead arrested his girlfriend on charges of first-degree assault.

Friday, August 15, 2014

Two sides to every story.

As our Reader(s)™ might have gathered from prior posts, I did not go to law school straight from college. Instead, I kicked around for several years trying to “make it” with my band. During that time, I worked in a couple of restaurants and also as a production worker in a factory (really it was a high-speed bakery but if you tell people you worked in a bakery they get an image of hipsters making artisanal breads. This job was not that. The factory made and bagged 3000 pounds of bread every 12 minutes).

In August 2000, I started law school. About the same time that I started law school, an African-American co-worker of mine from the restaurant (who I liked a lot and always worked really hard at what was a really crappy minimum wage job) pled guilty to 1st degree reckless homicide and was sentenced to 40 years in prison followed by 20 years of supervised release. When his incarceration ends in November 2040, I will probably be a retired grandparent. I can’t guess what life will be like for my former coworker then. He and I are the same age and I have no idea how an ex-con in their mid-70s would find employment.

I was thinking of my friend today because I just got back from vacation and am catching up on the chaos in Ferguson, Missouri. In reading about the story, it reminded me that one day my friend and I were working and I described to him how early one morning the police had found me passed out against a tree in my neighborhood and had given me a ride home rather than arrest me. My coworker looked at me with incredulity and said “Adam, your dealings with the police are a lot different than mine.” He then described a number of incidents of what is now called driving while black.

I do not have any big thoughts to share about Ferguson but whenever there is a story about possible police misconduct, I wonder whether the dealings with the police that the reporter/pundit/blogger/internet commentator has had are more similar to mine or my former coworkers.

Wednesday, August 6, 2014

More on executions

Last week, I posted about an execution in Arizona where the condemned prisoner took almost two hours to die. Part of the post, and the comments, questioned whether the drugs used in the execution where the proper ones. Whatever the problems with Arizona's execution methods, Missouri does not seem to have similar issues.

Saturday, July 26, 2014

The secret principle behind all statutory and constitutional interpretation

We haven't yet discussed the latest legal challenge to Obamacare, which is now in the news thanks to conflicting decisions issued by the DC Circuit and the 4th Circuit on the same day last week.

The issue is that the Obamacare statute says that certain tax credits are available to people who enroll for health insurance on exchanges "established by the State." The act defines "State" to mean a state or territory of the United States, so this raises the question of whether the tax credits are available to people who enrolled on an exchange established not by a state but by the federal government. This is a live issue because many states have not established exchanges, so the federal government has stepped in as a backstop, and the IRS has issued regulations permitting the tax credits for people who enrolled on those federal exchanges.

The court decisions have mostly fallen down along party lines, as has the underlying commentary. Republican judges have found the language of the statute to be unambiguous: the tax credits are authorized only for people who enrolled in exchanges "established by the State" and not by the federal government. Whether or not this was what was "intended" by Congress, there's no real ambiguity in the statute, so it must be applied as written. Besides, this kind of carrot-and-stick federalism is not unheard of—the federal government often puts conditions on its statutes to encourage states to act—so the result is not absurd.

Democratic judges have found plenty of ambiguity in the statute when viewed as a whole, and believe the result—denying affordable health insurance to millions based on a poorly drafted statute—is absurd and clearly contravenes the intent of Congress and the purpose of the Act.

This suspiciously partisan split over the meaning of words has led to some consternation and cynicism. For example, liberal blogger Matt Yglesias:
The deep nature of the division is illustrated by the suspicious way in which legal opinions and policy preferences are lining up on this issue. Essentially everyone who believes the Affordable Care Act was an important step toward securing social justice also agrees that it would be absurd to construe the statute in a manner that’s plainly inconsistent with congress’ goals. And essentially everyone who believes it’s crucially important to give the crucial sentence the most straightforward possible reading rather than defer to the IRS’ efforts to make sense of the law as a whole, also believes that the law is a scandalous boondoggle.
Libertarianish economist Scott Sumner agrees, and goes further:
It’s an embarrassment that the two sides of the debate line up so predictably on a narrow technical issue. It says that intellectuals cannot be trusted to argue in good faith.
That's a bold statement. Can the principles of the Enlightenment be saved from this pit of cynicism and contempt?

I think so. Here's the secret principle behind all good faith legal decision making, including all statutory and constitutional interpretation—a principle that is deeply held by all public intellectuals and by all honest legal scholars, judges and justices of left, right, and center:

Do justice.

Well, okay, you say, but that's a pointless abstraction. Not so. It is the saving grace girding our legal system. Once you realize that people of good faith have profoundly held but deeply opposed conceptions of how to do justice, most of the world's seeming hypocrisy melts away.

Let's take Matt Yglesias, for example. In his post on the new Obamacare challenges, he starts out by stating how frivolous he thinks this legal challenge is:
I'm no lawyer, but from the first time I heard it the theory advanced by the plaintiffs in the Halbig case has struck me as laughably far-fetched and as best I can tell most objective legal observers agree that they are unlikely to prevail.
Reader(s)™ may remember, however, that Yglesias was one of the major proponents of the Trillion Dollar Platinum Coin. In that case, he applied a hyper-textualist reading to the coinage statute to find that it allowed minting of platinum coins of any denomination whatsoever. Now, however, he finds the same analysis (hypertextualism) to be laughably far-fetched. How can these positions possibly be reconciled? Isn't Yglesias just a hypocrite?

Not at all. The cases can easily be reconciled as long as you treat hyper-textualism as a tool to do justice rather than something to be achieved for its own case. In the Platinum Coin case, Yglesias was seduced by hyper-textualism because it provided an opportunity to do what he thought was just: to fund the federal government over what he thought was an insane and probably unconstitutional obstructionism by Republicans. In the new Obamacare case, however, hyper-textualism does a terrible injustice by undoing Obamacare.

There's a common principle here, that everyone can agree with: it is right, proper, and moral to use every tool at one's disposal to do justice. And this makes perfect sense of the partisan judicial split. Republicans are happy to apply a hyper-textualist interpretation of the Obamacare act because they don't think it's a just law—or at least, they don't think undoing it would lead to any profound injustice. Indeed, they probably see it as poetic justice that the law would be undone on a technicality, given the unusual and rushed procedures used to get it passed. Democrats, on the other hand, see the hyper-textualist interpretation as leading to so much injustice as to be practically absurd.

Descriptively speaking, I think there's really an underlying ur-canon of statutory interpretation: apply the plain text unless it seems really unfair or unjust. That's what both the Republican and Democratic judges are actually doing in this Obamacare case, and that's what most judges do most of the time. I don't have a problem with that, and you shouldn't either.

Thursday, July 24, 2014

What is the proper method of execution?

Michael Kiefer of the Arizona Republic has a story about witnessing the execution of Joseph Wood on Thursday afternoon. I recommend you read it.

Mr. Wood was supposed to be executed by lethal injection. When most people hear that term, I think they imagine the condemned receiving an injection, quickly passing out and dying. According to Mr. Kiefer, that is not what happened to Mr. Wood.

Tuesday, July 22, 2014

Judge Posner is Cat Crazy

It is by now well known that Judge Richard Posner is a cat person. It is perhaps somewhat less well known that his love of cats has infected his judicial decision making to an alarming degree.

For example, take Judge Posner's opinion in yesterday's en banc opinion, Markadonatos v. Village of Woodbridge. The case is about whether a town's $30 booking fee imposed on all people arrested—whether innocent or not, whether based on probable cause or not—is a violation of their civil rights.

In typical Posner fashion, he would have decided the case by making up his own interpretation of the ordinance to avoid the constitutional issue, even though no one—not the village police department who actually imposed the fee, not the village lawyers, not the plaintiff, not the district court judge, not one of the three judges who each wrote an opinion for the original panel, etc.—had ever previously raised this interpretation as a possibility, much less argued that it was correct. Even on the full Seventh Circuit court, only two of the other nine judges thought Judge Posner's interpretation was permissible after he thought it up. (The decision in the case is a weird one: there are four different opinions, and none of them carry a majority of votes, so the district court's judgment is affirmed by default.)

Anyhow, one explanation for what was going on with Judge Posner's opinion is that he just couldn't stop thinking about his beloved cat. Basically every legal issue that Posner considers somehow turns into a discussion of cats.

First, we learn of Judge Posner's greatest fear—catnapping. Not a short nap like a cat takes, no, no. Something much more sinister:
The plaintiff’s counsel tells us that the $30 “booking fee” provision is unique among the provisions of the ordinance because it alone imposes a fee for what may be innocent conduct mistakenly believed by police to be illegal. He instances the $15 fee for “release of [an] impounded dog or cat.” But of course a dog or cat may escape the owner’s control, and later be impounded, without fault on the owner’s part. The animal may have been stolen, or have escaped from its home because a careless workman had left a door or window ajar, or been lured from its litter box by a rogue Woodridge police officer with catnip.
I myself have wondered about all those extra compartments on the police officer's standard belt. But it never occurred to me that one of them might be filled with catnip.

Second, we consider the things that Judge Posner's cat likes to jump on:
It’s like interpreting the phrase “my cat enjoys jumping on trampolines and beds” to mean that she enjoys jumping on both things, as opposed to her enjoying jumping only on trampolines and, separately, enjoys beds for reasons unrelated to jumping on them.
So now I imagine this scenario: Judge Posner's cat jumping on a trampoline while he lounges admiringly on his bed, and we soon find out that his cat does indeed enjoy the bed for reasons unrelated to jumping.

Monday, July 21, 2014

A coda to our discussion of religious exemptions?

According to the Washington Post, the Executive Order signed by President Obama to prohibit workplace discrimination against gay, lesbian, and transgendered employees who work for federal contractors (and discussed by Mr. Torvik here) does not contain any religious exemptions for employers who think employing  a gay, lesbian, or transgendered person violates the employer's religious beliefs. In reality, I suspect the issue is more accurately hiring since until today this kind of discrimination by federal contractors was not prohibited.

I hope and that the distinction Mr. Torvik (and others) make between the Hobby Lobby case and employment discrimination. I suppose we will find out in about a year.